M. S. SHAH, J. ( 1 ) ALL these five appeals are directed against the common judgment and order dated 19. 7. 1999 passed by the learned Additional Sessions Judge, Valsad at Navsari in Special Case Nos. 17 of 1996 and 37 of 1997, both in respect of the offences punishable under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the NDPS Act" or "the Act" ). CRIMINAL Appeal No. 862 of 1999 is filed by original accused No. 2-Gulabbhai Mitthalbhai Patel challenging his conviction for the offence punishable under Section 22 of the NDPS Act and the order sentencing him to rigorous imprisonment for ten years with a fine of Rs. 1,00,000/-, in default two years rigorous imprisonment. CRIMINAL Appeal No. 1026 of 1999 is filed by original accused No. 1-Nazir Ahmed Ismailji Chikhliwala challenging his conviction for the offence punishable under Section 22 of the NDPS Act and the order sentencing him to rigorous imprisonment for ten years with a fine of Rs. 1,00,000/-, in default two years rigorous imprisonment. CRIMINAL Appeal No. 1164 of 1999 is filed by the State of Gujarat challenging the aforesaid judgment in so far as original accused Nos. 3, 4 and 5, Shivpratapsing Munnabhaiya Narendrasing, Joginder @ Jagubhai Haricharan Jindal and Makhanlal Kharbhar Sharma respectively are acquitted by the learned Sessions Judge in NDPS Case No. 17 of 1996. CRIMINAL Appeal No. 1165 of 1999 is filed by the State of Gujarat for challenging the order of acquittal of Ballubhai @ Bhagwanbhai Somabhai Tandel, who was original accused No. 1 in NDPS Case No. 37 of 1997 and who was subsequently shown as accused No. 6 when both the cases were tried and decided together. CRIMINAL Appeal No. 1166 of 1999 is filed by the State of Gujarat under Section 377 of the Code of Criminal Procedure, 1973 for enhancement of the sentence imposed by the learned Additional Sessions Judges on original accused Nos. 1 and 2. Since all these appeals involve common questions of fact and law and arise from the same common judgment of the Special Court, with the consent of the learned counsel for the parties, all the five appeals have been heard together and are being disposed of by this common judgment. ( 2 ) THE charge is in two parts :- the charge against original accused Nos. ( 2 ) THE charge is in two parts :- the charge against original accused Nos. 1 and 2, the appellants in Criminal Appeal Nos. 862 and 1026 of 1999 is in both parts :- (I) the first part of the charge against accused Nos. 1 and 2 was that at 5. 45 AM on 27. 5. 1996, accused Nos. 1 and 2 were travelling in a Fiat car bearing No. MMF 1066 on the Vapi-Kachigam Road when they were found to be in possession 15,378 mandrax tablets worth Rs. 15,87,800/- in 15 polythene bags, without any permit for the same and had thus committed the offence punishable under Section 22 of the NDPS Act. (II) the second part of the charge against accused Nos. 1 and 2 was connected with the charge against accused Nos. 3 to 6 which was to the effect that Ballubhai Bhagwanbhai Somabhai Tandel (accused No. 6) and his wife Deviben Ballubhai were manufacturing mandrax tablets in their farm and house at village Kalai and for the purposes of the said manufacturing activity, accused Nos. 3, 4 and 5 were supplying raw materials and liquids through accused Nos. 1 and 2 enabling accused No. 6-Ballubhai @ Bhagwanbhai Somabhai Tandel and his wife Deviben Ballubhai to manufacture mandrax tablets in the aforesaid farm. On 28th and 29th May 1996, the police seized from the aforesaid farm and the building thereon of Ballubhai (accused No. 6) and Deviben, the machineries for manufacturing mandrax tablets and the equipments and chemicals supplied by accused Nos. 3, 4 and 5 and the mandrax tablets manufactured therefrom valued at Rs. 1. 17 Crores and rotary machine worth Rs. 14,000/ -. Thus, all the accused were guilty of manufacturing or abetting manufacture of mandrax tables and had thus committed the offences punishable under Sections 22, 25, 26 (a), 26 (c), 26 (d) and 29 of the NDPS Act. ( 3 ) THE prosecution case was as under :-3. 1 on 26. 5. 1996, Mr AD Chudasama, Dy. SP in Anti Terrorist Force (ATF), Gujarat at Ahmedabad, also known as Anti Terrorist Squad (ATS), received information at Bharuch to the effect that accused No. 1-Nazir Ahmed Ismailji Chikhliwala, resident of Moti Daman was going to transport psychotropic substance like mandrax in Fiat Car bearing No. MMF 1066 from Moti Daman to Vapi via Kachigam on 27. 5. 1996. SP in Anti Terrorist Force (ATF), Gujarat at Ahmedabad, also known as Anti Terrorist Squad (ATS), received information at Bharuch to the effect that accused No. 1-Nazir Ahmed Ismailji Chikhliwala, resident of Moti Daman was going to transport psychotropic substance like mandrax in Fiat Car bearing No. MMF 1066 from Moti Daman to Vapi via Kachigam on 27. 5. 1996. On the basis of the said information, in the early morning of 27. 5. 1996 Mr AD Chudasama alongwith the other officers of the ATF and panchas got a preliminary panchnama prepared and kept a watch on different areas on the Kachigam Road at Vapi near Kailash Bhuavan Apartment cross roads. At about 5. 45 in the morning, a Fiat car bearing the above registration number was spotted and was stopped. Accused No. 1 was occupying the drivers seat and accused No. 2 was sitting beside accused No. 1. They were informed that their vehicle was being searched and as per the procedure prescribed by law, the Fiat car was searched. From the rear seat of the Fiat car, one plastic bag and another cloth bag were found. The plastic bag contained 8 polyethylene bags all of which contained 8176 tablets. The second bag i. e. the cloth bag contained another 7 polythene bags with 7202 tablets. Samples of 5 tablets from each of these 15 polythene bags were taken as per the procedure and were sealed and the other tablets remaining in those polythene bags were also sealed. All the tablets had on one side English alphabet "m" embossed and on the other side a flower like design was embossed. All the tablets were seized in presence of the panchas by making panchnama. On the basis of such seizure, Mr AV Kathiria, PSI, ATS lodged complaint dated 27. 5. 1996 against accused Nos. 1 and 2 before the Vapi Police Station at CR No. 92 of 1996. 3. 