D. K. TRIVEDI, J. ( 1 ) THESE two appeals are filed by original accused Nos. 1 and 4 of Sessions case No. 10 of 1997 tried and decided by learned Additional Sessions Judge, Vadodara, for challenging the judgment of conviction and sentence dated 1 9/01/1999 rendered in aforesaid Sessions Case, and therefore, as per the request of learned Advocates of both parties in two appeals, these two appeals are heard and decided by this common judgment. ( 2 ) THE original accused Nos. 1 and 4 have, by filing these two appeals viz. Criminal Appeal No. 179 of 1999 and Criminal Appeal No. 265 of 1999 respectively under Sec. 374 (2) of the Code of Criminal Procedure, 1973, (for short cr. P. C.) challenged correctness and legality of judgment (Ex. 73) of conviction and sentence dated 19th January, 1999 rendered by the learned Additional Sessions Judge, Vadodara in Sessions Case No. 10 of 1997 by which the accused No. 1 is convicted under Sec. 235 (2) of Cr. P. C. of offences punishable under Secs. 8-C read with Sec. 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the act) and sentenced to undergo R. I. for 10 years and to pay a fine of Rs. two Lacs, and in default of fine, to undergo further imprisonment for six months, and accused No. 4 is convicted under Sec. 235 (2), Cr. P. C. for offences punishable under Secs. 8-C and 21 read with Sec. 29 of the Act and sentenced to undergo R. I. for 10 years and to pay a fine of Rs. two Lacs, and in default of fine, to undergo further imprisonment for six months. ( 3 ) BY that very judgment, original accused Nos. 2 and 3 of Sessions Case No. 10 of 1997 were acquitted of the offences for which a charge Exh. 6 was framed against them on 12/12/1997. The State Government has not preferred any acquittal appeal against that acquittal judgment rendered in favour of accused Nos. 2 and 3. ( 4 ) FROM papers, it appears that on or about 10/8/1997 at about 0-15 hrs, accused No. 1 was found with physical possession of brown sugar weighing about 2 Kgs - 970 Gms. on platform No. 1 of Vadodara Railway Station at Vadodara. 2 and 3. ( 4 ) FROM papers, it appears that on or about 10/8/1997 at about 0-15 hrs, accused No. 1 was found with physical possession of brown sugar weighing about 2 Kgs - 970 Gms. on platform No. 1 of Vadodara Railway Station at Vadodara. From the papers, it also appears that for carrying and disposing of this big quantity of brown-suger, there was conspiracy hatched by about six persons who were involved in this case. The kingpin of the episode is Mohamed Sabir Haji Mohmed Allabax Chhipa (Panwala), resident of Mansor, Madhya Pradesh. He is still absconding. His name is shown as absconding accused No. 1 in verticle column No. 2 of chargesheet filed in the Court. Reference of this kingpin will be made hereinafter as prime accused. ( 5 ) AS stated in charge framed against the accused, the prime accused is a manufacturer and supplier of brown-sugar in a big quantity. So far as this case is concerned, this quantity of brown-sugar found from accused No. 1 was first to be delivered to one Bai Kusum Nagnath Gaekwad who is also absconding and her name is shown as absconding accused No. 2 in verticle column No. 2 of the chargesheet. It also appears from the record that it is a case of the prosecution that accused Nos. 2 and 3 were to collect their required quantity of brown-sugar from the said absconding accused No. 2 Kusum Nagnath Gaekwad resident of Ambarnath, Dist. Thane, Maharashtra. As per the case of the prosecution, accused No. 4 who is appellant in Criminal Appeal No. 265 of 1999 is a partner of prime accused for business of brown-sugar. He is also related to the prime accused. As per the case of the prosecution, prime accused is a brother-in-law (wifes brother) of accused No. 4. ( 6 ) THE facts of the case, which are eloquent and self-explanatory leading to these appeals, are as follows:6. 1 one Dilipbhai Vasant Pradhan who is a complainant in this case was serving as Police Sub Inspector in Vadodara Railway Police Station. On 10/8/1997 at about 0-05 hrs. said complainant in company of Police Sub Inspector Shri Haribhai Ganpatrao Galfade, Head Constables Ranjitsinh, Fatesinh, Dalpatbhai and Police Constables Ashok Devji and Vithoba Dagdu was on duty of night patrolling on the Railway Station. On 10/8/1997 at about 0-05 hrs. said complainant in company of Police Sub Inspector Shri Haribhai Ganpatrao Galfade, Head Constables Ranjitsinh, Fatesinh, Dalpatbhai and Police Constables Ashok Devji and Vithoba Dagdu was on duty of night patrolling on the Railway Station. For the purpose of night-patrolling, they were moving here and there on platform No. 1 of Varodara Railway Station. They were keeping surveillance on suspected and doubtful persons, if any, on the said platform. At about 0-10 hrs. one passenger train, by name "awantika Express" arrived on Platform No. 1 from Ratlam side. Passengers got down from the said train and the train took a halt of about five minutes. At about 0-15 hrs. complainant and members of party of night-patrolling saw one person standing at a distance of 15 from Aahuvalias Stall. As per the case of the prosecution, that person was having two big bags in his hands. It was felt by complainant and members of his party that the said person was waiting for somebody and thereupon, the complainant asked the members of his party to keep close watch on the activity of said person. During the time, that person doubted the presence of complainant and his party members, and therefore, he started to walk with speed on platform towards northern side. Therefore, the complainant asked his party members to stop the said person walking with speed and make a formal enquiry. Police Constable Ashok Devaji and other members of the party stopped the said person from going further. Complainant reached to that person. That person was asked as to what he was having with him. That person gave replies with hesitation and uncertainty. Thereafter, name and address of that person were asked to him. That person did not give his name and address. Hence the complainant doubted and suspected for this person. Therefore, the complainant and members of his party took that person along with his two bags to Police Chowky outside the platform, where the passengers are taking rest. Thereafter the complainant asked Police Constable Ashok Devaji to bring two respectable persons to act as Panchas for making search of the goods and person of that man. Police Constable brought two persons namely one Haresh Jethalal Sukhani and another Nimesh Umeshbhai Surve. Thereafter the complainant asked Police Constable Ashok Devaji to bring two respectable persons to act as Panchas for making search of the goods and person of that man. Police Constable brought two persons namely one Haresh Jethalal Sukhani and another Nimesh Umeshbhai Surve. The complainant made these two persons to understand that the person of the suspected man and his two bags were required to be searched in their presence. That two persons agreed to act as Panch witnesses. Then, first of all, one big bag of gunny with chain having wooden handle was opened in presence of these two panch witnesses. On opening that bag, first of all, one Lungi was found, and beneath that Lungi, one air pillow was found. Below that air pillow, there was one pent of blue-grey colour. That pent was taken out. There were three plastic bags in that pent. It is alleged by the prosecution that there was light-yellow almond coloured powder inside that three plastic bags. There were white coloured stains of powder on the pent. That powder was smelt by complainant and panch witnesses. They felt that the powder was of some narcotic substance. Thereafter, that packet was cut from the side. There were two layers of the plastic bags. On opening that packet, strong smell of article like brown-sugar was smelling from that powder. Complainant asked that man to give his name in presence of two panch witnesses. That man gave his name as Mohmed Istekhar Mumtaz, resident of Seka Chowk, near house of Dr. Ali, Mansor (M. P. ). That person is accused No. 1 in the case and he will be referred to hereinafter as "a-1". Complainant informed A-1 that he has committed offence punishable under the provisions of the Act. Therefore, the complainant asked A-1 as to whether he wanted to be searched in presence of either any gazetted officer or Magistrate, as he (complainant) wanted to search his (A-1s) goods. For this, a written information was given to A-1. A-1 was also made to understand about this requirement in Hindi. Accused No. 1 replied in the negative. Thereafter, the complainant asked Police Head Constable Fatehsinh to call for and bring goldsmith along with scale and weight measures. Complainant gave letter of request to Police Constable Ashok Devaji to call for and bring Officer from Forensic Science Laboratory (for short "f. S. L. " ). Accused No. 1 replied in the negative. Thereafter, the complainant asked Police Head Constable Fatehsinh to call for and bring goldsmith along with scale and weight measures. Complainant gave letter of request to Police Constable Ashok Devaji to call for and bring Officer from Forensic Science Laboratory (for short "f. S. L. " ). Till goldsmith and officer of F. S. L. arrived, remaining two packets were kept in same condition. Mean while, another big canvass-bag was opened and searched and in that canvass-bag, three shirts, one pent, bed-sheet and other cloths were found. No doubtful article was found from that another bag. 6. 