COMMON JUDGMENT : (Per : HONOURABLE MR.JUSTICE J.R.VORA) 1 Both the instant Appeals are preferred by the appellants under Section 374 of the Code of Criminal Procedure to read with Section 36-B of the Narcotic Drugs and Psychotropic Substance Act, 1985 (hereinafter referred to as the NDPS Act ) against the Judgment and Order rendered by the Additional Sessions Judge, Court No.9, City Sessions Court, Ahmedabad, on 28th of January, 2004, in Sessions Case No. 143 of 2000 and Sessions Case No. 295 of 2000, whereby the present appellant Smt. Najmunisha, wife of Abdul Hamid Chandmiya @ Ladoo Bapu, accused No.1, came to be convicted by the Trial Court, for the offences punishable under Sections 20(b) (ii) (c) to read with Section 29 of the NDPS Act and was sentenced to undergo rigorous imprisonment of 10 years and to pay fine of Rs. 30,000/-, in default, to undergo simple imprisonment of one year. Though she was also found guilty for the offence punishable under Section 25 of the NDPS Act, but no separate sentence was imposed. While appellant Abdul Hamid Chandmiya @ Ladoo Bapu - accused No.4 also came to be convicted by the Trial Court for the offences punishable under Sections 20(b)(ii)(c) to read with Section 29 of the NDPS Act and was sentenced to undergo rigorous imprisonment of 13 years and to pay fine of Rs. 1 lac and in default to undergo simple imprisonment of one year and no separate punishment was imposed upon him for the offence punishable under Section 25 of the NDPS Act though he was found guilty for the said charge. 2 Appellant Smt. Najmunisha, wife of Abdul Hamid Chandmiya @ Ladoo Bapu, has preferred a Criminal Appeal No. 1702 of 2004 while appellant Abdul Hamid Chandmiya @ Ladoo Bapu has preferred a Criminal Appeal No. 2097 of 2004. Since both the Appeals have arisen from the same judgment and order, both the Appeals are heard together and decided by this common judgment and order. 3 In the said Sessions Cases, in all there were four accused. The learned Trial Judge by impugned judgment and order found accused No.5 Nazir Ahmed @ Nazir Bazara guilty for the offence punishable under Sections 20(b) (ii) (A) for the small quantity and was sentenced to undergo rigorous imprisonment of six months with fine of Rs. 500/- in default to undergo simple imprisonment of six months. The learned Trial Judge by impugned judgment and order found accused No.5 Nazir Ahmed @ Nazir Bazara guilty for the offence punishable under Sections 20(b) (ii) (A) for the small quantity and was sentenced to undergo rigorous imprisonment of six months with fine of Rs. 500/- in default to undergo simple imprisonment of six months. Accused No.5 has not preferred any Appeal. Accused No.2 Abdul Razak Abdul Hamid and accused No. 3 Abdul Abdulla @ Rashid Kashmiri were acquitted by the Trial Court after giving benefit of doubt for the charges under Sections 29, 25 to read with Section 20(b) (ii) (c) of the NDPS Act and no appeal against their acquittal has been preferred. Thus, out of five accused, three were convicted, and out of this three accused, original accused Nos. 1 and 4 have preferred the above said two appeals. 4 As per the brief facts of the case, on 10th of December, 1999 at about 18.30 hours, Mrs. Krishna Vinaykumar Chaube, working on deputation with the Narcotic Control Bureau, Zonal Unit, Ahmedabad, received a secret information as an Intelligence Officer of the Bureau that one person named as Abdul Hamid Chandmiya @ Ladoo Bapu was likely to carry contraband substance in one auto rickshaw, bearing Registration No. GJ-9-T-2355. It was also made clear in the secret information that the said person Abdul Hamid Chandmiya @ Ladoo Bapu was the resident of Shahpur Chakla and that he was likely to transport contraband on the next day at about 7.00 hours in the morning. It was also made clear in the secret information that it was likely that the said person Abdul Hamid Chandmiya @ Ladoo Bapu would be passing through Shahpur Darwaja. The secret information received by the Intelligence Officer was conveyed to Superior Officer by Mrs. Krishna Chaube. At that time, her superior was one Mr. Tomar. The information was conveyed in one sealed cover, which was produced on record at Exhibit-80. The secret information received by Mrs. Chaube was reduced to writing. Mr. Tomar directed all the officers of the Bureau to get together at 6.00 a.m. on 11th of December, 1999 at Income Tax Circle at Ashram Road. Panchas were arranged and accordingly on the next day Inspector Mrs. Chaube, Mr. The secret information received by Mrs. Chaube was reduced to writing. Mr. Tomar directed all the officers of the Bureau to get together at 6.00 a.m. on 11th of December, 1999 at Income Tax Circle at Ashram Road. Panchas were arranged and accordingly on the next day Inspector Mrs. Chaube, Mr. Tomar, Zonal Director and other officers of the Bureau were gathered for surveillance at pre-determined place and they stood at different points of a particular route in the morning on 11th of December, 1999. At about 7.30 a.m. when Bureau party was on surveillance, they spotted one auto rickshaw, bearing Registration No. GJ-9-T-2355 and attempts were made to halt the said auto rickshaw at different points by the officers, but the auto rickshaw moved forward in a dangerous speed. The Bureau party thereafter arranged to chase the said auto rickshaw. The driver of the said rickshaw turned the rickshaw towards the residence of suspect Abdul Hamid Chandmiya @ Ladoo Bapu. The raiding party also identified suspect Abdul Hamid Chandmiya @ Ladoo Bapu sitting in rickshaw at that juncture, occupying the passengers seat. Ultimately, after vigorous chase and on account of topography of old city of Ahmedabad, the rickshaw could not be over reached by the Bureau Party and ultimately they found that the said rickshaw was halted near the house of suspect Abdul Hamid Chandmiya @ Ladoo Bapu. Suspect himself and the driver got down from the rickshaw and escaped through the narrow lanes before the Bureau Party reached near the rickshaw. Thereafter, panchas and other officers of the Bureau gathered and searched the auto rickshaw, and in search, they found charas in quantity of 1.450 kgs and a driving licence of one Shri Abdulgafar Gulamali Shaikh @ Rajubhai was also recovered from the said rickshaw. However, the Bureau Party thought it fit to carry out raid in the residential premises of suspect Abdudl Hamid Chandmiya @ Ladoo Bapu, situated at 2551 Kamal Market, Opp: Vadwali Police, Shahpur Chakla. Accordingly, search of the residential premises of the suspect was carried out in the presence of Najmunisha, wife of Abdul Hamid Chandmiya @ Ladoo Bapu. From a tin container in the house further charas was found by the raiding party in quantity of 2.098 kgs, but on preliminary testing also, the substance was found to be charas. Accordingly, search of the residential premises of the suspect was carried out in the presence of Najmunisha, wife of Abdul Hamid Chandmiya @ Ladoo Bapu. From a tin container in the house further charas was found by the raiding party in quantity of 2.098 kgs, but on preliminary testing also, the substance was found to be charas. When search was going on, one person named as Abdul Rajak, came there and he was accused No. 2 in the Sessions Case. Accused No.1 Najmunisha and her son accused No.2 Abdul Rajak both thereafter summoned by the Bureau Officers under Section 67 of the NDPS Act. In the statement which was recorded under Section 67 of the NDPS Act, both of them i.e. Abdul Rajak and Najmunisha stated the fact that Najmunisha was aiding the business of drug trafficking, which was conducted by suspect Abdul Hamid Chandmiya @ Ladoo Bapu, her husband. Therefore, Abdul Razak accused No.2 and Najmunisha both were arrested. Abdul Hamid Chandmiya @ Ladoo Bapu was absconded and could be arrested during investigation and his statement also recorded under Section 67 of the NDPS Act before his arrest. In his statement, he confessed to have conducted transporting and selling of contraband substance and also he revealed that he had sold contraband substance to accused No.5 Nazir Ahmed @ Nazir Bazara, who was his regular customer. Therefore, accused No.5 Nazir Ahmed @ Nazir Bazara was also arrested. In the statements of accused Nos. 2 and 4, it was revealed that suspect accused No.4 was obtaining bulk of contraband from accused No.3 Abdul Rashid Abdulla @ Rashid Kashmiri and he was a regular supplier of contraband substance to accused No.4. However, after some days, accused No.3 Abdul Rashid Abdulla @ Rashid Kashmiri also could be arrested, however, his statement has not been recorded. It was alleged therefore that in pursuance of a criminal conspiracy to commit the illegal act of drug trafficking, all the accused in abetment with one another, carried out illegal activity of drug trafficking. Narcotics Control Bureau at the initial stage filed complaint before the competent court and after due investigation, a charge sheet came to be filed against all the accused. 5 The learned Trial Judge framed charges in Sessions Cases vide Exhibit-7 on 14th of September, 2000 for the offences punishable under Sections 8(c), 29, 20(b) (ii)(c) of the NDPS Act. Narcotics Control Bureau at the initial stage filed complaint before the competent court and after due investigation, a charge sheet came to be filed against all the accused. 5 The learned Trial Judge framed charges in Sessions Cases vide Exhibit-7 on 14th of September, 2000 for the offences punishable under Sections 8(c), 29, 20(b) (ii)(c) of the NDPS Act. On pleading not guilty by the accused, prosecution examined in all following five witnesses : PW-1 Bhimsing Kanchansing Mina Exhibit - 17 PW-2 Krishnaben Vinaykumar Chaube Exhibit 78 PW-3 Pavansing Shrigajesing Tomar Exhibit 93 PW-4 Upendrakumar Harilal Patel Exhibit 102 PW-5 Mohendrasing Jagiram Dahiya Exhibit 118 6 The prosecution also produced following documentary evidence to prove its case. 1 Exh. 79 Gist of information dated 10.12.1999 2. Exh. 80 Report u/s 42(2) of the NDPS Act, 1985 submitted by the I.O., NCB, Ahmedabad, dated 10.12.1999. 3. Exh. 18 Panchnama and seized papers/documents, dated 11.12.1999. 4. Exh. 81 Summons u/s 67 of the Act issued to Smt. Najumunisha A Shaikh, dated 11.12.1999. 5. Exh. 83 Statements of Smt. Najumunisha A Shaikh recorded u/s 67 of the Act, dated 11.12.1999. 6. Exh. 82 Summons u/s 67 of the Act issued to Shri Abdul Razak A.Shaikh, dated 11.12.1999. 7. Mark-A Statement of Shri Abdul Razak A. Shaikh recorded u/s. 67 of the Act, dated 11.12.1999. 8. Exh. 84 Arrest memo of Smt. Najmunisha A. Shaikh, dated 12.12.1999. 9. Exh. 85 Arrest memo of Shri Abdul Razak A. Shaikh, dated 12.12.1999. 10. Exh. 86 Receipt issued by telegraph office intimation to next of kin of both the accused dated 12.12.1999. 11. Exh. 94 Godown Receipt, dated 11.12.1999. 12. Exh. 87 Report u/s 57 of the Act submitted by the I.O., NCB to the Zonal Director, dated 12.12.1999. 13. Exh. 95 Report u/s 57 of the Act submitted by the Zonal Director, AZU, NCB to the DDG (E) NCB, New Delhi, dated 13.12.1999. 14. Exh. 88 Forwarding letter and test memo of drug samples forwarded to FSL, Ahmedabad, dated 13.12.1999. 15. Exh. 89 Receipt issued by the FSL, Ahmedabad, dated 13.12.1999. 16. Exh. 96 Analysis report received from FSL, Ahmedabad, dated 18.12.1999. 17. Exh. 90 Forwarding letter and test memo and drug samples forwarded to CRCL, New Delhi, dated 13.12.1999. 18. Exh. 108 Summons u/S. 67 of the Act issued to Shri Abdul Hamid C. Shaikh @ Ladoo Bapu, dated 25.06.2000. 19. Exh. 16. Exh. 96 Analysis report received from FSL, Ahmedabad, dated 18.12.1999. 17. Exh. 90 Forwarding letter and test memo and drug samples forwarded to CRCL, New Delhi, dated 13.12.1999. 18. Exh. 108 Summons u/S. 67 of the Act issued to Shri Abdul Hamid C. Shaikh @ Ladoo Bapu, dated 25.06.2000. 19. Exh. 109 Statement of Shri Abdul Hamid C. Shaikh @ Ladoo Bapu dated 25.06.2000. 20. Exh. 110 Arrest memo of Abdul Hamid C. Shaikh @ Ladoo Bapu, dated 26.06.2000. 21. Exh.112 Report u/s 57 of the Act submitted to Zonal Director, NCB by I.O., NCB, Ahmedabad, dated 27.06.2000. 22. Exh. 111 Intimation to next of kin, dated 27.06.2000. 23. Exh. 103 Summons u/S. 67 of the Act issued to Nazir Bajra, dated 23.12.1999. 24. Exh. 104 Statement of Shri Nazir Bazra @ Nazir Ahmed S/o Noor Mohmed Hussein Shaikh, dated 14.06.2000. 25. Exh.105 Arrest memo of Nazir Ahmed, S/o Noor Mohd. Hussain Shaikh, dated 14.06.2000. 26. Exh. 106 Intimation to next of kin of Shri Nazir Bazra, dated 15.06.2000. 27. Exh. Report u/s 57 of the Act submitted to Zonal Director, NCB, Ahmedabad by I.O., NCB, Ahmedabad, dated 16.06.2000. 7 After the prosecution case was over, the learned Trial Judge brought to the Notice of each of the accused all the incriminating circumstances against them and recorded the statements of each of the accused under Section-313 of the Code of Criminal Procedure. Their case was of total denial. It was stated that the case has been concocted against them. Present appellants stated that Officers of NCB had approached accused No.1 and since her husband had gone out, though she had refused to accompany said Officers, but on insistence, she was compelled to go with them. It was further stated by them that appellant No.1 accused No.1 was assured that she would be released after making inquiry according to law. In the meantime, a person i.e. accused No.2 came to her place and he was staying separately from accused No.1 and accused No.4. Accused No.2 had his own family but the NCB Officers took her son along with her. When they reached at the NCB Office, there were certain documents prepared by the Officers and her signature as well as signature of her son were obtained and they were arrested. It was further stated that the NCB Officers have falsely implicated the accused in the case. When they reached at the NCB Office, there were certain documents prepared by the Officers and her signature as well as signature of her son were obtained and they were arrested. It was further stated that the NCB Officers have falsely implicated the accused in the case. Appellants desired to examine the defence witnesses and further produced some documents to show that they had made request to the National Human Rights Commission and other authorities against the highhandedness of NCB Officers. The accused Nos. 1 and 4 i.e. present appellants, examined 7 defence witnesses, mostly, for the fact that accused Nos. 1 and 4 i.e. present appellants were not in the possession of the premises involved in the raid. Those witnesses are : DW-1 Ahemadkhan Chhotekhan Machhi Exh.123 DW-2 Mahemudhusain Kazambhai Shaikh Exh.124 DW-3 Mahmadkanif Chandmiya Shaikh Exh.125 DW-4 Abbdulrahimbhai Abbdulkarim Shaikh Exh.128 DW-5 Abbdulabhai Chandmiya Shaikh Exh.133 DW-6 Ruknoddin Mahmadhusain Momin Exh.140, and PW-7 Shankarbhai Kalidas Mackwana Exh. 144 8 Before we re-appreciate the evidence thoroughly, it is necessary to record the gist of the evidence recorded during the trial, which is very important. It has been vehemently urged by learned Advocate for the appellants that the Appellate Court is also a court of fact and is duty bound to re-appreciate the evidence carefully. There cannot be any other opinion in this respect of principle of law that first appellate court must re-appreciate the evidence like trial court and come to the conclusion on individual assessment of the evidence. Therefore, we have noted the gist of the evidence recorded during the trial. 9 PW-1 Bhimsing Kanchansing Mina, examined at Exhibit-17 is a panch witness and he stated that he works as an Inspector (Audit) in Central Excise Department. He stated that his office is situated at Jivabhai Manson, Ashram Road. He further stated that he goes for a walk every morning at 5.00 a.m. and on 11.12.1999, near Drive-in-Road, he met a lady who told him that she was serving in NCB and asked him to be a panch. He stated that he volunteered to do so and they both went to Income Tax Circle. He stated that they met other officers Mr. Tomar, Mr. Raghuvanshi, etc who were introduced to him. He stated that another panch also was present and Mrs. He stated that he volunteered to do so and they both went to Income Tax Circle. He stated that they met other officers Mr. Tomar, Mr. Raghuvanshi, etc who were introduced to him. He stated that another panch also was present and Mrs. Chaube told them that she had a secret information that in an auto rickshaw, the number of which, this witness did not remember, was to pass, carrying narcotic substance and, therefore, the same was needed to be caught. He further stated that they all sat in a Gypsy car and went to Gandhi Bridge, Shahpur Darwaja. He stated that there were two motor cycles, but he did not remember as to who sat where, but they left Income Tax Circle at around 6.15 to 6.30 a.m. He stated that he was intimated that an auto rickshaw was to come from Kalupur Railway Station and, therefore, they all stood there in surveillance. He stated that at around 7.30 a.m. they found an auto rickshaw coming from towards Kalupur and Mr. Oza attempted to halt, but it did not stop and, therefore, it was chased by other officers and the jeep also chased it. He deposed that the said auto rickshaw turned on the left hand side in a by-lane where the driver and passenger both were found to have abandoned the auto rickshaw by the time they all reached there. He stated that the search of the auto rickshaw was made on the back side, from under the back seat, a packet was recovered, wrapped in a white polythene bag, which they removed. He stated that the substance found was blackish brown coloured with round shaped like ladoo. He stated that the officers suspected that to be charas and, therefore, the drug testing kit was used, which prima facie confirmed the substance was charas. He further stated that it was repacked in the manner it was found. He further stated that the bag of muddamal article was handed over and they were also informed that the person who was sitting as a passenger was Ladoo Bapu and his residence was nearby. His house was on the 1st floor and on the ground floor shops were situated. He stated that thereafter they all climbed up the stairs and when knocked, a lady (accused No.1) had opened the door and she introduced herself as wife of accused No.4 Ladoo Bapu. His house was on the 1st floor and on the ground floor shops were situated. He stated that thereafter they all climbed up the stairs and when knocked, a lady (accused No.1) had opened the door and she introduced herself as wife of accused No.4 Ladoo Bapu. He stated that said lady was intimated by the officer that both the panchas were present and if she needed to search them, she was entitled to do that. He further stated that introduction of Mr. Tomar was also given as a Gazetted Officer and she was told that if she wanted the personal search in presence of the Executive Magistrate or the Gazetted Officer, Mr. Tomar was a Gazetted Officer. He further stated that one of the officers being lady, she had personally searched accused No.1, however, nothing was found. He further stated from the container kept in the shelves, a transparent bag of plastic was found, and on opening it, it had blackish brown coloured round shaped substance, which, on testing was found to be charas. He deposed that while they were completing this procedure, her son Razak entered the house and he was personally searched, and as per the NDPS Act, he was intimated that, search in presence of Class-I Officer is permissible under the law, but nothing was found out from the personal search. He stated that narcotic substance, which was found from the auto rickshaw also was packed in a cloth inside the house. He stated that the substance had been weighed, it was properly sealed in the cloth and thereafter signatures were put on them. He further stated that panchnama was drawn out there and then only. He stated that he identified the accused Nos. 1 and 2 as the persons who were present at the time of the raid. He deposed that a chit was found during the course of search of house, where account was maintained and licence was found during the search of auto rickshaw. He stated that he did not remember as to whose licence was it. He stated that after completing the panchnama, he had handed over the muddamal to Mrs. Chaube. He identified the muddamal article. He also identified the signatures on the cloth and he specifically stated that it was the same muddamal, which had been seized in his presence and also packed in a sealed condition. He stated that after completing the panchnama, he had handed over the muddamal to Mrs. Chaube. He identified the muddamal article. He also identified the signatures on the cloth and he specifically stated that it was the same muddamal, which had been seized in his presence and also packed in a sealed condition. 