Hon'ble RATHORE, J.—Heard learned counsel for the appellant and the learned Public Prosecutor.

2. A challenge in this appeal has been made by the accused appellant to the judgment dated 20.12.2003 passed by the learned Special Judge, N.D.P.S. Cases, Ajmer in Sessions Case No. 23/2003, whereby he has been convicted for the offence under Section 8 read with Section 21(C) of the N.D.P.S. Act, 1985 and sentenced for 10 years' R.I. and a fine of Rs. 1,00,000/-, in default of which to further undergo two years' R.I.

3. Briefly stated the facts of the case are that on 22.4.2003 at about 4.00 pm., Bhawani Singh, Sub Inspector received an information that a CBZ Hero Honda Motorcycle of silver colour, having written A/F on the rear number plate, was being driven by Kishan Lal S/o Laduram and one another Umrao S/o Nathuram sitting on the back seat are carrying contraband smack. Both persons are residents of Bandanwara. Further, he was informed that between 4.45 to 5.00 pm., those persons would be coming to sell the contraband, near Railway Crossing, Parvatpura. The said information was reduced in writing and copies of the same were sent to the Superintendent of Police and Circle Officer (South), through constable Shoudan Singh. Thereafter, constable Babulal was sent to bring witnesses. He had brought Anil Kumar and Rustam Khan and both of them had given their consent, individually, for being the witnesses.

Subsequent to 4.45 pm., the Incharge Bhawani Singh of Police Station Adarsh Nagar; H.G. Raghvendra Suhasa and Hanuman Singh Kavya of Alwar Gate Police Station alongwith police party as also the aforesaid witnesses proceeded from the police station. The police party had taken the special informer with them to the Railway Crossing, Parvatpura and thereafter they saw a Hero Honda Motorcycle, without number, coming towards them and the special informer gave the signal and sent away. The Incharge Bhawani Singh alongwith police party and the witnesses, intercepted the motorcycle and the two persons sitting on it got nervous. Then the accused persons were interrogated. The person driving the motorcycle, disclosed his name to be Kishan Lal and one sitting behind his as Umrao. Both of them were told about the information received with regard to their carrying contraband smack.

After giving notice under Section 50 of the NDPS Act and obtaining receipt, the accused appellants were searched. They had given their consent in writing and the same were taken on record in presence of the witnesses. On search of the two accused persons, a polythene bag was recovered from the trouser pocket of Umrao, containing the contraband smack. The said item was shown to the witnesses and they unanimously opined that it was smack. The accused persons, on having been asked, declined to have any licence/permit for keeping the said contraband. Both the polythene bags contained 688 gm. of smack and the net weight without polythene was 678 gm and 310 mg. Thereafter samples, weighing 5 gm. each, were taken from the polythene bag for the purpose of FSL analysis.

4. After conclusion of the investigation, the matter was submitted before the Special Judge and the learned court then charged the accused for the offences under Section 8/21 of the NDPS Act. In support of its case, the prosecution produced 7 witnesses and the documents which were collected during investigation. The statement of the accused was recorded under Section 313 Cr.P.C. On conclusion of the trial, the learned court below acquitted the accused Kishan Lal of all the charges but convicted and sentenced the accused appellant as aforementioned. Hence, the present appeal before this Court.

5. The learned counsel for the accused appellant has primarily submitted that the entire proceedings against the accused appellant and in furtherance thereof, the judgment passed by the learned trial Court is vitiated only on account of the fact that the search and seizure which was the basis of the alleged recovery of the contraban

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