2 on interrogation about manufacture of the tablets, accused No. 1 volunteered to show the place, machineries and raw materials used for manufacturing the mandrax tablets. Therefore, a preliminary panchnama was prepared before the panchas and accused No. 1 took the police with the panchas to the farm of the ownership of Deviben Ballubhai and in occupation of accused No. 6-Ballubhai @ Bhagwanbhai Somabhai Tandel at village Kalai. Therefore, a preliminary panchnama was prepared before the panchas and accused No. 1 took the police with the panchas to the farm of the ownership of Deviben Ballubhai and in occupation of accused No. 6-Ballubhai @ Bhagwanbhai Somabhai Tandel at village Kalai. A heavy machine concealed in a pit in the farm and so also fertilizer bags containing powder and plastic carboys filled with liquids, 3 machines for heating, glass flask, denester, condenser and weighing machine hidden in another pit in the farm were shown and also the die and 32 upper and lower punches hidden under hay in the third pit in the farm were also shown. The room where mandrax tablets were manufactured was also shown. Necessary samples were taken from all such materials and they were seized, sealed and a panchnama was prepared. During this operation, 1,14,000 tablets bearing light bluish and brown colours with English alphabet "m" (inverted read as "w") and a flower like design embossed on the other side were also seized. Samples of tablets were also taken and the samples were sealed and packed. Samples were also taken from the chemical powders and liquids and those samples were also sealed and the other materials and machineries were also seized after following the prescribed procedure. During this search, accused No. 1 also volunteered to show one rotary machine used for manufacturing mandrax tables lying at the factory of Surjitsingh in GIDC Estate and that machine was also seized after preparing a panchnama. 3. 3 it is the prosecution case that the farm belonged to Deviben Ballubhai and that Deviben and her husband-Ballubhai Tandel (original accused No. 6) were manufacturing mandrax tablets in the above farm and the raw materials for this manufacturing activity such as chemical substances and chemical liquids were being supplied by accused No. 3, accused No. 4 and accused No. 5 through Accused No. 1 and accused No. 2. Samples of the mandrax tables seized were sent to the Forensic Science Laboratory for analysis and each tablet was found to be containing METHAQUALONE. Over and above accused Nos. 1 and 2 who were arrested in the morning of 27. 5. 1996, the police arrested accused Nos. 3, 4 and 5 and the five accused were chargesheeted in Special (NDPS) Case No. 17 of 1996. They pleaded not guilty to the charge. Over and above accused Nos. 1 and 2 who were arrested in the morning of 27. 5. 1996, the police arrested accused Nos. 3, 4 and 5 and the five accused were chargesheeted in Special (NDPS) Case No. 17 of 1996. They pleaded not guilty to the charge. Accused No. 6-Ballubhai Tandel and his wife Deviben were absconding and, therefore, they were proclaimed as absconders. Accused No. 6-Ballubhai Tandel was subsequently arrested and supplementary chargesheet was filed against him which was numbered as Special (NDPS) Case No. 37 of 1997. He also pleaded not guilty to the charge. Both the Special Cases were tried together and the evidence led by the prosecution was recorded in Special (NDPS) Case No. 17 of 1996. ( 4 ) THE evidence led by the prosecution may be divided into the following parts :-I Regarding ownership and possession of Fiat Car. II Regarding seizure of tablets from Fiat Car in the morning of 27. 5. 1996. III Regarding seizure of machineries and materials used for manufacturing activity from the farm in question. IV Purchase of machineries and raw materials. V FSL Expert and his report. I. Evidence regarding ownership and possession of Fiat Car ( 5 ) PW 1 Kishorebhai Raising (Exh. 39) of Andheri-Mumbai and PW 5 Saiyed Adam (Exh. 93), owner of Safora Motors at Mumbai were examined to show that the Fiat car in question was owned by Hemlataben, wife of witness Kishorebhai. On 23. 1. 1994, Hemlataben and witness Kishorebhai sold the said car to Manish Deo of Andheri-Mumbai who in turn sold the car to accused No. 1-Nazir Ahmed through PW 5 Saiyed Adam who is running a garage business at Mumbai (delivery note Exh. 40 pg. 389 ). PW 5 Saiyed Adam, deposed that the car was registered in the name of Hemlataben and the witness had purchased the car from Manish Deo for Rs. 17,000/ -. When the witness purchased the car, it was in green colour, but then he painted the car with maroon colour. Accused No. 1 had gone to the witness to purchase the car and the witness sold the above Fiat car to accused No. 1 for Rs. 60,000/-, out of which half the consideration (Rs. 17,000/ -. When the witness purchased the car, it was in green colour, but then he painted the car with maroon colour. Accused No. 1 had gone to the witness to purchase the car and the witness sold the above Fiat car to accused No. 1 for Rs. 60,000/-, out of which half the consideration (Rs. 30,000) was paid by accused No. 1 and the delivery was given, but the registration book and other papers were not given to accused No. 1 as the full price was not paid. II. Evidence regarding seizure of tablets from Fiat car ( 6 ) THE second category of witnesses have given evidence to connect accused Nos. 1 and 2 with the seizure of the tablets which are found to be mandrax tablets. 6. 1 pw 2 Dharmeshbhai Arvindbhai (Exh. 41) and PW 3 Ashok Babu (Exh. 90) are panch witnesses who are employed in the factories at Vapi. Both the panch witnesses admitted their signatures on the panchnama (Exh. 42) and also on the seals on the samples and the bags which were produced by the prosecution as muddamal article Nos. 1 to 19. Both the witnesses, however, turned hostile and stated that nothing was recovered from any person in their presence. The prosecution also examined PW 27 Mr Abhaysinh Devisinh Chudasama, Dy. SP, ATS, Ahmedabad (Exh. 186), PW 26 Mr Nathalal Vallabhbhai Kathiria (Exh. 173), PSI, ATS, Ahmedabad and PW 28 Mr Bhikhabhai Bhagwandas Patel, PI, ATS, Ahmedabad (Exh. 192 ). 6. 2 dy. SP Mr Chudasama, PW 27, stated that he was a gazetted officer serving as Dy. SP, ATS Unit with Head Office at Ahmedabad, but with territorial jurisdiction all over the State of Gujarat. When he was at Bharuch on 26. 5. 1996 in connection with a secret ATS assignment, he received information regarding the present offence. After receiving the information, he left Bharuch with the police for proceeding to Vapi and on the way, he sent a report to the Dy. IG of Operations, ATS, Ahmedabad through a personal messenger. The office copy of the report was produced at Exh. 187. Upon reaching Vapi Circuit House between 9. 