2 one Mr. Vaghela who is officer of F. S. L. arrived in the Police Chowky. He was requested to make a preliminary examination of the substance found from the first packet. Mr. Vaghela made a preliminary examination and gave his preliminary finding that powder was a brown-sugar, for which he gave a certificate also on the spot. One Praffulkumar Bansilal Choksi who is a goldsmith came there with scales and weight measures. Goldsmith weighed three packets found from big gunny bag found from the pent of A-1. On weighing that three plastic bags, first was found weighing 950 Gms. , second was found weighing 1 Kgs -010 gms. and third was found weighing 1 Kg.-010 Gms. i. e. in all 2 Kgs. 970 Gms. As per the prosecution case, international value of this quantity of 2 Kgs.-970 Gms. of brown-sugar could be estimated to be Rs. 3 Crores. Thereafter, three samples, each of 5 Gms. were taken from each of the three plastic bags, for the purpose of analysis. Likewise, three samples, each of 5 Gms. from each of the three plastic bags, were taken to be kept them as reserved samples. Thereafter, after following due procedure, that samples were properly packed and sealed and on each sample, a seal of Police Sub Inspector, Government Railway Police, Vadodara, was affixed. Three plastic bags with remaining substance were also properly packed and sealed as per procedure prescribed. On making search of person of A-1, two Railway tickets were found from the pocket of shirt of A-1. One Railway Ticket was of the route from Mansor to Ratalam and other Railway Ticket was of the route from Ratlam to Bombay Central. A cash amount of Rs. 287. On making search of person of A-1, two Railway tickets were found from the pocket of shirt of A-1. One Railway Ticket was of the route from Mansor to Ratalam and other Railway Ticket was of the route from Ratlam to Bombay Central. A cash amount of Rs. 287. 00, a receipt for having made a telephone from STD booth, Visiting Card and other articles were found from A-1. All these articles were also seized under panchnama in presence of panch witnesses. A receipt for articles seized was given to A-1. A-1 was made to understand the contents of that receipt by explaining him in Hindi language. Thereafter, A-1 was arrested. By giving a written letter, A-1 was informed of grounds of arrest as per Sec. 50 of Cr. P. C. Thereafter, complainant lodged his complaint in Vadodara Railway Police Station along with custody of A-1 and all the articles seized from A-1. Police Head Constable Devala Jethabhai Chaudhry who was P. S. O. of Vadodara Railway Police Station received the complaint, A-1 and all the articles produced by the complainant. He registered that complaint as CR. No. II 3627/97 at 04-25 hrs. , on 10/8/1997. He took A-1 into police lock-up. He made entry in Station Diary. He then sent for Muddamal Writer Head Constable from his house in the police lane. One Gajendrasinh Indrasinh came and he took all the Muddamal articles produced by the complainant and placed in cupboard. Thereafter, Devlabhai Chaudhary handed over the investigation of the case to P. S. I. Shri Haribhai Ganpatbhai Galfade. Mr. Galfade investigated the case thoroughly and ultimately, he filed chargesheet in the Sessions Court, Vadodara on or about 5/11/1997 against four accused, out of which accused nos. 1 and 4 are the appellants of these two appeals. As stated earlier, names of prime accused and Bai Kusum Nagnath Gaekwad are mentioned as names of absconding accused Nos. 1 and 2 in vertical column No. 2 of the chargesheet. As per chargesheet, accused nos. 1 to 4 and two other absconding accused have committed the offences punishable under Secs. 8-C, 21 read with Sec. 29 of the Act. ( 7 ) THE learned Additional Sessions Judge, Vadodara, who presided over the Special Court constituted under Sec. 36 of the Act, framed charge ex. 6 against four accused on 12/12/1997. As per chargesheet, accused nos. 1 to 4 and two other absconding accused have committed the offences punishable under Secs. 8-C, 21 read with Sec. 29 of the Act. ( 7 ) THE learned Additional Sessions Judge, Vadodara, who presided over the Special Court constituted under Sec. 36 of the Act, framed charge ex. 6 against four accused on 12/12/1997. It was read over and explained to the said four accused to which they pleaded not guilty to the charge and claimed to be tried. The prosecution has examined in all 16 witnesses to prove its case against the accused. The prosecution also produced voluminous documentary evidence in support of its case against the accused. As stated earlier, the original accused Nos. 2 and 3 were acquitted of the offences for which a charge Ex. 6 was framed against them and as the State Government has not preferred any acquittal appeal against them, names of witnesses who gave evidence against accused Nos. 2 and 3, the documents produced in support of the case against accused Nos. 2 and 3, are found not necessary to be referred to in this judgment. ( 8 ) FOR case against accused No. 1, the prosecution has examined following witnesses: (1) p. W. 1 Nimesh Umeshbhai Surve at Ex. 12; (2) p. W. 4 Praffulkumar Bansilal Chokshi at Ex. 26; (3) P. W. 5, Police Head Constable Devlabhai Jethabhai Chaudhari at Ex. 28; (4) P. W. 5, Police Head Constable Gajendrasinh Indrasinh at Ex. 30; (5) P. W. 7, Police Head Constable Sitaram Marutee at Ex. 32; (6) p. W. 8, Dipakkumar Bhagwatilal at ex. 37; (7) P. W. 10, Police Sub Inspector Dilipbhai Vasantbhai Pradhan at Ex. 41; and (8) P. W. 16, Police Sub Inspector, Haribhai Ganpatrao Galfade at Ex. 63. ( 9 ) THE prosecution relied upon the following documentary evidence in support of its case against accused Nos. 1 and 4: (1) written information given to A-1 for having seized articles from his possession at Ex. 22; (2) panchnama of seizure of articles including contraband brown-sugar, total weighing about 2 Kgs. 970 Gms. at Ex. 23; (3) Receipt given by goldsmith (P. W. 4) who weighed contraband brown-sugar at Ex. 27; (4) Entry at Serial No. 5 on Page 67 of Station Diary at Ex. 22; (2) panchnama of seizure of articles including contraband brown-sugar, total weighing about 2 Kgs. 970 Gms. at Ex. 23; (3) Receipt given by goldsmith (P. W. 4) who weighed contraband brown-sugar at Ex. 27; (4) Entry at Serial No. 5 on Page 67 of Station Diary at Ex. 29; (5) Entries on Pages 75 and 76 of Muddamal Register made by P. W. 6 at Ex. 31; (6) Forwarding letter sent along with Muddamal samples of contraband articles to F. S. L. at Ex. 35; (7) Receipt issued by F. S. L. at Ex. 36; (8) Report of F. S. L. at Ex. 38; (9) Complaint of P. W. 10 at Ex. 46; (10) Yadi written to Assistant Director, F. S. L. requesting him to come personally at the spot, at Ex. 47; (11) Certificate given by Scientific Officer after making preliminary examination of contraband articles in question on the spot, at Ex. 48; (12) Letter written to S. D. P. O. who is a superior officer of P. W. 10, in compliance of Sec. 57 of the Act, at Ex. 49; (13) Letter written to Judicial Magistrate, First Class intimating about seizure of contraband articles in compliance of Sec. 102 (3), Cr. P. C. , at Ex. 50; (14) Written information given to A-1 for making compliance of Sec. 50 of the Act, at Ex. 51; (15) Written information given by translating the contents in Hindi to A-1 stating inter alia the grounds of arrest in compliance of Sec. 50 of Cr. P. C. , at Ex. 52; (16) Certificate obtained from Railway Station Superintendent of Vadodara Railway Station in which the time of arrival of "awantika Express" and period of its halt are mentioned, at Ex. 53. ( 10 ) AS against accused No. 4, (who will be referred to hereinafter as A-4) the prosecution has examined only one witness viz. P. W. 4, Ishak Ibrahim Jethava at Ex. 59; in support of its case. The prosecution has produced following documentary evidence in support of its case against A-4: (1) Entry No. 47 made in register of J. K. Guest House at Ex. 60; (2) panchnama of physical search of A-4 at Ex. 66; (3) Chart of passengers travelled in coach of Awantika Express at Ex. 67; and (4) Letter written to C. T. I. , Sleeper Western Railway, Vadodara at Ex. 68. 