JUDGEMENT - R.P. Mrs. DESAI, J. ;---This appeal is directed against the judgment and order of conviction and sentence dated 4th February, 1994 passed by the Special Judge for Greater Bombay in N.D.P.S. Special Case No. 888 of 1989 whereby, the appellant was found guilty under section 8(c) for the N.D.P.S. Act punishable under section 21 of the said Act. He was sentenced to suffer R.I. for 10 years and to pay a fine in the sum of Rs. 1,00,000/-. In default, he was to suffer further R.I. for 2 years. The appellant was also found guilty under section 8(c) punishable under section 29 read with section 21 of the N.D.P.S. Act and he was sentenced to suffer R.I. for 10 years and to pay a fine of Rs. 1,00,000/- and in default, he was to suffer R.I. for 2 years. Both the substantive sentences were to run concurrently. 2.The allegation against the appellant (hereinafter referred to as 'the Accused') was that he was found in possession of 12 Kg. and 800 grams of heroin (diacotyle morphine) kept in 13 cloth bags found in 2 Olive Green Canvass bags recovered from Room No. 27, Transit Camp, Building No. 1, 1st floor, M.H.B. Colony, Borivli (East) in contravention of the provisions of the N.D.P.S. Act. It was the case of the prosecution that he had committed offence punishable under section 21 read with section 8(c) and section 29 of the N.D.P.S. Act. It was the case of the prosecution that the accused along with deceased Gulam Ali-original accused No. 2 ,Mohammed Ishtiaque original accused No. 3 and some others during the period of 1-8-1989 to 26-8-1989, conspired, added and abetted with one another to commit and offence under the N.D.P.S. Act to acquire, to purchase, to possess, to sale, to store, to transport narcotic drugs in contravention of the provisions of the N.D.P.S. Act and thereby committed an offence punishable under section 29 read with section 8(c) with section 21 of the N.D.P.S. Act. 3.Initially the complaint was filed against the accused and co-accused Gulam Ali and Mohammed Ishtiaque. During the pendency of the trial accused No. 2 Gulam Ali expired and his trial stood abetted. Original accused No,. 3 Mohammed Ishtiaque was discharged by the then Additional Sessions Judge, Shri Y.V. Pathan On 18-11-89. Therefore, only the present accused was tried for the aforesaid offences. During the pendency of the trial accused No. 2 Gulam Ali expired and his trial stood abetted. Original accused No,. 3 Mohammed Ishtiaque was discharged by the then Additional Sessions Judge, Shri Y.V. Pathan On 18-11-89. Therefore, only the present accused was tried for the aforesaid offences. 4.According to the prosecution, on 25-8-1989 Shri R.N. Kakkar, Deputy Director of N.C.B. received an information from reliable sources that 20 Kgs. of heroin was stored in Room No. 27, Transit Camp, Building No. 1 M.H.B. Colony, Borivli, Bombay, The informant also assured that he will point out the particular premises where the heroin was stored. The information was reduced into writing. On receipt of information, P.W. 4, S.M. Sawant, Superintendent of Narcotics Control Bureau was deputed by Shri R.N. Kakkar,. Deputy Director for follow up action. Accordingly, P.W. 4 Sawant visited the premises where the heroin was allegedly stored. After his visit to the said premises the N.C.B. Officers arranged the raid in the early morning of 26-8-1989. In the said raid P.W. 1- Balachandran, Inspector of Central Excise, P.W. 3- Ramesh Ramnathan, Inspector, Central Excise, P.W. S.M. Sawant, Superintendent of Narcotics Control Bureau and P.W. 8- Mangaldas K. Patel, Intelligence Officer attached to Narcotic Control Bureau participated. During the raid conducted in Room No. 27 in the Transit Comp. Building No. 1, M.H.B. Colony, Borivli two Olive green coloured bage were recovered from which 13 packets containing in brown colour powder were seized. According to the prosecution, a sizeable mob had gathered at the door of Room No. 27 and hence the panchnama and detailed inventory of the contraband seized from Room No. 27 could not be drawn in the said premises. One electric bill and one visiting card in the name of Poornima Guest House were taken charge of. The accused and his wife were present. During interrogation of the accused, he stated that the seized neroin was stored in the premises by deceased Gulam Ali resident of Room No. 6 7, Kallu Chawl, Dahisar. He voluntered to point out the said premises. He stated that Gulam Ali may be avaliable at Poornima Guest House in Room No. 302 alongwith brother of accused Akhlaque by name Ashfaque Ahmed Jamir. 5.After contrabands were taken charge of from Room No. 27 the raiding staff was divided into two parties. He voluntered to point out the said premises. He stated that Gulam Ali may be avaliable at Poornima Guest House in Room No. 302 alongwith brother of accused Akhlaque by name Ashfaque Ahmed Jamir. 5.After contrabands were taken charge of from Room No. 27 the raiding staff was divided into two parties. One party headed by P.W. 4 - S. M. Sawant, Superintendent, N.C.B. alongwith P.W. 1 - Balachandran, Inspector of Central Excise and other officers visited Kallu Chawl at Dahisar. They were accompanied by accused and his wife. At that time the seized canvass bags containing in all 13 packets of brown coloured powder were also taken to Dahisar by the raiding party. During the search of Room No. 6 in Kallu Chawl, one person by name Ayub Akbar Khan a guest of Gulam Ali was found present there. During the search of Room No. 7, 2 electric bills of March 89 were recovered which were taken charge of by the N.C.B. Officers. 