IMPORTANT POINT
Where notice under Section 50 of NDPS Act to accused failed to specifically convey that accused had right to be taken before G.O. or Magistrate for his search if he so required, it is not a due compliance of mandatory provisions.

JUDGMENT

K.S. Gupta, J. - This appeal by Shakil Ahmad @ Pappu and Wasim Ahmad accused-appellants is directed against the judgment dated 28th April, 1997 and order dated 1st May, 1997 of an Additional Sessions Judge convicting them under section 20 of, the Narcotic Drugs and Psychotropic Substance Act (for short the 'Act') and sentencing to RI for 10 years and pay a fine of Rs. 1 lac each. In default of payment of fine appellants are further to undergo RI for one year.

2. Case of the prosecution is that on 27th January, 1994 at about 10.30 a.m. a secret informer intimated Inspector, J.S. Rana (PW-8) that Shakil Ahmed. Wasim Ahmed and Kamal Babu who are having charas in huge quantity would pass through Irwin Hospital in Ambassador car No. UP-53-B-9458 between 11.00 to 12.00 noon. After recording this information in the DD at No. 11. PW-8 intimated about it to ACP H.L. Manaktala, PW-5. On direction of PW -5 a raiding party was organised by PW-8 whrerein HC Ram Bahu. PW-7. HC Jai Bhagwan. PW-6, W.H.C. Ved Wati. Constables Vinay Kumar, Arvind Kumar, Raj Kumar and Datar Singh were included. All of them alongwith informer left in vehicle Nos. DL-I/CC4416 and DL-2CC-2086 and reached the chambery of Minto Road and Jawahar Lal Nehru Marg around 10.45 a.m. where nakabandi was made 4/5 persons were requested to join raid but they left expressing their inability without disclosing their names and addresses. It is further alleged that at about 11.25 a.m. at the pointing out of informer said Car No. UP-53B-9458 while coming from the side of Irwin Hospital was chased. After overtaking the car which was being driven by Kamal Babu. PW -8 got it stopped near Ajmeri Gate Chock opposite UP Roadways Bus stop. Shakil Ahmed and Wasim Ahmed, appellants were sitting on the back seat of car. All the three were apprised of secret information by PW-8. Thereafter notices in writing under section 50 of the Act Exs. PW-5/ A. Ex. PW-5/B and Ex. PW-5/C were served on them. Appellants and Kamal Babu declined to be searched either before a Magistrate or Gazatted Officer. On search of Kamal Babu being taken by PW -8. charas contained in a polythene packet was recovered from the right side lower pocket of his coat. On weighment charas came out to be 500 grams out of which 50 gram was separated as sample. Shakil Ahmad @ Pappu appellant handed over a packet after taking it out from the front right side of pocket of his coat to PW-8. On weighment, charas contained in the packet came out to be 500 grams out of which 50 grams was separated as sample. Wasim Ahmad appellant also handed over a money bag containing charas to PW-8. On weighment charas contained in the bag came out to be 2 kgs out of which 200 grams was separated as sample. Packets of sample and remaining charas were separately packed and sealed with the seal of JSR by PW-8. On checking the said car. 77 kgs of charas concealed at different places was further recovered. One kg of charas was separated therefrom as sample. Sample and remaining charas were also converted into separated parcels and sealed with the seal of JSR, CRCL forms were filled up and seal of JSR also affixed thereon. Since appellants and Kamal Babu had committed offence under sections 20 and 25 of the Act. rukka Ex. PW-8/ A was prepared by PW-8 and on the basis thereof FIR (carbon copy Ex.PW-3/A) was, registered. Recovered charas was seized vide memo Ex. PW-5/D. Samples were sent to CRCL for analysis and as per reports Exs. PW-6/DA. Ex. PW-6/ DB and Ex. PW-6,/DC they gave positive test for charas. After completing investigation charge-sheet under said sections was filed against the appellants and Kamal Bahu.

3. In their statements under section 313 Cr.P.C. the plea taken by both the appellants is of plain denial.

4. To bring home the charges under sections 20 and 25 of the Act the prosecution examined 8 witnesses in all including ACP H.L. Manaktala. PW-5. HC Jai Bhagwan, PW-6 and HC Ram Bahu. PW-7 and Inspector J.S. Rana. PW-8 alleged witne