( 1 ) ). One Hathi alias Mangaldas Ramdayalji was found with some posh na doda at Vadodara Railway Station, Platform No. 3 in the morning at about 5-30 a. m. of 7-5-1988 by P. S. I. , I. C. B. Shri Budarbhai Narothambhai chavda and member of his staff. About 15 kg. of posh na doda was found from his possession. Sample of about 100 gm. was taken. It was sent to forensic Science Laboratory, Surat where Sr. Scientific Assistant-cum-Assistant chemical Examiner to Government of Gujarat, Regional Forensic Science laboratory, Surat found it to be fragments of poppy straw (posh doda) (poppy straw ). He was therefore charge-sheeted and was committed to the Court of sessions, Vadodara where the case against him was registered as Sessions Case no. 172 of 1988. He was tried and ultimately found guilty by the Additional sessions Judge, Vadodara by his judgment and order dated 26-6-1989. The learned Judge held him guilty under Sec. 15 of the Narcotic Drugs and psychotropic Substances Act, 1985 (hereinafter referred to as n. D. P. S. Act) and awarded sentence of five years R. I. and a fine of Rs. 1. 00 lakh in default two years R. I. He was also held guilty under Sec. 66 (l) (b) of the bombay Prohibition Act for which separate sentence was not awarded.

( 2 ) ). Being aggrieved by the judgment and order he (Hathi alias Mangaldas ramdayalji) has preferred Criminal Appeal No. 477 of 1989 while the State of Gujarat has also preferred a Criminal Appeal No. 496 of 1989 for enhancement of sentence. Both the appeals are admitted and placed for final hearing before us. As both the appeals arise from the common judgment they are disposed of by this common judgment.

( 3 ) ). Heard Mr. Budhbhatti, learned Advocate for the accused and learned a. P. P. Shri S. P. Dave for the respondent-State.

( 4 ) ). Mr. Budhbhatti has challenged the order of conviction on the grounds that the prosecution has failed to prove that the muddamal is found from possession of the accused. Even if so found, the prosecution has failed to establish that the said substance is a poppy straw as defined in clause (xviii) of Sec. 2 of N. D. P. S. Act, 1985, possession of which is prohibited under Sec. 15 of N. D. P. S. Act, 1985. Thus, learned Additional sessions Judge has erred in holding that the accused was found in possession of said posh na doda (poppy straw;) and/or the learned Additional Sessions judge has erred in holding that the substance found from possession of the accused is poppy straw as defined in clause (xviii) of Sec. 2 of the N. D. P. S. Act. Mr. S. P. Dave, learned A. PP. supports the judgment and order of conviction. He, however, contends that so far as sentence part of the judgment is concerned, the learned Judge has erred in imposing a lesser sentence than the minimum sentence prescribed under Sec. 15 of the N. D. P. S. Act and it therefore be enhanced.

( 5 ) ). Before discussing the diverse contentions of the parties, it will be relevant to refer to one aspect of the matter in this case. Mr. Budhbhatti, while referring to the report (Exh. 10) of the Sr. Scientific Assistant contended that though it is mentioned in the report that it is a vegetable plant to be a posh na doda, there is no botanical report of the substance. We, therefore, in the interest of justice called for the Sr. Scientific Assistant who had submitted report (Exh. 10 ). Said Sr. Scientific Assistant disclosed that in this matter botanical report was also obtained. However, as the same was not on record, we examined him as a witness before this Court and got produced the said report on record.

( 6 ) ). The first question to be answered is whether the learned Assistant sessions Judge has erred in holding that the accused is found in possession of contraband goods. To establish this fact prosecution has examined P. S. I. Shri Chauhan (Exh. 13), Police Constable Shri R. A. Sharma (Exh. 15), an independent witness A. B. Chauhan (Exh. 16) and a panch witness Shri r. Shivaji (Exh. 11 ). All