6.Another party headed by Deputy Director R.N. Kakkar alongwith P.W. 8 - N.K. Patel and K.J. Sanchis, Intelligence Officers visited Poornima Guest House. Deceased accused No. 2 and original accused No. 3 were found present in Room No. 302. They were informed that 12 kgs. 800 grams of brown colour powder were seized from Room No. 27 of Transit Camp, M.H.B. Colony, Borivli from the possession of accused Akhlaque Ahmed and that Akhlaque Ahmed had said that the drugs were kept in the room by Gulam ali and that Gulam Ali will be available in Room No. 6 and 7 of Kallu Chawl or in Room No. 302 of Poornima Guest House, Khetwadi, Bombay. Original accused No. 3 and deceased Gulam Ali were requested to accompany the N.C.B. Officers to the office of the N.C.B. to record their statements. Meanwhile, P.W. 8, M.K. Patel, Intelligence Officer and Intelligence Officer K.G.Sanchis enquired about the stay of deceased Gulam Ali and original accused Ashfaque Ahmed in the Poornima Guest House with the Manager of Poornima Guest House. A report came to be collected from the Manager of Poornima Guest House which was produced in the evidence. 7.The first party which had visited Room No. 27, Transit Camp, Borivli and Room No. 6 and 7 at Kallu Chawl, Dahisar returned to the office of N.C.B.alongwith the accused and the wife of the accused. A report came to be collected from the Manager of Poornima Guest House which was produced in the evidence. 7.The first party which had visited Room No. 27, Transit Camp, Borivli and Room No. 6 and 7 at Kallu Chawl, Dahisar returned to the office of N.C.B.alongwith the accused and the wife of the accused. According to the prosecution, when the N.C.B. Officers visited Room No. 27 in the early morning of 26-8-89 panch witnesses were collected by P.W. 4 - Sawant and the said panch witnesses accompanied the raiding party from Room No. 27, Transit Camp, Building No. 1, Borivli till the raiding party reached the office of N.C.B. Articles taken charge of from Room No. 27, Borivli, were seized in the presence of panchas and a detail panchanama was drawn in the office of N.C.B. Sampling, sealing, testing was conducted in the office of N.C.B. After the testing was conducted in the office of N.C.B. in presence of panch witnesses, the remaining contrabands were packed and sealed. The said panchnama also covered the visit of the raiding party to Room No. 6 and 7 at Kallu Chawl, Dahisar. While the panchnama was in progress, the party headed by R.N. Kakkar, Deputy Director, N.C.B. accompanied by P.W. 8 - M.K. Patel, Intelligence Officer returned to the N.C.B. Office. 8.During investigation, statement of accused was recorded under section 67 of the N.D.P.S. Act in which he admitted his possession of Room No. 27 and also admitted recovery of narcotic drugs. Statement of deceased Gulam Ali was also recorded wherein, he admitted the transaction of narcotic drugs and his involvement in the trafficking of narcotic drugs alongwith accused No. 2 and discharged accused No. 3. Statement of accused No. 3 came to be recorded. Investigation Officer also recorded statement of the Anusabai Shah owner of Room No. 27, Transit Camp, Borivli. Similarly, statement of wife of the accused and statement of Ayub Akbar Khan found present in Room No. 6 and 7 of Kallu Chawl, Dahisar also came to be recorded. 9.Samples drawn from the contrabands seized from Room No. 27 were sent to Deputy Chemical Analyser, F.S.L. for chemical analysis. The report received from the Chemical Analyser indicated presence of diacetyl morphinc in the samples sent to Chemical Analyser. After completion of the investigation, complaint came to be lodged against three accused. 9.Samples drawn from the contrabands seized from Room No. 27 were sent to Deputy Chemical Analyser, F.S.L. for chemical analysis. The report received from the Chemical Analyser indicated presence of diacetyl morphinc in the samples sent to Chemical Analyser. After completion of the investigation, complaint came to be lodged against three accused. As indicated above one of them is dead and one was discharged on 23-10-89 and only the present accused was tried by the Special Court of Greater Bombay. 10.At the trial the prosecution examined 8 witnesses. P.W. 1 Balachandran, Inspector of Central Excise, P.W. 3 Ramnathan Ramesh, Inspector of Central Excise, P.W. 4 S.M. Sawant, Superintendent of Narcotic Control Bureau and P.W. 8 M.K. Patel, Intelligence Officer, N.C.B., who had actually participated in the raid have deposed about the raid. P.W. 2 Vijay Kumar Shahasane. Inspector attached to Central Excise has deposed about recording of the further statement of accused and further statement of deceased Gulam Ali. P.W. 5, R.S. Aronkar, Sipoy attached to N.C.B. has deposed about carrying of the samples alongwith forwarding letter to F.S.L. for Chemical Analyser. P.W. 6 G.P. Kulkarni, Asatt. Chemical Analyser had analysed the samples which were sent to F.S.L. He produced Chemical Analyser's report indicating that the samples contained Diacetyle Morphine (Heroin). P.W. 7 Manoj Kumar Dey has deposed about the efforts mode by him to serve the summonses of the witnesses. 