9.1 This witness had been put to an elaborate cross-examination by the defence, firstly his voluntariness in joining with the seizing officer Smt. Chaube was attacked on the ground that he without verifying the purpose of becoming a panch had volunteered, to which, this witness has firmly answered in negation and said that since he felt that it was the duty towards the country, he has performed it. Secondly it was asked that after completing the panchnama, for the entire day, the witness was in the office, is said to be unpalatable by the defence, but he replied that his Superintendent knew about his having gone as a panch. He stated that he did not remember exactly at what time they started writing the panchnama and what time had gone into it. He further stated that no separate notings were made, but on the strength of their memory, panchnama was drawn at a stretch after the raid was completed. He further stated that the muddamal seized from the auto rickshaw was not weighed near auto rickshaw at that point of time, but the weight was about 1 1/2 Kgs. He stated that from inside the residence, a packet was found from behind a tin container and he did not remember the exact time that took them in sampling and sealing, but it was around 9.30 a.m. that everything was completed. He did not agree to the suggestion of the defence that the auto rickshaw, which was coming from Kalupur, had gone towards Gandhi Bridge when it had not stopped. This witness had been emphatic about the fact that it had turned towards the Shahpur Gate and as Gandhi Bridge has the road divider all throughout and anyone who requires to come back, needs to take a U turn and come back. On the point of search warrant, this witness agreed that the same is required if any search is to be carried out in the residential premises. On the point of search warrant, this witness agreed that the same is required if any search is to be carried out in the residential premises. The search of the house of the accused No.4 was also attacked on the ground that there are no substantiating documents like any resolution passed prior to the search of the said house, although, the weighing machine and the testing kit were with them and the samples A1, A2 & A3 and B1, B2 and B-3 were accordingly prepared. This witness has been meticulously cross-examined by the learned Advocate for the defence to point out that the envelope, which had contained the muddamal sample, can be disturbed without disturbing the seal. The sample, according to this witness, had been prepared after crushing the substance and making it homogeneous. He stated that the accused were read out the panchnama in Hindi language as both the panchas were more comfortable in that language. This witness is specific about his having left the place after the panchnama and no other documents having been prepared, except, the panchnama at the place of the accused. This witness has said that the muddamal seized from the auto rickshaw was handed over to him and only after the narcotic substance was seized from the residence of accused No.1 that the one seized from the auto rickshaw had been weighed and sealed. He stated that all throughout he had kept the said muddamal. He has been specific that he has no relation with the NCB and he is not a Gazetted Officer as well. He stated that there were two officers, who were injured, as they were chasing the auto rickshaw and there was a sudden brake applied by the auto rickshaw driver and, therefore, on applying the sudden brake, they had fallen down. 10 PW-2 Smt. Krishnaben Vinaykumar Chaube, who was working as Inspector, CRPF, Gandhinagar, examined at Exhibit 28, stated that she was on deputation with the NCB from 01.10.1999 to 30.09.2002 where she received a secret information on 10.12.1999 that an auto rickshaw was to carry the narcotic drugs and she made a report under Section 42 of the NDPS Act to the Zonal Director Mr. Tomar - PW3. According to her, Exhibit 79 is the gist of information and the original report was given in a sealed cover to PW-3 Tomar. Tomar - PW3. According to her, Exhibit 79 is the gist of information and the original report was given in a sealed cover to PW-3 Tomar. If one reads Exhibit 79 it says that, a person namely Abdul Hamid Shaikh @ Ladoo Bapu, resident of Kamar Market, Shahpur Chakla, who is trafficking in the narcotic drug charas is to pass on the road of Shahpur Darwaja road on 11.12.1999 at around 7.00 in the morning with charas in an auto rickshaw, bearing Registration No. GJ-9-T-2355. He is aged 42-43 years and has thin mustaches and his height is around 5' 7 and whitish in colour. The gist of information is dated 10.12.1999 at 18.30 hours and the same is signed by PW-2 Mrs Chaube. Xerox copy of the report made under Section 42(2) of the NDPS Act to the superior is at Exhibit 80 which says that the undersigned received a specific information from the reliable source about illegal trafficking of narcotic drugs and the original information received is placed in a sealed cover bearing Seal No. 4 NCB AZU which is forwarded for the Zonal Director to retain it and the gist of the information is said to have been enclosed for his perusal and necessary action. This bears the signature of PW-2 and also the endorsement and signature of PW-3 which says that he has received the copy of the sealed cover and the copy of the gist of information. On the strength of this, according to the deposition of PW-2 before the Court, PW-3 Pavansing Shrigajesinh Tomar had directed the rest of the Officers to gather at the Income Tax Circle at around 6.00 a.m on 11.12.1999 and all the officers and the panchas reached at Income Tax Office, Ashram Road on the next day i.e. on 11.12.1999. The team included the PW-2 Mrs. Krishna Chaube, PW-3 Mr. Tomar, Intelligence Officer Mr. Oza and Mr. Raghuvanshi, PW-4 Upendrakumar Harilal Patel and other staff members. They had a motorcycle and a jeep. She was on the motorcycle and when they reached traffic circle of Shahpur Chakla for surveillance, they stood scattered. PW-2 Mrs. Krishna Chaube stood with one Constable Hitesh Bhattacharya, near a mosque. An Auto rickshaw was seen in some time and it passed nearby their jeep. They had a motorcycle and a jeep. She was on the motorcycle and when they reached traffic circle of Shahpur Chakla for surveillance, they stood scattered. PW-2 Mrs. Krishna Chaube stood with one Constable Hitesh Bhattacharya, near a mosque. An Auto rickshaw was seen in some time and it passed nearby their jeep. The Officer had summoned the other persons after looking at the number of the auto rickshaw and she also tried to stop the auto rickshaw. There were two persons inside the same, one of them was driving the same and other one was the passenger on the back seat. It did not stop and contrarily auto rickshaw driver had increased the speed. They all chases the said vehicle. She also followed on her motor cycle but she did not find the auto rickshaw and came back to her original place near the mosque. She received a pager of Mr. Tomar whereby she was directed to go in the by-lane. She found all the officers standing near the auto rickshaw and two of them were injured. 10.1 PW-2 Mrs. Chaube further stated that they searched the auto rickshaw in presence of the panchas. The vehicle was abandoned. From the dash board they found the licence of one Abdul Hamid and on lifting the back seat of the auto, a plastic bag was found. It contained the packets wrapped in the newspaper as well as with sutdi (jute lace). On removing the newspapers, a transparent plastic was found and inside the said plastic cover, there was a blackish green substance in round shape like that of laddu. With the help of the drug testing kit, prima facie, it was found to be charas. There was nothing else that can be recovered from the auto rickshaw. It was PW-3 Tomar who said that the residence of accused No.4 Abdul Hamid Chandmiya @ Ladoo Bapu was in the vicinity and there would be possibility of getting more narcotic substance, therefore, they went on the left hand side of the auto rickshaw and there was an entrance of residents. They climbed up the entire stairs and found a lady who named herself as Najmunisha-accused No.1 and according to her, she was wife of accused No.4. She was intimated about the seizure of charas from the auto rickshaw and also further intimated that search of her house was to be taken. They climbed up the entire stairs and found a lady who named herself as Najmunisha-accused No.1 and according to her, she was wife of accused No.4. She was intimated about the seizure of charas from the auto rickshaw and also further intimated that search of her house was to be taken. She was told by the seizing officer that in presence of gazetted officer or the Executive Magistrate, she was entitled to ask for the search and it was further conveyed that Mr. Tomar - PW3 also is a Gazetted Officer and she was entitled to search them or any of them before they start searching her house. She said `no' to the said offer of the search in presence of the Gazetted Officer or the Magistrate and as there was just one room and the kitchen platform in the side of balcony where storage place was kept. There were shelves on the top of kitchen platform and aluminum containers were found on the shelves. Behind these containers, they found a bag used for packing cement, which on opening, contained a substance wrapped in the papers as well as with the jute lace (studi). On removing the same, there was a transparent plastic bag inside which had a greenish coloured substance in the round shape (laddu). She stated that when a small substance was tested on the testing kit, it was found to be charas. There was one paper sheet found during the search. The weight of the substance seized from the auto rickshaw was 2.450 gms and on removing the papers and plastic bag, it was 2.200 gms whereas the one which was found from the residence was of 2.200 gms and on removing the plastic, it was found to be 1.98 gms. The substance found from the auto rickshaw was given Mark-A whereas the one which was found from the residence of accused No.1 was given Mark-B. From mark `A' and `B' respectively three samples were prepared, each numbered as A1, A2 and A3 and B1, B2 and B3 making it totally six samples. Every sample was of 25 grams, which was put in a plastic bag and that was further packed in an envelope which was packed with an adhesive tape affixed in the cross and the seal of NCB AZU-4 was applied on the same. On these, PW-2 Mrs. Every sample was of 25 grams, which was put in a plastic bag and that was further packed in an envelope which was packed with an adhesive tape affixed in the cross and the seal of NCB AZU-4 was applied on the same. On these, PW-2 Mrs. Chaube, panchas and accused No.1 Najmunisha signed and the remaining substance was once again packed in the same manner as it was found and it was stitched by covering it with white cloth and thereafter the white adhesive tape was applied with a seal of AZU-4 of NCB making it totally 8 samples, six of 25 grams and of remaining seized substance marked as `A' & `B' and the panchnama to that effect had been drawn in the house of accused No.1. She deposed that she has not identified signature of accused No.2 saying that she has no idea of that signature and the same has not been done in her presence. L1 and P1 are respectively the page of accounts and licence. The seized muddamal article, according to PW-2, had been handed over to the panchas and the summons was given under Section 67 to the accused No.2. While sealing was being done, accused No.2, son of Najmunisha, Abdulrazak (accused Nos. 1 and 4) entered the house and as directed by Mr.Tomar, she had given him the summons as well. She further deposed that she has identified both the summons at Exhibits 81 and 82 as well as the panchnama. She further stated that they had gone to the office of NCB along with both the accused who sat with Mr. Tomar - PW3, Constable and the Driver of the Gypsy car and the statement of accused No.2 was recorded under Section 67 of the NDPS Act. She stated that accused No.2 was asked the question by her in presence of Mr. Tomar and both the panchas and she was replying to it and Sepoi Rajesh Dantani was writing down her statement. She deposed that she had identified the signature of accused No.1 at every page, signature of both the panchas and that of Mr. Rakesh Dantani - Exhibit 83. She had no knowledge of the statement of accused No.2, which according to her, was recorded in the chamber of Mr. Tomar. She deposed that she had identified the signature of accused No.1 at every page, signature of both the panchas and that of Mr. Rakesh Dantani - Exhibit 83. She had no knowledge of the statement of accused No.2, which according to her, was recorded in the chamber of Mr. Tomar. She stated that she had merely signed it because it was PW-3 Tomar, her superior, who had asked her to sign that. She deposed that accused No.1 since had admitted her guilt, she was given the arrest memo as an issuing officer (at Exhibit-84) signed by her and the arrest memo of accused No.2 was prepared at the instance of PW-3 Tomar and she had given it to him, which is at Exhibit-85. Muddamal was handed over to Mr. Tomar after the arrest. She stated that the godown receipt is identified by her and the telegram was given to the relatives of these two accused while they were taking them before the Magistrate (at Exhibit 86). She deposed that she prepared the report to be given to her superior Mr. Tomar under Section 57 of the NDPS Act, which is produced at Exhibit-87. She stated that she prepared the report for sending the samples to FSL on 13.12.1999 and it was sent with the Constable Rakesh Dantani. She stated that the text memo - Exhibit-88, the receipt of FSL - Exhibit-89 and the sample sent to CRCL, New Delhi by insured post, Exhibit-90 have been identified by her. She also identified both the accused before the court. She also identified muddamal articles in presence of the Court. 10.2 In an exhaustive cross-examination of this witness, two things emerged glaringly that PW-2 Chaube is consistent about having no personal knowledge as about the signature of the accused No.2 on the seized muddamal article as well as with regard to the confessional statement given by him before her. She maintained all throughout that all her actions with regard to the accused No.2 had been at the instance of PW-3 Mr. Tomar and she has not done anything independently which would connect the accused with the alleged offence. She maintained all throughout that all her actions with regard to the accused No.2 had been at the instance of PW-3 Mr. Tomar and she has not done anything independently which would connect the accused with the alleged offence. But, so far as carrying out of raid in pursuance of the report made to the superior below Section 42 of the NDPS Act and the seizure from the residence of accused No.1 and also recording of her statement, PW-2 has been consistent in both, in examination-in-chief and in cross-examination. With regard to a particular inquiry about as to whether she received the secret information personally or through telephone, the witness deposed that she had not remembered as three years have already passed. Although, initially this witness PW-2 resisted to divulge the said fact on the ground of secrecy, but as the identity of the informant was not being disclosed in answering the said question, she was asked to reply the same. She deposed that the office hours were till 6:00 in the evening and she was staying at Gandhinagar at the relevant time and on the previous day i.e. on 10.12.1999 she was in the office upto 6:30 in the evening. She stated that usually the office gets over by 6:15 pm but she works till 7:00 in the evening. According to her, the information at Exhibit-79 was not vague and it was very clear when the gist of the information was given to the superior and the surveillance was decided to be maintained and all the officers were called. She further deposed that an attempt was made on the part of the defence to point out that the entire story of chasing the auto rickshaw, its abandonment by the passenger and the auto rickshaw driver near the house of accused No. 4 and the search of the house of accused No.4 by passing a resolution, are all concocted as PW-3 Tomar was aware of the residence of PW-4 and it would have been easier for them to go straight for the search of the house of accused No.4 and there was no need for them to put up the mask and to create a story in this regard. She further deposed that that no authorization letter was asked from PW-3 Mr. She further deposed that that no authorization letter was asked from PW-3 Mr. Tomar by her as the search was not to be carried out inside the house, but the information was with regard to an auto rickshaw and moreover PW-3 Mr. Tomar was going to be a part of the raiding team. She deposed that on that day i.e. on 11.12.1999 she came from Gandhinagar via Sabarmati, Ashram Road and she is familiar with Gujarat University area. She stated that as all of them had decided to meet near Income Tax Circle, she was the first one to reach there and Mr. Tomar had reached in his jeep and there were other officers of NCB with him. She further stated that there were two officers, who had come on the motorbike. She deposed that on the road of Gandhi Bridge going towards Kalupur, at the first circle, if right side is taken, Shahpur Chakla is situated whereas she is unaware of area on the left side. She stated that there is a road divider starting from Gandhi Bridge. Shahpur Police Chowki, according to the defence is located on the left hand side. The auto rickshaw came from towards Shahpur Chakla road and although attempt had been made that it did not halt and it took a turn for going towards Kalupur Station and all the vehicles chased it. She deposed that she attempted to follow them but when she did not find any of the vehicles which were with her, she and sepoy had come back to the same place once again. She denied the suggestion that auto rickshaw came from Kalupur Station side and it had crossed them stream and went towards Gandhi Bridge and it was followed on the Gandhi Bridge as that was initially the version of the panch which he concocted later. She deposed that when she reached the by-lanes after receiving the message on pager she found two of the officers injured , and on inquiring, she was intimated