00 and 10. 00 in the morning, PI Mr BB Patel, PW 28, and other officers were instructed to remain at the Circuit House and the witness went to Vapi city for verification of the information received. The office copy of the report was produced at Exh. 187. Upon reaching Vapi Circuit House between 9. 00 and 10. 00 in the morning, PI Mr BB Patel, PW 28, and other officers were instructed to remain at the Circuit House and the witness went to Vapi city for verification of the information received. Thereafter, the witness returned late at night to the Circuit House. At about 2. 30 in the early morning of 27. 5. 1996, two panchas were called and a preliminary panchnama was prepared between 4. 30 and 5. 15 AM and the DY. SP and the police party alongwith the panchas left for Vapi-Kachigam Road. When the Dy. SP and the raiding party were on the watch out near Kailash Apartment Cross Road on the Vapi-Kachigam Road for Fiat car bearing registration No. MMF 1066, at about 5. 45 AM one Fiat car bearing the said number was spotted. The car was stopped. Accused No. 1 was occupying the driver seat and accused No. 2 was sitting beside accused No. 1. The police officers introduced themselves and informed both the accused that the car was to be searched and the accused were asked whether they would like the search to be made in presence of any gazetted officer or whether the police officers can themselves take the search, whereupon both the accused agreed to be searched by the police officers. Upon searching the person of accused No. 1, driving license and some rupees were found from his pocket. On search of the car, in the rear seat of the car, one plastic bag containing 8 transparent polythene bags and another cloth bag containing 7 transparent polythene bags were found. From the plastic bag about 1000 tablets from each of the 15 polythene bags were found. When asked, accused No. 1 stated that they were mandrax tablets. When accused No. 1 was asked whether he had any permit for the same, accused No. 1 did not have any such permit. On further search of the Fiat car, an RTO registration book was found showing Hemlataben residing at Mumbai as the owner. The necessary panchnama was prepared for seizure of the tablets. The signature of this witness (Dy. SP) was put on the preliminary panchnama as well as the final panchnama. 6. 3 similarly, PW 26 Mr NV Kathiria (Exh. 17-Pg. On further search of the Fiat car, an RTO registration book was found showing Hemlataben residing at Mumbai as the owner. The necessary panchnama was prepared for seizure of the tablets. The signature of this witness (Dy. SP) was put on the preliminary panchnama as well as the final panchnama. 6. 3 similarly, PW 26 Mr NV Kathiria (Exh. 17-Pg. 1017) gave his evidence on the same lines. When Dy. SP Mr AD Chudasama reached the Circuit House at Vapi, PSI Mr Kathiria was also with him. This witness (PSI Mr Kathiria) further stated that he was at the site where the car was stopped, till about noon on 27. 5. 1996. The complaint filed by this witness was given Exh. No. 177. 6. 4 pw 28 PI Mr Bhikhabhai Bhagwandas Patel (Exh. 192) stated that he was PI, ATS, Ahmedabad between November 1995 and February 1997 and was informed by Dy. SP Mr Chudasama on 26. 5. 1996 morning to remain at the Circuit House at Vapi and after he returned in the late night hours, Mr Chudasama informed him about the receipt of the information regarding accused No. 1 manufacturing and transporting psychotropic substances in Fiat Car bearing No. MMF 1066. Hence this witness (PI Mr BB Patel) went to the GIDC Estate at Vapi to call two witnesses in the early morning hours of 27. 5. 1996 and the preliminary panchnama was prepared in his presence between 4. 45 and 5. 15 AM. The panch witnesses were also informed about the aforesaid information and the panchas were taken to the place where the raid was to be carried out. The rest of the evidence of this witness is also on similar lines about spotting and stopping the Fiat car and about seizure of the tablets, description of the tablets and the preparation of the panchnama. III. Evidence regarding seizure of machineries, raw materials and tablets from the farm in question. ( 7 ) THE third part of the prosecution evidence consisted of the witnesses who deposed about seizure of the machineries, equipments, raw materials and mandrax tablets from the land of Deviben at village Kalai. 7. 1 pw 16 Dilipkumar Babulalji (Exh. 120) was examined as panch witness for the panchnama (Exh. ( 7 ) THE third part of the prosecution evidence consisted of the witnesses who deposed about seizure of the machineries, equipments, raw materials and mandrax tablets from the land of Deviben at village Kalai. 7. 1 pw 16 Dilipkumar Babulalji (Exh. 120) was examined as panch witness for the panchnama (Exh. 121) which was prepared for seizure of one rotary machine for manufacturing tablets lying at the factory of PW 5 Sardar Surjitsinh in Vapi GIDC State, Phase IV at the instance of accused No. 1. This panch witness PW 16 turned hostile. 7. 2 pw 17 Sukdev Pattubha (Exh. 124) was examined in connection with Panchnama (Exh. 125) which was in respect of the machines, substances and liquids found from the wadi of Deviben at the instance of accused No. 1. This panch witness admitted his signatures on the panchnama and the seals on the samples, and other muddamal articles mentioned in the panchnama but turned hostile. It was stated in the panchnama that Sukdevsinh Pattubha Jadeja and Murthi Sellamuthu Pillai were called by Dy. SP, ATS to the PWD Circuit House at Vapi. Two persons were found to be in police custody. The first one disclosed his name as Nazir Ahmed Ismail Chikhliwala (accused No. 1), resident of Bhintwada Moti Daman and the other disclosed his name as Gulabbhai Mitthalbhai Patel (accused No. 2), resident of Dalwada Nani Daman. After accused No. 2 was taken out of the PWD Circuit House, when accused No. 1 was asked about manufacture of the narcotic and psychotropic substances, he stated that he was prepared to show the place consisting of the farm and pucca house of Ballubhai Somabhai Tandel (accused No. 6) in village Kalai of Umargam Taluka where mandrax tablets were manufactured through a worker called Munnabhaiya (accused No. 3) with the help of necessary machines and raw materials; the machines, raw materials and the mandrax tablets were concealed in three different pits in the farm. The preliminary part of the panchnama was signed by two witnesses and also by Dy. SP and PI, ATS, Ahmedabad. 