11.Statement of accused came to be recorded under section 313 of the Criminal Procedure Code wherein, he denied the prosecution case. According to the accused, he was falsely implicated in the case. According to him, after he was intercepted and brought to the office of N.C.B., he was severely assaulted and beaten by the N.C.B. Officers and he was forced to put signatures on different documents. He contended that he and his wife were not brought to the office of N.C.B. from the said Room No. 27, but they were brought to the N.C.B. office from the bus stand from Andheri area. 12.Upon consideration of the evidence adduced by the prosecution and the evidence of the accused, the Special Judge for Greater Bombay found the accused guilty of the offence with which he was charged and convicted and sentenced him as aforesaid. 12.Upon consideration of the evidence adduced by the prosecution and the evidence of the accused, the Special Judge for Greater Bombay found the accused guilty of the offence with which he was charged and convicted and sentenced him as aforesaid. 13.With the assistance of Shri A.B. Sharif, the learned Counsel appearing for the appellant accused and Shri Borulkar, the learned A.P.P. we have gone through the entire evidence on record. Shri Sharif Contended that the impugned order of conviction and sentence deserves to be set aside. He assailed the impugned judgment and order on various counts. According to him, the prosecution has failed to establish the seizure of narcotic drugs from Room No. 27, Transit Camp. Building No. 1, M.H.B. Colony, Borivli (E). He stated that in support of its case, the prosecution has examined only the officers of N.C.B. Their evidence is evidence of interested witnesses and, as such, it will have to be cautiously scrutinized and unless corroborated by independent evidence, this Court should not place any reliance on the same., He contended that the prosecution has not examined any independent witness about the seizure of narcotic drugs. The panchnama of seizure is not recorded on the spot. In fact, it is the case of the prosecution that, the N.C.B. Officers visited Room No. 27, Transit Camp,. Building No. 1, M.H.B. Colony, Borivli (E) and recovered narcotic drugs from there. They also visited Room No. 6 and 7 of Kallu Chawl, Dahisar and seized some documents from there. Some of the officer also visited Poornima Guest House, Khetwadi. From Poornima Guest House also the officers collected the report of enquiry from the Manager as regards the stay of deceased Gulam Ali and original accused Ashfaq Ahmed. At none of these places panchnama was conducted on the spot. The prosecution has come out with an excuse that during the raid conducted in Room No. 27 at Borivli, a sizeable mob had gathered at the door of the said room and hence the panchnama and detailed inventory of the contrabands seized from the said room was not made in the said premises. Mr. Sharif contended that this explanation given by the prosecution is on the face of it false. Nothing prevented the officers of N.C.B. from taking precaution and contacting the police prior to the raid and even during the raid to have proper police bandobast. Mr. Sharif contended that this explanation given by the prosecution is on the face of it false. Nothing prevented the officers of N.C.B. from taking precaution and contacting the police prior to the raid and even during the raid to have proper police bandobast. When they were asked as to why police was not contacted, N.C.B. Officers have not been able to give any plausible explanation. Mr. Sharif also contended that, his submission that the prosecution has failed to prove seizure of narcotics is further strengthened by the fact that the prosecution has not examined the panchas. The panchnama has not been proved and it is marked 'X' for identification. The panchnama, therefore, argues Mr. Sharif, cannot be looked at. Mr. Sharif contended that the evidence of the prosecution witnesses regarding the search and seizure is not at all consistent. Contrary versions have been given by the officers which makes the said search and seizure doubtful. Mr. Sharif also contended that the prosecution has failed to examine Shri Kakkar, Deputy Director, who was admittedly there at the time of seizure. The prosecution has also not examined wife of the accused, who, according to the prosecution, was present during the search of Room No. 27 and accompanied the raiding staff to Kallu Chawl at Dahisar. Mr. Sharif also contended that admittedly, room. No. 27 was owned by Anusabai Shah. The prosecution has admitted that statement of Anusabai Shah was recorded. However, the said Anusabai was not examined in support of the prosecution case. Anusabai's evidence would have corroborated the evidence of N.C.B. Officers. No acceptable explanation has been given by the prosecution for non examination of Anusabai. Mr. Sharif therefore contended that the entire story of the prosecution regarding the seizure of narcotic drugs deserves to be discarded. Mr. Sharif also contended that the prosecution has not produced in the evidence information received under section 42(1) of the N.D.P.S. Act, 1985. He also contended that copy of the information was not sent to superior officers as required by section 42(2) of the N.D.P.S. Act and, as such, the mandatory provisions of the N.D.P.S. Act having been violated, the order of conviction and sentence deserves to be set aside on that ground alone. 