that the rickshaw had taken a sudden turn and applied the brakes and the officers who chased it had also applied brakes and, therefore, had fallen down. She deposed that when she reached the by-lanes after receiving the message on pager she found two of the officers injured , and on inquiring, she was intimated that the rickshaw had taken a sudden turn and applied the brakes and the officers who chased it had also applied brakes and, therefore, had fallen down. She deposed that the road was not going straight in the by-lanes and she did not know the width of the said by-lane, however, from the balcony of the house of accused No.4, it was possible to see the auto rickshaw. She deposed that after finding narcotic drugs from the auto rickshaw, the team had felt that there is a possibility of finding narcotic drugs at the residence of accused No.4 and, thus, the raid was on the spot decided. She deposed that she has no idea as to what time it took them to write the panchnama and as and when the facts happened that the said panchnama had been written. She deposed that the spot testing was not done from all the substance which had round shape, but from some of them. She stated that till the spot testing was completed, panchnama was not written. It was also denied that they had decided to write the panchnama inside the house of the accused No.4, but according to this witness, when there was a strong possibility of presence of narcotic drugs in the house of accused No.4, they found it more prudent to carry out the search of the house and to draw the panchnama thereafter. She deposed that there was no intimation given to this witness for the contraband article being there in the house of the accused No.4. She stated that for searching the house, a written information was essential according to her and if there was no written information, they would require authorization for search warrant and PW-3 Mr. Tomar could have issued the said authorization. She stated that she did not request for the same, as according to her, that would have given ample time to the accused No.4 to do away with the narcotic articles. Tomar could have issued the said authorization. She stated that she did not request for the same, as according to her, that would have given ample time to the accused No.4 to do away with the narcotic articles. She deposed that accused No.1 Najmunisha was the only person, who was present in the room, which was searched by the raiding team, which had measured 8 x 10 feet and when they climbed up the stairs, she had introduced herself as the wife of accused No.4. She deposed that there were other rooms as well, but they were occupying only one room. She further deposed that she had not done any investigation in the instant case and, therefore, was unaware of the ownership or possession of the said property. She stated that it took them about 20 minutes to find out narcotic articles from behind the aluminum tin container and sampling, sealing and writing of panchnama also took about 45 minutes. She deposed that one person was posted to look after the auto rickshaw when they entered the house and the auto rickshaw also followed them back when they went back to the NCB Office, but she was unaware as to who drove the same. She deposed that she was aware while giving the summons to the accused No.1 that accused No.1 was not responsible for the narcotic articles seized from the auto rickshaw and while it was given to the accused No.2 she was of the opinion that he was not responsible for either the seizure or the auto rickshaw or the residence of accused Nos.1 and 4. She agreed by looking at the summons that the summons given to accused No.1 was for seizure of 3.392 kgs of charas from Abdul Hamid Chandmiya Shaikh of the auto rickshaw bearing Regn. No. GJ-9-T-2355. Exhibit-81 if it is seen at this juncture, this summons under Section 67 of the NDPS Act is of dated 11.12.1999 in connection with the seizure of 3.392 Kgs of charas from Abdul Hamid Chandmiya Shaikh and from auto rickshaw bearing Regn No. GJ-9-T-2355 dated 11.12.1999. Similar kind of writings also gets reflected in the summons given to accused No.2, which is produced at Exhibit-82. Similar kind of writings also gets reflected in the summons given to accused No.2, which is produced at Exhibit-82. This witness agreed that when summons was given to Najmunisha, she was of the opinion that Najmunisha was innocent and charas belongs to her husband - accused No.4 and she also honestly believed that only an inquiry needs to be made from the accused Nos. 1 and 2 in connection with the seizure. She further deposed that as both Exhibits 80 and 81 show 4.00 p.m. of 11.12.1999 she was of the opinion that probably before 12.00 noon the statement would have been recorded. The statement recorded of Najmunisha accused No.1 is produced at Exhibit-83 took about 2 3 hours. She deposed that Najmunisha does not know Hindi and, therefore, it was written down in Gujarati language. She stated that she was inquiring into Hindi and Rakesh Dantani was translating into Gujarati language for the benefit of accused No.1. This witness could understand Gujarati, but she was not able to speak or write in Gujarati language. She deposed that Najmunisha knew Gujarati language but she could not write it fluently and she had requested her to write down her statement. They started with the statement in about afternoon. 11 PW-3 Pavansing Shrigajesing Tomar, examined at Exhibit-93 was Additional Income Tax Commissioner, Delhi, and was serving as Zonal Director, NCB, from 03.06.1997 to 02.06.2002. He had four intelligence officers working under him, namely, Shri Upendra Patel, Shri D.N. Oza, Shri Jitendra Raghuvanshi and Smt. Krishna Chaube. He deposed that Krishna Chaube had given him the gist of information and a sealed cover which was signed by him, which is produced at Exhibit.79. A letter was addressed to him under Section 42 of the NDPS Act which also bears his signature, which is produced at Exhibit-80. He deposed that he discussed the said information with Smt. Chaube and the secret information was to the effect that on 11.12.1999 a person named Abdul Hamid Chandmiya Shaikh @ Ladoo Bapu, resident of Kamal Market, Shahpur Chakla, was to pass Shahpur Darwaja road in auto rickshaw bearing Regn. No. GJ-9-T-2355 with charas. His age was described as 43 years old. No. GJ-9-T-2355 with charas. His age was described as 43 years old. He deposed that he called up other officers and it was decided that on 11.12.1999 i.e. the next day at 6.00 in the morning they all will meet at statute of Gandhiji near Income Tax Circle where some of them were to come via NCB Office whereas some of them were to come directly. He deposed that he had firstly gone to the office at around 5.15 a.m. and he met one person in the morning and introduced himself. He volunteered and agreed to be a panch. They all had met at Income Tax Circle near the statute of Gandhiji and he was asked the officers to call another panch and one panch Mr. Vaghela was brought in the mean time. They all went in a motorcycle and jeep bearing registration No. MH-01-4135. There were two motorcycles and personal bike of Smt. Chaube and a jeep car. They had informed different teams and were standing near Shahpur Chakla. Smt. Chaube stood near the mosque and Shri Oza and the panch and the other employees stood near the jeep. The jeep stood in the side and it faced Gandhi Bridge so that the person coming from towards Shahpur Chakla cannot see it. He was also on the bike and Mr. Upendra Patel and another sepoi also were on the bike, the auto rickshaw came at around 7.30 a.m. from towards Shahpur road. He stated that an attempt was made by Mr. Upendra Patel to halt it and the auto rickshaw did not stop and, therefore, he and Mr. Raghuvanshi became alert and Mr. Raghuvanshi tried to stop it. However, he could not and the auto rickshaw bearing registration No. GJ-9-T-2355 was driven by a person and one passenger was sitting on the back. Description of passenger matched with that of Ladoo Bapu. The auto rickshaw turned on the right side by going a little far on the Kalupur Road. Mr. Raghuvanshi started the motorcycle and they both followed the auto rickshaw. The other persons of the raiding party also became alert and followed them. The auto rickshaw was in much speed and on the left hand side, near the petrol pump from Shahpur Police Chowki to Kalupur Road, there is a road going on the left hand side. Mr. Raghuvanshi started the motorcycle and they both followed the auto rickshaw. The other persons of the raiding party also became alert and followed them. The auto rickshaw was in much speed and on the left hand side, near the petrol pump from Shahpur Police Chowki to Kalupur Road, there is a road going on the left hand side. It turned there and thereafter once again it turned on the left side and from the four roads, it again turned on the left side and the person who was sitting in the auto rickshaw was constantly looking back in panic. They had also reached the auto rickshaw when Municipal Transportation bus came and it was with great difficulty that the accident could be avoided. They found it difficult to apply the brake and the moment they applied it, the auto rickshaw had gone ahead of them. It had gone in the bye-lane of Valvali Pole. They went there and Mr. Raghuvanshi had suddenly applied the brake and both the persons had abandoned the rickshaw and had run away. Mr. Upendra Patel who was on the bike in front of Mr. Tomar had lost his balance and fallen down and he received the injuries. Shri Raghuvanshi had to apply the sudden brake as well. He sent a pager to Smt. Chaube as she was not found where auto rickshaw was abandoned. They found a driving licence in the name of Abdulgafur and from the back seat, they found a hand bag where there were old newspapers and an article was found lying there tied with thread (sutdi). By opening the plastic transparent bag, they found a greenish black round substance and on testing it with drug testing kit, it was found to be `charas' with positive test. One of the panchas were handed over the said muddamal and thereafter they by negotiating with the other officers, it was found that since the house of Ladoo Bapu is nearby, they should also search the house. Both the panchas were intimated and when they also agreed to the same, they went there and the door was opened. They reached the first floor and a lady standing there introduced herself as Najmunisha, wife of Ladoo Bapu. Other officers and the panchas were introduced to her and Mrs. Both the panchas were intimated and when they also agreed to the same, they went there and the door was opened. They reached the first floor and a lady standing there introduced herself as Najmunisha, wife of Ladoo Bapu. Other officers and the panchas were introduced to her and Mrs. Chaube said that as there were suspicion, search of the house needed to be carried out and she also was intimated by him that, if she wants to take the search of any of the persons, she is entitled to do so and the search of her house also can be carried out in presence of the Gazetted Officer or the Executive Magistrate and Mr. Tomar himself is a Gazetted Officer. Mr. Chaube had taken personal search of Najmunisha, accused No.1 and nothing objectionable was found and thereafter the search of the house continued. He had described the furniture and fixtures as well as other details of the house. Behind the tin container, they found a bag which was wrapped in a cement bag. When it was removed, they found substance, which was found greenish black coloured and it was the same to what they had found from the auto rickshaw and on testing it on the drug testing kit, there was a positive result of charas. The net weight of the substance found from the auto rickshaw and the gross weight was carried out and the gross weight was 1.450 gms and net weight was 1.300 kgs. Like wise, the gross weight of the substance found from the residence of accused No.1 was 2.200 kgs and the net weight of the substance was 2.100 kgs. Thereafter, sampling was done where three samples were prepared from the substance found from the auto rickshaw and were numbered as A1 to A3 after making samples homogeneous from all the round shape samples. They were taken in small plastic bags and also kept in a white envelope. The Envelope was closed with white adhesive tap in cross and a hot red seal of NCB as NCB AZU 4 had been applied on it. Similar way the remaining substance was repacked and it was placed in a white cloth which was stitched and it was given mark A. Both the panchas and Smt. Chaube had signed them. Like wise, from the residence whatever substance was found, the samples of B1 to B3 were prepared. Similar way the remaining substance was repacked and it was placed in a white cloth which was stitched and it was given mark A. Both the panchas and Smt. Chaube had signed them. Like wise, from the residence whatever substance was found, the samples of B1 to B3 were prepared. The account chit was given mark P1 and the driving licence, Mark L1. The summons under Section 67 were given to Abdul Razak and Najmunisha. Najmunisha had said that her husband had gone around 7.00 to 7.30 in an auto rickshaw. The panchnama was completed at the residence of Ladoo Bapu only. The panchnama was signed by Smt. Chaube, PW-2 and both the panchas and accused Nos. 1 and 2. He has identified the signatures of all of them before the court and also identified the muddamal article. He agreed that both the panchas had gone and they had not accompanied them upto the office. He deposed that Smt. Chaube had handed over the muddamal article to him after they returned to their office. Godown receipt was issued after receiving the muddamal, Exhibit 94 which was kept in the safe custody with him. He stated that Smt. Chaube had discussed with him that Najmunisha is not a literate lady and her statement was to be recorded in his presence and, therefore, he had intimated both the panchas to come back to his office and they both came and accused No.1 was taken to his chamber after the panchas came and in presence of the panchas, statement of accused No.1 was recorded. After the statement was completed, the panch had signed it and had gone back. His guidance was sought intermittently by Smt. Chaube and statement of accused No.2 was taken in his chamber in his presence who had written his statement in his handwriting. She had also taken his advice in between while the statement was recorded. The next day both of them were produced before the Magistrate after they were arrested by Smt. Chaube. The report under Section 57 of the NDPS Act had been given to him, which is produced at Exhibit-87, copy of which is signed by him and further report to his superior had been sent under Section 57 at Delhi, which is produced at Exhibit-95 and a set of sample was sent to FSL, Ahmedabad and another to CRCL, New Delhi. Smt. Chaube was directed to investigate as regards the auto rickshaw and licence they had found. The report they received from FSL had shown the presence of charas. The CRCL report also had concurred the same, which is at Exhibit-97 and both were sent to Mr. Upendra Patel, who was the Investigating Officer. He had prepared the report and complaint to that effect had been lodged. Accused No.5 was purchasing charas from accused No.4 and, therefore, he was called and his statement under Section 67 had been recorded on 26.06.2000. Accused No.4 was arrested in another case was detained and he was sent the summons whose statement had been recorded by Mr. Patel and accused No.4 put his thumb impression on every page of it. It was adjourned to 26.06.2000 and after accused Nos. 4 and 5 had been arrested, supplementary complaint (charge sheet) had been submitted by the Investigating Officer. He identified the muddamal article before the Court. 11.1 This witness has been exhaustively cross-examined by the defence to point out contradictory versions forthcoming in the deposition of this witness and those of other witnesses. This witness, being a Zonal Director and Supervisory Head during the concerned raid, had deposed that he had called all the officers in the discussion when the tip off was received by him so that the same can be executed effectively. On courts record, the name and the details of the ownership of the auto rickshaw, bearing Registration No. GJ-9-T 2355, is not being established from which contraband article has been seized. This witness agreed in his cross-examination that it would not have been difficult to have these details from the RTO as there is computerization of Regional Transport Office. He was aware along with some other officers of the residence of accused No.4. He agreed that somebody could have been deputed at the residence of accused No.4 on having received information, but did not do so, as they were not sure whether he was to go to his residence or to come out of his residence with charas. During the discussion with his officers, though, it was felt that search of the premises of the accused No.4 may be necessitated yet search warrant or the authorization was not kept ready as he himself was to accompany them. During the discussion with his officers, though, it was felt that search of the premises of the accused No.4 may be necessitated yet search warrant or the authorization was not kept ready as he himself was to accompany them. Absence of search warrant, authorization or the resolution contrary to the provision of the law are also much harped upon. This witness, though had agreed that, under the NDPS Act, if somebody's house has to be entered, there has to be a search warrant or the authorization or resolution. This witness did not agree to the suggestion that resolution is necessary even for searching of the auto rickshaw in the public place. He also disagreed to the suggestion that when house of accused No.4 was searched, neither accused No.1 nor accused No.2 was present. The ownership and the possession of the said premises is also vehemently challenged by the defence. The report given by Smt. Chaube, PW-1 to Mr. Tomar, PW-3 under Section 57 of the NDPS Act and the report prepared by PW-3 for his superior by way of abundant caution for his also being a part of the raiding team have been shown to the witness and he agreed that there is no specific mention of presence of accused No.1 and No.2 at the time of search and seizure from the house of accused No.2. According to this witness, mention and reference of issuance of summons to both the accused Nos. 1 and 2 implicitly speak of this. He has not agreed to the suggestion that while they were searching the house, it came to his knowledge that accused No.2 was a married person, residing separately at Vatva with his own family. In a query by the Trial Court this witness has said that when the search was carried out under the impression that accused No.2 being the son of accused No.4 would be necessarily staying with him and that belief did not allow him to ask the questions as regards his marital status and his separate residence. There is no document found during the search showing explicitly the possession of accused Nos. 1 and 4 of the house from where the said articles had been seized. He did not agree that on completion of the search and seizure from the house of accused No.4, there was sufficient evidence against both the accused Nos. 1 and 2. There is no document found during the search showing explicitly the possession of accused Nos. 1 and 4 of the house from where the said articles had been seized. He did not agree that on completion of the search and seizure from the house of accused No.4, there