60; (2) panchnama of physical search of A-4 at Ex. 66; (3) Chart of passengers travelled in coach of Awantika Express at Ex. 67; and (4) Letter written to C. T. I. , Sleeper Western Railway, Vadodara at Ex. 68. ( 11 ) AFTER recording of evidence of the prosecution witnesses was over, the circumstances appearing against all the four accused were brought to the notice of and explained to them. For compliance of Sec. 313, Cr. P. C. further statement of the accused were recorded. ( 12 ) A-1 has denied the entire case of the prosecution and in answer to last question put to him, A-1 has stated that no Muddamal article was found from him and that he is involved in false case and he is innocent. ( 13 ) A-4 has also denied the entire case of the prosecution. In last question put to him in his further statement, A-4 has stated that he is known by name Mohmed Salim and he is never known by name Haroon. He is arrested in place of Haroon and that Haroon is a quite different person than him and further that a false case has been lodged against him. ( 14 ) THE learned Judge of the trial Court, after hearing the arguments of the learned Advocates for both the parties and after appreciating evidence led by both the parties, rendered his judgment Ex. 73 dated 19/1/1999 and convicted and sentenced A-1 and A-4 for which reference is made earlier as stated hereinabove. The appellants in these two appeals who were A-1 and A-4 respectively in the original case have challenged that judgment of conviction and sentence, in these two appeals. ( 15 ) HEARD Ms. Shilpa J. Unwala, learned Advocate for the appellant of Criminal Appeal No. 179 of 1999, Mr. Anil S. Dave, learned Advocate for the appellant of Criminal Appeal No. 265 of 1999 and Mr. K. P. Raval, learned APP for the State who is respondent in both the appeals. ( 16 ) MR. A. S. DAVE, learned Advocate for the appellant (original accused No. 4) in Criminal Appeal No. 265 of 1999 has taken us through the entire oral as well as documentary evidence on record. ( 17 ) MS. K. P. Raval, learned APP for the State who is respondent in both the appeals. ( 16 ) MR. A. S. DAVE, learned Advocate for the appellant (original accused No. 4) in Criminal Appeal No. 265 of 1999 has taken us through the entire oral as well as documentary evidence on record. ( 17 ) MS. Shilpa J. Unwala, learned Advocate for appellant (original accused No. 1) in Criminal Appeal No. 179 of 1999 has argued that the learned Judge of the trial Court has not appreciated the evidence in its correct perspective and that he has reached to conclusion, contrary to the evidence as well as the provisions of law. ( 18 ) TO assail the judgment qua her client A-1, she has argued that this is a case under the N. D. P. S. Act and when there are provisions of severe punishment in the case for offences committed under the Act, the Court should see that all the required mandatory provisions of the Act are fully complied with by the complainant for a search of a person and gunny bag which was with A-1. In her arguments, she raised only one and one contention that the complainant did not comply with the requirements of Sec. 50 of the Act before searching the person and gunny bag which was with A-1 and when the provisions of Sec. 50 of the Act are mandatory and if it is found that the said provisions are not complied with, then entire raid becomes illegal and trial commenced on the basis of such investigation is vitiated, and therefore, benefit of doubt should be given to accused. She further argued that appeal preferred bhy A-1 be allowed and A-1 be acquirred. Except the contention with regard to non-compliance of Sec. 50 of the Act, no other contention has been raised by her to assail the judgment. ( 19 ) MR. A. S. DAVE, learned Advocate for the appellant in Criminal Appeal No. 265 of 1999 has vehemently argued that there is no evidence whatsoever on record to connect his client A-4 with the crime. As per his arguments, co-incidently A-4 was found travelling in awantika Express" on that very day on which A-1 was found with contraband article on Platform No. 1 of Varodara Railway Station at Vadodara. As per his arguments, co-incidently A-4 was found travelling in awantika Express" on that very day on which A-1 was found with contraband article on Platform No. 1 of Varodara Railway Station at Vadodara. He has further argued that A-4 has no relation whatsoever with A-1 and he has been unnecessarily roped in, on the basis of the statement made by co-accused, and if it is found that A-1 made a statement against A-4, then it cannot be said to be a relevant piece of evidence to hold A-4 guilty for the offence by applying the provisions of Sec. 29 of the Act. He has further argued that A-4 is an innocent person and he has not committed any offence because there is no reference about his name in the F. I. R. In short, his contention to assail the judgment is on the ground that there is no evidence whatsoever against A-4. He has argued that the learned Judge of the trial Court has seriously erred in convicting A-4 on the basis of "no evidence", and therefore, A-4s appeal be allowed by this Court and A-4 be acquitted from the case. ( 20 ) WE have considered the submissions made by the learned Advocates for both the appellants. We have re-appreciated the evidence led by the prosecution to arrive at our own conclusions. It may be noted that in this case, learned Advocate of neither of the appellants has cited any authority in support of her/his submissions. . ( 21 ) FOR reappreciation of evidence, we have closely and carefully scrutinised the evidence of complainant Dilipbhai Vasantbhai Pradhah, P. W. 10 at Ex. 45. As per his evidence, on 10/8/1997 at about 0-05 hrs. , he in company of P. S. I. Mr. Galfade and other Police Constables was on duty of night petrolling on Platform No. 1 of Vadodara Railway Station. The purpose of that night petrolling was to keep surveillance on the activities of doubtful and suspected persons, if any, found on the platform. He has further deposed that at about 00-10 hrs, Awantika Express train arrived on Platform No. 1 and passengers got down from it and within five minutes, passengers were out of the Railway Station and persons of less in number were there on the platform. He has further deposed that at about 00-10 hrs, Awantika Express train arrived on Platform No. 1 and passengers got down from it and within five minutes, passengers were out of the Railway Station and persons of less in number were there on the platform. As per his evidence, he and members of his party saw that one person was standing with two big bags in his hands at a distance of 15 away from Ahuwalias Stall. They doubted for this person, and therefore, they were keeping close watch on that person. As per his evidence, that person felt the presence of Police personnel on the Railway Platform, and therefore, he started to speedily walk towards northern side and thereupon he was made to halt by Police Constable Ashok Devji and other police persons. Complainant went to that person. That person was found to have been frightened. He was asked about his name and address, but he could not give his name and address. As per his evidence, complainant entertained a serious doubt in his