JUDGMENT - D.K. TRIVEDI, J.:---The appellant, original accused has challenged the judgment and order of conviction recorded by the learned Special Judge, Greater Bombay dated 29-1-1993 passed in N.D.P.S. Special Case No. 362 of 1990 wherein the learned Special Judge has convicted the accused for the offence under section 8(c) punishable under section 21 of the N.D.P.S. Act and ordered to suffer R.I. for ten years and to pay fine of Rs. 1 lakh i.d. the accused to undergo R.I. for one year. 2. During the hearing the learned Advocate appearing on behalf of the appellant has taken us through the evidence and the judgment under challenge and contended that the learned Judge was not right in convicting the accused on the ground that on the scrutiny of the evidence there is nothing to suggest that the prosecution has established through evidence that the prosecution has, while arresting the accused at the relevant time, followed the requirement of the provisions of the N.D.P.S. Act and more particularly she has placed reliance upon the provisions of section 50 as well as provisions of section 57 of the N.D.P.S. Act and the learned A.P.P. appearing on behalf of the State has supported the judgment under challenge and contended that looking to the evidence led by the prosecution, the prosecution has established that even the Investigating Officer has followed the requirement of the N.D.P.S. Act which the learned Judge has rightly accepted and accordingly prayed that the order of conviction and sentence be confirmed by dismissing the appeal. 3. To appreciate the contentions raised before us, as found from the evidence and the fact that the appellant accused was placed for trial on the charge that the accused was found in possession of 35 gms. of brown sugar from the pocket of his pant on 6-1-1990 at about 7.10 p.m. at the junction of V.M. Road and Cross Road M.S. Vile Parle (West), Bombay, and accordingly the accused has committed offence under section 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 which is punishable under section 21 of the N.D.P.S. Act. The defence of the accused is that he was falsely involved by the raiding party and that he is not involved or not found in possession of the brown sugar as alleged by the prosecution. 4. The defence of the accused is that he was falsely involved by the raiding party and that he is not involved or not found in possession of the brown sugar as alleged by the prosecution. 4. To prove the case against the accused, the prosecution has, in all examined four prosecution witnesses including the Investigating Officer and the panch. As found from the evidence of P.W. 1 Subhash Babu Margoj, he was attached to Juhu Police Station as Police Constable. On 6-1-1990 when he resumed his duties at 17.00 hours he and Head Constable Buckle No. 3826 were allotted duties for patrolling in Nehru Nagar Zopadpatti area. During the patrolling Sub-Inspector Kale met them in Nehru Nagar area. One of the informants gave him an information at about 17.40 hourse that one person is selling brown sugar near the petrol pump on V.M. Road. At the relevant time S.I. Kale was also with him. They reached to the petrol pump along with the informant who pointed out the person who was selling the brown sugar there. He collected two witnesses to act as panchas from the area of Nehru Nagar and in presence of panchas, the accused was apprehended and on inquiry the accused has given his name as Raju Mani Kunder and also furnished his residential address as Zopada No. 36, Saradar Nagar Zopadpatti, Sion Koliwada. On inquiry and taking personal search of the accused in the presence of panchas, they found one plastic packet containing brown sugar from the right side hip pocket of the accused. They also recovered currency notes in the sum of Rs. 1022/- from the person of the accused. They smelt the contents of the packet and suspected the same to be brown sugar. They also enquired and the accused also replied that is was brown sugar. The brown sugar packet was wrapped in one paper and the Panchanama was prepared on the spot. The Panchnama was written by S.I. Kale in Marathi and the same was also signed by two panchas and the said panchanama was tendered in evidence and was marked Exhibit-X. The statement of the witnesses were recorded and they returned at the Police Station with the seized articles and the accused. The Investigating Officer Shri Kale had also recorded statement of P.W. 1. The complaint against the accused was also tendered through this witness at Exhibit 6. The Investigating Officer Shri Kale had also recorded statement of P.W. 1. The complaint against the accused was also tendered through this witness at Exhibit 6. As found from the deposition of P.W. 1 on reaching the Police Station with the accused and the contraband, the accused was handed over to the custody of Dist. Hawaldar, the seized material was kept in an envelope and the seals were also applied and the signatures on the same were also taken. The sample was sent for analysis and the panchanama of the same was also tendered in evidence through this witness. From the deposition of this witness, there is nothing to suggest that at the relevant time when the accused was apprehended on the road and his search was carried out in the presence of panchas, the requirement of section 50 was not disclosed in the evidence in chief. As further found from the cross-examination that even there is nothing found to show that at the relevant time the raiding party had put the questions as required under section 50 to the accused. 