was sufficient evidence against both the accused Nos. 1 and 2. Inquiry into the facts by summoning a person under Section 67 of the NDPS Act, according to Mr. Tomar, was essential and the practice of NCB is of inquiry in pursuance of the summons under Section 67 of the NDPS Act and thereafter only arrest is made. The suspect if refuses to give any statement under Section 67, they may sometime arrest the person. Barring the panchnama and statements under Section 67, there was no other evidence when the accused Nos. 1, 2 and 3 were arrested. The auto rickshaw from which the seizure had taken place was kept outside the residence of accused No.4 while they carried out the search inside the house and a sepoi was deputed to guard the auto rickshaw. The case of the defence is that DW-1 Ahemadkhan Chhotekhan Machhi had driven the auto rickshaw from one place to the residence of accused No.4 and subsequently from there to the office of the NCB. 11.2 As regards the selection of panchas, the witness does not reply clearly and consistently. He replied of his not having remembered those details. Although, he said that it was he who had asked Bhimsing one of the panchas to be a panch when they were waiting for the auto rickshaw to come whereas according to Bhimsing, it was Smt. Krishna Chaube, who had asked him to be panch. Smt. Krishna Chaube - PW2 who otherwise resides at Gandhinagar stated that she had reached to the statue of Mahatma Gandhi from Gandhinagar travelling via Ashram Road and the panch who is a regular walker at drive-in is said to have been requested by PW-3 Mr. Tomar. The panch is suggested to have accompanied Mr.Tomar from NCB Office to Gandhi Bridge. Panchnama was initiated at 6'O clock in the morning on 11.12.1999, but the writing of which the witness does not remember, as to when it was stated. He does not remember clearly as to whether the preliminary panchnama was drawn at Income Tax Office. Tomar. The panch is suggested to have accompanied Mr.Tomar from NCB Office to Gandhi Bridge. Panchnama was initiated at 6'O clock in the morning on 11.12.1999, but the writing of which the witness does not remember, as to when it was stated. He does not remember clearly as to whether the preliminary panchnama was drawn at Income Tax Office. What emerges from Exhibit-18 is that, there is no preliminary panchnama and thereafter the 2nd part of the panchnama. The whole panchnama is a running panchnama and there are no such divisions that is being found. PW-3 Mr. Tomar had given the position of all the officers who were standing at surveillance but he is not specific that from towards Shahpur Chakla, Upendra Patel and one Sepoi were standing at or about 50 to 100 meters away from them. They could not see the auto rickshaw, but they could see endeavour of Upendra Singh to halt the auto rickshaw, which did not stop, and when it had approached them, he could recognize the same from the registration number. Jeep was at a distance of about 50 to 100 feet from where he was standing. They were also signed by PW-3 Tomar to follow them and, therefore, the auto rickshaw was chased. Upendra Patel - PW4 was the closest to the auto rickshaw. Thereafter he and Mr. Raghuvanshi the other Intelligence Officer followed them. From Shapur four roads, the auto rickshaw turned on the right side towards Kalupur and it took the first left turn. It was at the distance of about 50 meters when it took the first turn. Thereafter, once again when the 3rd time the turn was taken by the auto rickshaw, it was at the distance of about 10 to 20 meters and at that point of time, the bus which came was going from Gandhi Bridge to Railway Station. The distance was nearly of 10 to 20 feet between this witness and that of the auto rickshaw and had it not been the chasing speed of the bus, they could have caught it. The objection is also raised by the defence about making Smt. Chaube the Seizing Officer and this witness agreed that all the officers, who were present, were competent to carry out the search and seizure. The objection is also raised by the defence about making Smt. Chaube the Seizing Officer and this witness agreed that all the officers, who were present, were competent to carry out the search and seizure. However, as the information was of Smt. Krishna Chaube, she was made the seizing officer and this is being decided a day prior to the said incident. Much objection is raised as regards the writing of the panchnama by pointing out that the tenor of panchnama - Exh. 18 is as if it is written as and when the things had happened, but PW-3 Tomar made it very clear that such a procedure is not being followed and only after the panchnama is completed that the same is being written down. PW-3 Tomar agreed that he had gone for the surveillance prior to this date at the residence of accused No.4 as he was a suspect of dealing in charas. On the day of raid, they entered his house at around 8 O' clock and it took them about 1 ½ hours to carry out the raid which included search, seizure, weighing of muddamal substance and completing the procedure of sampling and sealing. After sealing all the packets, the signatures of panchas and others were obtained. They had reached the office at around 10.00 to 10.30 a.m. after serving the summons to both accused Nos. 1 and 2. Firstly the statement of accused No.1 was recorded and it was a hand written statement. Accused No.1 was not much familiar with the writing and, therefore, other persons had written down her statement in the hand writings of sepoi Rakesh Dantania. It is not mentioned anywhere in the statement of accused No.1 that the same was recorded before him. Officers felt that the statement which started being recorded at 11.30 should be in presence of the panchas as their telephone numbers were with him, they were called. Panch No.1 served Central Excise, Custom Inspector. Both the panchas had left after the statement of Najmunisha was recorded. He denied the suggestion that the signatures of the panchas were taken 3-4 days after recording of the same from the panch. Copy of telegram (Exhibit- 98) has been shown to him and he agreed that there were allegations against him and Mr. Upendra Patel. Both the panchas had left after the statement of Najmunisha was recorded. He denied the suggestion that the signatures of the panchas were taken 3-4 days after recording of the same from the panch. Copy of telegram (Exhibit- 98) has been shown to him and he agreed that there were allegations against him and Mr. Upendra Patel. No reply to the same was given by him and according to him the policy is not to enter into the controversy by replying to the said telegram. This witness has denied that there was any inquiry made by the Human Rights Commission. He also did not remember of having received any such query from his Delhi Office, but he remembered that the Human Rights Commission had been conveyed that the offence had been registered against both accused Nos. 1 and 2 and the proceedings are on. It is found from the documentary evidence before the Trial Court is that the various applications had been moved before the Human Rights Commission by the relatives of accused Nos. 1 and 2. The people of the area also had signed the said application and Mohd. H. Chandmiya, the elder brother of accused No.4, had also gone personally with one Professor, who had been examined as defence witness, to Delhi and the report of Human Rights Commission dated 01.06.2001 is brought on the record, which says that the complaint of alleged kidnapping of the wife and the son of the brother of the applicant Mohd. H. Chandmiya by Deputy Director Shri Tomar and Intelligence Officer Mr. H. Chandmiya by Deputy Director Shri Tomar and Intelligence Officer Mr. V.H. Patel and retaining illegal custody, even then nothing incriminating was found from their personal possession was inquired into by the Commission and in response to the notice issued by the Commission, the Defence Secretary to the Government of India, Department of Revenue, reported that Abdul Hamid Chandmiya Shaikh @ Ladoo Bapu - accused No.4 was a veteran drug trafficker, dealing in sale of charas from last 10 to 15 years with the help and assistance of his son i.e. accused No.2 and his wife Najmunisha - accused No.1 and the search operation was carried out and the drug was nabbed, but accused No.4 Abdul Hamid Chandmiya Shaikh @ Ladoo Bapu could not be apprehended and had fled away abandoning the auto rickshaw which carried the narcotic substance and as both the wife and son were summoned to the NCB Office under Section 67 of the NDPS Act and both having admitted their direct involvement and when their bail application was rejected by the competent court, it was directed that when the wife and the son of the brother of the complainant were allegedly involved in the trade of selling of narcotic drugs and had been apprehended after following due process of law, law should take its own course of action, and the case was accordingly closed. This witness was also cross-examined as regards the replies received from the panch that the auto rickshaw was coming from Kalupur road, to which, this witness has denied and he also specifically denied that the same had gone towards Gandhi Bridge. The personal search of Najmunisha was done prior to searching her house. He does not remember as to whether she was given the offer for search under Section 50 of NDPS Act inside her house or outside. She had insisted on lady doing this and designation of Gazetted Officer or Executive Magistrate did not make any difference for him. His presence at the time of sampling, sealing and seizing is also challenged. He denied the suggestion that the seals were since in his possession, it was easy for him to remove the adhesive tapes put in cross position or change the same and once again sealed the same by fixing the adhesive tape. He had been handed over the custody of muddamal by Mrs. He denied the suggestion that the seals were since in his possession, it was easy for him to remove the adhesive tapes put in cross position or change the same and once again sealed the same by fixing the adhesive tape. He had been handed over the custody of muddamal by Mrs. Chaube at around 11.00 a.m. on the said date. He agreed that the godown register is being maintained and the movement of muddamal is also maintained in the said register. He would make an entry once the same is handed over to anyone, but no signature is being obtained. They have also made a mention of the return of the sample packets from FSL and CRCL, New Delhi, in the godown register. Exhibit-94 is the receipt given to Mrs. Chaube where there is a mention of the muddamal having been handed over to this witness. He has denied the allegation that in lieu of the register, this godown receipt has been created. It mentions that two packets A & B with six samples, A-1, B-1, A-2, B-2 and C1 and C2 have been received from the seizing officer Smt. Chaube in Case No. 06 of 1999 on 11.12.1999 at 10.30 hours, vide entry No.14 and all the packets have been sealed by seal No.4 NCB AZU. This is signed by this witness on 11.12.1999. Before the report Exhibit 87 under Section 57 dated 12.12.1999 by the Investigating Officer to this witness and his report Exhibit-95 under Section 57 to his superior dated 13.12.1999, he had the custody of this seized muddamal, of course, in these reports, there is no specific mention of the muddamal custody having been handed over by Smt. Chaube and his having received the same. Ahmedabad FSL had already been sent a sample, before this witness gave her report to his superior under Section 57 of the NDPS Act and the sample was also sent to Delhi, CRCL, but there is no mention of these facts. This witness has also been inquired about his parent department and he has agreed that, as the NCB Officer, he has been empowered under the notification of the year 1986 and other notifications and other officers are also empowered to carry out search, seizure and arrest. This witness has also been inquired about his parent department and he has agreed that, as the NCB Officer, he has been empowered under the notification of the year 1986 and other notifications and other officers are also empowered to carry out search, seizure and arrest. Cr.P.F. was the parent department of Smt. Chaube and she was on deputation to NCB and Smt. Chaube was exercising the powers of search, seizure and arrest under the Notification of the year 1986. 12 PW-4 Upendrakumar Harilal Patel, examined at Exhibit - 102 was one of the members of the raiding party and Investigating Officer subsequently of the crime. He too was an Intelligence Officer in NCB between September 1997 September 2000. He remained present on 11.12.1999 at 6'O clock as directed by Mr. Tomar. Other Officers of NCB were also present. The information was explained by Mr. Chaube in presence of the panchas. They had gone to Shahpur Gate as decided by Mr. Tomar taking one jeep, two motor cycles and Smt. Chaube had her own motorcycle. This witness was on a separate motorcycle. At the end of Shahpur Chakla the road is divided into two and he had kept in surveillance there as the information was that Abdul Hamid Chandmiya Shaikh was to take charas in auto rickshaw bearing Registration No. GJ-9-T-2355. He was the nearest to point of Shahpur Chakla. At 7.30 a.m. when he found the said auto rickshaw coming from towards Shahpur Chakla, he attempted to stop it but it did not. He gave signal at the rest of the raiding team and followed the auto rickshaw. It turned towards Kalupur road and he still chased it. It turned in the by-lane of petrol pump and once again came on the four road and went towards Shahpur Chowki. He found a man sitting as a passenger and the auto rickshaw driver was driving the same in a full speed. The AMTS bus came in much speed from towards Gandhi Bridge and by sheer luck the accident between the auto rickshaw and the AMTS bus could be avoided whereas he had halted his motorcycle by applying the brakes which had caused some distance between them and the auto rickshaw. They chased it further and when it went on the right side inside Shahpur Chakla. The rickshaw driver suddenly applied the brake and turned in the left side lane. They chased it further and when it went on the right side inside Shahpur Chakla. The rickshaw driver suddenly applied the brake and turned in the left side lane. As he was in much speed, he had fallen down which caused injuries on his left leg. Mr. Raghuvanshi and Mr. Tomar on another motorcycle following him, helped him in getting up. Smt. Krishna Chaube was called by Mr. Tomar by pager. Both the driver and the passenger had escaped absconding the auto rickshaw and a driving licence and from below the back seat, a gunni bag was found out. Charas was found from the same on testing. As he had severe pain in his leg, he was sitting on side and the rest had all gone to the house of accused No.4 Abdul Hamid Chandmiya Shaikh as his house was nearby. Wife of Ladoo Bapu, Najmunisha was there when the search of the house was carried out, their team could seize charas and they completed the procedure of sampling and seizure there only. Panchnama was also drawn accordingly. In the meantime, accused No.2 Abdul Razak visited his parents house. This witness continued to sit separately due to his pain. Entire procedure was over by 9.45 a.m. and he was handed over the file for the investigation and from December 1999, he was in-charge of that. He also recorded the statements of Najmunisha and Abdul Razak. He continued to look out for accused No.4 and the driver. On 14.06.2000, a regular customer of accused No.4 viz. Accused No.5 was found to be present in his house and that intimation when received by NCB, he was given the summons under Section 67 of the NDPS Act where he has signed as an issuing authority. The statement under Section 67 of the NDPS Act given by accused No.5 was in presence of this witness and he had also made an endorsement before me in the said document and as he had admitted his guilt as a regular customer of accused No.4 and being himself a drug addict since many years, he had been arrested. His wife Raziabanu had been intimated vide Exhibit-106 about his arrest. Report under Section 57 of the NDPS Act had been sent to his superior as regards the arrest of this person. His wife Raziabanu had been intimated vide Exhibit-106 about his arrest. Report under Section 57 of the NDPS Act had been sent to his superior as regards the arrest of this person. On 25.06.2000 he received the information regarding accused No.4 and, therefore, he summoned him under Section 67 of the NDPS Act, which is produced at Exhibit-108 and as he had agreed to accompany him in the NCB Office, he was explained provisions of Section 67 of the NDPS Act with further explanation that the same could be used against him in any of the court proceedings or against other persons. He had been specifically questioned as to who wrote it and he replied that Clerk Mr. Makwana was noting down in Hindi language and on every page, he has put the thumb impression of left hand. This had continued on 25th and 26th, both the days. On 25th, it was late night while statement was being recorded and as the accused No.4 requested to rest, his further statement was recorded on the next day. Mr. Tomar had also signed as a superior in this statement, which is produced at Exhibit- 190 and he has been thereafter arrested. Arrest memo is given to him where accused No.4 had signed is produced at Exhibit- 110 and his brother had been intimated by the NCB Office which is produced at Exhibit- 111 and the report given under Section 57 of the NDPS Act had been given to Mr. Tomar, who was his superior officer. 