JUDGMENT :

Z.K. Saiyed, J.

The present acquittal appeals have been filed by the appellant-original complainant, State of Gujarat under Section 378 of the Cr. P.C., against the Judgment and order dated 31.08.1994 rendered by the learned Additional Sessions Judge, Banaskantha, Palanpur, in Sessions Case Nos. 70 and 71 of 1992. The said cases were registered against the present respondents-original accused for the offence under Section 17, 22 and 29 of the Narcotic Drugs and Psychotropic Substance Act, 1985.

2. According to the prosecution case, complainant M. M.Parmar was serving as Police Sub-Inspector at Himatnagar, Sabarkantha and was investigating the offence of prohibition bearing registration C.R.No.19 of 1992 of Vijaunagar Police Station for the offences of the NDPS Act. During the said investigation, accused No.1 Omkardas Parshuram Beragi was arrested and was produced before the Judicial Magistrate First Class, Khedbramha and remand was obtained and during the remand, it was disclosed by him that he has purchased the said opium from Rajasthan and he was going to sell that opium to Sabarkantha and before 20 days, he sold the opium to Sompuri Halabharthi Bava and Gemarpuri Halabharthi Bava respondent No.2 herein, resident of Pipli village, Taluka: Palanpur. Both the brothers-respondents-accused were carrying out such illegal business from their house. Therefore, Mr.Parmar, PSI, on 13.03.1992 called members of raiding party at his office and came to Palanpur and on 14.03.1992, PSI, Parmar has informed PSI, Vaghela and District Superintendent was also informed and they all went to Village Pipli, Taluka:Palanpur to respondent-accused No.2, who run away from the place. Thereafter, a search was carried out of the house of the respondents-accused and from one Tiffin box, one bag was found and from that bag, opium was recovered and Wight and measurement was undertaken. Thereafter, panchnama was of seizure was drawn and muddamal was seized at the place of offence and seal was also applied on the same. The complainant filed complaint filed complaint against the respondents-accused to PSI of Palanpur Taluka Police Station for the offences punishable under Sections 17, 22 and 29 of the Narcotic Drugs and Psychotropic Substance Act, 1985 and PSI, Vaghela, sent the forwarding letter, muddamal and complaint to Palanpur Taluka Police Station. Thereafter, the investigation was handed over to Mr.Vaghela, PSI. Then, statement of the witnesses were recorded and respondents-accused were arrested. Then, he filed charge-sheet against the respondents-accused before the learned Judicial Magistrate First Class, Palanpur for the said alleged offences. As the said cases were exclusively triable by the Court of Sessions, learned JMFC, Palanpur committed the said cases to the Court of Sessions, Banaskantha, Palanpur, which were registered as Sessions Case Nos. 70 and 71 of 1992.

3. On the basis of above allegations, charge was framed vide Exh.4 and read-over and explained to the accused for the offences punishable under Section 17, 22 and 29 of the Narcotic Drugs and Psychotropic Substance Act, 1985. The respondents-accused pleaded not guilty to the charge and claimed to be tried.

4. Thereafter, after filing closing pursis by the prosecution, further statement of accused person under Section 313 of the Code of Criminal Procedure, 1973 was recorded, wherein, it is admitted by the respondents-accused that they were innocent and they have not committed any offence. The respondents-accused have denied the case of the prosecution and submitted that a false case is filed against them.

5. In support of the prosecution case, prosecution has examined following oral evidences :