7. 3 the panch witnesses accompanied the police and accused No. 1 to Kalai village at 2 PM on 28. 5. 1996. When they reached Kalai village, the police vehicle was taken to a farm. There were two rooms and a verandah with a kachha shed. SP and PI, ATS, Ahmedabad. 7. 3 the panch witnesses accompanied the police and accused No. 1 to Kalai village at 2 PM on 28. 5. 1996. When they reached Kalai village, the police vehicle was taken to a farm. There were two rooms and a verandah with a kachha shed. Accused No. 1 led the police party and showed a heavy handle machine concealed in a pit which was covered by mud. Accused No. 1 thereafter took the party to another pit which was concealed by the leaves of the coconut trees and upon removal of the same, 4 bags meant for fertilizers, 3 plastic carboys and another 3 bags meant for storing fertilizers were found. The bags for storing fertilizers contained some chemical powder. The pit also contained three machines for heating the powder and also glass flasks, glass condenser and rubber pipes and also weighing scale and a hand weighing scale (known as packed balance ). All the equipments and materials seized were sealed with the slips bearing signatures of the panchas and the seal of "dg and IG of Police, GS, Ahmedabad". Samples were taken from out of the polythene bags and the bags were also sealed with the seal of "dg and IG of Police, GS, Ahmedabad" and the slips bearing the signatures of the panchas. Each of these bags was containing 25 Kgs. of chemical powder. The chemical powder was of grey colour. The other three bags for storing fertilizer contained tablets of whitish and light bluish colour. On counting, the first of these bags contained 50,000 tablets. From the second bag also, another 50,000 tablets were found. From the third bag, 14,000 tablets were found. Samples and control samples were taken from each bag. All the samples as well as the control samples were sealed with the seal of "di and IG of Police, GS, Ahmedabad". The three plastic carboys found from the pit were having capacity of 50, 50, and 35 Ltrs. respectively. The first and the second carboys were containing 40 ltrs. of strong smelling liquid and the third one was containing liquid of stale oil to the extent of about 12 ltrs. From all these liquids also, samples and control samples were taken and they were sealed. All the raw materials, weighing scale and five weighing units were found from the pit which had dimensions of 12 ft. of strong smelling liquid and the third one was containing liquid of stale oil to the extent of about 12 ltrs. From all these liquids also, samples and control samples were taken and they were sealed. All the raw materials, weighing scale and five weighing units were found from the pit which had dimensions of 12 ft. diameter and 5 ft. depth. Accused No. 1 thereafter took the party to the next pit where beneath hay, there were two bags, one containing die, punch and the second containing three iron stands. The punches and the die were totalling 32. Out of the 32 punches, 13 bore "m" or "inverted W" marks and 14 bore a flower like design, 5 others were in broken condition. When accused No. 1 was asked by the police party as to where the mandrax tablets were being manufactured with the above raw materials and equipments, accused No. 1 took the party to the two rooms in the wadi. In one room, there were agricultural equipments. There was a creeper covering the verandah of both the rooms. On one wall of this room, there were three electric points. Electric wires were hanging from the ceiling of the room. The roof ceiling consisting of cement sheets was having dark carbon spots. The farm had mango, chickoo, coconut plantations. This panchnama was completed at 8. 55 PM on 28. 5. 1996. ( 8 ) AS far as the seizure of machines, equipments, raw materials and tablets is concerned, PW 27 Dy. SP Mr AD Chudasama has given his evidence about the seizure of 1,14,000 tablets from the wadi of Deviben at the instance of accused No. 1-Nazir and also the machines and the raw materials found in the said wadi. He stated that panchnama (Exh. 125) was prepared in his presence and in the presence of Inspector Mr BB Patel and the panchas. He also identified the signatures on the slips, on the samples and control samples and the police seals. As regards the possession of the wadi in question, the witness (Mr Chudasama) stated in para 5 of his deposition that upon inquiry with the servant on the wadi as to who was in possession of the farm (wadi), the servant did not say anything. This witness stated in his chief that the servant did not know as to who was managing the farm. This witness stated in his chief that the servant did not know as to who was managing the farm. The said servant is not examined as a witness. Dy. SP Mr Chudasama further stated that after seizure of the articles from the wadi (farm), he had not made any investigation regarding the farm and that he returned to Ahmedabad on 29. 5. 1996 and thereafter he did not go back to Vapi. PW 28 PI BB Patel (Exh. 192) also gave the evidence on the same lines as Dy. SP and identified his signatures on the panchnama (Exh. 125 ). This witness (PI MR BB Patel) further deposed about the seizure of the rotary machine for manufacturing tablets from Surjitsinh at the instance of accused No. 1 on 29. 5. 1996 and the statement of Talati-cum-Mantri Shivbhai Maganbhai Patel recorded on 1. 6. 1996 regarding ownership and possession of the land on the basis of Exhs. 151, 152 and 153 being the revenue record showing the ownership and possession of the land in question. This witness also proved various contradictions in the evidence of the witnesses who turned hostile and who are confronted with their police statements. IV. Evidence regarding purchase of machineries/raw materials used for manufacturing tablets. ( 9 ) THE prosecution examined various witnesses to connect accused Nos. 1 to 5 with the manufacture of mandrax tablets. The witnesses deposed about purchase of machineries and equipments as well as raw materials for manufacturing tablets. Seven witnesses were examined to connect accused Nos. 1 and 3 with such purchases. One witness was examined to connect accused No. 2, two witnesses were examined to connect accused No. 4 and one witness was examined to connect accused No. 5 with the purchase of raw materials. The Talati-cum-Mantri of the Village Panchayat was examined to prove the revenue record to show that the ownership of the land in question was that of