12.1 This witness had investigated into both the raid carried out on 11.12.1999 and also on 19.12.1999, but he did not help finding any of the panchas of seizure panchnama. He has intimated about the secret information dated 10.12.1999 and was asked to remain present at the Income Tax circle on the next day morning at 6 O' clock. This witness is unaware as to who brought the panchas. He also does not remember as to whether any preliminary panchnama had been drawn at Income Tax Circle from where they all had started for surveillance near Shahpur Chakla. He knew at that time, prior to this raid, as to where accused No.4 known as Ladoo Bapu resided. He also did not know as to whether Mrs. Krishna Chaube had obtained the search warrant for searching the residential premise of accused No.4. He knew at that time, prior to this raid, as to where accused No.4 known as Ladoo Bapu resided. He also did not know as to whether Mrs. Krishna Chaube had obtained the search warrant for searching the residential premise of accused No.4. No particular person had been asked to do the surveillance of the residence of this accused. As this witness was the first one to notice the auto rickshaw, which had been chased. He had been in detail cross-examined on that aspect. However, he maintained that he did not remember the standing positions of team members and whether in stopping the auto rickshaw Mr. Tomar and Mr. Raghuvanshi had intercepted it by standing on the road, but he maintained consistently of having followed the auto rickshaw, which was in a high speed. He also said that when the auto rickshaw was being chased, person sitting as a passenger instructed the driver to hurry up or they would be caught (bhaga bhaga jaldi who log aa gaye hai pakad lange). This witness had not been aware as to who followed him when he chased the auto rickshaw, but he did not see Smt. Krishna Chaube while chasing. Smt. Krishna Chaube was called by Mr. Tomar after he had fallen down and the place where he had fallen down near the house of the accused was at a distance of about a minute from that place. Motorcycle had also fallen down on his leg while he applied a sudden brake and, therefore, it took him about 15 seconds to get up with the help of Mr. Raghuvanshi and Mr. Tomar. Auto rickshaw driver and the passenger had run away by that time on the right side lane abandoning the auto rickshaw. He was unaware as to whether Mr. Tomar had posted somebody for the surveillance of the residence of accused No.4. One of the panchas had been handed over the muddamal, that had been recovered from the auto rickshaw. The usual procedure for writing the panchnama was asked and he confirmed to such the procedure that as and when the things happen, it is being written, but was not sure as to whether the said method was followed in the instant case while drawing the panchnama. He had stood outside the house for nearly two hours when the seizure was carried out inside the house of accused No.4. He had stood outside the house for nearly two hours when the seizure was carried out inside the house of accused No.4. Both the accused Nos. 1 and 2 had also got down with the rest of the team when they started for NCB Office. He did not know as to whether they were taken straight from there to NCB Office. He also was unaware that on 25.06.2000 it was the Crime Branch which had intimated them that Ladoo Bapu - accused No.4 was caught under Section 41(1)(d) of the Cr.P.C. He denied the suggestion that they had asked the Crime Branch to enlarge him on bail and thereafter they decided to summon him. He had prepared the summons produced at Exhibit-108 on 25.06.2000 and only the time had been inserted because he was told by Mr. Tomar that the accused would be found present near his residence. He was not aware as to how Mr. Tomar procured the said information. The statement at Exhibit-109 given by this accused No.4 under Section 67 had been initiated at around 7.00 to 8.00 in the evening and this was recorded after the office hours of NCB Office. However, the witness has been specific that there are no fixed hours of working for them. Between 2.40 p.m. to 7.00 p.m. the statement was not recorded because the general inquiry had been made by him. He was also asked as to where was he absconding after the recovery and seizure of the voluminous muddamal. His statement had been recorded upto page six till 8.35 p.m. on that day. He did not agree to the suggestion that when a person is illiterate, generally an independent persons like panchas needed to be kept present. For the next day he was not given the summons and he continued to remain in the office of NCB. His suggestion was that they apprehended that he would escape from their custody and, therefore, he was not permitted to move. He also agreed that accused No.4 was kept in the office for the period of 32 hours. It started at 2.30 in the afternoon and was completed at 10.15 hours. He was arrested at 10.30 in the night on that very day after the statement was over. The suggestion is denied that to implicate traders and some other persons, deliberately they had lengthened the statement. It started at 2.30 in the afternoon and was completed at 10.15 hours. He was arrested at 10.30 in the night on that very day after the statement was over. The suggestion is denied that to implicate traders and some other persons, deliberately they had lengthened the statement. He had put his signature at every page wherever there is a thumb impression of the accused. He also agreed that till 2.30 p.m. on 25.06.2000, there was no evidence to arrest the accused. He also denied the suggestion that they had wanted the said statement to come before his arrest and, therefore, he was not deliberately arrested on 25.06.2000, but he answered that they had wanted to know the involvement and the depth of one and all and therefore they had not so done. He also stated that, even if, he would not have made the statement yet, he could have been arrested as he was an absconding accused in the instant case and there were other corroborating evidence. He had been provided with the food and was given the facility to sleep on 26th night. He denied that he was beaten at any point of time and the permission to meet the relatives was refused. On 27.06.2000 at 4.45 hours he had been produced before the Metropolitan Court. He agreed that the accused can be produced at the residence of the presiding officer and there was no valid reason for producing him before the Court till the next day at 4.45 p.m. This witness denied the suggestion that the auto rickshaw from which the seizure had taken place was stationed near Gujarat Samachar , Khanpur in an unclaimed position and they had driven it to the NCB office. The driver was Pathan Badshahkhan Nawabkhan. He was not sure whether Rs. 200/- was given to the said driver for engaging him between 9.30 a.m. to 6.30 p.m. He also denied that near Capital Hotel where new construction of the flats was coming out, the raiding team had found an unclaimed auto rickshaw and one Ahmedkhan Machhi had also been inquired about the same, who was the supervisor over-seeing the construction at that site. He denied the suggestion that they went to the house of accused No.4 after taking auto rickshaw and when he was not found, both his wife and the son had been taken away and a bargain was struck with them that if they help catching accused No.4, they would be released. He denied the suggestion that, while both these persons were taken away by NCB, the relatives and the neighbours had gathered which also included Shahpur Ward Municipal Corporator Raju Momin, Professor Abdul Rahim, Judge Mr. Mohasin Shaikh of Labour Court, social worker Chandmiya and they had insisted on not taking these persons with them. He also denied the suggestion that as accused No.4 could not be traced, a concocted panchnama and the seizure from the residence had been made by them and only on the basis of the suspicion, both accused Nos.1 and 2 had been arrested. As about the accused No.3, he does not remember as to when he saw him for the first time. He denied that at any point of time the officers of the raiding team had visited the residence of accused No.3 at Shahpur. 12.2 As regards the accused No.5, he said that the information of accused No. 5 was from an informant. His statement under Section 67 of the NDPS Act was initiated at 12.15 p.m. and is arrested on that very day there at 11.30 in the night. He agreed that no muddamal was recovered from accused No.5 and he was not found in an addicted condition at the time of arrest. He denied that accused No.5 was mentally tortured after he was caught from his residence on 14.06.2000. 12.3 This witness has stated that he was never given the training as either under the provision of the NDPS Act or Cr. P.C. as his parent Department is Income Tax and he was on deputation to NCB. He was specifically asked that when accused No.4 was a wanted accused as per his record what was the need to arrest the accused on 26th night after ascertaining all these facts. P.C. as his parent Department is Income Tax and he was on deputation to NCB. He was specifically asked that when accused No.4 was a wanted accused as per his record what was the need to arrest the accused on 26th night after ascertaining all these facts. He had replied that the person who was absconding was Ladoo Bapu and before the arrest, it was essential to make an inquiry and get the true facts of the person so as to establish the identity of the person and on taking his statement all the details could be divulged by him and which necessitated his arrest on 26th night. While he was issued the summons under Section 67 of the NDPS Act, he knew accused No.4 as a person, but the rest of the details were to be ascertained. He was also further cross examined by defence to court's query that when the summons was issued to accused No.4, he was sure of the fact that this person was Abdul Hamid, to which he said Yes . 13 PW-5 Dr. Mohendrasing Jagiram Dahiya, examined at Exhibit 118, is Assistant Director of Forensic Science Laboratory. According to him in 1979, he joined in Forensic Science Laboratory, State of Gujarat, and in 1988 he was posted as Assistant Director of Narcotics Control Bureau in 1999. He was serving as Assistant Director in Narcotics Control Bureau. He did his Ph.D. and he is well trained. He had received letter at Exhibit 88 on 13th of December, 1999 and had received samples A1 and B1. His office had issued receipts at Exhibit 89. These samples were examined and analyzed by him and had given his opinion vide Exhibit-96. Parcels Mark-1 and Mark- B/1 were in duly sealed condition and the seal was of Narcotic Control Bureau AZU-4. The samples were intact and were as per the description by which they were sent and the signatures of panchas etc were legible and one signature was not readable. Then he deposed the condition of sample which he received in the envelope having cross tape. In the said sample, from small bag, there were pieces of some substance and the net weight of the said substance was 24.750 grams and the net weight of other sample substance was about 24.992 grams. Then he deposed the condition of sample which he received in the envelope having cross tape. In the said sample, from small bag, there were pieces of some substance and the net weight of the said substance was 24.750 grams and the net weight of other sample substance was about 24.992 grams. Physical as well as chemical analysis was done by this witness as well as botanical analysis was also done by the Scientific Officer Mr. R.R. Mehta. After the examination and analysis, Sample A/1 and Sample B/1 were found to be `charas' as per the definition given in the NDPS Act, 1985. Vide letter at Exhibit 96 opinion was given by him. He identified Sample A/1 and Sample B/1 as well as seals of their office. The witness has been cross examined and he stated that on the envelopes of the samples there was a seal of NCB where two ends of adhesive tapes met together. He has been asked about the condition and signatures made on the cover. He confirmed the fact that unless the seal is removed, the substance could not be taken out from the cover and he had taken out the samples after taking out the seals of NCB. According to him, envelopes, after analysis of the substance, were so sealed that earlier seal and signatures could be seen. He denied the allegation that NCB had not sealed the envelopes with gum. He also admitted that the seal of NCB, which was on the envelopes has been destroyed. He also admitted that the samples of substance of Mark A/1 was in pieces, and out of those pieces, he took some pieces for analysis. In cross-examination he stated that those pieces were in such a condition, which could not be counted. He admitted that such pieces could be examined after making the substance homogeneous, but he stated that, when he did the analysis, he did it after making the substance homogeneous. He was asked whether the substance which he received was homogeneous or not. He replied that he could not say, but voluntarily he stated that the powder form of that substance was not possible as the substance was morphine and again he confirmed that once he had made the whole substance homogeneous. He analyzed 1.740 grams of substance from sample B/1 and 1.987 grams from other sample and the remaining muddamal was sent back. He analyzed 1.740 grams of substance from sample B/1 and 1.987 grams from other sample and the remaining muddamal was sent back. He admitted that, in any substance, if some other substance of 10 grams is added, even then, the result of analysis would be positive. The witness explained that if any neutral substance is added to muddamal, then it falls under Section 2(c) and not under Section 2(3)(a) of the NDPS Act. He denied that whether substance like charas falls in Section 2(3)(a) or in Section 2(3)(c) of the NDPS Act. He was asked whether quantitative analysis was necessary, but this witness replied that, quantitative analysis was not necessary. Otherwise, he admitted that, it was true to find out the exactness of the quantity, quantitative and qualitative analysis are necessary. He submitted that, as per the guidelines, he knew that how much quantity of sample be taken for analysis. He stated that for charas, the samples must be of 24 grams, if the substance, as a whole, is to be analyzed. For quantity analysis, what quantity of substance, would be required, he could not say. He was confronted with such Notification, which was produced on record by Mark-`C'. According to opinion of this witness, quantity of 24 grams has been settled for analysis because in some cases it might require that analysis would be frequent and that sample might be required to be sent to the court as muddamal. He stated that he examined the sample by four tests, and by that four tests, he could know that there were resins and cannabis quantity in the substance or not. He denied the allegation that he had not opened the sample. He stated that from the above said tests, it might not be known that, how much quantity of charas was there in substance. Again in cross-examination by court, he stated that, even if resins and cannabis quantities are mixed with any natural or neutral substance, even then, without quantitative tests, by the four tests, which he undertook, it can be known that whether substance is charas or not. He stated that he had conducted those four tests and he confirmed his opinion that the substance was charas falling under Section 20(2)(a) of the NDPS Act, and he stated that para-amino-phenol test was sure tests to know whether any neutral substance was added in the substance. He stated that he had conducted those four tests and he confirmed his opinion that the substance was charas falling under Section 20(2)(a) of the NDPS Act, and he stated that para-amino-phenol test was sure tests to know whether any neutral substance was added in the substance. He had reasons for the said opinion in his examination. He stated that according to him there is no necessity to perform quantitative tests, in each analysis. It might be necessary in the cases of coca and opium and then he described para-amino-phenol test and stated that he disagreed that while conducting para-amino-phenol test, if any other substance is mixed with the charas, even then, the result would be positive. He was asked about the minute details of the para-amino-phenol test, but the witness opined that by the said test, the quantity of the substance, in case of charas, could be known. He also produced on record at Exhibit 119 worksheet which he prepared during conducting tests. According to him, tests were carried on 17th of December, 1999 and was completed on 18th of December, 1999 and in the worksheet at Exhibit 119 the handwritings were of one Mrs. R.J. Vageda, who was Technician of the laboratory, but again about the para-amino-phenol test, the witness formally replied that in said tests he had used organic solvent, which includes chloroform and, therefore, chloroform was not separately mentioned in the opinion. Even the handwritten copy of his opinion was asked by the defence for perusal, which the witness gave to the defence. 14 This is all the evidence of the prosecution. 15 Defence has examined in all seven witnesses. DW-1 Ahemadkhan Chhotekhan Machhi examined at Exhibit 123 stated that during the period of the incident, while he was driving his rickshaw, he had noticed one rickshaw which was parked near Capital Hotel and Officers of NCB came there in Gypsy car and had taken the said rickshaw. He was requested to drive the said rickshaw and he had taken that rickshaw to NCB Office. In fact, he stated that the Officers of NCB had directed him to come to the Office and thereafter he was directed to give Rs. 200/-. DW-2 Mahemudhusain Kazambhai Shaikh, examined at Exhibit-124, stated that he was residing near Shahpur and was doing business in ready made clothes. The accused Hamid Chandmiya @ Ladoo Bapu was known to him. In fact, he stated that the Officers of NCB had directed him to come to the Office and thereafter he was directed to give Rs. 200/-. DW-2 Mahemudhusain Kazambhai Shaikh, examined at Exhibit-124, stated that he was residing near Shahpur and was doing business in ready made clothes. The accused Hamid Chandmiya @ Ladoo Bapu was known to him. On 11th of December, 1999, at about 10'O clock, some officers came near the residence of Ladoo Bapu and were in search of Ladoo Bapu. At that time, Najmunisha came there and they took Najmunisha with them. It was stated by the Officers to the crowd gathered there that Najmunisha would be released after recording of the statement. In the meantime, his son Razak came and he was also taken by Officers. DW-3 Mahmadkanif Chandmiya Shaikh, examined at Exhibit 125, is brother of accused Ladoo Bapu. According to him, on 11th of December, 1999, at about 10'O clock, he was at Vadhvani Mehta Pole at Ahmedabad and one gypsy car and auto rickshaw came there and parked. Two Officers got down from Gypsy and went towards the residence of Ladoo Bapu. They were inquiring about Ladoo Bapu, and in the meantime, Nazmunisha came and she was taken by the Officers. The residents of that mohalla had prepared a memorandum in this respect, which was sent to various authorities. He gave the number of rickshaw to be GJ-9-T-2355. He has been cross-examined by learned APP. DW-4 Abbdulrahimbhai Abbdulkarim Shaikh, examined at Exhibit-128, was serving at the relevant juncture as a Lecturer in a college. He was also a witness to a fact that NCB Officers from mohalla had taken away accused Nos. 1 and 2 and till evening when they were not returned, they made applications before various authorities. DW-5 Abbdulabhai Chandmiya Shaikh, examined at Exhibit-133, is brother of accused No.4 Abdul Hamid Chandmiya @ Ladoo Bapu. According to him, accused No.4 appellant was staying at Vatva in Fatehvadi and he produced documentary evidence in this respect. He also stated that accused No.1 i.e. appellant Najmunisha was staying in Ajit Manzil and he produced documentary evidence in this respect and then he narrated the incident in a manner that on 11th of December, 1999, accused Nos. 1 and 2 were taken by NCB Officers and when they were not returned, as promised, they had filed applications before various authorities. 1 and 2 were taken by NCB Officers and when they were not returned, as promised, they had filed applications before various authorities. DW-6 Ruknoddin Mahmadhusain Momin, examined at Exhibit-140, stated that he was serving as Development Project Bank Agent at the relevant time and also was a Corporator. He knew accused Nos. 1 and 2 as they were residing in the locality in which witness resided. On 11th of December, 1999, when he went to the house of accused No.2 for collecting the amount of recurring because accused No.2 had account in his bank, three officers inquired about Ladoo Bapu and like other witness, he also stated that when NCB came accused No.1 and her son accused No.2 were taken by these Officers. PW-7 Shankarbhai Kalidas Mackwana, examined at Exhibit-144, was serving as Accountant in NCB Office. In his deposition, from 1st of December, 1999 to 31st of December, 1999, all the accounting of the office was inquired into. In cross-examination, he stated that the accounts of their office were maintained according to General Finance Rules and Audit was being done by Controller of Accounts and Internal Audit Inspection Party and they had audited the accounts from 1.4.1999 to 31.03.2000. He also stated that in their office they have their own secret service fund and that is allotted by Narcotics Control Head Quarters, New Delhi and to incur expenses is within the authority of Zonal Director. It appears that this witness has been examined by the defence to show whether on the day of the incident, NCB Office had paid any rickshaw charges. Witness has brought some vouchers with him. 16 We have undertaken a complete and comprehensive appreciation of all vital feature of the case. We have scanned through the entire evidence - documentary as well as oral recorded during the trial. We have carefully re-appreciated the evidence on record. Entire circumstances appearing on record have been considered threadbare by us with reference to the broad and reasonable probabilities arising out of the appreciation of evidence recorded during trial. We have evaluated the contention extensively raised by appellants and respondent in both the appeals. 