JUDGMENT - D.G. DESHPANDE, J.:---Since both the appeals are arising out of the same judgment of conviction delivered by the Special Judge, NDPS Court, Mumbai on 25th and 26th February 1997 in NDPS Special Case No. 624 of 1996, we are disposing off both the appeals by this common judgment. 2. Appeal No. 351/97 is preferred by the convicted original accused No. 1 and Appeal No. 173/97 is preferred by the convicted original accused No. 2. Both these accused were convicted for the offence punishable under section 21 read with section 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act) and were sentenced to suffer R.I. for 10 years each and to pay a fine of Rs. 1,00,000/- each and in default of fine to suffer R.I. for one year each. 3. The prosecution case, in short, is that in MRA Marg Police Station P.I. Mukhedkar received secret information on phone on 18-10-1996 at about 9 p.m. that one female and one male of certain description were sitting on a wooden cot and were distributing gurd powder to customers. This information was recorded in the narcotic information book, superior officer was informed, panchas and other police officers were called, pre-trap panchnama was prepared and the raiding party went to the spot in front of St. George Hospital at P. D'Mello Road. One constable No. 22390 confirmed the presence of the two persons at the spot and thereafter the entire police party carried out the raid. 4. P.I. Temkar was in charge of MRA Marg Police Station. Both the accused were informed that they were to be searched under the NDPS Act and that they had a right to be searched before the Gazetted Officer or a Magistrate. Both of them declined and thereafter search of accused No. 1 was taken, where 15 grams of gurd powder was found. It was packed, labelled and sealed. Lady Officer Honap took the search of accused No. 2, who was a lady, and found 10 grams of gurd powder. It was also packed, labelled and sealed. Thereafter, both the packets were subjected to drug identification test with the help of drug identification kit, which the officers have carried. Below the wooden cot where the accused were sitting, one plastic thermos was found. It was containing 2 empty polythene bags and cash of Rs. It was also packed, labelled and sealed. Thereafter, both the packets were subjected to drug identification test with the help of drug identification kit, which the officers have carried. Below the wooden cot where the accused were sitting, one plastic thermos was found. It was containing 2 empty polythene bags and cash of Rs. 280/-, same were also packed, labelled and sealed. A detailed panchnama was prepared on the spot and copy of the panchnama was given to both the accused. The raiding party thereafter came to the police station, where F.I.R. was lodged by P.I. Mukhedkar against both these accused. The muddemal was kept in the safe custody. Sealed packets were sent to the C.A. for analysis and after the report of the C.A., the charge sheet against the accused was filed before the Sessions Court. 5. The prosecution examined in all six witnesses including the panch P.W. 3 Sandesh Nikam, C.A. P.W. 5 D.P. Mhatre and P.W. 2 Renuka Honap, who was a lady officer, was also examined, for proving in particular the search and seizure from accused No. 2. The plea of the accused was of denial. However, the case of the prosecution was accepted by the Special Court and the accused came to be convicted, as stated above. It is this conviction, which is challenged in the present appeals. 6. Mainly, it was contended by Mr. Arolkar before us that out of the two independent panchas, which included a lady panch also, prosecution did not examine the lady panch and remained contended by examining only one panch, who according to Mr. Arolkar has admitted in his cross-examination that he has acted as a panch in some NDPS case of the MRA Marg Police Station wherein the officers were also same and the raid was also carried on the same spot i.e. in front of St. George Hospital. Mr. Arolkar also pointed out from the evidence of this panch witness that he was residing just by the side of MRA Marg Police Station and as such was easily available to the police and therefore it was not safe to rely upon such evidence, particularly, when the case of the prosecution is of raid on pre-intimation. Mr. Arolkar contended that if the police had previous information as alleged, nothing prevented the officers from getting the help of an independent respectable panch. 7. Mr. Mr. Arolkar contended that if the police had previous information as alleged, nothing prevented the officers from getting the help of an independent respectable panch. 7. Mr. Arolkar also contended that the muddemal property was initially numbered as ' ' and ' ' in Marathi for accused Nos. 1 and 2 respectively was produced in Court and marked as Article 1' and 2' respectively. It was found that the packets contained two extra labels bearing marking as M/853/96/1 and M-853/96/2. The prosecution therefore examined the C.A. to explain who had made this writing and even if the explanation about these two writings was there, one more fact is finding of a slip or white paper in Article 1' wherein M1.5G was written. According to Mr. Arolkar neither in the panchnama nor in the evidence of the prosecution there was any explanation about this particular slip in Article 1' wherein M1.5G was written. Mr. Arolkar contended that P.W. 1 has specifically admitted in his cross-examination that the chit having the writing M1.5G was not written by the police officers or the panchas, whereas the independent panch P.W. 3 admitted that it was written on the spot, therefore, according to Mr. Arolkar finding of the same, namely, M1.5G in Article 1' is a circumstance which is not at all explained by the prosecution and about which contradictory statement is given by P.W. 1 and therefore this creates doubt about the prosecution case of the raid and seizure and preparing of the panchnama. 8. Thirdly, he contended that presence of P.W. 2 Honap WSI becomes doubtful because if she was present throughout the search and if she returned with both the accused to MRA Marg Police Station, then there is no documentary evidence to prove that the lady accused was shifted from MRA Marg Police lock up on the night between 18-10-1996 and 19-10-1996 to Azad Maidan lock up. 9. Fourthly, it was contended by Mr. Arolkar that so far as accused No. 2 was concerned, she was searched by P.W. 2 and the lady panch. Admittedly, the other police officers and the independent panch P.W. 3 had no personal knowledge and since the lady panch is not examined, the testimony of P.W. 2 remained uncorroborated. 