Deviben, wife of accused No. 6. However, no witness was examined to prove the possession or occupation of the land in question by accused No. 6. The evidence of all the witnesses in this part would be discussed later while giving finding about involvement of each individual accused in the manufacturing activity. V. FSL Expert and his report ( 10 ) PW 12 Maheshchandra Chhabildas (Exh. 102), Scientific Officer in the Forensic Science Laboratory at Ahmedabad is M. Sc. The evidence of all the witnesses in this part would be discussed later while giving finding about involvement of each individual accused in the manufacturing activity. V. FSL Expert and his report ( 10 ) PW 12 Maheshchandra Chhabildas (Exh. 102), Scientific Officer in the Forensic Science Laboratory at Ahmedabad is M. Sc. (Organic Chemistry), LL. B and had put in 16 years service as Scientific Officer at the FSL on the date of his evidence i. e. in September 1997. The witness stated that 15 parcels in connection with CR No. 92 of 1996 registered at Vapi Police Station were received by his office in sealed condition on 28. 5. 1986 and another 11 parcels were received by his office in sealed condition on 30. 5. 1996 and that all the parcels were handed over to the witness on 31. 7. 1996 for analysis. All the parcels were having the seal of "dg and IG of Police, GS, Ahmedabad" and the tablets in all the bags of all the parcels were having swastik embossed on one side and English alphabet "m" embossed on the other side. Each tablet contained methaqualone. This witness further stated that anthracitic acid, acetic anhydride and anymolic acid are used for manufacturing METHAQUALONE. These were found in samples bearing Nos. I/1 (HC Acid), C/1 and J/1 (aromatic carbonic compound) and K/1 (phenolic compound ). Muddamal article Nos. 23, 24 and 26 bearing No. A/1, B/1 and D/1 contained plastic polythene bags having powder known as anthracitic acid. Muddamal article No. 30 (H/1) contained the plastic polythene bag having METHAQUALONE powder. The bottle bearing muddamal article No. 31 (I/1) contained hydrocholoric acid. This witness further explained the tests applied by him for chemical analysis of the tablets and further stated that methaqualone is a psychotropic substance which is banned by the NDPS Act. This witness proved the report dated 20. 8. 1996 at Exh. 105 wherein it was stated that each of the tablets with swastik mark on the one side and English alphabet "m" on the other side was having nett weight between 3. 830 grms. and 4 grams. as per the details given in the report. This witness proved the report dated 20. 8. 1996 at Exh. 105 wherein it was stated that each of the tablets with swastik mark on the one side and English alphabet "m" on the other side was having nett weight between 3. 830 grms. and 4 grams. as per the details given in the report. We may note at this stage that there is no challenge to the FSL report in so far as the report contains the opinion of the FSL expert who has opined that the samples of the tablets seized from the Fiat car as well as the samples of the tablets seized from the farm in question contained METHAQUALONE. ( 11 ) AT the hearing of these appeals, original accused No. 1 is represented by learned advocate Mr BS Patel, original accused No. 2 is represented by learned advocate Mr SV Raju. Original accused Nos. 3 and 5 were served, but no appearance is made by them or on their behalf. Original accused Nos. 4 and 6 are represented by Mr Abhay Shah. We have heard the arguments of the learned counsel appearing for the accused and Mr KC Shah, learned Addl. Public Prosecutor. We have also gone through the evidence on record and the decisions cited at the Bar. Since the evidence on record attributes somewhat different roles to the different accused, we have examined the evidence and the arguments to find out the role played by each accused and also different legal submissions raised on behalf of the various accused from different perspectives. The arguments are made both on the questions of fact and on questions of law. ( 12 ) MR BS Patel, learned counsel for accused No. 1 has mainly concentrated on the legal submissions based on violation of various provisions of the NDPS Act. Mr SV Raju, learned counsel for accused No. 2 has mainly argued that the trial Court committed serious errors of law and fact in holding that accused No. 2 was in possession of mandrax tablets when accused No. 2 was a mere passenger in the car without any control or custody of the goods lying in the back seat and that no person would have been able to make out that the goods contained in the cloth bag and plastic bag were any such mandrax tablets or any contraband article. It is submitted that the prosecution was required to prove conscious possession of the goods vis-a-vis accused No. 2 before invoking any presumption under Section 35 of the Act. Mr Abhay Shah, learned counsel for original accused Nos. 4 and 6 has supported the judgment of the trial Court acquitting the said accused. ( 13 ) ON the other hand, Mr KC Shah, learned APP has supported the judgment of the trial Court in so far as accused Nos. 1 and 2 are held to be in unlawful possession of the mandrax tablets seized from the Fiat car. The learned APP has further submitted that the said two accused as well as accused Nos. 3 to 6 were guilty of the offence of manufacturing/abetting manufacturing of the mandrax tablets seized from the farm at village Kalai. In case of these accused also, the learned APP relied on the provisions of Section 35 of the Act and particularly relied on the provisions of Section 25 of the Act in case of accused No. 6. ( 14 ) BEFORE dealing with the legal contentions raised by the learned counsel for the parties, we would give our findings on the question of possession of the psychotropic substance and its manufacture qua each of the accused. Accused No. 1 - Possession of Mandrax Tablets ( 15 ) TAKING up the case of accused No. 1-Nazir Ahmad Ismail Chikhliwala :-15. 1 the trial Court has held accused No. 1 to be guilty of possession of and transporting of 15,000 mandrax tablets in the morning of 27/5/1996 when the Fiat Car bearing registration No. MMF 1066 was intercepted by the police at the Vapi-Kachigam Road. Accused No. 1 himself was driving the car and upon being searched by the police, accused No. 1 himself produced his driving license from his pocket and the two bags from the rear seat of the car, one plastic bag and another cloth bag, which contained the said 15,000 mandrax tables. In view of the evidence on record, it is clear that accused No. 1 was found in possession of 15,000 mandrax tablets. 