5. The next witness examined by the prosecution is Shri Vasant Vallabhadas Kathrani P.W. 2 is a panch witness who is independent witness. As found from his evidence, he was having a Xerox shop in Juhu area in the year 1990 and he was residing at Mumbai. As per the deposition of panch witness on 6-1-1990 he was called by the police from Juhu Police Station near the petrol pump adjacent to Kala Niketan situated at V.M. Road. It was told to him that they suspected the accused for possession of some articles and they want to search the accused in his presence and the other panch was also called to carry out the search. Two panchas with the officer were taken to the petrol pump where the accused was present. The raiding party asked name of the accused and he disclosed his name as Raju. The accused had also furnished his residential address to the officer. The search was carried out and from his possession one bank passbook was found from the hip pocket of his pant and currency notes in the sum of Rs. 1022/- were recovered from the pant pocket of the accused. One plastic bag was recovered from the pant pocket of the accused, which was containing brownish white colour powder. The search was carried out and from his possession one bank passbook was found from the hip pocket of his pant and currency notes in the sum of Rs. 1022/- were recovered from the pant pocket of the accused. One plastic bag was recovered from the pant pocket of the accused, which was containing brownish white colour powder. The Police Officer smelt the substance and thereafter witness was also asked to smell the substance which was found in the plastic packet. He was told by the Police Officer that the powder substance purported to be brown sugar. The plastic bag was weighed in his presence and in the presence of co-panch in the adjacent grossery shop. The weight of the brown sugar was 35 gms. The Police Officer then gave telephonic message to Juhu Police Station and on receipt of telephonic message one constable came from police station. The witness has also given details about recovery of the brown sugar and the panchanama drawn by the raiding party in presence of the panchas which were signed by the two panchas. The panchanama was also signed by the two panchas and the witness has also stated that the said panchanama where he has put his signature and also the other panchas. The panchanama was accordingly admitted at Exhibit-9. Though the witness has not disclosed in evidence in chief about the requirement which the officer was required to follow as prescribed under the N.D.P.S. Act viz. the provisions of section 50. However, in the cross-examination a question was put by the defence and the witness has stated that the personal search of the accused was effected by the Sub-Inspector and not by him and further the Police Officer had offered his personal search before the accused was searched in his presence. It is further found in the cross-examination that the accused was instructed that he was entitled for his search in the presence of Gazetted Officer, to which accused declined. We are not discussing in detail about the version given by the witness in respect of the question put to him by the defence and about the question that nothing was recovered from his possession at the time of search. 6. P.W. 3 Shri Sampatrao Appaji Pawar examined by the prosecution. We are not discussing in detail about the version given by the witness in respect of the question put to him by the defence and about the question that nothing was recovered from his possession at the time of search. 6. P.W. 3 Shri Sampatrao Appaji Pawar examined by the prosecution. As found from his evidence, on 6-1-1990 he was attached to Juhu Police Station and he was on patrolling duty alongwith Police Constable Buckle No. 23734 in Beat No. 5. Nehru Nagar Zopadpatti comes under jurisdiction of Beat No. 5. At about 6.30 p.m. P.S.I. Kale met them during the patrolling. Subsequently the Police Head Constable Buckle No. 23734 joined with S.I. Kale for further patrolling. When they reached near Cross Road No. 5 one of the informant of the police station informed to them that one person is selling brown sugar on the petrol pump. The informant accompanied them upto petrol pump and pointed out towards the accused. He enquired with the accused whether he is selling the brown sugar, to which he replied in negative. Thereafter arrangement of securing two panchas were also made and after the search was carried out in their presence. One bank pass book was recovered from hip pocket pant of the accused. Currency notes in the sum of Rs. 1022/- were recovered from the front pocket of the pant of the accused, one plastic bag containing brown sugar was also recovered from the front pocket of the accused and the same were seized. It is also interesting to note that even in the evidence of this witness, he has not disclosed that at the time of taking search, the raiding party had not posed any question whether he is required to carry out search in presence of a Gazetted Officer or a Magistrate. However, the witness has in the cross-examination stated that the P.S.I. had asked the accused whether he is required to take search in presence of a Gazetted Officer. He also denied the suggestion that the accused was falsely involved. 7. The last witness examined by the prosecution is the Investigating Officer Laxman Bhausaheb Kale who was the P.S.I. attached to the Juhu Police Station. He has also in detail given evidence in respect of what transpired on the relevant day. He also denied the suggestion that the accused was falsely involved. 