Ghanshyam Prasad, J.

1. Both the aforementioned appeals arise out of one and the same judgment of conviction and sentence dated 15.7.2004/17.7.2004 passed by Ist Additional Sessions Judge, Sasaram in Dehri P.S. Case No. 196 of 2001 whereby both the appellants have been convicted under Sec.21 of the N.D.P.S. Act and have been sentenced to undergo R.I. for ten years with fine of Rs. 1 lac each and in default to further undergo R.I. for two years.

2. Prosecution story in brief is that on 19.8.2001 in the evening, incharge of Dalmianagar O.P. S.I., Sri Tutu Ram (P.W.1) alongwith armed forces was on evening patrolling. In course of it, at about 6:30 P.M. the team reached at Choudhury Chowk and started checking of two wheelers. In the meantime, two persons came in suspicious condition. They were challenged and on doubt their persons were searched in presence of two local witnesses, namely, Baban Dubey (P.W.2) and Harendra Singh (P.W.3). The appellant Umesh Kumar was found in possession of 15 puriya of heroin like substance and appellant Heera Lal Soni was found in possession of 16 puriyas of heroin like substance. Mr. Tutu prepared two separate seizure list which are Exts.1 and 1/1.

3. Both the appellants were arrested and were brought in police station where S.I. Tutu Ram got police case registered against both the appellants on his self statement (Ext.2). Shri R.N. Jha, S.I. P.W.8 investigated the case. In course of investigation, the sample of seized substance was sent to the Director, Forensic Science Laboratory, Patna for chemical examination. The sample was found to be heroin, highly addictive intoxicant. Report is Ext.5. The I.O. after investigation submitted chargesheet against both the appellants under Sections 18/21 of the N.D.P.S. Act.

4. In course of the trial, charge only under Sec.21 of the N.D.P.S. Act was framed against both the appellants. Eight witnesses including the informant Tutu Ram as P.W.1 and I.O. R.N. Jha, P.W.8 have been examined. P.Ws.2 and 3 are seizure list witnesses and the rest are police constables who were members of the patrolling party.

5. The defence of the appellants is mere denial of the offences. According to them, they have been falsely implicated in this case. As a matter of fact, nothing was recovered from their possession. However, no defence witness has been examined in support of their defence.

6. The learned Counsel for the appellants challenged the judgment in question on many counts. However, the main contention is non-compliance of mandatory provision of Sec. 50 of the N.D.P.S. Act. It is submitted that search and seizure without compliance of provision of Sec. 50 is illegal and bad in law and, therefore, no conviction can be based on such seizure and search. In support of his contention, he has relied upon two decisions of the apex court reported in 1999 Supreme Court 1573 (Abdul Bhai V/s. State of Gujarat) and 1995 Supreme Court 244 (Ali Mustafa Abdul Rahman V/s. State of Kerala).

7. Other important submission is that the learned lower court has wrongly awarded sentence of R.I. for ten years to the appellants. There is no material or evidence on the record to show that the appellants were in possession of more than small quantity or commercial quantity of heroin. On the other hand, the evidence on record would go to show that the total weight of heroin was within the limit of small quantity. The maximum sentence as provided under Section 21(a) of the Act for possession of small quantity is only six months with fine of Rs. 10,000/-.

8. In this case, the date of occurrence is 19.8.2001. In other word, before the Commencement Act 9 of 2001. Therefore, this case shall be governed by Principal Act of 1985. Sec. 50 of the Principal Act runs as follows:

50. Conditions under which search of persons shall be conducted.- (1) When any officer duly authorised under Sec. 42 is about to search any person under the provisions of Sec. 41, Sec. 42 or Sec. 43, he shall, if such person so req