Akil Abdul Hamid Kureshi, J.

1. The original accused No. 1 has challenged the judgment of the Sessions Court dated 10.6.2005 in Special NDPS Case No. 5/2002 by which he was convicted for offence punishable under section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ("the Act" for short) and sentenced to rigorous imprisonment of 15 years. Fine of Rs. 1,50,000/- was also imposed.

2. Briefly stated, the prosecution version was that on 23.9.2002 at about 10:15 at night, the appellant was travelling on his motorcycle. He was intercepted by the police party. Search of the motorcycle revealed that the appellant was carrying about 5 kg and 50 grams of opium. The substance was seized and sent for forensic testing. The appellant was arrested. Case of the prosecution is that the appellant had purchased such substance from one Rameshbhai Narayanlal Sharma accused No. 2. Both the accused were therefore, charged under Exh.7 for offence under section 17 read with section 29 of the Act. Accused No. 1, as noted, was convicted. However, for want of evidence, accused No. 2 was acquitted. The State has not preferred appeal against such acquittal.

3. We may refer to the gist of the evidence. Vishrambhai Dhanjibhai Kharadi, PW-1, Exh.12, was the Police Inspector of LCB Anand, at the relevant time. He deposed that on 23.9.2002, he along with the Police Sub-inspector Shri V.J. Raval and other police officers were carrying out night patrolling duty. They were waiting on a road near Hanuman temple when one motorcyclist came on his Hero Honda motorcycle from Anand side. On suspicion, he was stopped. The witness introduced himself as Inspector of LCB and called two panch witnesses. He offered the motorcyclist whether he wanted the search to be carried out in presence of another gazetted officer but he refused for the same. The motorcyclist was Ghelabhai Govindbhai, accused No. 1 i.e. the present appellant. Upon his refusal to opt for being searched by another gazetted officer, the members of the police party and the panch witnesses were first searched, upon which, nothing objectionable was found. Afterwards, first the accused was searched from whom Rs. 510/- was recovered. After that Hero Honda motorcycle was searched. From its dicky, in a bag, a solid object was found. Upon taking out the object from the plastic bag, it was found to be blackish thick substance which appeared to be opium from the smell. The substance was weighed in presence of the panchas. The weight came to 5 kg and 50 grams. It was packed, sealed and recovered for further investigation. This person did not have permit to carry such substance. His motorcycle and the substance were both seized under the panchnamas and the accused was placed under arrest. The sealed packet of the substance was handed over by him to PSO of Anand police station. The witness identified the accused before the Court as well as the substance recovered during the raid from him.

He further deposed that on 25.9.2002, PSI Shri Jadav of Anand Rural police station had told him that the Forensic Science Laboratory had returned the parcel conveying that only sample may be sent for analysis and not the whole quantity.

In the cross examination, he admitted that on Hanuman temple road, many vehicles and people continuously pass. He did not remember how many of such vehicles he had checked on that night. He agreed that the motorcycle of accused No. 1 was stopped on the suspicion of the offence under the Prohibition Act. They were stopping vehicles on the basis of suspicion. After stopping the motorcycle on the basis of suspicion, he had called the panch witnesses. He denied that the panch witnesses were called after checking the dicky of the motorcycle. He had offered the search in presence of another gazetted officer in connection with the narcotic substance but denied that such offer was made after the search was carried out.

He was shown muddamal article No. 1, the seized quantity of opium. He state