mind for this person, and therefore, they decided to search that person along with his two bags. Therefore, complainant asked Police Constable Ashok Devaji to call for two respectable persons to act as Panch witnesses at the time of search of that person. That person was taken outside the Railway platform in police chowky. Railway Police Chowky was there in the premises of a big room meant for the rest of the passengers. As per his evidence, two panch witnesses came on the spot. Thereafter, a bag of gunny with chain having wooden handle was opened in presence of panch witnesses, and on opening that bag, one Lungi, air pillow and one brown colour pent were found from that bag. On further making search of that pent, it was found that there were about three plastic bags containing light almond and yellow coloured powder. That pent was also stained with coloured of that powder. As per his evidence, a strong smell was smelling from that three plastic bags. They suspected that that smell was of some narcotic substance. As per his evidence, one of that three bags were opened from side and it was found that the plastic bags were having two layers and substance was smelling smell of substance like brown-suger. Therefore, the complainant asked that person to state his name and address. They suspected that that smell was of some narcotic substance. As per his evidence, one of that three bags were opened from side and it was found that the plastic bags were having two layers and substance was smelling smell of substance like brown-suger. Therefore, the complainant asked that person to state his name and address. That person gave his name as Mohmed Istekhar Mumtaz, resident of Sikka Chowk, near house of Dr. Ali, Mansor (M. P. ). As per the evidence of complainant, that person was nobody else but that person was A-1. Complainant found that article found from the bag was brown-suger, and therefore, the accused has committed the offences under N. D. P. S. Act, and therefore, he started to comply with the provisions of N. D. P. S. Act. Immediately, thereafter the complainant in presence of panch witnesses informed A-1 of his statutory right under sub-sec. (1) of Sec. 50 of the Act, of being taken to nearest Gazetted Officer or nearest Magistrate for making search. As per his evidence, he gave written information to A-1. That written information is on the record of the case at Ex. 51. As per evidence of complainant, he also explained that information contained in Ex. 51 in Hindi to A-1. A-1 said that he did not wish to be searched in presence of either Gazetted Officer or Magistrate. As per his evidence, as two other plastic bags were containing alike substance, the complainant asked the said P. C. Ashok Devji to call for one Goldsmith along with scales and weight measures. As per evidence of complainant, one Goldsmith P. W. 4 Praffulkumar Bansilal Chokshi (Ex. 26) came there in Police Chowky by bringing with him scales and weight measures. Thereafter, in presence of panch witnesses, that three plastic bags were weighed and it was found that three bags were containing 0-950 Gms. , 1 Kg-10 Gms. and 1 Kg.-10 Gms. , respectively. As per his evidence, samples were taken from each bag as per procedure prescribed, in presence of panch witnesses. That samples were properly packed and sealed with seal of Police Sub Inspector, Government Railway Police, Vadodara. Thereafter, search of "person" of A-1 was made in presence of panch witnesses and on making such search, two Railway Tickets, one for travelling from Mansor to Ratlam and other for travelling from Ratlam to Bombay, cash of Rs. 287. That samples were properly packed and sealed with seal of Police Sub Inspector, Government Railway Police, Vadodara. Thereafter, search of "person" of A-1 was made in presence of panch witnesses and on making such search, two Railway Tickets, one for travelling from Mansor to Ratlam and other for travelling from Ratlam to Bombay, cash of Rs. 287. 00, some receipt issued by PCO Booth for phones having been made, Visiting Card and one religious book etc. were found from the cloths worn by A-1. As per his evidence, a detailed panchnama was drawn at Ex. 23 in presence of panch witnesses and A-1 for seizure having been made for articles from possession of A-1. A receipt was given to A-1 for article seized from him. That receipt is at Ex. 22. The complainant has categorically stated in his evidence that contents of that receipt Ex. 23 were explained in Hindi to A-1. Goldsmith who weighed the articles and who weighed Muddamal articles for preparing samples, had issued receipt Ex. 26. As the accused No. 1 had committed offence under the N. D. P. S. Act, complainant gave an information in writing stating inter alia the grounds for his arrest. That information is at Ex. 52. The complainant has categorically stated that A-1 was explained in Hindi. Thereafter, the complainant prepared his complaint Ex. 46. As per his evidence, he had gone to Vadodara Railway Police Station taking with him the accused No. 1 along with the complaint, and Muddamal articles, and lodged the complaint Ex. 46 against A-1. ( 22 ) THE prosecution has examined P. W. 5, Devlabhai Jethabhai Chaudhari at Ex. 28 who was on duty as P. S. O. in Vadodara Railway Police Station. He has deposed in his evidence that he was on duty as P. S. O. in Railway Police Station right from 0-20 hrs. of 9/8/1997 to 8-00 a. m. of 10/8/1997. In his presence as P. S. O. of Railway Police Station at about 04. 25 hrs. Police Sub Inspector Shri Pradhan lodged a complaint Ex. 26. Mr. Pradhan also produced muddamal articles before him. A-1 was put in police lock-up. As per his complaint, he registered the offence at CR. No. II 3627 of 1997 at 04-25 hrs. In his presence as P. S. O. of Railway Police Station at about 04. 25 hrs. Police Sub Inspector Shri Pradhan lodged a complaint Ex. 26. Mr. Pradhan also produced muddamal articles before him. A-1 was put in police lock-up. As per his complaint, he registered the offence at CR. No. II 3627 of 1997 at 04-25 hrs. To hand over the muddamal articles to Police Head Constable who was keeping such articles in his custody, this witness (P. W. 5) called for Gajendrasinh Indrasinh from his residence. ( 23 ) GAJENDRASINH Indrasinh is examined as P. W. 6 at Ex. 30. He has deposed that he was present in his house situated in police line, Akota on 10/7/1998, and in the early morning, one Police Constable Kanaksinh came to call him. He has further deposed that he immediately went to Vadodara Railway Police Station. He has specifically deposed that P. S. O. Devlabhai, after registering the offence, handed over nine packets of muddamal articles together with other articles to him. He immediately made necessary entries in the Muddamal Register and samples of muddamal articles which were to be sent to Forensic Science Laboratory were kept in their cupboard. He has produced relevant register which he made on Pages 75 and 76 of that Muddamal Register at Ex. 31. He was shown muddamal Pawati which is produced at Ex. 2 in the case. He has further deposed that article Muddamal Pawati Ex. 2 is signed by him. He has further deposed that he sent samples of muddamal articles through Head Constable Sitaram Marutee. ( 24 ) THE prosecution has examined Sitaram Marutee as P. W. 7 at Ex. 32. Sitaram Maruti has deposed that on 11/8/1997, he was on duty as Head Constable in Vadodara Railway Police Station and on that day at 11-30 p. m. Mr. Galfade gave him a written order Ex. 33 to take and carry muddamal articles of CR. No. II 3627/97 of Vadodara Railway Police Station to Forensic Science Laboratory. Thereafter, he collected muddamal articles from Head Constable Gajendrasinh and then he carried that muddamal articles to Forensic Science Laboratory in same intact sealed condition. He has produced an office copy of forwarding letter at Ex. 35. On handing over muddamal articles to the responsible officer of the Forensic Science Laboratory, he was issued a receipt Ex. 36 by that officer of Forensic Science Laboratory. He has produced an office copy of forwarding letter at Ex. 35. On handing over muddamal articles to the responsible officer of the Forensic Science Laboratory, he was issued a receipt Ex. 36 by that officer of Forensic Science Laboratory. The prosecution has produced report of Forensic Science Laboratory at Ex. 38. To prove the fact that article which was seized from A-1 was a brown-suger, the prosecution relies on report of Forensic Science Laboratory Ex. 38. ( 25 ) TO prove that report Ex. 38, prosecution has examined P. W. Dipakkumar Bhagwatlal at Ex. 37. He has proved that report Ex. 38. As per that report Ex. 38, the article was found to be brown-suger. 