15. 2 accused No. 1 has not offered any explanation as to how the said tablets came to be in the Fiat car which he was driving. In view of the evidence on record, it is clear that accused No. 1 was found in possession of 15,000 mandrax tablets. 15. 2 accused No. 1 has not offered any explanation as to how the said tablets came to be in the Fiat car which he was driving. All that accused No. 1 has attempted in the cross examination of the prosecution witnesses is to suggest that the Fiat car did not belong to him as it was registered in the name of Hemlataben of Mumbai. The prosecution has examined PW 1 Kishorebhai Raisingbhai (Exh. 39), husband of Hemlataben, to show that the said Fiat car was sold by Hemlataben to Manish Deo and in support of the said contention, the delivery memo dated 23. 1. 1994 signed by Manish Deo and bearing his address is produced at Exh. 40. The prosecution has also examined PW 5 Saiyed Adam (Exh. 93) who is running a garage to show that Manish Deo had sold the said Fiat car to accused No. 1-Nazir Ahmad and that Nazir Ahmad had paid Rs. 30,000/- for the said car. 15. 3 even without invoking the presumption under Section 35 of the NDPS Act, which is a presumption of law, the presumption of fact under Section 114 of the Evidence Act would easily arise against accused No. 1. It was for accused No. 1 to show as to how he came to be in possession of the articles which were found in the Fiat car which he was driving. He has not offered any explanation either for possession and driving of the said Fiat car or the articles found in the Fiat car. Accused No. 1 having failed to offer any such explanation and having failed to produce any permit or license for the same, it has to be held that accused No. 1 was possessing and transporting methaqualone - a psychotropic substance in contravention of the provisions of the NDPS Act and was, therefore, guilty of the offence punishable under Section 22 of the Act. ( 16 ) AS far as the role of accused No. 1 in manufacturing the mandrax tablets is concerned,-16. 1 the learned APP has submitted that in view of the evidence of PW 6 Shashikant Chunilal Kansara (Exh. 94), PW 7 Dinbhandhu Shabhuram (Exh. 95), PW 15 Maksud Mohamad (Exh. 119), PW 9 Sureshkumar Hargovinddas (Exh. ( 16 ) AS far as the role of accused No. 1 in manufacturing the mandrax tablets is concerned,-16. 1 the learned APP has submitted that in view of the evidence of PW 6 Shashikant Chunilal Kansara (Exh. 94), PW 7 Dinbhandhu Shabhuram (Exh. 95), PW 15 Maksud Mohamad (Exh. 119), PW 9 Sureshkumar Hargovinddas (Exh. 96), PW 9 Narendrabhai Chunilal Rane (Exh. 98) and PW 13 Deelawar Bismilla (Exh. 110), it is clear that accused No. 1 was involved in the manufacturing activity. 16. 2 mr BS Patel, learned counsel for respondent-accused No. 1 has, however, vehemently submitted that the learned trial Judge has given a finding in favour of accused No. 1 in so far as the charge of manufacturing or abetment of manufacturing activity is concerned and the State has not filed any acquittal appeal in respect of the said finding and, therefore, it is not open to the State to make any such submission on this aspect. 16. 3 we are not inclined to accept the aforesaid preliminary objection. The trial Court has already convicted accused No. 1 of the offence punishable under Section 22 of the Act which provides that whoever, in contravention of any provision of the Act. . . . . . produces, manufactures, possesses,. . . transports any substance with any psychotropic substance, shall be punishable with rigorous imprisonment for term commencing from ten years to twenty years and also shall be liable to fine commencing from Rs. one lakh to Rs. two lakh and that the Court may, for reasons to be recorded, impose a fine exceeding two lakh rupees. In our view, once the trial Court convicted accused No. 1 of the offence punishable under Section 22 of the Act, it is open to the State to urge in the enhancement appeal under Section 377 Cr. PC. that the accused-convict is liable to be visited with more severe sentence than the sentence awarded by the trial Court and for this purpose, the prosecution is not to be tied down to all findings given by the trial Court. It is open to the prosecution to challenge a finding given by the trial Court in favour of the accused without filing an acquittal appeal. It is open to the prosecution to challenge a finding given by the trial Court in favour of the accused without filing an acquittal appeal. Involvement in manufacturing ( 17 ) AS far as manufacturing of mandrax tablets is concerned, there is a lot of common evidence against accused No. 1 - Nazir Ahmed Ismailji Chikhlivala and accused No. 3 Shivpratapsing @ Munnabhaiya Narendrasing. The prosecution examined seven witnesses to connect accused Nos. 1 and 3 with the purchase of machineries and equipments and dies far tablets and also purchase of raw materials for manufacturing tablets which were found to be containing methaqualone. Since the trial Court has not given any finding that any of the accused was involved in manufacturing activity, it has become necessary to set out the evidence about manufacturing activity in some detail :-17. 1 pw 4 Surjitsinh Ratansinh (Exh. 91) is in the business of manufacturing machines for manufacturing tablets for the last 15 to 16 years. Accused No. 3-Munnabhaiya had gone to this witness sometime in the year 1995 and had taken this witness to a village for repairing a machine. This witness identified the machine bearing muddamal article No. 21 which was seized from the wadi to which accused No. 1 had taken the police party and which is referred to in panchnama (Exh. 125) as aforesaid. The witness was specifically asked whether accused No. 3 had gone to him alongwith somebody else. The witness looked at the accused for a considerable time, but did not reply. The learned Public Prosecutor was, therefore, permitted to confront this witness with the police statement wherein he had stated that accused No. 3-Munnabhaiya and accused No. 1-Nazir Ahmad had both gone to the factory of this witness stating that they had bought a machine for manufacturing tablets, but it was not working properly. The witness has stated in cross by the accused that the machine can be used for manufacturing any kind of tablets. 17. 