17 Learned Advocate Mr. Rajesh M. Aggrawal for the appellants in both the above Criminal Appeals was heard in detail and he has placed on record written arguments as well. Learned Advocate Mrs. We have evaluated the contention extensively raised by appellants and respondent in both the appeals. 17 Learned Advocate Mr. Rajesh M. Aggrawal for the appellants in both the above Criminal Appeals was heard in detail and he has placed on record written arguments as well. Learned Advocate Mrs. Vasavadatta Bhatt is heard for respondents- Narcotics Control Bureau and she has also placed on record written arguments in both the above Criminal Appeals. While learned APP Mr. L.B. Dabhi is heard in both the Appeals for State of Gujarat respondent No.1 State. Learned Advocate for the Appellant Mr. Rajesh M. Aggrawal has raised first and foremost contention as to the approach of the first appellate court towards criminal appeal. It is contended that the Trial Court has not properly appreciated the evidence recorded during the trial and it is for the first appellate court to re-appreciate the evidence entirely and come to the conclusion. In this respect, we may observe that there cannot be any other view that approach of the appellate court must be careful and appellate court must re-appreciate the evidence in toto. Therefore, we have gone through each lines of the evidence recorded during the trial and like trial court we have re-appreciated the evidence. It may also be mentioned that when we generally concur with the conclusion of the trial court, we may not record elaborate reasons for concurring with the judgment and order impugned in the Appeal, but this is a case wherein accused are charged with serious offences and punished with sentences like 10 years and 13 years, we have re-appreciated the evidence and have reached to our own conclusion with reasons. 18 Now while appreciating the evidence, the same being the matter of great importance, undoubtedly, the court is required to exercise due diligence and the standard of such exercise would be of an exercise by prudent person. In criminal trials, the court must bear in mind the set up and the circumstances in which the crime is committed, the quality of evidence, nature and temperament of the witnesses, the level of understanding and power of perception of individual witness and probability in ordinary course of nature from the evidence recorded during the trial. Endeavour must be to find out the truth from the facts established through evidence. Endeavour must be to find out the truth from the facts established through evidence. It must also to be borne in mind that there cannot be a prosecution case with a cast iron perfection in all respects and therefore it is obligatory for the courts to analyze, sift and assess the evidence on record with particular reference to the trustworthiness and truthfulness of the prosecution case by a process of dispassionate judicial scrutiny adopting an objective to find out the truth without being obsessed by an air of total suspicion of the case of the prosecution. What is to be insisted upon is not implicit proof and, therefore, it should be scrutinized that the case of prosecution has a ring of truth and seems to inspire confidence in the mind of the court. The evidence of prosecution cannot be discarded totally merely on account of certain variations and infirmities pointed unless they are of such nature as to undermine the substratum of the evidence and found to be tainted to the core. Discrepancies found in the ocular account of the witnesses unless they are so vital, cannot affect the credibility of the evidence of the witnesses. This is so because there are bound to be some discrepancies between the narrations of different witnesses when they speak on details and unless such contradictions or variations are of a material dimension, the same should not be used to throw away the prosecution case in its entirety. The corroboration of evidence with mathematical nicety is never insisted upon in criminal trials. There may be trivial discrepancies in acceptable evidence. The approach of the court is to find out the general tenor of the prosecution case whether the witnesses of the prosecution read as a whole appears to have ring of truth and once that impression is formed that the prosecution case has a ring of truth, the court should scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witnesses and whether the earlier impression and evaluation of the court about the evidence of prosecution is shaken as to render it unworthy of belief. Hyper-technical approach by taking sentences torn out of error committed by the witnesses would not ordinarily permit rejection of the evidence as a whole, particularly, when the court before whom the witness gives evidence, had the opportunity to form the opinion about general tenor of the evidence given by the witness, the appellate court, which had not this benefit, will have to attach due weight to the appreciation of the evidence by the trial court unless there are weighty and formidable reasons, it would be improper to reject the evidence of the prosecution on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details. This is so because of power of observation, retention and reproduction differ with individual. 19 Therefore a court in the process of it's job of appreciation of evidence may rely on a statement of witness or may not. It may even accept the evidence of a witness in part. But without taking recourse to the right methodology of appreciation of evidence, no court of law should jump to the conclusion that a prosecution witness is wholly untrustworthy only because his evidence has not been corroborated by other witnesses or is in variation with some unimportant details not affecting the substratum of the prosecution case. 20 Thus, we have appreciated the evidence of five witnesses and the documentary evidence on record as well as defence witnesses. It is to be noted that except panch witness i.e. PW-1 Bhimsing Kanchansing Mina, all are official witnesses. PW-2 Krishnaben Vinaykumar Chaube, PW-3 Pavansing Shrigajesing Tomar and PW-4 Upendrakumar Harilal Patel are the witnesses, who had formed the raiding party and were all government servants. They were transferred to Narcotic Control Bureau from various Departments to perform their duties. This Department is specially formed by the Government of India for curbing the menace of narcotic drugs in the society. True it is that, when the witnesses are trained, it is expected that, they would be consistent, exact in their deposition and little bit higher degree than normal it would be expected, from other witnesses, but, as aforesaid, the usual human conduct, intelligence, behaviour, capacity of observation and expression will also have to be kept in mind while appreciating the deposition of all the witnesses. Panch Witness PW-1 Bhimsing Kanchansing Mina is an independent witness and nothing is brought about or elicited from the deposition of this witness that the panch was interested witness and that he was in contradiction with other witnesses in respect of search, seizure and sealing to the extent that the prosecution case would be totally tainted and would not be acceptable. He has stated that where he was working and how he was booked as a panch by PW-2 Krishnaben Vinaykumar Chaube and consequently PW-3 Pavansing Shrigajesing Tomar and with Raghuvanshi, etc. He has narrated in truthful manner about how the raid was carried out and how accused No.4. Abdul Hamid Chandmiya @ Ladoo Bapu escaped from rickshaw and how the muddamal came to be seized from the rickshaw as well as from the premises which was occupied by accused No.1 Najumunisha. The contradiction which appears in the form of variation is that, this witness says that, PW-2 Krishnaben Chaube, raiding officer, had met him near Drive-in-road in the morning as he went for a walk. Whereas according to Mrs. Chaube, she had come via Ashram Road and it was Mr. Tomar, PW-3 who had taken her to drive-in-road and had brought the panch. This is minor discrepancy as regards calling of a panch, and on account of this, the whole prosecution case cannot be thrown overboard that there is discrepancy among the witnesses about calling of the panchas, where he met with Mrs. Krishnaben Chaube or with Mr. Tomar. What is important is that there is no discrepancy or contradiction brought about by the defence even after gruelling cross examination of this panch and in respect of the fact of forming of a raiding party, chasing of a rickshaw, finding of accused No.4 in the rickshaw and the muddamal from rickshaw and presence of accused No.1 Najmunish in the premises from where also muddamal charas was found. There is no discrepancy among panch witness and PW-2 Krishnaben Chaube and PW-3 Pavansing Shrigajesing Tomar. Only because PW-3 Tomar deposed in his deposition that he had called the panchas and when panchnama and panch both says that panchas were called by Mrs. Chaube, the factum of the remaining prosecution case is not vitiated at all. All the witness are specific about the surveillance having been put at the four roads and the procedure followed thereafter. Only because PW-3 Tomar deposed in his deposition that he had called the panchas and when panchnama and panch both says that panchas were called by Mrs. Chaube, the factum of the remaining prosecution case is not vitiated at all. All the witness are specific about the surveillance having been put at the four roads and the procedure followed thereafter. 21 Like wise, the evidence of PW-2 Krishnaben Vinaykumar Chaube and PW-3 Pavansing Shrigajesing Tomar contain the ring of truth. There is nothing on the record or could be elicited from the lengthy cross-examination that their evidence should not be believed. In fact, there is one contradiction in the evidence of Mrs. Chaube and Mr. Tomar about the recording of the statement of accused No.2 Abdul Razak Abdul Hamid. Mrs. Chaube in her deposition submitted that though she had signed the statement of accused No.2 Abdul Razak Abdul Hamid under Section 67 of the NDPS Act as offered by accused No.2, but, in fact, his statement was recorded by Mr. Tomar in his chamber. Though she could not explain that how she came to sign the statement, she stated that Mr. Tomar asked her to sign the statement and she had signed the statement as before me . While PW-3 Tomar submits that, in fact, the statement of accused No.2 was recorded by Mrs. Chaube in his chamber and during statement, Mrs. Chaube had also conferred with him and this fact is contradicted by Mrs. Chaube. The statement of accused No.2 under Section 67 of the NDPS Act has not been accepted and since there was no evidence as against accused No.2, he was acquitted by the Trial Court and no appeal against the acquittal is pending against him. What is being made out from this is that on account of this contradiction, the whole prosecution case is improbable. Except that, there is no contradiction or even variation in the evidence of PW-2 Krishnaben Chaube and PW-3 Tomar of any significance. Now the question is on account of this variation, whether the whole prosecution case must be thrown overboard. It must be noted that PW-4 Upendrakumar Harilal Patel was also a member of raiding party and Investigating Officer thereafter has also supported PW-2 and PW-3 in all respects. Now the question is on account of this variation, whether the whole prosecution case must be thrown overboard. It must be noted that PW-4 Upendrakumar Harilal Patel was also a member of raiding party and Investigating Officer thereafter has also supported PW-2 and PW-3 in all respects. Nothing is brought about that what is the contradiction which would go to the root of the case as not to accept the evidence of these witnesses and who are corroborated by independent evidence PW-1 Bhimsing Kanchansing Mina, panch witness. 22 Appreciating the evidence as a whole of the prosecution case, we noticed only two contradictions i.e. (i) about calling of the panchas and (ii) about recording of the statement of accused No.2 Abdul Razak Abdul Hamid. Except this, there is no contradiction or even variation in the prosecution case and there is no reason at all to disbelieve these witnesses as to the arrest of the accused, seizure of muddamal and sealing and forwarding the same to Forensic Science Laboratory. Whether these two contradictions would destroy the prosecution case is required to be appreciated carefully. It is known fact that falsus in uno, falsus in omnibus has no application in India and the witnesses cannot be branded as liars. The doctrine of falsus in uno, falsus in omnibus is a dangerous one, specially in our country, for if a whole body of the testimony were to be rejected because a witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stop. If as aforesaid some portion of deposition of witnesses found untrue, it has to be weighed against the whole remaining case of the prosecution, and if the rest of the prosecution case is acceptable, simply untrue statement of a witness must be ignored. The principles of appreciation of evidence in criminal trials always emphasized on the question of weight of evidence which the court may apply in a given set of circumstances. Therefore, it has to be appreciated in each case as to what extent the evidence is worthy of acceptance, and merely because, in some respects, the court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as a whole. It is the law that even if a major portion of the evidence is found to be deficient, in case, residue is sufficient to prove guilt of an accused, notwithstanding acquittal of number of other accused persons, his conviction can be maintained. It is the duty of the court to separate the grain from the chaff. Where chaff can be separated from the grain, it would be open to the court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. It must also be noted that normal discrepancies are to be discarded. Normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition of the witness etc. Material discrepancies are those which are not normal and not expected of a normal person. Courts have to label the category to which the discrepancy may be categorized. 23 It must be noted that bulk of muddamal was seized and the statement of accused No.2 was recorded on the next day. Only because of contradiction of recording of the statement of the accused No.2 between two officers as to who actually recorded the statement, it must be observed that, this is a normal discrepancy not affecting the core of the prosecution case as accused No.1 Najmunisha and accused No.4 Abdul Hamid Chandmiya, who are present appellants offered their respective statements and evidence in this regard is found trustworthy. It may be that, the prosecution could not prove the case against the accused No.2 and he was acquitted by the Trial Court, but on account of this fact, the whole prosecution case cannot be thrown out. As aforesaid, the second discrepancy is in respect of calling of panchas. This is also a fact which must be disregarded in view of weighty evidence of all the four witnesses i.e. PW-1 Bhimsing Kanchansing Mina, PW-2 Mrs. Krishnaben Vinaykumar Chaube, PW-3 Pavansing Shrigajesing Tomar and PW-4 Upendrakumar Harilal Patel. No other contradiction could be brought out by the defence nor could be pointed out as to disbelieve the story of the prosecution case. 24 Thus, we have found the evidence of these witnesses credible and trustworthy as there is no contradiction or even remote probability as to disbelieve these witnesses. No other contradiction could be brought out by the defence nor could be pointed out as to disbelieve the story of the prosecution case. 24 Thus, we have found the evidence of these witnesses credible and trustworthy as there is no contradiction or even remote probability as to disbelieve these witnesses. 25 Now while appreciating the evidence on record, what is established is this that, on 10th of December, 1999, the secret information was received by PW-2 Krishnaben Vinaykumar Chaube, Intelligence Officer, which was communicated in the office including Zonal Director Mr. Tomar. Mr. Tomar directed every one to come at Income Tax Circle in the morning at 6 O'clock on 11th of December, 1999. Thereafter, on the said day i.e. on 11th of December, 1999, they all gathered and panchas were called. There is some discrepancy about calling of panchas, but it is of no consequence at all, as we have discussed above. What is found is truthful version from PW-1 Bhimsing Kanchansing Mina, Panch, about the incident, which contains the ring of truth. Panch has been extensively cross-examined as afore-stated, but nothing is brought out by the defence to disbelieve this witness. All the officers have remained specific about the surveillance have been put at the cross roads near Gandhi Road on the right side of Shapur Gate and on the road coming from towards Kalupur Station. PW-4 Mr. Upendra Patel with one sepoy was standing with his motorbike near Shapur Gate. On the opposite direction PW-2 Mrs. Krishna Chaube stood with one sepoy and the panchas and other Intelligence Officers and the sepois were in the jeep of NCB at the end of Gandhi Bridge. It is also established beyond doubt that the auto rickshaw bearing Registration No. GJ-9-T-2355 coming from towards Shahpur Darwaja was attempted to halt by PW-4 Mr. Upendra Patel. The said auto rickshaw did not stop and rushed ahead consciously that raiding party was trying to stop the rickshaw. After escaping journey of the rickshaw and chasing by the raiding party, ultimately, rickshaw was stopped near the house of accused No.4 and driver and the accused No.4 abandoned on the rickshaw. It is also established beyond doubt from the evidence that accused No.4 was well identified by the raiding party though Mrs. Krishna Chaube had not found vehicle and she reached at the spot on calling by Mr. Tomar. It is also established beyond doubt from the evidence that accused No.4 was well identified by the raiding party though Mrs. Krishna Chaube had not found vehicle and she reached at the spot on calling by Mr. Tomar. It is also proved beyond doubt that the members of the raiding party, who were on motorbike, on account of bike, which was drifted, got some injuries. The gesture on the part of accused No.4 and the said rikshaw driver establishes the conduct incriminating accused No.4. The seizure of muddamal to the extent of 2.200 kgs of charas has been proved through the evidence of PW-1, PW-2, PW-3 and PW-4 and nothing is suspicious even remotely about this. Thereafter, it is also proved beyond doubt that the raid in the house of accused No.4 followed, and as stated by witnesses PW-1, PW-2, PW-3 and PW-4, charas of the quantity of 2.98 kgs was found and seized from the possession of accused No.1. The contradiction as to from where the rickshaw came in the evidence of panch witness is of no consequence as ultimately it has been established with voluminous evidence that rickshaw was abandoned near the house of accused No.4. Preliminary testing of the bulk of charas found was done and it was ascertained that substance was charas. The way in which the incident has occurred and the story proceeds give credence to the prosecution case as had the case been cooked up against the accused, the Officers might have gone straightway to the house of accused No.4 and might have seized the charas. All the mandatory provisions of the NDPS Act are proved to have been complied with. All the witnesses are consistent about the chasing of the rickshaw and the finding of muddamal of charas. All the witnesses are also consistent and credit-worthy as to the presence of accused No.1 at the house when the house was searched, who had identified herself as the wife of Abdul Hamid Chandmiya. It has been proved beyond doubt that she had been offered the search of officers present and that of the panch. She was also informed that if she desired, she could be searched in presence of Executive Magistrate or the Gazetted Officer. It has been proved beyond doubt that she had been offered the search of officers present and that of the panch. She was also informed that if she desired, she could be searched in presence of Executive Magistrate or the Gazetted Officer. Behind a tin container in the house, which was in control of accused No.1, from a jute plastic bag, meant for cement, contained bulk of charas, which was found and, hence, examining the case from all angles, it is found that, there is not a single pin point loophole to come to the conclusion that the present appellants were involved in a false case and that the officers of NCB, including PW-1 Panch Bhimsing Kanchansing Mina, had some enmity or grudge against this accused to plant this bulk of charas in rickshaw and house to involve them falsely. 