25. 1 as per evidence of Devlabhai Jethabhai P. W. 5, he entrusted further investigation of the crime to Police Sub Inspector Mr. Galfade. ( 26 ) PROSECUTION has examined Mr. Haribhai Ganpatbhai Galfade as P. W. 16 at Ex. 63. Mr. Galfade has deposed that on 10/8/1997, he was discharging his duties as Police Sub Inspector of Vadodara Railway Police Station and investigation of CR. No. II 3697/97 was entrusted to him by Devlabhai Jethabhai P. S. O. who is examined as P. W. 5 at Ex. 28 in this case, immediately, on receipt of investigation of the case, at the first instance he interrogated A-1 and on the basis of that interrogation, he came to know that the article which was seized from A-1 was to receive by original accused Nos. 2 and 3 namely Karuna Ambadas Jadav and Ambalal Parshottam Jadav, both of resident of Ambarnath. He conducted the investigation and collected evidence against rest of the original accused Nos. 2,3 and 4 and after recording necessary statements of witnesses etc. , ultimately he filed chargesheet in the case. ( 27 ) PROSECUTION has examined panch witness Nimeshbhai Umeshbhai Surve at Ex. 12. He has supported the case of prosecution. He has proved contents of panchnama at Ex. 12. Thus, evidence of complainant gets corroboration by contemporaneous document viz. Panchnama Ex. 23 as well as his own complaint Ex. 46. Evidence of complainant also gets corroboration by evidence of P. S. I. Mr. Galfade Ex. 26 because he was throughout present during search. Thus, the prosecution has proved his case beyond reasonable doubt. 12. Thus, evidence of complainant gets corroboration by contemporaneous document viz. Panchnama Ex. 23 as well as his own complaint Ex. 46. Evidence of complainant also gets corroboration by evidence of P. S. I. Mr. Galfade Ex. 26 because he was throughout present during search. Thus, the prosecution has proved his case beyond reasonable doubt. The learned Judge of the trial Court has assigned all possible, plausible and cogent reasons to come to a conclusion that the prosecution has proved his case as against the accused No. 1. We are in agreement with that reasons assigned by the learned Judge of the trial Court. ( 28 ) DURING the course of arguments, there is no serious controversy from A-1 except with regard to compliance of Sec. 50 of the Act. Ms. Shilpa J. Unawala, learned Advocate for the accused No. 1 has argued that it is the case of the prosecution that person of accused No. 1 was searched and before making search of person of accused No. 1, he was not made to understand/know his right to be searched in presence of either Gazetted Officer or Magistrate and thus, there is a serious breach of Sec. 50 of the Act, and that illegality vitiates the investigation which has ended into conviction of accused No. 1. She has further argued that a bag of gunny which was searched was first opened in presence of panch witnesses and lateron the complainant informed of accused No. 1 about his right to be searched either before Gazetted Officer or Magistrate. The complainant ought to have, she argued, informed of accused for his right to be searched in presence of either Gazetted Officer or Magistrate before opening the bag of gunny. As against this argument of Ms. Shilpa Unwala, Mr. K. P. Raval, learned APP has argued that looking to the facts of the case, Sec. 50 of the Act is not attracted in this case. ( 29 ) SEC. As against this argument of Ms. Shilpa Unwala, Mr. K. P. Raval, learned APP has argued that looking to the facts of the case, Sec. 50 of the Act is not attracted in this case. ( 29 ) SEC. 50 (1) of the N. D. P. S. Act reads as follows: Conditions under which search of persons shall be conducted:- (1) When any officer duly authorised under Sec. 42 is about to search any person under the provisions of Sec. 41, Sec. 42 or Sec. 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Sec. 42, or to the nearest Magistrate. As per Sec. 50 of the Act, requirements are to be followed by duly authorised officer under Sec. 42 of the Act. As per Sec. 50 of the Act, requirements are to be followed by duly authorised officer under Sec. 42 of the Act. Reverting back to Sec. 42, we find that Sec. 42 (1) reads as follows: Power of entry, search, seizure and arrest without warrant or authorisation.- (1) Any such officer (being an officer superior in rank to a person, sepoy or constable) of the departments of central excise, narcotics, customs, revenue, intelligence or any other department of the Central Government including paramilitary forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a person, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,- (A) enter into and search any such building, conveyance or place; (B) in case of resistance, break open any door and remove any obstacle to such entry; (C) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of the Act; and (D) detain and search, and if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. ( 30 ) ON close reading of Sec. 42 (1) of the Act, we find that it applies to that officer who has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed. So as per Sec. 42 (1) of the Act, condition precedent for that officer is to the effect that he must have reason to believe or personal knowledge or information. In view of Sec. 50 (1) of the Act, it applies to the officer duly authorised under Sec. 42 of the Act, meaning thereby, an officer who has reason to believe from his personal knowledge or information given by any person, is required to inform the offender for having his right of being searched in presence of either Gazetted Officer or the nearest Magistrate. ( 31 ) HERE in this case, Mr. Pradhan had no previous information with regard to accused No. 1 because he, in company of other police personnel, was on duty of night patrolling on Platform No. 1 of Vadodara Railway Station and during night patrolling, he suspected Accused No. 1 on platform and therefore, accused No. 1 was taken to Railway Police Chowky. Till then he was not knowing as to what articles Accused No. 1 was having in his hand bag, and therefore, question does not arise for informing accused about his right to be searched in the presence of either Gazetted Officer or nearest Magistrate as per Sec. 50 of the Act. ( 32 ) AS discussed earlier and in view of evidence of the complainant, the complainant had no prior information with regard to bringing of brown-suger by Accused No. 1. Complainant and members of his party were on formal duty of night patrolling on Platform No. 1 and after leaving awantika Express", they found one person standing with two bags just at a distance of 15 away from Ahuwalias Stall. On seeing police personnel, that person tried to speedily walk, and therefore, complainant doubted for that person. That person was immediately made to halt and on making interrogation, that person could not give proper answers to the questions put to him, and therefore, he was taken to Police Chowky outside the Platform. On seeing police personnel, that person tried to speedily walk, and therefore, complainant doubted for that person. That person was immediately made to halt and on making interrogation, that person could not give proper answers to the questions put to him, and therefore, he was taken to Police Chowky outside the Platform. As that person had two bags -one of gunny and another of canvass (black coloured), and as the complainant was entertaining serious doubt and suspicion for this person, he wanted to search that two bags. Therefore, he called two panch witnesses and in presence of two panch witnesses, bag of gunny was opened and searched, and as per the case of prosecution, first one Lungi was found and beneath that Lungi, there was a Air Pillow and beneath that Air Pillow, there was brown-grey pent and from that pent, three plastic bags were found. Till these three plastic bags were found from bag of gunny, the complainant was