JUDGMENT :

H.H. Mehta, J.

The original accused - Abdul Salam Yusufbhai Shaikh of N.D.P.S. Case No. 8 of 1996 tried and decided by the learned Additional Sessions Judge, Valsad at Navsari (who will be referred to as 'the learned Judge of the trial Court') has, by preferring this appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') read with Section 36B of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short the 'N.D.P.S. Act') challenged the correctness, legality, validity and propriety of judgment Exh. 42 rendered on 30th December, 1998, in aforesaid N.D.P.S. Case No. 8 of 1996 by the learned Judge of the trial Court by which said accused came to be convicted under Section 235(2) of Cr.P.C. for offence punishable under Section 22 of the N.D.P.S. Act, and he sentenced to undergo R.I. for 12 years and to pay a fine of Rupees One lakh, and in default of fine to undergo further imprisonment for one year.

2. The facts leading to this present appeal in a nutshell can be summarised as follows :

2.1 On 15-2-1996, P.W.4 Mr. Prakash Mahendrabhai Jadav was serving as Police Inspector in State Narcotic Cell, C.I.D. Crime, Gujarat State, Ahmedabad. Mr. Jadav, in company of Deputy Superintendent of Police Mr. Modi, Police Inspector Shri N.M. Pathan and other Police personnel had come to Navsari to carry out the raid on the basis of information with regard to narcotic drugs. During their visit at Navsari, at about 19-00 hrs., Mr. Jadav received an information from one informant to the effect that one person named Abdul Salam Yusufbhai Shaikh, resident of Jumma Masjid, Navsari, was selling charas being narcotic substance, on the otta of Jumma Masjid at Navsari and that he had put on one sky-coloured full sleeves open shirt and white pant. In the information, it was also stated that said person was of black complexion with small stature. On receipt of such information, Mr. Jadav informed the Deputy Superintendent of Police of Narcotic Cell Mr. Modi about the said information in writing. He by that writing requested to inform Police Inspector Mr. M. F. Jadav of Navsari Town Police Station.

2.2 Thereafter, two independent persons who can act as panch witnesses were called in Navsari Town Police Station. Mr. Jadav apprised of the panch witnesses and other members of the staff and members of the raiding party about the information which he had received. Before leaving Navsari Town Police Station, inter-se search was taken and given to panch witnesses and members of the raiding party. Before leaving Navsari Town Police Station, Mr. Jadav drew a preliminary panchnama during the period between 19-35 hrs and 19-55 hrs. Thereafter, they left Navsari Police Station for Jumma Masjid. When they reached Jumma Masjid, they found that one person of small stature and whose complexion was black, was found sitting on the otta (steps) of Jumma Masjid. He had put on light sky-coloured full sleeves open shirt and white pant. By rushing towards that person immediately that person was caught hold off by members of raiding party and they made a cordon surrounding that person. Mr. Jadav asked the name of that person, and on being asked that person said that he was Abdul Salam Yusufbhai Shaikh, resident of Jumma Masjid, Navsari (he is appellant before this Court).

2.3 Thereafter, Mr. Jadav apprised of appellant about the information which he had received. Mr. Jadav made the appellant to understand that he wanted to search his person, and therefore, if he wanted to call a Magistrate he could call such Magistrate or that if he wanted to go to some Magistrate or if he wanted to get himself searched by some Gazetted Officer he could do so. The appellant declined to call anyone. For giving this type of information to appellant a separate writing was given to the appellant. The appellant allowed Mr. Jadav to take search of his 'person'. On making search of 'person' of the appellant in presence of panch witnesses, some article was f