JUDGMENT (ORAL) G.D. Kamat, J - The appellant appeals against the order dated 9th March, 1993 whereby he has been convicted in Special Criminal Case No. 48/92 under Section 20(b)(ii) of the N.D.P.S. Act 1985 and sentenced to undergo 10 years of rigorous imprisonment and in addition to pay a fine of Rs. 1,00,000/- in default of payment of fine to undergo further imprisonment for one year. 2. The story of the prosecution is that on 15th January, 1992 the raiding party belonging to Anti-Narcotic Celled by P.I. Allen D'Sa apprehended the appellant at about 11.50 a.m. during which he made a disclosure that he had charas kept in a dark blue flask in a restaurant known as Shiva Dens Inn Restaurant; that a large quantity of 1.5 kg. of charas of the value of Rs. 60,000/- was recovered from the flask which was in the kitchen of that restaurant. It is further the case of the prosecution that at the relevant time one Birbal Premchand Bodh alias Tinsingh and Harish Juberam Thakur were found in the said restaurant and who disclosed that the appellant is the owner of the business. It is also the case of the prosecution that the premises where the restaurant carries on its business are owned by one Denis Paulo D' Mello. This emboldened the Police, the raiding party to haul at all the above mentioned persons on a charge that the appellant and the aforementioned Birbill and Harish were in possession of 1.5 kg. of charas in contravention of Section 8 of the N.D.P.S. Act and further that Dennis Paulo D 'Mello being the owner of the restaurant premises having permitted the same to be' used for commission of offence is also liable for trial under sections 25 and 29 of the Act. 3. It is common ground that the trial Judge did not find any evidence against the aforementioned Birbal, Harish and Denis with the result they came to be acquitted. The trial Court found that the accused had himself discovered 1.5 kg. of Charas from a flask lying in the kitchen of Shiva Dens Inn and therefore contravened the provisions of section 8 and punishable under section 20(b)(ii)of the Act. 4. The main submissions in this appeal are to urge that the conviction is not sustainable. The trial Court found that the accused had himself discovered 1.5 kg. of Charas from a flask lying in the kitchen of Shiva Dens Inn and therefore contravened the provisions of section 8 and punishable under section 20(b)(ii)of the Act. 4. The main submissions in this appeal are to urge that the conviction is not sustainable. In the first place it is urged that the raid conducted by the anti-narcotic cell has not complied with any of the mandatory provisions contained in Chapter V and in any case the mandatory requirement under section 42(1) having not been complied with the entire trial is vitiated. In the second place it is urged that there is no recovery insofar as the appellant is concerned which can sustain the test of section27 of the Evidence Act and if the recovery is not accepted there is nothing to suggest that the appellant was in possession of the apprehended charas or that he was in possession of Shiva Dens Inn, Anjuna: 5. An attempt was made by Shri Pater D' Souza, learned counsel for the appellant to urge before this Court that then the appellant disclosed while seated in a police jeep that there are more drugs kept in a dark blue flask in, the kitchen of Shiva Dens Inn the Investigation, officer did not reduce this information in writing, Apart from this breach he urged that the Investigation Officer did not record reasons and belief that an immediate search is necessary and seizure was required will the result the mandate of section 42(1) of the N.D.P.S. Act is breached and consequently the whole trial stands vitiated. He now places reliance on the case of State of Punjab v. Balbir Singh1. It must be considered that this judgment, the first in the field by the apex Court has setded large number of controversies with regard to the interpretation of several sections in respect of which there was divergence of opinion between the various High Courts. The report has laid down that certain sections of the Act are mandatory in nature and if the mandate there under is not carried out the trial is vitiated. 6. The report has laid down that certain sections of the Act are mandatory in nature and if the mandate there under is not carried out the trial is vitiated. 6. In our view it is not neeessary in the present case to go into the first grievance made the mandatory nature of section 42(1) as in our view this appeal can be disposed of on the second grievance made by the learned counsel that seizure of 1.5 kg. of charas cannot be held to be discovered by the appellant or that the appellant could be held to have come in possession of the same on the basis of the evidence on record. 7. The prosecution case is sought to be proved by three prosecution witnesses namely Ms Maria Caldeira who is a Scientific Assistant attached to the Laboratory of the Directorate of Health Services. No reference is required to look into the evidence of the Chemical Analyser for the learned counsel for the appellant does not dispute the recovery of the quantity of 1.5 kgs. of charas. P.W. 2 is Dayanand Lotlikar who is a panch witness. In his evidence he deposes that on 15th January, 1992 he was called by Police Inspector Allen D'Sa to act as a panch in the case of Pradeep Kumar who had an arrested near Anjuna Church and a separate case has already been registered against him for having been found in possession of charas. According to him the other case is Special Criminal Case No. 25/92. He says during the course of the investigation the appellant disclosed that he was running a restaurant known as Shiva Dens Inn at Anjuna and accordingly led them in a jeep to the said restaurant. He names the members of the police party and makes reference to another panch witness. He says: "In the jeep the accused No. 1 Pradeep Kumar has voluntarily stated that he had kept some drugs i.e. charas in a flask kept in that restaurant." The witness further deposes that on entering into the said restaurant P.S.I. Fabian (P.W.3) led them into the kitchen and searched for the