n ot knowing as to what articles were there in that three bags, and therefore, question does not arise for compliance of Sec. 50 of the Act till those three plastic bags which were wrapped in the pent, were found. Thereafter, out of three plastic bags, one plastic bag was opened from side. Powder giving smell like that of brown-suger was there in that bag. At that point of time, complainant came to a decision that the article was a prohibited article under the NDPS Act, and therefore, he immediately asked name and address of accused and immediately, thereafter, he informed A-1 of his right to be searched in presence of either Gazetted Officer or Magistrate. As said earlier, a written information was given to A-1 for compliance of Sec. 50 of the Act. Under the circumstances, it cannot be said that provisions of Sec. 50 of the Act have not been complied with. When bag of gunny was opened in presence of panch witnesses, and till one of the plastic bags was opened, the complainant had no knowledge or idea as to what article was there inside that bag, and therefore, contention of Ms. Shilpa J. Unwala that provisions of Sec. 50 of the Act are not complied with, is rejected. ( 33 ) IN case of State of Punjab Vs. Shilpa J. Unwala that provisions of Sec. 50 of the Act are not complied with, is rejected. ( 33 ) IN case of State of Punjab Vs. Bulbir Singh reported in (1994) 3 SCC 299 , important provisions of N. D. P. S. Act are examined by the Apex Court and ultimately, certain conclusions are given by the Apex Court in Para 25 of the judgment. So far as present case is concerned, conclusion No. 1 will be applicable to the facts of the present case. It reads as follows: (1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of Cr. P. C. and when such search is completed at that stage, Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest, there is a chance of recovery of any narcotic drug or psychotropic substance, then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act. " ( 34 ) HERE in this case, the complainant was a Police Sub Inspector having a rank of Gazetted officer, and therefore, he was an empowered officer and immediately after he found that there was doubtful article like contraband article under the NDPS Act, he gave written information to A-1, and thereafter he proceeded further as per the provisions of the NDPS Act. ( 35 ) LOOKING to the present facts and circumstances of the case, a person of the accused was not searched. No contraband article was found as a result of search of person of A-1. Whatever article was found, was found from the bag of gunny which was with A-1. ( 36 ) IN case of Kalema Tumba VS. State of Maharashtra and another, reported in 1999 (8) SCC 257 , appellant of that case had arrived at Sahara Air Port and his baggage had been searched. Whatever article was found, was found from the bag of gunny which was with A-1. ( 36 ) IN case of Kalema Tumba VS. State of Maharashtra and another, reported in 1999 (8) SCC 257 , appellant of that case had arrived at Sahara Air Port and his baggage had been searched. The appellant had opened that bag after taking out a key from his pocket. On examination, packets containing brownished powder were found from it. It was argued before the Supreme Court that Sec. 50 of the NDPS Act was not complied with. The Supreme Court has rejected the said plea holding that it is only when the person of an accused is to be searched, he is required to be informed about his right to be examined in presence of the Gazetted Officer or a Magistrate. The Supreme Court referred to its earlier decision in the case of State of Punjab Vs. Baldev Singh and has held that the requirement of informing the accused about his right under Sec. 50 comes into existence only when the person of the accused is to be searched. ( 37 ) ON placing reliance on aforesaid decisions, recently the Division Bench of this Court has made this point clear in Criminal Appeal No. 12 of 2002 (parties name : Raghubhai Gandabhai Bharwad vs. State of Gujarat ) decided on 5/6th February, 2002. In that case, bag which was carried by the appellant was searched from where a cotton Dhoti was found and on enrolling Dhoti, a transparent bag was found wherein soft black substance like opium was found. This Court has held as follows:"therefore, in our view when a bag carried by an accused in his hand is searched, it is not necessary for the Investigating Officer to comply with the provisions of Sec. 50 of the NDPS Act because the person of the accused is not to be searched. In view of the clear proposition of law laid down by the Supreme Court that search of a bag does not amount to search of person of an acused, we are of the opinion that the appellant is not entitled to the benefit of Full Bench decision of this Court and we hold that it was not necessary for P. I. Mr. Pathak to inform the appellant that he had right to be searched either in the presence of a Magistrate or in presence of a gazetted officer. " ( 38 ) UNDER the circumstances, in our opinion, this is a clear cut case to which Sec. 50 of the Act is not applicable and in case, if it is held that Sec. 50 of the Act is applicable, then at the relevant point of time, a written information was given to accused about his right to be searched in presence of either Gazetted Officer or a Magistrate, and therefore, the provisions of Sec. 50 of the Act are fully complied with. ( 39 ) IN view of discussions made hereinabove, the only contention which has been taken by Ms. Shilpa J. Unwala that the provisions of Sec. 50 of the Act are not complied with, has no merit and same is rejected. She has further argued that possibly, this was an unclaimed bag found from the Railway Platform and any how, the complainant planted this unclaimed bag, as if it was held by accused. This is not the defence of the appellant. The complainant has very specifically and in unequivocal terms deposed in his deposition that they saw that one person was standing along with two bags in his hands. There is no reason to distrust this statement of the complainant as this fact itself is reflected in the complaint also. It is stated in the complaint Ex. 46 that about 0-15 hrs, one person having two bags -one canvass (black coloured) bag and another bag of gunny in his hands was found in a standing position at a distance of 15 away from Ahuwalias Stall and it appeared to complainant that the person was waiting for somebodys arrival and that person was staring carefully on all the four sides on the platform. The only suggestion was put to complainant that accused No. 1 was not arrested along with muddamal articles. No suggestion is put to this witness that bag of gunny was unclaimed property lying on platform and any how it was given to accused No. 1 and then he was brought to Police Chowky. Thus, this second limb of her argument has also no merit and same is hereby rejected. No suggestion is put to this witness that bag of gunny was unclaimed property lying on platform and any how it was given to accused No. 1 and then he was brought to Police Chowky. Thus, this second limb of her argument has also no merit and same is hereby rejected. This very point was also raised before the learned Judge of the trial Court and the learned Judge of the trial Judge has discussed this point elaborately and he has given reasons for discarding the contention taken by accused No. 1. We are in full agreement with the reasons assigned by the learned Judge of the trial Court so far as they relate to appellant No. 1. ( 40 ) MS. Shilpa J. Unwala has not taken any other contention except the aforesaid two contentions before us. They are negatived by us and the case as against the appellant No. 1 (original accused No. 1) is proved beyond reasonable doubt for which he is rightly convicted and sentenced by the learned Judge of the trial Court. . ( 41 ) NOW this takes us to discuss the evidence as against accused No. 4 (A-4 ). Immediately after the investigation of this case was entrusted to Mr. Galfade, he started to conduct further investigation and collected evidence against A-4. Following facts can be said to be undisputed: (1) Prime accused is a brother-in-law (wifes brother) of A-4. (2) On 10/8/1997, he was travelling in another compartment of the same "awantika Express" train from Mansor to Bombay Central. (3) A-4 got down at Bombay and he went to accused Nos. 1 and 2 to inquire as to whether accused No. 1 (A-1) has delivered the goods of brown-suger to them or not. (4) When A-4 came to know that goods of brown-suger have not been delivered to Accused Nos. 2 and 3, he (A-4) tried to locate accused No. 1 and for that purpose, A-4 had stayed in J. K. Guest House. ( 42 ) FROM aforesaid facts, the prosecution has made out a case that there exists a reasonable ground to believe that A-4 was one of the conspirators who had hatched a conspiracy to supply the brown-suger in bulk from prime accused to persons like Accused Nos. 2 and 3 who were in need of the article with the help of A-1. Thus, this is a case of conspiracy. 