7. The last witness examined by the prosecution is the Investigating Officer Laxman Bhausaheb Kale who was the P.S.I. attached to the Juhu Police Station. He has also in detail given evidence in respect of what transpired on the relevant day. On 6-1-1990 when he was on duty at about 7.00 p.m. he reached near Nehru Nagar Zopadpatti where he met P.C. No. 23734 and H.C. No. 3826 who were doing patrolling in Nehru Nagar Zopadpatti. At that time one informant informed them that the accused was selling brown sugar on the petrol pump. The reached to the spot when the informant pointed out at the accused. On enquiry with the accused he gave evasive answer. The constable was sent for arranging for panchas and on arrival of panchas, the accused was put the question whether he wanted the search to be taken in presence of a Magistrate. However, the accused had declined. Accordingly the personal search of the accused was carried out in presence of the panchas and during the search they seized the bank pass book, currency notes in the sum of Rs. 1022/- and one packet containing brown colour powder. Even the accused admitted that the powder was brown sugar powder. Thereafter the powder was weighed in the adjacent grocery shop in presence of panchas and the weight of brown sugar was 35 gms. Thereafter the plastic bag containing brown colour powder was wrapped in one brown colour paper, label was affixed to it bearing the signatures of panchas and was sealed with the seal of Juhu Police Station. The currency notes and the passbook of Canara Bank was kept in one paper envelope. Label was affixed to it bearing signatures of panchas and sealed with the seal of police station. The contraband, currency notes and passbook found and recovered from the person of accused were seized under the panchanama prepared by him in Marathi language in the presence of panchas and accused and the contents of the said panchanama was read over to the panchas who ascertain that the contents thereof are correct. The contraband, currency notes and passbook found and recovered from the person of accused were seized under the panchanama prepared by him in Marathi language in the presence of panchas and accused and the contents of the said panchanama was read over to the panchas who ascertain that the contents thereof are correct. Thereafter they brought the accused and the seized articles to Juhu Police Station and he made the report about the search and seizure of the contraband from possession of the accused to the Senior Police Inspector Vorad who was present in the police station and the accused and the seized contraband and articles were produced before him and as instructed by the Senior Police Inspector, complaint was recorded through Constable Margaj and the crime was registered against the accused under the N.D.P.S. Act. The witness recorded complaint of the Constable Margaj on behalf of the State in Marathi language and the said complaint was recorded as per the statement made by Constable Margaj and after reading the said complaint Constable Margaj put his signature on the complaint in his presence and he also counter signed it. The accused was thereafter arrested after giving necessary entry. The seized articles were given in the custody of P.I. (Admn.) after making necessary entry in the Muddemal Register. Thereafter he recorded the statement of Sampat Appaji Pawar, H.C. Buckle No. 3836 and grocery shop owner Kishori Lalji Khatarmal and the accused was produced before the 39th Metropolitan Magistrate Court, Andheri on 7-1-1990. Thereafter on 9-1-1990 the witness searched the residential premises of the accused in the presence of panchas. However, nothing was found or recovered on that day. He also recorded the statement of Chinappa and the statement of one Ronjit Roy and sent the contrabands for chemical analysis on 12-1-1990 alongwith the forwarding letter. He has produced the said letter at Exhibit-13 as well as through his evidence he has also produced the report from the Chemical Analyser dated 22-2-1990 and the same is exhibited at Exhibit-14. In cross-examination the witness has admitted that this was his first case in respect of investigation in narcotic case. It is further found that at about 7.00 p.m. he reached the Nehru Nagar Zopadpatti where H.C. Pawar and P.C. Margaj met him and he received the information near the petrol pump. In cross-examination the witness has admitted that this was his first case in respect of investigation in narcotic case. It is further found that at about 7.00 p.m. he reached the Nehru Nagar Zopadpatti where H.C. Pawar and P.C. Margaj met him and he received the information near the petrol pump. The witness has also admitted that he has not reduced the said information in writing as at that time he and his staff were on patrolling duty. As found from the cross-examination the petrol pump is situated adjacent to the Nehru Nagar Zopadpatti towards the western side of the Zopadpatti and one grocery shop and one dairy is adjacent to the petrol pump. Xerox shop is situated towards eastern side of the petrol pump. It is further found from the deposition that the accused was found standing at the entrance of the petrol pump. Thereafter when the accused was shown by the informant he called panchas by sending Constable Margaj. The panchas came within five minutes. He disclosed to the panch witnesses about the information received that the accused was in possession of the brown sugar and he also enquired with the accused whether he possessed brown sugar to which the accused replied in the negative. Head Constable Pawar took search of the accused in presence of panchas and himself. He has further stated that the accused was searched in the presence of panch witnesses but not by panch witnesses and that the raiding staff was not searched before the accused was searched by the constable. The accused was instructed in the presence of panchas that he is entitled for his search in the presence of Special Executive Magistrate to which the accused declined and thereafter search of the person of the accused was taken. It is further found even the Gazetted Officer was available in Nehru Nagar Zopadpatti. Record of Special Executive Magistrate is maintained in every police station in respect of concerned area of the police station. In paragraph-11 of deposition the witness has stated that the accused was vegetable seller six months prior to this incident. The witness has denied the suggestion that accused was selling vegetables at 6.30 p.m. on that day. The witness has also denied that he was not on patrolling duty in Nehru Nagar Zopadpatti and that no panchas was called as per his instructions at the place of offence. 