flack. At this time according to the witness appellant Pardeep Kumar was sitting in the jeep. The flask was lying below the fable and when it was opened it contained honey on the top portion. At this time according to the witness appellant Pardeep Kumar was sitting in the jeep. The flask was lying below the fable and when it was opened it contained honey on the top portion. According to him P.S.I. Fabian emptied the honey into the container, took smell of the flask and felt the smell of charas. Thereafter he says that P.S.I. Fabian removed the top portion of the flask, overturned it and large number of brownish blackish colored sticks were discovered and noon weight my found to bear 1.5 kgs. He says that one stick out of the quantity seized was weighed separately which was found to be 31 gms. and the same was sealed in a separate envelope where his signature was taken and the rest was again sealed separately in another envelope. He identified Pradeep Kumar as the person who led we jeep to the said restaurant. Referring to the two other co-accused the witness says that they were sitting if) the restaurant at that time and upon Police asking them to disclose their names they gave their names as Birbal and Harish. According to him the Police recorded the report of the seizure and gave a copy each to the accused. He identified the two envelopes to which evidence no further reference required. In cross-examination the witness disclosed that when the appellant was for the first time arrested in the earlier case he had been interrogated by PSI Pais and on the way while going in the jeep the appellant was interrogated by PSI Fabian (P.W. 3), The witness however says the does not remember what were the exact words which were uttered by the appellant in the matter of leading to the so called discovery of the charas. According to the witnesses the appellant also did not say that he will point out to the place where the substance was keep but he merely stated that it is lying in the flask in the restaurant. He affirm's in cross - examination that when P.W.3 Fabian discovered the flask and the charas the appellant was still handcuffed sitting in the jeep and further affirms at the appellant was not brought inside the restaurant. 8. He affirm's in cross - examination that when P.W.3 Fabian discovered the flask and the charas the appellant was still handcuffed sitting in the jeep and further affirms at the appellant was not brought inside the restaurant. 8. Coming to the evidence of P.W. 3 Fabian D'Souza who is the Investigation", Officer and who at the relevant time was attached to Narcotic Cell says that on 15th January, 1992 the appellant was caught near Anjula Church and charas of the weight of 1 kg. was found in his possession and a Panchanama to that effect was recorded by PSI Pais. He says that after completing the formalities in that case the appellant was interrogated by him and during the course of the interrogation the appellant disclosed that he is running a restaurant at Anjuna by name Shiva Dens Inn restaurant. The witness says that he accordingly, decided to search that restaurant and requested the same panchas to remain present so as to draw a panchanama. The witness says: - "While proceeding from Anjuna Church to the restaurant I interrogated the accused and during the course of interrogation I was informed that there were more charas in a dark blue flask in the Shiva Dens Inn Restaurant at Anjuna." The witness says when the party reached near ~he restaurant which is on the left hand side of the road the jeep was stopped. The witness says: "The accused No. 1 was handcuffed to the jeep and the police constable was kept there to guard him. All other persons got down and entered the restaurant. " The witness says that-having come across accused No. 2 and 3 i.e. Birbal and Harish he questioned them, ascertained their names and they disclosed that they were working in the restaurant for the appellant Pradeep Kumar who was sitting in the jeep. The witness says that he disclosed his mission and offered his search and that of all the other members of the party but they declined. He now says that he along with the panchas went to the kitchen in search of the flask. While searching he found the flask under a on the sand below the table, which was a dark blue colored flask. He now says that he along with the panchas went to the kitchen in search of the flask. While searching he found the flask under a on the sand below the table, which was a dark blue colored flask. He makes detailed reference as to how the flask was opened and a substance resembling honey was discovered and thereafter the charas sticks were discovered of the weight of 1.5 kgs. He speaks of the seizure report, panchanama, etc. to which in our view not much reference is necessary having regard to the grievance made by the learned counsel in the appeal except to view that the Investigation Officer says that after he brought all the accused to the Police Station at Panaji, he took personal search of all of them and found a pass-book in the pocked of each and every accused. He also discovered that in one of the pass-books a large deposit of over Rs. 36,000/- had been lying at its credit. 20th April, 1993. 