2 and 3 who were in need of the article with the help of A-1. Thus, this is a case of conspiracy. The learned Judge of the trial Court has framed a charge against the accused No. 4 for having committed an offence under Sec. 21 of the Act read with Sec. 29 of the Act. Sec. 29 of the Act is with regard to abetment and criminal conspiracy. Sec. 29 of the Act reads as follows:- Punishment for abetment and criminal conspiracy:- (1) Whoever abets or is a party to a criminal conspiracy to commit an offence punishable under this Chapter, shall, whether such offence be or be not committed in consequence of such abetment or in pursuance of such criminal conspiracy, and notwithstanding anything contained insec. 116 of the Indian Evidence Act (45 of 1860), be punishable with the punishment provided for the offence. (2) A person abets, or is a party to a criminal conspiracy to commit, an offence, within the meaning of this section, who, in India, abets or is a party to the criminal conspiracy to the commission of any act in a place within and beyond India which- (A) would constitute an offence if committed within India; or (B) under the laws of such place, is an offence relating to narcotic drugs or psychotropic substances having all the legal conditions required to constitute it such an offence, the same as or analogous to the legal conditions, required to constitute it an offence punishable under this Chapter, if committed within India. ( 43 ) SO whatever the provisions with regard to conspiracy in cases other than a case under the NDPS Act are applicable to case under the NDPS Act. Looking to the facts and circumstances of the case on hand, Sec. 10 of the Indian Evidence Act is squarely applicable to this case. ( 43 ) SO whatever the provisions with regard to conspiracy in cases other than a case under the NDPS Act are applicable to case under the NDPS Act. Looking to the facts and circumstances of the case on hand, Sec. 10 of the Indian Evidence Act is squarely applicable to this case. Sec. 10 of the Indian Evidence Act reads as follows: things said or done by conspirator in reference to common design.-"where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring as well as for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it. " ( 44 ) AS held in case of State of Maharashtra Vs. Damu S/o Gopinath Shinde and others, reported in 2000 (6) SCC 269 , the basic principle which underlines Sec. 10 of the Evidence Act is the theory of agency and hence every conspirator is an agent of his associate in carrying out the object of the conspiracy (State of Gujarat V. Mohd. Atik, [ (1998) 4 SCC (Cri) 936 ]. ( 45 ) A landmark judgment in respect of Sec. 10 of the Indian Evidence Act is the case of State through Superintendent of Police, CBI/sit Vs. Nalini and others, reported in 1999 (5) SCC 253 , it has been held in Paras 107 and 108 as follows: Para 107:the first condition which is almost the opening lock of that provision is the existence of "reasonable ground to believe" that the conspirators have conspired together. This condition will be satisfied even when there is some prima facie evidence to show that there was such a criminal conspiracy. If the aforesaid preliminary condition is fulfilled then anything said by one of the conspirators becomes substantive evidence against the other, provided that should have been a statement "in reference to their common intention". Under the corresponding provision in the English law the expression used is "in furtherance of the common object". If the aforesaid preliminary condition is fulfilled then anything said by one of the conspirators becomes substantive evidence against the other, provided that should have been a statement "in reference to their common intention". Under the corresponding provision in the English law the expression used is "in furtherance of the common object". No doubt, the words "in reference to their intention" are wider than the words used in English law (vide Sardar Sardul Singh Caveeshar V. State of Maharashtra ). Para 108. " But the contention that any statement of a conspirator, whatever be the extent of time, would gain admissibility under Section 10 if it was made "in reference" to the common intention, is too broad a proposition for acceptance. We cannot overlook that the basic principle which underlines in Section 10 of the Evidence Act is the theory of agency. Every conspirator is an agent of his associate in carrying out the object of the conspiracy. Section 10, which is an exception to the general rule, while permitting the statement made by one conspirator to be admissible as against another conspirator restricts it to the statement made during the period when the agency subsisted. Once it is shown that a person became snapped out of the conspiracy, any statement made subsequent thereto cannot be used as against the other conspirators under Section 10. ( 46 ) KEEPING in mind the above legal position, now we will scrutinize evidence led by prosecution for A-4. 46. 1 as per the case of prosecution, P. S. O. P. W. 5 Mr. Devlabhai Jethabhai Chaudhari, after registering the offence against A-4, entrusted further investigation to Mr. Galfade who is examined as P. W. 16 at Ex. 63. He has deposed that after taking over the investigation of the case, he interrogated accused No. 1 and accused No. 1 stated that whatever article which has been found from him was called for by Accused Nos. 2 and 3 who are resident of Ambarnath. He has further stated that accused No. 4 who is a partner of prime accused was travelling in the same "awantika Express" train in different coach, and that accused No. 4 was keeping a shadow watch on him. He further stated that he was caught hold at Baroda and accused No. 1 straight way reached Bombay by that very train. ( 47 ) MR. He further stated that he was caught hold at Baroda and accused No. 1 straight way reached Bombay by that very train. ( 47 ) MR. Galfade has further deposed that on receiving information from A-1, he interrogated accused Nos. 2 and 3 by bringing them at Baroda. They informed Mr. Galfade that they both were doing business of brown-suger and for this purpose, they were calling for brown-suger from Shekh Mohmed Sabir Chhipa of Mansor who is an employer of accused No. 1 and partner of accused No. 4 by making contact of prime accused on phone. Thereafter Mr. Galfade arrested accused Nos. 2 and 3 ad Mr. Galfade drew panchnama for arrest of accused Nos. 2 and 3. In presence of panch witnesses, accused Nos. 2 and 3 informed Mr. Galfade that two days before their arrest, accused No. 4 had come to their house to inquire as to whether bulk of brown-suger had reached to them (accused Nos. 2 and 3) from accused No. 1. They also informed that accused No. 1 had not come to them, and therefore, accused No. 4 informed them that he had put up in one lodge situated in Paydhuni area of Bombay. ( 48 ) ON the basis of such information received, the police went to J. K. Guest House and obtained documentary evidence to show that accused No. 4 had stayed in that Guest House. For this purpose, Mr. Galfade recorded police statement of Ishaq Ibrahim Jethva -Manager of J. K. Guest House. ( 49 ) THE prosecution has examined Ishaq Ibrahim Jethava -Manager of J. K. Guest House as P. W. 14 at Ex. 59. He has deposed that Haroon Yusuf Jethva who is his uncle is an owner of J. K. Guest House situated on Mohmedali Road, Bombay and at the relevant point of time, he was working as Manager in J. K. Guest House. He has produced Entry No. 47 from the Register of passengers who stayed in