14.As against this Shri, Borulkar, the learned A.P.P. contended that the prosecution had established that the contraband was seized from Room No. 27. 14.As against this Shri, Borulkar, the learned A.P.P. contended that the prosecution had established that the contraband was seized from Room No. 27. This, according to the prosecutor, is borne out by the statement made by the accused under section 67 of the N.D.P.S. Act. Mr. Borulkar contended that the panchnama is identified by P.W. 4. The prosecution tried to get two independent panchas at the time of search and seizure. Contents of panchanama are deposed to by the members of the raiding party. The officers made sincere efforts to find out two independent panchas from the locality. They made efforts to secure their presence for the purpose of adducing the evidence in Court and those efforts have been brought on record. He contended that only because presence of panchas was not secured substantive evidence of officers need not be ignored. He contended that even evidence of official witnesses which inspires confidence and which does not contain any material admissions can be accepted and there is no rule that no conviction can be based on the evidence of Investigating Officers. Mr. Borulkar further contended that P.W. 1 prepared the panchanama and he identified the signatures on the panchanama. Mr. Borulkar further contended that merely because panchnama is not recorded on the spot, that will not affect the case of prosecution. According to him, section 100 does not mandate recording of panchanama on the spot. In this connection, he relied on the decision (Ganda Malu v. State)1, reported in A.I.R. 1956 Saurashtra Page 25. Mr. Borulkar heavily relied on the statement of the accused recorded under section 67 of the N.D.P.S. Act and contended that merely because it is retracted, it does not lose its evidentiary value. In this connection, he relied on the judgment in Criminal Appeal No. 701 of 1993 decided on 10-7-1996. Mr. Borulkar also contended that provisions of section 42(2) are not mandatory. According to him, section 42(2) is not covered by the judgment of the Apex Court in (State of Punjab v. Balbir Singh)2, 1994 S.C. Weekly Page 1802. He therefore urged that the order of conviction and sentence be confirmed by this Court. 15.Firstly, we may deal with the argument of Mr. Sharif that, in the instant case, the prosecution has not been able to prove the seizure of contrabands from Room No. 27, Transit Camp, Building No. 1, M.H.B. Colony, Borivli (E). He therefore urged that the order of conviction and sentence be confirmed by this Court. 15.Firstly, we may deal with the argument of Mr. Sharif that, in the instant case, the prosecution has not been able to prove the seizure of contrabands from Room No. 27, Transit Camp, Building No. 1, M.H.B. Colony, Borivli (E). In this regard, P.W. 1, Balachandran, Inspector of Central Excise, has stated that, after the raiding party reached Borivli Shri S.M. Sawant, the Intelligence Officer collected two wtinesses. Room No. 27 was searched in the presence of the said panchas, the accused and his wife and narcotic drugs were recovered. Balachandran has further stated that when they were conducting the search crowd had gathered there and hence they did not examine all the packets found in room No. 27. They seized the canvas bags alongwith their contents. According to him, the accused informed him that the canvas bags were received by him from one person by name Gulam Ali and that he was resident of Room No. 6 and 7, Kallu Chawl, Dahisar. He voluntered to show the promising at Dahisar. He also said that Gulam Ali may be available in Room No. 602 of Poornima Guest House at Khetwadi, Girgaon. The Officers therefore visited Dahisar alongwith the accused, his wife and the panch witnesses. They also carried with them the seized property. 16.At Dahisar, Room No. 6 and 7 of Kallu Chawl were searched. During the search of Room No. 7, 2 electric bills of March 1989 were recovered. After the search was finally concluded the raiding party reached the office of N.C.B. at Ballard Pier. At the office of N.C.B. a detail examination of the packets found in canvas bags was conducted. Samples were collected after following the necessary procedure and panchnama was drawn accordingly. According to Balachandran, panchnama in respect of the events at Borivli, Dahisar and events in the office of N.C.B. was prepared by him in the office of N.C.B. in the presence of panchas and the accused. Balachandran produced the said panchnama in evidence. It was marked 'X' for identification. In the cross examination, Balachandran has stated that S.M. Sawant had contacted and collected the panchas from the same building within five minutes. Balachandran produced the said panchnama in evidence. It was marked 'X' for identification. In the cross examination, Balachandran has stated that S.M. Sawant had