8. The witness has denied the suggestion that accused was selling vegetables at 6.30 p.m. on that day. The witness has also denied that he was not on patrolling duty in Nehru Nagar Zopadpatti and that no panchas was called as per his instructions at the place of offence. 8. The learned Judge has on considering this evidence and considering the defence put forward by the accused has found that the prosecution has proved the case against the accused by holding that from possession of the accused 35 gms. of brown sugar was found on 6-1-1990 at about 7.10 p.m. and accordingly the learned Judge has held that the prosecution has proved that the accused is found guilty under section 8(c) of the N.D.P.S. Act punishable under section 21 of the said Act and after hearing the accused on the point of sentence, the learned Special Judge has convicted the accused by imposing sentence of R.I. for ten years and to pay fine of Rs. 1 lakh i.d. to suffer further R.I. for one year. The learned Judge has also given benefit of the provisions of section 428 Cr.P.C. as the accused was in jail from the date of his arrest viz. from 6-1-1990 and passed order regarding disposal of the Muddamal property. 9. On considering the submissions of Miss. Cardozo, the learned Advocate for the appellant accused, as found from the evidence the Investigating Officer has not complied with certain provisions of the N.D.P.S. Act and as observed earlier none of the witnesses except P.W. 4 in his evidence-in-chief has stated that before the search was carried out, the accused was apprised of the fact that he is entitled to take search in presence of the Executive Magistrate or a Gazetted Officer as contemplated under section 52 of the Act. So far as the contentions of Miss Cordozo regarding compliance of section 57 as contemplated under the Act, the report as contemplated under section 57 was to be made by the officer and according to her there is no compliance of section 57 in the present case. In the light of this contention, we would like to discuss certain provisions of the N.D.P.S. Act. So far as provisions of sections 52 and 57 are concerned, they are as under:--- "52. In the light of this contention, we would like to discuss certain provisions of the N.D.P.S. Act. So far as provisions of sections 52 and 57 are concerned, they are as under:--- "52. Disposal of persons arrested and articles seized.---(1) Any officer arresting a person under section 41, section 42, section 43 or section 44 shall, as soon as may be inform him of the grounds for such arrest. (2) Every person arrested and article seized under warrant issued under sub-section (1) of section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued. (3) Every person arrested and article seized under sub-section (2) of section 41, section 42, section 43 or section 44 shall be forwarded without unnecessary delay to --- (a) The officer-in-charge of the nearest police station, or (b) the officer empowered under section 53. (4) The authority or officer to whom any person or article is forwarded under sub-section (2) or sub-section (3) shall, with all convenient dispatch, take such measures as may be necessary for the disposal according to law of such person or article. "57. Report of arrest and seizure.---Whenever any person makes any arrest or seizure under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior." 10. In the present case, P.W. 4 Shri Kale was Investigating Officer who has carried out the raid in presence of the raiding party and the independent two panchas. As found from the deposition of P.W. 4 Shri Kale, before effecting the personal search of the accused, the accused was asked whether he wanted to take his search in presence of the Magistrate and as the accused had declined to avail such search before the Magistrate, the search was carried out in presence of panchas. As found from the deposition of P.W. 4 Shri Kale, before effecting the personal search of the accused, the accused was asked whether he wanted to take his search in presence of the Magistrate and as the accused had declined to avail such search before the Magistrate, the search was carried out in presence of panchas. After the search and after drawing the panchanama in presence of panchas, they brought the accused and the seized articles to the Juhu Police Station and he made report about the search and seizure of the contraband found from possession of the accused to the Senior Police Inspector Shri Vorad who was present in the Police Station and he referred to about recording of the complaint by Constable Margaj and registration of the offence against the accused and the said complaint which is on record at Exhibit-6. The prosecution has not produced any document viz. the report as contemplated under section 57. As per section 57, a Police Officer who arrests any person and seizes any articles is required to make report within 48 hours next after such arrest or seizure giving full particulars regarding arrested accused and regarding seizure to the superior officer. 11. On going through the entire record, it is difficult for us to accept that Exhibit-6 is the report as contemplated under section 57 and no report as contemplated under section 57 was made by the Investigating Officer in the present case. We are of the view that compliance under section 57 was not made in the present case and only on that ground we are inclined to accept the contentions of Miss. Cardozo and we set aside the judgment and order of conviction recorded by the learned Special Judge dated 29-10-1993. As observed earlier, from the date of his arrest viz. from 6-1-1990 till today, the appellant accused has undergone about more than nine years of sentence. Accordingly we allow the appeal by setting aside the said order of conviction and judgment of the learned Special Judge and the appellant is ordered to be released forthwith if he is not required in any other case. Appeal allowed. -----