J. K. Guest House, at Ex. 16. No doubt, he has been declared as hostile witness but he has proved documentary evidence with regard to Entry No. 47 which is in name of accused No. 4 from Register at Ex. 60. There is no reason to disbelieve this entry. ( 50 ) DURING the course of arguments, Mr. 16. No doubt, he has been declared as hostile witness but he has proved documentary evidence with regard to Entry No. 47 which is in name of accused No. 4 from Register at Ex. 60. There is no reason to disbelieve this entry. ( 50 ) DURING the course of arguments, Mr. Dave, the learned Advocate for the appellant No. 4 has argued that accused No. 4 is a resident of Ambarnath. Despite this fact, accused No. 4 was found to have stayed in J. K. Guest House. This circumstance relating to stay in J. K. Guest House is not at all explained by accused No. 4. A story that he is a resident of Ambarnath is falsified by documentary evidence in the form of Panchnama which was drawn at the time when accused No. 4 was arrested and search of accused No. 4 was made. When he was arrested on 20/8/1997, under panchnama Ex. 66, he gave his address as resident of Khanpur Gate, Badri Maholla, Mansor, M. P. When further statement of accused No. 4 under Sec. 313, Cr. P. C. was recorded, he did not advance his case that he belongs to Ambarnath. In answer to last question put in further statement Ex. 10, it is only the defence of accused No. 4 that he is Mohmed Salim and not Haroon and that he has been arrested as if he is a person named Haroon. As per his say, Haroon is a different person and he has been falsely implicated. Mr. Dave has put much stress on Railway Tickets found from custody of accused No. 4. As per panchnama Ex. 66, one railway ticket was found from the person of accused No. 4. It was for route from Ambarnath to Ambivali and Ambivali to Bhaykhala. From this fact only, no inference can be drawn that he is resident of Ambarnath. When panchnama Ex. 66 was drawn in presence of panch witness, accused No. 4 informed that he is resident of Mansor, M. P. He and accused No. 1 were resident of Mansor, M. P. He informed in presence of panch witnesses that he himself had taken about three Kilograms of brown-suger in three plastic bags from his brother-in-law (i. e. prime accused) and that brown-suger was with accused no. 1. 1. He further informed in presence of panch witnesses that he and accused No. 1 both left Mansor for Bombay Central via Ratlam in evening of 9/10th August, 1997. In presence of panch witnesses, he further informed that when the train reached Bombay Central, he found that accused No. 1 was not there in his coach. He immediately inquired for accused No. 1. Thereafter, he felt that accused no. 1 would come lateron and therefore, from Bombay Central Railway, he went to J. K. Guest House where his luggage was lying and on going to that J. K. Guest House, police went to J. K. Guest House where he stated before panch witnesses that on 10th August, 1997 in the morning, he came to said guest house. As per panchnama, Manager Ishaqbhai identified accused No. 4 as person who put up in his guest house. Thus, in this case of conspiracy, Investigating Officer collected evidence and as conspirators, accused Nos. 2 and 3 gave information in the presence of panch witness. Lateron accused No. 4 gave information in presence of panch witnesses, and therefore, as per Sec. 10 of the Indian Evidence Act, "anything said, done or written by any of such persons who are believed to be conspirators of conspiracy", is a relevant piece of evidence, and this relevant fact can be used as against each of the persons believed to be so in conspirating as well for the purpose of proving existence of conspiracy and also for the purpose of showing that any such person is party to it. ( 51 ) LOOKING to the facts and circumstances of this present case, and on considering the evidence led by the prosecution as against accused No. 4, this is a fit case in which there is existence of reasonable ground to believe that accused Nos. 2,3 and 4 were the conspirators for bringing brown-suger in bulk from Mansor to Bombay with the help of accused No. 1. It is an admitted fact on the part of accused No. 4 that on 10th July 1997, he was travelling in "awantika Express" and he went to Bombay. As per the argument of Mr. Dave, accused No. 4 had gone to prime accused as his relative to inquire about well-being of prime accused. It is an admitted fact on the part of accused No. 4 that on 10th July 1997, he was travelling in "awantika Express" and he went to Bombay. As per the argument of Mr. Dave, accused No. 4 had gone to prime accused as his relative to inquire about well-being of prime accused. From this fact, it is certain that he travelled in the same train in which accused No. 1 was also travelling with brown-suger. Admittedly, accused No. 1 is from Mansor. Prime accused is also resident of Mansor, M. P. As revealed by accused No. 1, when he was travelling with brown-suger in "awantika Express", accused No. 4 was keeping shadow watch on accused No. 1 and after reaching Bombay, A-4 went to accused Nos. 2 and 3 and inquired as to whether goods of brown- suger had been delivered to them by accused No. 1. If we give cumulative effect to aforesaid all the evidence keeping in mind the provisions of Sec. 10 of the Indian Evidence Act, the prosecution has proved beyond reasonable doubt the case against accused No. 4 with regard to conspiracy and abetment for an offence committed by accused No. 1, and therefore, the learned Judge of the trial Court has rightly convicted accused No. 4 for offence under Sec. 21 of the Act read with Sec. 29 of the Act. Under the circumstances, there is no reason to disturb finding of trial Court holding A-4 guilty. ( 52 ) ALTERNATIVELY, Mr. Dave has argued that sentence of imprisonment be reduced to sentence already served out by accused No. 4 by enhancing fine for which accused No. 4 is ready to pay a higher amount of fine than what is imposed. Accused No. 4 has been convicted and sentenced to undergo R. I. for 10 years and to pay a fine of Rs. 2 Lacs and in default of fine, to undergo further imprisonment for six months. As per Sec. 21 (i) of the Act, maximum sentence of twenty years and minimum sentence is of 10 years is prescribed. Accused No. 4 has been convicted and sentenced to undergo R. I. for 10 years and to pay a fine of Rs. 2 Lacs and in default of fine, to undergo further imprisonment for six months. As per Sec. 21 (i) of the Act, maximum sentence of twenty years and minimum sentence is of 10 years is prescribed. It is further prescried that where contravention involves commercial quantity, then offender is required to be sentenced to R. I. for a term which shall not be less than ten years but which may extend to ten years and shall also be liable to fine which shall not be less than one lac rupees which may extend to two lacs rupees. In view of this provision, the learned Judge of the trial Court has inflicted minimum sentence of 10 years and therefore, in no case, it can be reduced to sentence already served out by enhancing fine, and therefore, this alternative submission of Mr. Dave cannot be accepted and same is hereby rejected. ( 53 ) CONSIDERING the facts and circumstances of case and also evidence on record of the case, we are of the view that the learned Judge of the trial Court has assigned all possible and plausible cogent reasons to come to a conclusion that accused No. 1 is guilty of offence punishable under Sec. 21 of the Act and accused No. 4 is also guilty of offence punishable under Sec. 21 read with Sec. 29 of the Act. This Court has closely and carefully scrutinised the evidence and we find that there is no material to come to a different conclusion. We are in full agreement with the reasons assigned by the learned Judge of the trial Court. ( 54 ) IN view of what is discussed hereinabove, these two appeal deserve to be dismissed and accordingly both the appeal are dismissed. The judgment of conviction and sentence passed by the learned learned Additional Sessions Judge, Vadodara in Sessions Case No. 10 of 1997 on 19/01/1999, against accused Nos. 1 and 4 is hereby confirmed. Muddamal articles be disposed of as per directions given by the learned Judge of the trial Court in the impugned judgment. .