contacted and collected the panchas from the same building within five minutes. The names, occupation and residential addresses of panch witnesses were noted on the paper, but the said piece of paper was not preserved in the office of N.C.B. and that he could not assign any reason why he could not preserve the said piece of paper in the office. He also stated that he had prepared notes about the progress of search in respect of promises occupied by the accused, but he had not preserved the notes prepared by him and he could not assign any reason why the the said notes were not preserved in his office. He has also stated that there was no inventory of the articles mentioned in the search memorandum. When asked to give reason for it, he has stated that he could not give any reason why panchnama of search was not prepared in Room No. 6 and 7 of Kallu Chawl, Dahisar. According to him, no attempt was made to scatter the crowd gathered at Room No. 27 at Borivli nor did the officers try to close the doors of Room No. 27. He had no idea whether any member of the raiding staff tried to contract Borivli Police Station before conducting the raid nor did he contact the Police Station after the raid was over. He has also stated that no panchnama of search and seizure in respect of room No. 302 of Poornima Guest House was prepared, and that the said panchnama was prepared in the office of N.C.B. P.W. 3, Ramesh Ramnathan, Inspector of Central Excise has stated that he had accompanied officers to room No 27, Transit Camp, Building No. 1, Borivli and after bags containing narcotics were seized from the said room, he accompanied the raiding party to Room No. 6 and 7 at Kallu Chawl, Dahisar alongwith the accused., The seized property was also taken there. He stated that some documents were recovered from Room No. 7 at Kallu Chawl, Dahisar, and after the search at Dahisar was over, the raiding party went to the N.C.B. Office. According to him, panchnama formalities were continued in the N.C.B. Office in the presence of panchas and the accused. He stated that some documents were recovered from Room No. 7 at Kallu Chawl, Dahisar, and after the search at Dahisar was over, the raiding party went to the N.C.B. Office. According to him, panchnama formalities were continued in the N.C.B. Office in the presence of panchas and the accused. He has stated that all the details as regards the setting out of the raiding party for the raid till the conclusion of the panchnama in the office of N.C.B. were mentioned in the seizure panchnama prepared in the office of N.C.B. Now surprisingly, in the cross examination this witness has stated that the panchnama was started at Room No. 27 at Borivli and he was present throughout the seizure. Whatever happened in room No. 27 was recorded on the spot at Borivli. He could not remember at which particular stage the panchnama was stopped. According to him, panchnama was discontinued as crowd had assembled near Room No. 27. He could not give the exact time when panchnama had commenced in the room at Borivli and the exact time when it was discontinued. He has admitted that the officers did not make any efforts to scare away the mob and they did not call for any police protection. He has also stated that no panchnama was drawn in room No. 6 and 7 at Kallu Chawl, Dahisar, though there was no mob problem at Dahisar and he could not assign any reason as to why it was not continued at Dahisar. At one stage, he has stated that panchnama upto page 3 was prepared at Borivli and then it was discontinued. When in the cross examination he was asked to give his explanation for his contradictory statements, this witness tried to cover up the discrepancy by saying that the entire panchnama was prepared in the office of N.C.B. but the facts of search and seizure in respect of Room No. 27 were noted by Balachandran in Room No. 27. Again this witness has stated that the panchnama was not prepared at Borivli and the portion which he had marked in the panchnama was the development in Borivil. On account of these contradictions evidence of P.W. 3, Ramesh Ramnathan does not inspire confidence. Besides the evidence of this witness contradicts the evidence of Balachandran. Again this witness has stated that the panchnama was not prepared at Borivli and the portion which he had marked in the panchnama was the development in Borivil. On account of these contradictions evidence of P.W. 3, Ramesh Ramnathan does not inspire confidence. Besides the evidence of this witness contradicts the evidence of Balachandran. While Balachandran says that no panchnama was at all drawn at Room No. 27, this witness has stated that upto page No. 3 the panchnama was prepared at Borivli. Again at some later stage, he says that the panchnama was prepared in the office of N.C.B. At least from the evidence of these two witnesses, it is not clear as to where exactly the panchnama was drawn. 