The mandatory nature of recording prior information and grounds of belief and sending a copy to the immediate official superior, as well as the right of the accused to be searched in the presence of a Gazetted Officer or a Magistrate, is crucial in establishing the legality of search and seizure under the NDPS Act.

Arun Madan, J.-Amar Singh (appellant) has challenged by way of this appeal his conviction imposed by the Special Judge (NDPS Cases), Jhalawar by Judgment dated 21-11-98 whereby for offence punishable under Section 8/21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short NDPS Act) the appellant has been sentenced to undergo ten years’ RI with a fine of Rupees one lac (in default, further one year’s RI).

2. The prosecution case is that upon having received a secret information by the Central Narcotic Bureau that accused Amar Singh had illegally preserved and kept contraband ‘heroin’, a raid was conducted in the presence of motbir witnesses by the preventive raiding party on 10-4-1997 at 20.30 hours in the house of Amar Singh situated in Panchayat Gali Dharamshala Mohalla, village Choumhalla, Tehsil Gangdhar, District Jhalawar. The raiding party surrounded the house of Amar Singh. Amar Singh was found in his house situated at the above address and after introducing himself , Kawal Singh SI of the Narcotic Bureau asked the accused as to get his house searched in order to find out contraband ‘heroin’ therein as they have secret information thereto and he was also asked as to his right to get the house searched in the presence of a nearby Magistrate or Gazetted Officer, to which the accused desired to get his house searched in the presence of Gazetted Officer, therefore, through wireless, message was given to R.K. Sinha, Superintendent of the Bureau by Kawal Singh and R.K. Sinha reached the spot house of accused and introduced himself as Gazetted Officer and asked as to whether he had given written consent for search in his presence. Thereupon ‘Panchnama’ was prepared and Kawal Singh and N.P. Gaur both Sub-Inspectors firstly gave their own persons’ search and then both these Inspectors, motbir witnesses and Gazetted Officer entered inside the

house and search process commenced. During the search, in a room situated just opposite staircase and near/just ahead ‘Chandani’, a sack of four square check cloth duly wrapped in a white cloth was found lying below the bed at its leg side and when the sack was duly untied then all the four square packets to it were found having contained pink colour powder substance in plastic sachets. These plastic sachets containing pink colour powder were opened whereupon pink colour powder was got tested by seeking and taking its smell by the members of the raiding party then such contraband powder was found as ‘heroin’. Plastic sachets containing contraband heroin was weighed and its weight was found 1.350 kgs. After observing necessary procedure at the spot, the contraband ‘heroin’ was seized. Sample weighing 5 gms. each from four square packets of cloth sack was taken and then got them sealed in white envelope duly wrapped in white polythene small sacks while the rest of the seized contraband heroin was got packed and sealed including check cloth bag by duly wrapping with a white cloth. Samples taken from the seized contraband heroin were sent to the Chemical examiner who in his report (Ex. P.8) dated 2-7-97 reported that the sample is found by qualitative/quantitative analysis to be diacetyl morphine (Heroin) within the meaning of Section 2 (xvi) of the NDPS Act.

3. It is the prosecution case that after having completed recovery and seizure proceedings, statement of Amar Singh was recorded wherein he admitted his conscious possession of the contraband heroin. Accused Amar Singh was taken into custody and arrested. Thereupon, a detailed report about the raid proceedings was sent to the Superintendent, Preventive Force, Neemuch Under Section 57 of the Act. Accordingly, Mahavir Singh Inspector was appointed to investigate the case but he was changed by appointing V. K. Jain as Investigating Officer. After usual investigation and completion thereof , criminal complaint for Crime No. 23/97 of offence Under Section 8/21 of the NDPS Act for the seizure of 1.350 kgs. of herein in a