9. There is considerable merit in the submission of the learned counsel for the appellant that the recovery of 1.5 kgs. of charas cannot be said to be discovered under section 27 of the Evidence Act. The predicates of section 27 of the Evidence Act is the discovery of a fact in consequence of the information received from a person accused of an offence; that at the time of the receipt of the information the accused must be in police custody and lastly the most important condition being that so much of the information as relates distinctly to the fact thereby discovered is admissible. In our view none of the predicates are satisfied by the evidence tendered by the prosecution in the present case and we will presently point out that P.W. 3 Fabian D'Souza along with the panchas upon entering Shiva Dens Inn went into the kitchen, searched for the flask and upon apprehending the same recovered' charas in the hollow portion there of. During all this time the accused was handcuffed and was made to sit in the jeep which was parked in front of the said restaurant. It is therefore impossible to accept that the discovery has been made by the appellant The second aspect is that the petitioner was found in possession of 1.5 kgs. During all this time the accused was handcuffed and was made to sit in the jeep which was parked in front of the said restaurant. It is therefore impossible to accept that the discovery has been made by the appellant The second aspect is that the petitioner was found in possession of 1.5 kgs. of charas when he was apprehended near the Church at Anjuna while he was being transported in a jeep. It is the case of the prosecution that he made a disclosure that there are more drugs in a flask which is at Shiva, Dens Inn. It is amply clear by now that the prosecution thought it wise to charge-sheet the appellant in two different cases firstly in relation to apprehension near the church at Anjuna in an open place and secondly when the recovery was made in the present case by the recovery of the flask from the kitchen of Shiva Dens Inn. This being the prosecution story it is amply clear that the appellant was not in police custody in relation to the present case when he is supposed to have disclosed that there are more drugs in the flask at Shiva Dens Inn. If assumed that the appellant was in custody, he did not discover drugs. 10. Apart from this aspect of the matter, it must be borne in mind that co-accused Birbal, Harish and the owner of the premises Denis D'Mello are acquitted in the present case. Denis Paulo D'Mello who was accused no. 4 was being charged under sections 25 and 29 of the N.D.P.S. Act being the owner of the restaurant Shiva Dens Inn for having knowingly permitted the premises to be used for the commission of the offence by appellant and the other two accused Birbal and Harish. The prosecution case that the restaurant was at the relevant time in possession of the appellant is not supported by any independent evidence. The evidence so called as per 1.0. (P.W. 3) has come from none other than the co-accused Harish and Birbal since they were co-accused and that way accomplices in the crime. The statement of the co-accused cannot be accepted unless duly corroborated by independent prosecutiOf1 evidence. The evidence so called as per 1.0. (P.W. 3) has come from none other than the co-accused Harish and Birbal since they were co-accused and that way accomplices in the crime. The statement of the co-accused cannot be accepted unless duly corroborated by independent prosecutiOf1 evidence. In the present case there is no iota of evidence independently from the co-accused that at the relevant time the appellant Pradeep Kumar was conducting and that way in possession of the business of Shiv a Dens Inn. Therefore taking any view of the matter it is not possible to accept that the recovery of 1.5 kgs. of charas from the flask from the kitchen of the aforementioned restaurant could be said to be in conscious possession of the appellant. It is not understood as to how the trial Judge in the judgment has accepted that the charas were recovered and such a recovery is admissible under section 27 of the Evidence Act. 11. Indeed an attempt was made by Shri Bhobe, learned Public Prosecutor to show that though the appellant was made to sit in the jeep and P.W. 3 Fabian. D'Souza discovered and subsequently apprehended the flask, the fact leading to the discovery of the flask was at the instance of Pradeep Kumar. The learned Public Prosecutor therefore contended that inasmuch as the flask was discovered which was upon the disclosure by Pradeep Kumar himself and once charas was found in that flask this Court ought not to fault such a discovery and it can still be treated as a discovery under section 27 of the Evidence Act. We are unable to accept this contention. It must be borne in mind that section 27 of the Evidence Act is an exception for it is clearly enshrined in section 25 of the Evidence Act that any disclosure or confession made to the Police is not admissible in evidence. Once a discovery does not come within the fold or ambit of section 27 the discovery would be hit by section 25 of the Evidence Act. In any case therefore the so called recovery cannot be accepted so as to base conviction of the appel1ant in the present case. 12. Once a discovery does not come within the fold or ambit of section 27 the discovery would be hit by section 25 of the Evidence Act. In any case therefore the so called recovery cannot be accepted so as to base conviction of the appel1ant in the present case. 12. It is really not understood as to why the anti-narcotic cell had to bifurcate the recovery of charas and sought to try the appellant in two different cases merely because certain quantity of charas was apprehended from Pradeep Kumar in the open place near the Church at Anjuna and subsequent recovery from a flask in the kitchen of Shiva Dens Inn. In our view there was nothing wrong if the accused was trial for both the instances in one trial and we have not been able to be satisfied that there was any prohibition for adopting such a course. We are told that the Special Criminal Case No. 25/92 for which Pradeep Kumar had been tried for being in possession of 1 kg. of charas on the morning of 15th January, 1992 near the Church at Anjuna was acquitted and we are constrained to observe that we are also forced to acquit the appellant in the present case. It may not be out of place to make a reference that the investigation in the present case was not only slip-shod but was irresponsible for it was beyond our imagination that the Police Officers who are day in and day out investigating offences have not realised the implication of discovery under section_27 of the Evidence Act. We say no more. 13. For all the aforesaid reasons the appeal succeeds. The impugned judgment dated 9th March, 1993 convicting the appellant under Section 20(b)(ii) of the N.D.P.S. Act is quashed and set aside and the appellant is set at liberty if not wanted in any other case. Appeal allowed. 1. JT 1994 (2) S.C. 108