26 It now needs to be examined the statements recorded under Section 67 of the NDPS Act. About the statement given by accused No.1 Najmunisha, it is established beyond doubt that summons was served against accused No.1 and Mrs. Krishna Chaube, at that time, before recording, reasonably believed that accused No.1 might be innocent and, therefore, an inquiry was required from original accused Nos. 1 and 2 in connection with seizure of charas. Therefore, the statements of accused Nos. 1 and 2 were recorded. The statement of accused No.1 Najmunisha is placed at Exhibit-83, which was recorded for about 2 to 3 hours. The statement was recorded in Gujarati language and Mrs Krishna Chaube was asking the questions in Hindi and one sepoy Rakesh Dantani was translating in Gujarati language and was recording the statement. At this juncture, it must be noted that, no scratch has been made by the defence by stating that this Rakesh Dantani has not been examined. What is required is a qualitative evidence and not quantity of the witnesses. When one fact is proved by the officer concerned i.e. Mrs. Krishna Chaube, there was no need to examine Rakesh Dantani. The statement has been signed by the panchas. From the record and from the appreciation of the evidence, it is clear that the statements are voluntary and neither inducement, threat or coercion was given to accused No.1. PW-1 Bhimsing Kanchansing Mina has stated that he was present at the time of recording of the statements. The statement has been signed by the panchas. From the record and from the appreciation of the evidence, it is clear that the statements are voluntary and neither inducement, threat or coercion was given to accused No.1. PW-1 Bhimsing Kanchansing Mina has stated that he was present at the time of recording of the statements. There is nothing improbable that panchas were called in the afternoon in the office of the Zonal Director. Merely upon that fact, the case of the prosecution cannot be thrown out only because panchas were called in the afternoon and they put their signatures on the statements recorded under Section 67 of the NDPS Act nor the statements could be taken out from consideration only because the Officers warned the accused that the statements could be used against them in the evidence. When the statement of accused No.1 is perused, it speaks of the transaction of narcotics drugs by her husband for long period. The accused No.1 revealed the source of obtaining charas as well as the disposal of the same. There was no need for her to admit her guilt nor was there any such requirement under the law for a person to so admit. Accused No.1 was categoric in her statement about the transactions and dealings of her husband and being wife, she was assisting her husband in such transaction and dealing. It is to observe that when an officer records the statement under Section 67 of the NDPS Act, in exercise of his official duty, the presumption would be in favour of the prosecution under Section 114 of the Evidence Act, at least, to the extent that, the judicial and official acts have been regularly performed and, therefore, no courts should start to appreciate the evidence with presumption that such statements must have been elicited by giving threats or inducements to the person concerned unless these categoric circumstances are proved from the evidence of the prosecution. In the present case, what we find is giving statement by accused No.1 in easy manner and even by remote implication, it could not be said that, the statements were recorded with threat, coercion or any inducement. When the statement under Section 67 of the NDPS Act is recorded, it becomes very important piece of evidence and it is found from scrutiny that the statement is voluntary, it is a formidable evidence against the accused. When the statement under Section 67 of the NDPS Act is recorded, it becomes very important piece of evidence and it is found from scrutiny that the statement is voluntary, it is a formidable evidence against the accused. It must also be noted that when the matter is looked upon from other angle, one more presumption should be raised that each person whether he or she is accused or not, is bound to give true version of fact in issue when they are summoned by the authorities to state so as empowered by law. It is the duty implicitly cast on the person called upon to give information to the officers that whatever they say is truth. Above all, it is noteworthy that none i.e. accused No.1 or accused No.4 retracted confession, at any point time, except and before their further statements were recorded. They were produced before the learned Metropolitan Magistrate after their arrests and they did not make any complaint nor retracted any statement. Therefore, the statements of the accused Nos. 1 and 4 recorded under Section 67 of the NDPS Act appear to be genuine and voluntary, of course, it is always cautious to look into the corroboration of such statements. Thus, practice and prudence that require that the court should examine the evidence adduced by the prosecution to find out whether there are any other facts and circumstances to corroborate the confession. It may be the duty of the court to find out whether the statement is voluntary or not. If such statement is found true and finds support from other evidence, such statement can be acted upon. Even reliance can be placed upon the retracted confession at belated stage like further statement. We have narrated and appreciated the evidence of all witnesses in this regard also and we have come to the conclusion that the statements of the accused Nos. 1 and 4 recorded under Section 67 of the NDPS Act, were voluntary. 27 We have also considered the defence witnesses produced by the defence. True that, defence is not required to be proved beyond doubt like prosecution, but against the weighty evidence of prosecution, the version of defence witnesses as to the arrest of accused Nos. 1 and 2 appears to be a got up defence even by preponderance of probability. 27 We have also considered the defence witnesses produced by the defence. True that, defence is not required to be proved beyond doubt like prosecution, but against the weighty evidence of prosecution, the version of defence witnesses as to the arrest of accused Nos. 1 and 2 appears to be a got up defence even by preponderance of probability. Nothing is made out by the defence even examining the seven defence witnesses, as above. 28 All the witnesses are consistent as to seizure of the muddamal from rickshaw and the house of accused No.4 and about sealing procedure as well. A godown receipt is produced at Exhibit-94 which is dated 11th of December, 1999. The movement of muddamal is narrated by witnesses in natural manner. On 13th of December, 1999 itself i.e. on next day, muddamal was sent to CRCL at New Delhi and to Forensic Science Laboratory, Ahmedabad, vide letter at Exhibits 89 and 90. Those samples were produced before the court and seals were found intact. Again, not even pinpoint loophole could be found in this regard also as has been much urged on behalf of the defence. 29 About the possession of the premises of accused No.1, the evidence is self-explanatory. The accused No.1 was under control of that premises. Not only that, but accused No.2 visited her in that premises only. 30 Thus, examining the case of the prosecution from each possible angle, we find that prosecution has proved the case against accused Nos. 1 and 4 beyond reasonable doubt. 31 Now, we shall deal with each of the contentions raised by learned Advocate Mr. Rajesh M Aggrawal for the appellants in both the appeals. 31.1 First Contention is in respect of the fact that appellate court should re-appreciate the evidence with critical scrutiny and there is considerable mental distance between may be and must be . The reliance is sought upon the decision of the Apex Court in the matter of Badam Singh vs. State of Madhya Pradesh, reported at AIR 2004 SC 26 and Ashish Batham vs. State of Madhya Pradesh, reported at AIR 2002 SC 3206 . 31.2 Needless it is to say that it is the duty of the Appellate Court to sift the evidence and re-appreciate the same critically. We have gone through each of the lines of the evidence recorded during the trial and has re-appreciated the same. 31.2 Needless it is to say that it is the duty of the Appellate Court to sift the evidence and re-appreciate the same critically. We have gone through each of the lines of the evidence recorded during the trial and has re-appreciated the same. At the same time, it must be noted that criminal trials are not fairy tales and are hard realities of the life and evidence must be considered having taken into consideration the hard facts of life and accordingly we have considered the whole evidence. It is the quality of the evidence that matters and not the number of witnesses. In the matter of KRISHNA MOCHI AND ORS vs. STATE OF BIHAR, as reported in (2002) 6 SCC 81 , in para-50 it is observed that there is always peril in treating the words of a judgment as though they are words in legislative enactment. The judicial utterances are made in the setting of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. It is more so in a case where conclusions relate to appreciation of evidence in a criminal trial. Thus, there cannot be precedent in criminal trial so far as the facts are concerned. So far as the law is concerned, the principle of law is well celebrated that the first appellate court must appreciate the evidence and we have appreciated the same, but in criminal trial it must not escape from the mind of the court that the prosecutor is always faced with so many odds, the court while appreciating the evidence should not lose sight of these realities of life and cannot afford to take an unrealistic approach by sitting in an ivory tower. Small points are not important or such discrepancies which are not fatal must not deter to any court to deliver the justice according to law. When crime is looming large and humanity is suffering and the society is so much affected thereby, duties and responsibilities of the courts have become much more. The principle is accepted that society suffers by wrong conviction and it is equally suffers from wrong acquittal . Thus, we have taken into consideration each and every aspect of the appeal like trial. The principle is accepted that society suffers by wrong conviction and it is equally suffers from wrong acquittal . Thus, we have taken into consideration each and every aspect of the appeal like trial. Then it is contended that the statements recorded under Section 67 of the NDPS Act of accused Nos.1 and 4 are neither voluntarily nor the statements are relevant as the same is hit by Sections 24 to 27 of the Indian Evidence Act as well as under Section161 of the Code of Criminal Procedure. Heavy reliance is placed upon a decision of the Hon'ble Supreme Court in the case of Noor Aga vs. State of Punjab, reported in JT 2008 (7) SC 409. It is stated that the prosecution case becomes doubtful when on fact of recording of statement under Section 67 of the NDPS Act of accused No.2 Abdul Razak Abdul Hamid, PW-2 Krishna Chaube as well as PW-3 Pavansing Shrigajesing Tomar, Zonal Director, both deposed diametrically. It is submitted that, this is an incident that how NCB Officers played with the life and liberty of the innocent persons and from the evidence of PW-2 Mrs. Chaube, it becomes clear that how she was compelled to do wrong by her superior officer like PW-3 Mr. Tomar and, therefore, the prosecution case should not be believed. 31.3 We have discussed this aspect here-in-before. Only because there is some contradiction in recording of statements of accused No. 2, the whole prosecution case would not vitiate nor it is compelling reason that court should come to the conclusion that the case is fabricated on account of this fact. There may be some error or misunderstanding between PW-2 Krishna Chaube and PW-3 Pavansing Tomar as to recording of the statement of accused No.2, but this fact itself is not sufficient to disbelieve the prosecution case. It is also the duty of the court to sift grain from chaff and do justice. In the matter of Krishna Mochi and Ors (supra) in para-51 it is observed as under : 51 Stress was laid by the accused appellants on the non-acceptance of evidence tendered by some witnesses to contend about desirability to throw out the entire prosecution case. In essence, prayer is to apply the principle of falsus in uno, falsus in omnibus. The plea is clearly untenable. In essence, prayer is to apply the principle of falsus in uno, falsus in omnibus. The plea is clearly untenable. Even if a major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of a number of other co-accused persons, his conviction can be maintained. It is the duty of the court to separate the grain from the chaff. Where the chaff can be separated from the grain, it would be open to the court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove the guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim falsus in uno, falsus in omnibus has no application in India and the witnesses cannot be branded as liars. The maxim falsus in uno, falsus in omnibus (false in one thing, false in everything) has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to is, that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called a mandatory rule of evidence . (See Nisar Ali vs. State of U.P.) Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a court to differentiate the accused who had been acquitted from those who were convicted. (See Gurcharan Singh v. State of Punjab). The doctrine is a dangerous one, especially in India, for if a whole body of the testimony were to be rejected, because the witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be sifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sohrab v. State of MP and Ugar Ahir v State of Bihar). An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate the grain from the chaff, truth from falsehood. Where it is not feasible to separate the truth from falsehood, because the grain and the chaff are inextricably mixed up, and in the process of separation, an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto. (See Zwinglee Ariel v. State of M.P. and Balaka Singh vs. State of Punjab). As observed by this Court in State of Rajasthan v Kalki, normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there, however, honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. Accusations have been established against the accused appellants in the case at hand. So, there is no merit in the contention that on account of this contradiction, the whole prosecution case should be thrown overboard. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. Accusations have been established against the accused appellants in the case at hand. So, there is no merit in the contention that on account of this contradiction, the whole prosecution case should be thrown overboard. 31.4 So far as the relevancy of the statement under Section 67 of the NDPS Act is concerned, we have discussed here-in-before that we have found that the statements recorded of accused Nos. 1 and 4 are voluntarily, that is established by the evidence, which is impeccable. So far as the issue of the law is concerned about the admissibility of the statement under Section 67 of the NDPS Act, the relevance placed by learned Advocate Mr. Aggrawal upon a decision of the Apex Court in the matter of Noor Aga vs. State of Punjab (supra) is absolutely misplaced. 31.5 It is nowhere stated or laid down by the Apex Court in the decision of Noor Aga vs. State of Punjab (supra) that the statement recorded by the Officers under Section 67 of the NDPS Act are similar to the statement recorded under Section-161 of the Code of Criminal Procedure Code by the Police Officer. Under Section-67 of the NDPS Act, such statements are made relevant and are admissible and to some extent it also attracts the bar of Sections 24 to 27 of the Indian Evidence Act which we shall discuss hereinafter. It must be noted further that the decision of the Apex Court in the case of Noor Aga vs. State of Punjab (supra) as relied by learned Advocate for the appellants is more on facts, which is self-explanatory by the conclusions arrived by the Apex Court in para 162 of the judgment. The Apex Court in Noor Aga vs. State of Punjab (supra) was concerned with Section 108 of the Customs Act. Though it has been observed by the Apex Court in para 105 as under : 105 Section 53 of the Act empowers the customs officers with the powers of the Station House Officers. An officer invested with the power of a police officer by reason of a special statue in terms of sub-section (2) of Section-53 would, thus, be deemed to be police officers and for the said purposes of Section 25 of the Act shall be applicable. An officer invested with the power of a police officer by reason of a special statue in terms of sub-section (2) of Section-53 would, thus, be deemed to be police officers and for the said purposes of Section 25 of the Act shall be applicable. 31.6 Thereafter, the Apex Court in para 106 and 107 observed as under : 106 A legal fiction as is well known must be given its full effect. (See UCO Bank and Anr v. Rajinder Lal Capoor, 2008 (6) SCALE 1 ). 107 Section 53A of the Act makes such a statement relevant for the purposes of the said Act. The observations of the High Court, thus, confession can be the sole basis of conviction in view of Section 108 of the Customs Act, thus, appear to be incorrect. 