17.P.W. 4, S.M. Sawant has stated that during the search of Room No. 27 sizeable mob had gathered nearby and hence, it was not possible to draw a detail inventory of the articles. The panchnama and inventory of the Articles in Room No. 27 was made in the office of N.C.B. According to S.M. Sawant, he proceeded alongwith the panchas, the accused and his wife to Room No. 6 and 7 at Kallu Chawl, Dahisar. Two electric bills were recovered from Room No. 6. He has stated that the bills were seized under the provisions of law. The raiding party alongwith the wife of the accused and panchas reached the office of N.C.B. Sometime thereafter, the party which had gone to visit Poornima Guest House also reached the N.C.B. Office. Detail examination of the contrabands was done in the office of N.C.B. According to him, detail panchnama in respect of all the events was drawn in the office of N.C.B. by Balachandran. He has also stated that he had not recorded the statement of panch witnesses during investigation. According to him, one of the members of the team noted down the particulars about the panch witnesses on a piece of paper. But the said piece of paper was not preserved in the office. According to him no police assistance was called for at Room No. 27. As regards search of Room No. 6 and 7, this witness has stated that no panchnama was drawn there. He has conceded that there was no mob problem in Room No. 6 and 7. But the said piece of paper was not preserved in the office. According to him no police assistance was called for at Room No. 27. As regards search of Room No. 6 and 7, this witness has stated that no panchnama was drawn there. He has conceded that there was no mob problem in Room No. 6 and 7. According to this witness therefore, neither at Room No. 27 nor in Room No. 6 and 7 at Kallu Chawl panchnama was prepared and the panchnama was prepared at the office of N.C.B. No care was taken to note down the particulars of the panch witnesses. This assumes importance because the prosecution has not examined panch witnesses, and the prosecution has tried to explain away this by leading evidence to show that despite efforts summons could not be served on the panchas. We shall deal with the said evidence little later. From the evidence of S.M. Sawant it is clear that he contradicts P.W. 3, who has stated that some part of the panchnama was drawn at Room No. 27. 18.P.W. 8, M.K. Patel, Intelligence Officer attached to N.C.B. has stated that no panchnama was drawn in Room No. 27. M.K. Patel had visited Room No. 302 of Poornima Guest House to trace Gulam Ali. Gulam Ali was found in Room. No. 302 and he accompanied the raiding party to the office of N.C.B. According to M.K. Patel, the raiding party reached the office of N.C.B. at about 10.30 a.m. At that time the other party which had left for Dahisar had also reached the office of N.C.B. When they reached the office of N.C.B., he noticed that the examination of contrabands was already in progress. The panchnama was drawn about all the incidents which had taken place at Borivli and all the places visited by the raiding party. According to him, one of the members of the raiding party collected panchas from the vicinity of Room No. 27 at Borivli. He could not remember the name of the panchas. He confirmed that none from N.C.B. Office tried to contact any Police Station. This witness could not remember whether any inventory of the articles was made in the room. He could not assign any reason why panchnama was not prepared in Room No. 27 even though panch witnesses were present. He could not remember the name of the panchas. He confirmed that none from N.C.B. Office tried to contact any Police Station. This witness could not remember whether any inventory of the articles was made in the room. He could not assign any reason why panchnama was not prepared in Room No. 27 even though panch witnesses were present. He also confirmed that no panchnama was drawn in Room No. 302 and 504 of Poornima Guest House. 19.Resume of the evidence of the Officers indicates that the prosecution story regarding seizure of narcotic drugs is not consistent. According to some officers the panchnama of events that took place at Borivli and Dahisar was carried out at the N.C.B. Office. However P.W. 3 - Ramesh Ramnathan, Inspector of Central Excise has suggested that some portion of the panchnama was prepared at Room. No. 27 at Borivli. Now, if the members of the raiding party are not consistent as to where exactly the panchnama was prepared, the least that the prosecution could have done was to examine the panch witnesses. Examination of panch witnesses and some other independent witnesses would have lent the necessary authenticity to the search and seizure of narcotic drugs. However, none of the panch witnesses have been examined by the prosecution. This leads us to the evidence adduced by the prosecution as regards calling panchas to witness the seizure and efforts made by it to secure their presence at the trial to give evidence. 