Honble GARG, J.–Both appeals are being decided by this judgment as they have been preferred against the common judgment and order dated 12.5.2000 passed by the learned Special Judge, NDPS Cases, Chittorgarh in Sessions Cases No. 100/97 by which he convicted both the accused appellants for the offence u/S. 8/18 of the Narcotic Drugs and Psychotrophic Substances Act, 1985 (hereinafter referred to as `the NDPS Act) and sentenced each of them to undergo ten years RI and to pay fine of Rs. one lac, in default of payment of fine to further undergo one year RI.

(2). They arise in the following circumstances.:-

Facts pertaining to accused appellant Suresh Chandra (S.B. Criminal Appeal No. 266/2000):

On 11.4.1994 at about 5.15 AM, PW11 Satish Kumar, SHO, Police Station Sambhupura received a secret information from Mukhbir to the effect that one Suresh Chandra was engaging himself in the business of contraband opium and on that day he would come on foot alongwith the contraband opium from village Bhawaliya. That information was reduced into writing by PW 11 Satish Kumar and the same is Ex.P/18 and its copy was also forwarded by him to superior officers. Thereafter, as per that information, PW 11 Satish Kumar alongwith other police officials including PW 7 Madanlal and PW 4 Bhanwar Singh proceeded towards the spot in a Government Jeep No. RJ 09/C 369 and on the way they took two motbirs, namely, PW 5 Onkarlal and PW 6 Nandlal and reached there and made Nakabandi near the Nala of village Bhawaliya. At about 6.30 AM, they saw a man coming from the side of village Bhawaliya and that man was apprehended and on being asked, he told his name as Suresh Chandra (present accused appellant). PW 11 Satish Kumar informed the accused appellant that he had information that accused appellant had contraband opium with him and, therefore, PW 11 Satish Kumar wanted to make search of the accused appellant, and thereafter, PW 11 Satish Kumar gave notice u/Sec. 42, 50 of the NDPS Act to the accused appellant. Upon which, accused appellant gave his consent. Thereafter, PW 11 Satish Kumar made search of the accused appellant and on search, a green colour bag of cloth was found in his left hand and on opening it, double white plastic pouch containing liquid substance was recovered and on seeing and tasted, it was assessed that it was nothing, but contraband opium. It was weighed and its weight was found to be 1 kg. 50 grms., out of which, two samples of 30 grms. each were taken and sealed on the spot and marked as A-1 and A-2 and the remaining opium was also sealed on the spot and marked as `A. The fard of search and seizure was prepared by PW 11 Satish Kumar on the spot and the same is Ex.P/5 and specimen meals were also taken by PW 11 Satish Kumar on a separate paper and the same is Ex.P/11. The so-called notice alleged to have been given to accused appellant u/Sec. 50 of the NDPS Act is Ex.P/9, in which it is stated whether the accused appellant wanted to be searched before the Magistrate or Gazetted Police Officer. The accused appellant was arrested through Ex.P/10. Thereafter, the seized articles were given by PW 11 Satish Kumar to PW 4 Bhanwar Singh, who deposited the same in the Malkhana and made entries in the Malkhana Register Ex. P/4. PW 11 Satish Kumar chalked out the regular FIR and the same is Ex.P/19. After registering the FIR Ex.P/19, PW 11 Satish Kumar gave the investigation of the case to PW 10 Bhanwar Singh, who was SI in that Police Station.

Facts pertaining to accused appellant Gopilal (S.B. Criminal Appeal No. 238/2000):

During investigation, the accused appellant Suresh Chandra in Appeal No. 266/2000 gave information Ex.P/15 on 12.4.1994 at about 7.30 AM to the effect that he purchased opium from one Gopilal S/o Jeevan Lal.

Pursuant to the above information Ex.P/15, PW 10 Bhanwar Singh arrested the accused appellant Gopilal on 12.4.1994 at about 12.30 PM through Ex.D/4. During arrest, the accused appellant Gopilal gave information Ex.P/16 to PW

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