9. Fourthly, it was contended by Mr. Arolkar that so far as accused No. 2 was concerned, she was searched by P.W. 2 and the lady panch. Admittedly, the other police officers and the independent panch P.W. 3 had no personal knowledge and since the lady panch is not examined, the testimony of P.W. 2 remained uncorroborated. He also pointed out that evidence of independent panch P.W. 3 and other police officers including P.W. 2 was contradictory as to who handed over the packet allegedly recovered from accused No. 2 to P.I. Temkar. He, therefore, contended that considering these lacunas in the prosecution case, the accused were entitle for benefit of doubt. 10. We repeatedly questioned the prosecution about these infirmities but so far as finding of the white slip in Article 1' is concerned, the learned APP could not give the satisfactory explanation. So far as P.W. 3 is concerned i.e. his evidence about having acted as panch in an earlier NDPS case of the same police station, the learned APP tried to contend that merely because P.W. 3 has acted as a panch in the earlier case, he could not be labelled as a professional panch. So far as recovery of gurd powder from accused No. 2 was concerned, according to the learned APP the evidence was consistent, and absence of documentary evidence about keeping the accused No. 2 in lock up of Azad Maidan Police Station by P.W. No. 2 was not in her opinion a circumstance to reject the prosecution case entirely. 11. We have given our anxious consideration to the submissions made by Mr. Arolkar and the learned APP. 11. We have given our anxious consideration to the submissions made by Mr. Arolkar and the learned APP. It is true that merely because P.W. 3 has acted as a panch in another NDPS case, he cannot be labelled as a professional panch but it is equally true that P.W. 3 had admitted that he was residing by the side of MRA Marg Police Station since his childhood and he was knowing the police officers, is a circumstance, particularly in this case which goes against the prosecution, because this was a case of raid on pre-intimation or prior information and as such sufficient time was available at the disposal of the police to collect an independent panch atleast a panch who was not residing in the immediate neighbourhood of the police station and who was not known to the police, no precaution was taken in selecting the panch and no explanation is given why this particular person P.W. 3 who has acted previously as a panch and who was known to the police officers, was selected. 12. Secondly, so far as accused No. 2 is concerned according to P.W. 1 search of the accused No. 2 was taken by the side of one hut and during the search one plastic bag containing brown colour powder was found and WSI Honap informed that the said plastic bag was concealed in the saree. As against this, WSI Honap states that she took the search of accused No. 2 in presence of a lady panch. During this search one plastic bag was found in the saree on the waist of accused No. 2 and what she specifically states that we brought the said plastic bag to P.I. Temkar, whereas P.W. 3 has stated that it was accused No. 2 who was having a plastic bag containing brown colour powder, handed it over to P.I. Temkar, and P.W. No. 6 P.I. Temkar states that it was WSP Honap who gave the plastic bag to him. 13. It will be clear that versions given by these witnesses differ materially. This fact coupled with the fact that independent lady panch was not examined by the prosecution to corroborate the testimony of WSI Honap is a strong circumstance weighing in favour of the accused. 14. 13. It will be clear that versions given by these witnesses differ materially. This fact coupled with the fact that independent lady panch was not examined by the prosecution to corroborate the testimony of WSI Honap is a strong circumstance weighing in favour of the accused. 14. The third circumstance which is in favour of the accused is the finding of white paper slip in Article No. 1' bearing M-I. 5G mark. None of the prosecution witnesses have any explanation to offer about this slip. Even the C.A. who was examined to explain the finding of two slips bearing mark M-853-96/1 and M-853-96/2 was not asked about these slips. In fact, if the C.A. was examined to explain two number slips found in Articles 1' and 2', he should have been also questioned about these particular slips found in Article 1' and 2' and mark M-1.5G. 15. It is true that in all respect the evidence of the prosecution regarding seizure, sealing, packing and labelling of the two packets is consistent along with forwarding letter and report of the C.A. but finding of this particular aspect in Article 1' is not explained by any of the prosecution witnesses. To the contrary P.W. 1 has admitted that this slip was not written by him or anybody on the spot. 16. All these three aforementioned facts coupled with the fact that the contraband recovered from accused No. 1 and 2 is 15 grams and 10 grams only, are in our opinion, circumstances sufficient to give benefit of doubt to the accused. We do not find any lacuna in the prosecution case about putting the accused No. 2 in the lock up of Azad Maidan Police Station by a Constable instead of WSI P.W. 2 Honap. Admittedly, MRA Marg Police Station and Azad Maidan Police Station are at a distance of couple of minutes and even if the accused No. 2 was not taken to the Azad Maidan lock up by WSI Honap, it would not create doubt about the presence of WSI Honap on the spot. 17. Mr. Arolkar also tried to contend that accused No. 2 was not understanding Hindi and compliance of section 50 of the NDPS Act was not made in the language known to the accused. 17. Mr. Arolkar also tried to contend that accused No. 2 was not understanding Hindi and compliance of section 50 of the NDPS Act was not made in the language known to the accused. In support of this contention he pointed out that the examination of accused No. 2 under section 313 of the Cri.P.C. was taken in Tamil language with the help of interpreter by the Special Judge. However, we find from the judgment that the Special Judge tested the ability of the accused No. 2 to understand Hindi in an intelligent manner and he found that accused No. 2 was understanding Hindi. We do not therefore accept the contention of Mr. Arolkar, in this regard. 18. However, for all the these reasons, the benefit of doubt is required to be given to the accused and hence the following order : ORDER Both the appeals are allowed. The convictions and sentences imposed on both these accused under section 21 r/w section 8(c) of the NDPS Act, 1985 in NDPS Case No. 624 of 1996 are set aside and they are acquitted of the charges. They be set at liberty if not required in any other case. Order regarding muddemal property remains unchanged. Writ of this order be sent to the trial Court immediately. Appeals allowed. -----