20.It is the case of the prosecution that P.W. 4 -S.M. Sawant collected panch witnesses from the vicinity of Room No. 27 at Borivli and the panch witnesses continued to remain with the raiding party till it reached N.C.B. Office. P.W. 1 Balachandran has stated that S.M. Sawant collected panch witnesses from the same building within five minutes. According to him, the names, occupation and residential addresses of the panch witnesses were noted on the paper. However, the said paper was not preserved in the office of N.C.B. and he could not assign any reason why he could not preserve the said paper in his office. P.W. 4- S.M. Sawant has stated that he had not recorded the statement of panch witnesses during investigation. However, the said paper was not preserved in the office of N.C.B. and he could not assign any reason why he could not preserve the said paper in his office. P.W. 4- S.M. Sawant has stated that he had not recorded the statement of panch witnesses during investigation. According to him, one of the members of the team noted down the particulars about the panch witnesses on a piece of paper, but the said piece of paper was not preserved in the office. P.W. 8- M.K. Patel has stated that one of the members of the raiding party collected panchas from the vicinity of Room No. 27 at Borivli, but he could not remember the name of the panchas, P.W. 8- M.K. Patel, Intelligence Officer has stated that he could not give the exact time when he saw the panch witnesses. He saw the panch witnesses before he entered Room No. 27. He could not remember whether the names and addresses of the panchas were asked before the officers entered the room. He has accepted that it is a legal obligation that two respectable persons must be present for the raid. According to him, normally they used to ask the name and occupation of the witnesses to decide the respectability of the witnesses. 21.P.W. 7 - Manoj Kumar Dey has, in his evidence, stated that on 3-11-93 he was asked to serve summonses on the panchas - Peter Fernandes and Shyam Malkani. He has stated that he visited the addresses as mentioned in the summonses to serve the summonses upon the witnesses. He has corrected himself by saying that the - addresses were not mentioned in the summonses, but he collected the addresses from Inspector Rushiraj attached to N.C.B. According to him, the persons were not available at the addresses given to him for service of the aummonses. He made enquiry with the adjacent occupiers, but he could not collect whereabouts of the witnesses from them as they were not aware of the where- abouts of the witnesses. Therefore, he could not serve summonses on the witnesses. He prepared his report accordingly and returned the summonses. In the cross examination he has stated that he had located the addresses of the witnesses from the office of Maharashtra Housing Board. Therefore, he could not serve summonses on the witnesses. He prepared his report accordingly and returned the summonses. In the cross examination he has stated that he had located the addresses of the witnesses from the office of Maharashtra Housing Board. He has further stated that he had not contacted anybody from the M.H.B. Office as the office time of M.H.B. was between 8.30 a.m. to 11.00 a.m. and after that nobody was available in the office. This witness was recalled under section 311 of the Criminal Procedure Code to give explanation about the enquiry report submitted by him. He has stated that on 18-1-94 he visited the office of M.H.B. and contacted Rent Collector Shri Kunte. Shri Kunte, after going through the register, told him that none of the persons whose names he had given were staying at their respective addresses on 26-8-89. Accordingly, Manoj Kumar Dey submitted his report Ex. 42. 22.The evidence of this witness confirm that the prosecution had not taken care to note down the names and addresses of panch witnesses and in fact the addresses were not mentioned on the summons, but were collected by Manoj Kumar Dey from Inspector Rushiraj of N.C.B. It is suggested that the addresses were noted down on a piece of paper, but care was not taken to preserve the said piece of paper. Resultantly, the prosecution could not secure the presence of the panch witnesses. The report Ex. 42 shows that the colony where Manoj Kumar Dey visited was not M.H.B. Colony, but it was Bombay Housing Board Colony. One really does not know whether any genuine attempts were made by the prosecution to trace the panch witnesses or whether panch witnesses were at all present at the time when the panchnama was conducted. The prosecution has not proved the panchnama and the panchnama was marked 'X' for identification. Perhaps, despite this we could have come to a conclusion that the seizure of narcotic drugs was genuine had the N.C.B. Officers given a consistent version of the search and as to exactly where the panchnama was drawn. As stated above, the witnesses have not given a consistent version making the prosecution story shaky. The prosecution could have at least examined some other independent witnesses to lend corroboration to the evidence regarding search and seizure. Admittedly, statement of Anauya owner of Room. No. 27 was recorded. As stated above, the witnesses have not given a consistent version making the prosecution story shaky. The prosecution could have at least examined some other independent witnesses to lend corroboration to the evidence regarding search and seizure. Admittedly, statement of Anauya owner of Room. No. 27 was recorded. There is no explanation given by the prosecution as to why this lady was not examined. 