2 the prosecution also examined PW 6 Sashikant Chunilal (Exh. 94) who was doing the job work of making dies and was doing this business in the name of Nirav Engineering. About a year and a half before the date of deposition (i. e. before 10. 9. 17. 2 the prosecution also examined PW 6 Sashikant Chunilal (Exh. 94) who was doing the job work of making dies and was doing this business in the name of Nirav Engineering. About a year and a half before the date of deposition (i. e. before 10. 9. 1997), accused No. 3munnabhaiya and accused No. 1-Nazirbhai had gone to this witness for making punches stating that the accused wanted to make ayurvedic tablets. The witness asked for a sample and accused Nos. 1 and 3 gave a sample. For such sample, they had taken the witness to Geeta Pharma which manufactures tablets and from that place the said witness was given the samples for dies and punches. This witn%ss further stated that the said two accused had asked the witness to make a design with English alphabet "m" or "w" on one side and swastik/flower on the other side. Since the witness could not prepare such a design, he got it done in Mumbai and there were 16 such dies got made by him for which the price of Rs. 48,000/- was fixed, but only Rs. 19,000/- was paid. The rest of the amount was not paid. There were 16 sets, each set containing two punches and one die. this witness identified both accused No. 1-Nazir Ahmad and accused No. 3-Munnabhaiya before the Court. However, the witness stated that he was not is a position to state as to whether the die bearing muddamal article No. 35 was made by him or not. In cross examination at the instance of accused Nos. 1 and 3, the witness denied that accused Nos. 1 and 3 had not gone to this witness for placing any order of die and punch. 17. 3 pw 7 Dinbhandhu Shabhuram Vora (Exh. 95) is the owner of Geeta Pharma and Geeta Lab manufacturing machines and equipments for manufacturing tablets. This witness stated that in the year 1996, he received a call from Maksudbhai that a Hakim friend of his wanted a machine for manufacturing ayurvedic tablets. Thereafter, a person had gone to the factory of this witness for purchasing a machine. This witness had shown three machines to him. On the next day, that person came with another man and that was accused No. 1-Nazir Ahmad who is identified by the witness before the Court. That person gave Rs. Thereafter, a person had gone to the factory of this witness for purchasing a machine. This witness had shown three machines to him. On the next day, that person came with another man and that was accused No. 1-Nazir Ahmad who is identified by the witness before the Court. That person gave Rs. 1,000/- as earnest money after fixing the price at Rs. 28,000/ -. A few days thereafter, Maksudbhai rang up this witness stating that Maksudbhai had received the balance Rs. 27,000/- and that the machine may be handed over to that person. A month thereafter, accused No. 1 had gone to the factory of the witness with a tempo and taken delivery of the machine without taking the bill. 17. 4 pw 15 Maksudbhai Mahmadbhai Siliwala (Exh. 119) is a dealer in commercial vehicles (DCM tempo) and motorcycles. This witness stated that he knew Bakarbhai, younger brother of accused No. 1-Nazir Ahmad, as Bakarbhais land is adjoining the land of the witness in village Sili in Dadranagar Haveli. Accused No. 1 had gone to the shop of this witness and spoken about purchasing a machine for manufacturing tablets. As such machine was required by a Hakim, this witness (Maksudbhai) talked to Vora on telephone and Vora informed that he had an old machine. The witness thereupon conveyed the information to accused No. 1-Nazir. A month thereafter, accused No. 1 went to the witness and stated that he could not find the address of the factory of Vora and that Vora had sent his man to the office/shop of this witness (Maksudbhai ). This witness thereafter did not know about any further development. The witness was declared hostile and was confronted with his police statement wherein he had stated that one month after the talk about a Hakim wanting a machine for manufacturing tablets, accused No. 1-Nazir had gone to the shop of the witness in a Fiat car and had stated about not being able to get the address of Geeta Pharma manufacturing machines and he had deposited an amount of Rs. 27,000/- with the witness as per the talk with Vora and thereafter he had handed over the amount of Rs. 27,000/- to the man of Vora as per the telephonic talk. 27,000/- with the witness as per the talk with Vora and thereafter he had handed over the amount of Rs. 27,000/- to the man of Vora as per the telephonic talk. In his cross examination, this witness denied the suggestion made by accused No. 1 that the witness had no talk with accused No. 1 regarding purchase of a machine for manufacturing tablets. 17. 5 pw 8 Sureshkumar Hargovinddas (Exh. 96) stated that he had sold 3 flasks, 3 heating machines, 3 oil condensers and 3 B. N. Star to accused No. 3-Munnabhaiya. He produced the challan at Exh. 97. The raw material was sold for Rs. 26,000/-, out of this Rs. 20,000/- was received. This witness identified the items being muddamal article No. 22 as those purchased from this witness. This witness also gave the registration number of the tempo in which the materials were taken delivery. The delivery challan (Exh. 97) was prepared as required by accused No. 3 who had come to take delivery. 17. 6 pw 10 Ketanbhai Ishwarlal Shah (Exh. 99) is engaged in courier service business. It is stated that accused No. 3-Munnabhaiya had gone to him once or twice about a year and a half prior to the date of deposition, stating that a friend of his wanted to start a chemical factory. Hence, he requested the witness to suggest a Company from which such factory equipments are available. Accordingly, the witness suggested K. G. Company and accompanied accused No. 3 to the said Company. The witness, however, did not know as to what transaction accused No. 3 had with K. G. Company. The witness was declared hostile and was confronted with the police statement wherein he had stated that he had accompanied accused No. 3 to K. G. Company and introduced him to Ranjitbhai Sheth of the said Company and 3/4 days thereafter accused No. 3 had come with a person in a Fiat car bearing Maharashtra registration number and accused No. 3 had introduced that person to the witness as Nazirbhai (accused No. 1); it was further stated in the police statement that the witness alongwith accused Nos. 1 and 3 had gone to K. G. Company in GIDC Estate, Vapi and had placed an order for buying materials, glass flasks etc. and paid advance of Rs. 5,000/- and that thereafter accused Nos. 1 and 3 had gone to K. G. Company in GIDC Estate, Vapi and had placed an order for buying materials, glass flasks etc. and paid advance of Rs. 5,000/- and that thereafter accused Nos. 1 and 3 had taken delivery directly from that Company. 