JUDGMENT :

C.K. Buch, J.

Both these appeals are filed by the appellants-original accused Nos.1 and 3 under the provisions of Section 374 read with Section 386 of the Code of Criminal Procedure, 1973, inter-alia challenging the judgment and order of conviction and sentence dated 29/03/2005 passed by the learned Additional Sessions Judge, Valsad in Special (N.D.P.S.) No.2 of 2003. Total three accused persons were charge-sheeted and tried for the offence punishable under Sections 8(c), 22 and 29 of the Narcotics Drugs and Psychotropic Substance Act (hereinafter referred to as the "N.D.P.S. Act") wherein at the end of trial all the accused persons were sentenced to undergo seven years rigorous imprisonment and to pay a fine of Rs. 50,000/- each and in default of making payment of fine to undergo simple imprisonment for one year.

2. Criminal Appeal No.1307 of 2005 is filed by the original accused No.1; whereas Criminal Appeal No.1598 of 2005 is filed by the original accused No.3. The Court is informed by the learned Advocates appearing for the parties, that original accused No.2 has not preferred any appeal challenging the judgment and order of conviction and sentence.

3. According to prosecution Rs. 46,925/- had been recovered from the house of original accused No.1 and it was ordered to return the said amount to accused No.1 after expiry of the statutory period of filing an appeal. On the other hand, the - State has not preferred the appeal under the provisions of Section 377 of the Code of Criminal Procedure for enhancement of sentence nor has submitted that cash recovered from the house of original accused No.1 requires to be confiscated to the State.

4. I have heard Mr. Devang Joshi, learned Advocate appearing for Mr. P.R. Nanavati for the appellant of Criminal Appeal No.1307 of 2005 and Ms. Ruppal Patel, learned Advocate appearing in Criminal Appeal No.1598 of 2005, as well as, Mr. Bhate, learned Addl. Public Prosecutor for the - State.

5. To appreciate the rival side contentions, it would be beneficial to state the basic facts of the case of prosecution in brief.

5.1 It is alleged that Police Inspector, Mr. V.J. Joshi of Vapi G.I.D.C. Police Station, Dist: Valsad was discharging his duty on 24/01/2003 and present at the police station. He was informed at about 3:30 p.m., by P.S.I., Mr.Prakash Kanojia serving in District Valsad about the secret information received by him that original accused No.1 - Faridabanu Sheikh, widow of Shamsad Ali Ismail Sheikh with her elder brother-in-law, Navsadali Ismailali Sheikh called original accused No.3 - Ramesh Narayan - appellant of Criminal Appeal No.1598 of 2005 for selling brown sugar and possessing stock of brown sugar and the residence of original accused No.1 and that brown sugar has been sold from the residence of original accused No.1. According to prosecution, upon receiving information, Mr.Joshi, Police Inspector, recorded the said information in writing in the Police Station Diary vide Entry No.23 of 2003 and managed to send the copy of the same in a sealed envelope to the Deputy Superintendent of Police, Vapi in the form of report through Police Constable, Mr.Jinabhai Premabhai. That the information is with regard to narcotic drug and if the same is found then to carry out chemical analysis, it would be proper to call Scientific Officer and therefore one Mr.Patel, Scientific Officer was called telephonically in the evening at about 5:00 p.m. It is alleged that Mr.Patel had reached alongwith his examination kit and he was intimated about the information received. Two persons were selected as Panchas and therefore the house of the original accused No.1 was raided by P.S.I., Mr.Kanojia and Mr. D.N. Barad, Sunil A. Mishra and Mr. Omprakash Rambahadur, Armed Constables, and a Woman Police Constable, Usha Ajibhai. The Panchas were intimated and inter se search of persons who were to