23.Mr. Borulkar made a valient effort to get over the difficulty created by the non examination of panchas and the fact that the panchnama was not conducted at the place of offence. He relied upon A.I.R. 1956 SAURASHTRA page 25 wherein, it is observed that the making of a panchnama on the spot was not an essential element in the facts of the said case. The observations on which Mr. Borulkar relies heavily are as follows: "The learned advocate for the applicant next attacks the panchnama on the ground that it was made at Limbdi, some six miles away from the place of arrest. Now this is not a case wherein any search of a person or of a premises is required to be made by law in the presence of panchas. The learned Government Pleader explains that the accused was taken to Limbdi for the simple reason that at Limbdi there is a Police Station while in the village Bodin there is none. The making of a panchnama on the spot in not an essential element in the present case and the mere fact that it was made at Limbdi and not at a place nearer to the place of arrest asked little difference." The extract from the said judgment quoted hereinabove indicates that the observations of the Court were limited to the facts of the said case. In fact, it was specifically stated that making of panchnama on the spot was not an essential element in the said case. There the accused was taken to Limbdi for the simple reason that at Limbdi there was a Police Station while in the village Bodin there was no Police Station. It was in the context of these facts that, the above observations were made. We do not think that they could be applied to the facts of the present case. There the accused was taken to Limbdi for the simple reason that at Limbdi there was a Police Station while in the village Bodin there was no Police Station. It was in the context of these facts that, the above observations were made. We do not think that they could be applied to the facts of the present case. In any event, in the facts of the present case it is not necessary to delve into the question whether panchnama can be prepared at a place other than the place where the offence has taken place. The fact that the prosecution has not chosen to examine any independent witnesses, that it has failed to examine the panch witnesses and that the N.C.B. Officers have not given a consistent version of the alleged search and seizure of Narcotic Drugs, indicates that the prosecution has failed to prove its case beyond reasonable doubt. 24.Mr. Borulkar, learned Public Prosecutor relying on the judgment of this Court in CRIMINAL APPEAL NO.701/1993 with CRIMINAL APPEAL NO. 229/1995 dated 10-7-1996, submitted that in any event this Court can confirm the order of conviction and sentence on the basis of the confessional statement of the accused. He stated that even a retracted confessional statement can form the basis of conviction. There can be no controversy about this proposition. But in the fact of the aforesaid judgment cited by Shri Borulkar, this Court had come to the conclusion that other evidence on record completely corroborated what the accused had stated. It was only after comparing the confession with rest of the evidence that the Court came to the conclusion that the confession could be relied upon. In the instant case the other evidence on record namely the evidence of the N.C.B. Officers in replete with contradictions. This coupled with the fact that panchas were not examined makes the prosecution story extremely doubtful. The prosecution has not examined any independent witnesses. In such a situation it is unsafe to base conviction solely on the confessional statement of the accused. Mr. Borulkar is right when he contends that the evidence of official witnesses cannot be discarded merely on the ground that they belong to police force and are interested in the investigation. All that needs to be done is a careful scrutiny of their evidence and, if it is reliable, conviction can be based on it. Mr. Borulkar is right when he contends that the evidence of official witnesses cannot be discarded merely on the ground that they belong to police force and are interested in the investigation. All that needs to be done is a careful scrutiny of their evidence and, if it is reliable, conviction can be based on it. However, as indicated hereinabove, the evidence of official witnesses in the instant case does not inspire confidence. It is not clear upon perusal of the case as to where exactly the panchnama was made and whether panch witnesses were present at all. The prosecution has also not examined panch witnesses. Therefore, evidence of officers of the N.C.B. cannot be relied upon to draw a conclusion that the accused is guilty of the offence with which he is charged. In such a situation the benefit will necessarily go to the accused. We are of the opinion that the prosecution has miserably failed to prove its case beyond reasonable doubt, and hence the order of conviction and sentence impugned in the present appeal will have to be set aside. Since we are with the learned counsel for the appellant/accused that the prosecution has failed to prove seizure of narcotic drugs from No. 27, it is not necessary for us to deal with his other submissions. 25.In the result, the order of conviction and sentence dated 4th February, 1994, passed by the Court of Special Judge under the N.D.P.S. Act at Greater Bombay in N.D.P.S. Case No. 888 of 1989 is set aside. The appellant-accused be released forthwith unless otherwise required in any other case. *****