17. 7 pw 13 Deelawar Bismilla (Exh. 110) is engaged in the business of scrap at Vapi. This witness also turned hostile. The witness was also confronted with the statement given by the witness before the Executive Magistrate under Section 164 Cr. PC at Exh. 162 on 29. 10. 1996. The witness had stated therein that accused No. 3-Munnabhaiya had met the witness in December, 1995 for getting acetic anhydride; the witness knew Ranjitbhai, owner of Seema Chemical Works. The witness talked to Ranjitbhai who informed the witness that Dayal Dyes sells acetic and anhydride. Ranjitbhai had a talk with accused No. 1, accused No. 3 and accused No. 4. Accused No. 1 and accused No. 3 had purchased anhydride from accused No. 4 at the rate of Rs. 120/- per ltr. and accused No. 1. ( 18 ) WE may at this stage note the reasoning given by the trial Court for giving the finding in favour of accused on this score. The trial Court has proceeded on the basis that the charge against all the accused was that the farm in question was of the ownership of Deviben Ballubhai and was in occupation of accused No. 6-Ballubhai Tandel and that they were manufacturing mandrax tablets and accused Nos. 3, 4 and 5 were supplying machineries and raw materials to them through accused Nos. 1 and 2, but accused No. 6 is not found to be either owner or occupier of the land in question, hence the entire prosecution case has fallen through and, therefore, even accused Nos. 1 to 5 cannot be convicted of the offence of manufacturing or abetting manufacturing a psychotropic substance. ( 19 ) THE trial Court has, however, found that the manufacturing activity of mandrax tablets which are found to be containing methaqualone, (a psychotropic substance) on the land in question is proved beyond reasonable doubt. 1 to 5 cannot be convicted of the offence of manufacturing or abetting manufacturing a psychotropic substance. ( 19 ) THE trial Court has, however, found that the manufacturing activity of mandrax tablets which are found to be containing methaqualone, (a psychotropic substance) on the land in question is proved beyond reasonable doubt. The machineries, equipments, dies and the raw materials for manufacturing the mandrax tablets were found from the land in question at the instance of accused No. 1 who had taken the police and the panchas to the farm in question and even at the farm, the room where the tablets were being manufactured was shown by accused No. 1 to the panchas. Even the pits where the machineries, equipments, raw materials and manufactured tablets were concealed, were shown by accused No. 1. More importantly, as discussed in para 17, accused No. 1 and 3 were purchasing machineries, equipments and dies for manufacturing mandrax tablets. Apart from discovery at the instance of accused No. 1 of all these items which were used for manufacturing the tablets, the evidence of PW 7 Dinbhandhu Shabhuram Vora (Exh. 95) and PW 15 Maksudbhai Mahmadbhai Siliwala (Exh. 119) clearly show that accused No. 1 had gone to purchase the machineries and equipments from Geeta Pharma and Geeta Lab. and that the purchase price was paid by accused No. 1. Accused Nos. 1 and 3 had also gone to PW 6 Sashikant Chunilal (Exh. 94) for getting dies and punches made for manufacturing tablets with English alphabet "m" or inverted "w" at one side and swastik/flower on the other side. The tablets containing methaqualone seized from the Fiat car as well as from the farm in question in village Kalai are all found to be bearing the same design with "m" or "w" one side and swastik/flower on the other side. The dies and punches were purchased in 16 sets, each set containing two punches and one die. This witness also identified both accused Nos. 1 and 3 before the Court. From the evidence of PW 8 Sureshkumar Hargovinddas (Exh. 96), PW Narendrabhai Chunilal Rana (Exh. 98) and also PW 13 Deelawar Bismilla (Exh. 110) read with Exh. 162, it is also clear that accused No. 3 had gone to purchase the equipments and materials for starting a chemical factory. It is thus clear that both accused Nos. From the evidence of PW 8 Sureshkumar Hargovinddas (Exh. 96), PW Narendrabhai Chunilal Rana (Exh. 98) and also PW 13 Deelawar Bismilla (Exh. 110) read with Exh. 162, it is also clear that accused No. 3 had gone to purchase the equipments and materials for starting a chemical factory. It is thus clear that both accused Nos. 1 and 3 were actively involved in purchasing machineries and equipments, dies and punches necessary for manufacturing tablets which are found to be mandrax tablets containing methaqualone as per the FSL report and also for purchasing raw materials for manufacturing such tablets. What transpires from the evidence on record is that it was accused No. 1 who was taking the initiative for establishing the entire set up for manufacturing a large number of mandrax tablets and accused No. 3 was actively assisting accused No. 1 in such purchases. There is no direct evidence of the actual manufacturing operations, but, in our view, the aforesaid evidence is sufficient to prove beyond reasonable doubt that accused No. 1 was manufacturing at the farm in question the mandrax tablets seized from the Fiat car and the farm in question and that accused No. 3 was actively assisting him. The finding on the question whether accused No. 6-Ballubhai Tandel was manufacturing or was not manufacturing the mandrax tablets does not dislodge the aforesaid clinching evidence against accused Nos. 1 and 3 and the finding in favour of accused No. 6 cannot obliterate the active involvement of accused Nos. 1 and 3 in manufacturing the mandrax tablets. Hence, the finding given by the trial Court on the aforesaid aspect has to be treated as perverse and manifestly erroneous and palpably wrong. ( 20 ) IN view of the above voluminous evidence, we hold that accused No. 1 was guilty of the offence of possessing as well as manufacturing psychotropic substance called "methaqualone" punishable under Section 22 of the NDPS Act and that accused No. 3 was guilty of the offence of abetting manufacturing of psychotropic substance called "methaqualone" punishable under Section 22 read with Section 29 of the NDPS Act. Accused No. 2 .