31.7 Thus, it is clear from the above that such statements of the accused recorded by the Officers attract bar under Section 25 of the Indian Evidence Act even though they are admissible and in para 107 above, it is expressly stated that Section 53-A of the Act makes a statement relevant for the purpose of the said Act. The confessional statement whether can be made sole basis of the conviction is a different question. In the said case, i.e. Noor Aga vs. State of Punjab (supra) the Apex Court did not believe or accept the confessional statement of the accused because they were found not voluntarily and appear to have been taken on gun point . This is made clear by the observation of the Apex Court in para 108 of the decision, which is as under : 108 An inference that the appellant was subject to duress and coercion would appear from the fact that he is an Afgan National. He may know English but the use of expressions such as `homogeneous mixture', `drug detection kit', `independent witnesses' which evince a knowledge of technical terms derived from legal provisions, possibly could not be attributed to him. Possibility of fabrication of confession by the officer concerned, thus, cannot altogether be ruled out. He may know English but the use of expressions such as `homogeneous mixture', `drug detection kit', `independent witnesses' which evince a knowledge of technical terms derived from legal provisions, possibly could not be attributed to him. Possibility of fabrication of confession by the officer concerned, thus, cannot altogether be ruled out. 31.8 Nowhere in the whole decision, it is laid down by the Apex Court in Noor Aga vs. State of Punjab (supra) that the statements of the accused under Sections 67 of the NDPS Act or under any other pari materia provisions are similar to the statement recorded by police officers under Section 161 of the Code of Criminal Procedure and, therefore, the reliance sought by learned Advocate for the appellants is not helpful to appellant. 31.9 Further in Noor Aga (supra), the question was that the statement recorded under Section 108 of the Customs Act carries what evidentiary value when the same is used for the purpose of NDPS Act trial and, therefore, the Apex Court in Noor Aga (supra) discussed other judgments including the judgments in the matter of Alok Nath vs. State of West Bengal, as reported in 2006 (13) SCALE 467; in the matter of Babubhai Udesinh Parmar vs. State of Gujarat, as reported in 2006 (12) SCC 268 and in the matter of Om Adinath vs. Deputy Director, NCB, Madras, as reported in 1999 (6) SCC 1 . In the case of Noor Aga (supra), the Apex Court emphasized that what is to be seen is the purpose for which arrest or search and seizure is made and investigation is carried out. Even then, in Noor Aga (Supra) the Apex Court in clear terms in paragraphs 106 and 107 observed that by legal fiction under Section 53A of the Customs Act, the statement recorded of the accused under Section 108 of the said Act becomes relevant and admissible even though Customs Officers may be Police Officers. 31.10 Narcotic Drugs and Psychotropic Substances Act is a complete Code. Section 67 of the Act authorizes the authorized officer to record the statement in the form of information received which is made relevant during trial. Section 67 of the NDPS Act does not make any difference of information received from the accused and the other persons so far as the crime is concerned. Section 67 of the Act authorizes the authorized officer to record the statement in the form of information received which is made relevant during trial. Section 67 of the NDPS Act does not make any difference of information received from the accused and the other persons so far as the crime is concerned. A legal fiction is created and, hence, it could not be said that for the statements recorded by the authorized officer under Section 67 of the NDPS Act bar Sections 24 to 27 of the Indian Evidence Act is attracted. 31.11 The law in this respect has been made clear by the Apex Court in the matter of KANHAIYALAL vs. UNION OF INDIA, as reported in (2008) 4 SCC 668 in respect of statements under Sections 67 of the NDPS Act of the accused, the Apex Court observed as under in paras 40, 41, 42, 43 and 45 as under : 40 From the facts of the case and the submissions made on behalf of the respective parties the point which emerges for determination is up to what extent can a statement under Section 67 of the NDPS Act be relied upon for convicting a person accused of having committed an offence under the provisions of the said Act. In order to arrive at a decision in regard to the above, it will also have to be considered whether such a statement would attract the bar both of Sections 24 to 27 of the Evidence Act as also Article 20(3) of the Constitution of India. For the aforesaid purpose, the provisions of Section 67 of the NDPS Act are reproduced hereinbelow : 67 Power to call for information etc Any Officer referred to in Section 42 who is authorized in this behalf by the Central Government may, during the course of any inquiry in connection with the contravention of any provision of this Act - (a) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder; (b) require any person to produce or deliver any document or thing useful or relevant to the inquiry; (c) examine any person acquainted with the facts and circumstances of the case. 41 A parallel may be drawn between the provisions of Section 67 of the NDPS Act and Sections 107 and 108 of the Customs Act and to a large extent Sections 32 of the Prevention of Terrorism Act, 2002 and Section 115 of the Terrorist and Disruptive Activities (Prevention) Act, 1987. These are all special Acts meant to deal with special situations and circumstances. While the provisions of the Prevention of Terrorism Act, 2002 and the TADA Act, 1987 are much more stringent and exclude from their purview the provisions of Sections 24 to 27 of the Evidence Act with regard to confession made before a police officer, the provisions relating to statements made during inquiry under the Customs Act and under the NDPS Act are less stringent and continue to attract the provisions of the Evidence Act. In the case of both the latter enactments, initially an inquiry is contemplated during which a person may be called upon to provide any information relevant to the inquiry so as to whether there has been any contravention of the provisions of the Act or any rule or order made thereunder. At that stage the person concerned is not an accused although he may be said to be in custody. But on the basis of the statements made by him he could be made an accused subsequently. What is important is whether the statement made by the person concerned is made during inquiry prior to his arrest or after he had been formally charged with the offence and made an accused in respect thereof. As long as such statement was made by the accused at a time when he was not under arrest, the bar under Sections 24 to 27 of the Evidence Act would not operate nor would the provisions of Article 20(3) of the Constitution be attracted. It is only after a person is placed in the position of an accused that the bar imposed under the aforesaid provision will come into play. 42 Of course, this Court has also held in Pon Adithan case that even if a person is placed under arrest and thereafter makes as statement which seeks to incriminate him, the bar under Article 20(3) of the Constitution would not operate against him if such statement was given voluntarily and without any threat or compulsion and if supported by corroborating evidence. 43 The law involved in deciding this appeal has been considered by this Court from as far back as in 1963 in Pyare Lal Bhargava case. The consistent view which has been taken with regard to confessions made under provisions of Section 67 of the NDPS Act and other criminal enactments, such as the Customs Act, 1962, has been that such statements may be treated as confessions for the purpose of Section 27 of the Evidence Act, but with the caution that the court should satisfy itself that such statements had been made voluntarily and at a time when the person making such statement had not been made an accused in connection with the alleged offence. 45 Considering the provisions of Section 67 of the NDPS Act and the views expressed by this Court in Raj Kumar Karwal case with which we agree that an officer vested with the powers of an officer in charge of a police station under Section 53 of the above Act is not a police officer within the meaning of Section 25 of the Evidence Act, it is clear that a statement made under Section 67 of the NDPS Act is not the same as a statement made under Section 161 of the Code, unless made under threat or coercion. It is this vital difference, which allows a statement made under Section 67 of the NDPS Act to be used as a confession against the person making it and excludes it from the operation of Sections 24 to 27 of the Evidence Act.' 31.12 Thus it is clear that law in this respect is that incriminating statement of a person called to provide information relevant to inquiry under Section 67 of the NDPS Act is not, the same as statement under Section 161 of the Criminal Procedure Code and such statements can form the basis of conviction if it is corroborated by other evidence. There is a difference between the statements recorded before arrest of the accused and post arrest of the accused. So far as the during arrest, confession of the accused are concerned, neither Sections 24 to 27 of the Indian Evidence Act is attracted nor it is required that bar under Article 20(3) of the Constitution of India is attracted. There is a difference between the statements recorded before arrest of the accused and post arrest of the accused. So far as the during arrest, confession of the accused are concerned, neither Sections 24 to 27 of the Indian Evidence Act is attracted nor it is required that bar under Article 20(3) of the Constitution of India is attracted. While post arrest confessions are concerned, Sections 24 to 27 of the Indian Evidence Act are attracted only to the extent that whether such statements are voluntarily made by the accused or that such statements are recorded on account of threat, inducement or any type of coercion and there Article 20(3) of the Constitution of India is attracted. It must be noted that it is only after a person is placed in the position of an accused, that the bar must under Sections 24 to 27 of the Evidence Act would operate to the extent of voluntariness of the statements and bar under the provisions of the Article 20(3) of the Constitution of India is attracted. What is important is whether the statements made by the person concerned is made during inquiry, prior to his arrest or after he had been formally charged with the offence and made an accused in respect thereof. 31.13 The above ratio laid down by the Apex Court in the case of Kanhaiyalal vs. Union of India (supra) has not been diluted in the decision of Noor Aga vs. State of Punjab (supra) nor by necessary implication, the ratio laid down In Kanhaiyalal vs. Union of India has been overruled in the decision of Noor Aga vs. State of Punjab (supra). It must be remembered that, in the matter of Noor Aga vs. State of Punjab (supra), the confessional statement under Section 108 of the Customs Act was recorded for the purpose of inquiry under Section 108 of the Customs Act and was a statement after the arrest of the accused. While in the present case, the accused i.e. appellants were called by serving them summons under Section 67 of the NDPS Act and the statements were recorded prior to their arrest under Section 67 of the NDPS Act. Such statements neither attracts bar under Sections 24 to 27 of the Indian Evidence Act nor the provisions of Article 20(3) of the Constitution of India is attracted. Such statements neither attracts bar under Sections 24 to 27 of the Indian Evidence Act nor the provisions of Article 20(3) of the Constitution of India is attracted. However, when we critically scrutinized the evidence on record, we have again found that the statements are voluntarily offered by accused persons 1 and 4 and those statements can be formed basis of the conviction as corroborated by the other evidence. Much emphatically it has been urged before this Court that the statements of the accused under Section 67 of the NDPS Act is similar to the statement under Section 161 of the Criminal Procedure Code as recorded by the Police Officers . In Kanhaiyalal vs. Union of India (Supra), this contention was thrown out by the Apex Court and there is no legal base at all to apply such similarity between these two provisions especially when law expressly prohibits such similarity between the statements of the accused recorded under Section 67 of the NDPS Act and Sections 161 of the Code of Criminal Procedure. There is no merit at all in this contention and the contention is negatived. It must also be noted that, in the present case, nowhere before recording of the further statement, such confessional statements are retracted by appellants herein, even the law permits to rely upon the retracted confession. In the matter of UNION OF INDIA vs. SATROHAN, as reported in 2008 (3) SCC (Cri) 620, the Apex Court observed in para-16 that the confessional statement which was not retracted for considerable long time, could be relied upon. Hence, so far as the lengthy arguments of the learned Advocate for the Appellants about non-admissibility of the statement under Section 67 of the NDPS Act of the appellants is concerned, we negatived the same. 32. Next it is contended that PW-2 Krishnaben Vinaykumar Chaube is the Investigating Officer and there is nothing on record to show that she is authorized either by the Central Government or by the State Government to file the complaint under Section 36-A (l)(d) of the NDPS Act and therefore filing of the complaint itself is without authority and the court ought not to have taken cognizance of the complaint. It is also submitted that the complainant herself was the member o f the raiding party and to some extent she has also undertaken the investigation. It is also submitted that the complainant herself was the member o f the raiding party and to some extent she has also undertaken the investigation. So, the investigation is not fair, honest and impartial. 32.1 So far as this aspect is concerned, the same contention was raised before the Trial Court which has been dealt with by the Trial Court, we do not incline to interfere in the conclusion that vide Notification No. 0.8 22(E) 14th of November, 1985, all the officers above the rank of Sub-Inspector in the Department of Narcotics and above the rank of Inspector in the Department of Central Excise in the Central Economic Intelligence Bureau, are conferred with powers and duties enshrined in Sections 42 and 67 of the NDPC Act within the area of their respective jurisdiction and, therefore, the contention has no merit. So far as the complainant being the Investigating Officer is concerned, it is nowhere coming out that any prejudice is caused to the Accused Nos. 1 and 4. 32.2 Then it is urged that the framing of the charge by the Trial Court itself is illegal and it suffers from the vice of non-application of judicial mind and perversity. It is submitted that in charge, specific allegation should be mentioned and specific weight of the contraband alleged to have been seized, is required to be mentioned and, therefore, the appeal is vitiated because the Trial Court should be categoric in weight of the charas individually and about the gross weight. 32.3 We have seen the charge framed by the Trial Court and we have found that specific charge is framed by the Trial Court individually that from ricksha 1.454 Kgs of charas and from the house 1.334 kgs of charas was found. It is not then necessary to total both and again to convey to the accused this was the gross weight. Even error in framing of charge is mere irregularity and can be cured at any stage of trial. We are unable to find such illegality as to render the whole trial to be concluded as vitiated. It is not then necessary to total both and again to convey to the accused this was the gross weight. Even error in framing of charge is mere irregularity and can be cured at any stage of trial. We are unable to find such illegality as to render the whole trial to be concluded as vitiated. On the contrary, we found that the substance of charas is clearly conveyed to the accused, though it is true that, while framing the charge, the trial court should apply it's mind properly so as not to cause any prejudice to the accused, but in the present case, there is no such omission in the charge as would prejudice to the accused or deny the fair trial to them. There may be an error on the part of the Trial Court to convey the exact weight of the charas found from the rickshaw and from the house of the accused and the gross weight of the charas, but that itself is not fatal to the prosecution case as when the evidence was recorded, this was made amply clear. 33 It is contended that the contraband alleged to be seized from the accused is not proved to be charas as defined under Section 2 (iii)(a) of the NDPS Act. It is submitted that, firstly, homogeneous samples are not examined as it is found from evidence of PW-5 Dr. Mohendrasing Jagiram Dahiya, Analyst and secondly it is clear admission of this witness that he has not undertaken quantitative test of the sample to ascertain that what was the pure quantity of charas in the sample as defined under the NDPS Act. The witness also stated that it is not necessary to undertake the analysis of cannabis under the NDPS Act. Therefore, it is submitted that the analytic conclusions are to the extent only to ascertain the presence of charas in the samples and not the whole quantity. It is submitted that it was not ascertained by him that how much percentage of charas was there in the sample he analyzed and, hence, the prosecution has miserably failed to prove charge or the percentage of charas consisting in the samples examined by PW-5 Analyst. It is submitted that it was not ascertained by him that how much percentage of charas was there in the sample he analyzed and, hence, the prosecution has miserably failed to prove charge or the percentage of charas consisting in the samples examined by PW-5 Analyst. The reliance is placed on the decision of the Supreme Court in the matter or E. Micheal Raj vs. Intelligence Officer, Narcotic Control Bureau, reported in AIR 2008 SC 1720 , decided on 11th of March, 2008 and a decision of the Himachal Pradesh High Court in the matter of Noor Alam vs. State of HP, reported at 2008 (2) EFR, 403, decided on 31st of August, 2007. One more decision of the High Court of Delhi in the matter of Sagar Singh vs. State (Govt of NCT) of Delhi, reported at 2006 (4) Crimes 126 is also relied upon. In the decision of E. Micheal Raj (supra) the Apex Court came to the conclusion that when any narcotic drug or any substance is found mixed with one or more neutral substances, for the purpose of imposition of punishment, it is the content of the narcotic drug or psychotropic substance, which shall be taken into consideration. Therefore it is contended that it is only the actual content by weight of the narcotic drugs which is relevant for the purpose of determining whether which would constitute a small quantity or commercial quantity. It is submitted that quantity in purity found from the sample according to the scheme of the NDPS Act, which is amended, governs the quantum of sentence according to the quantity i.e. small quantity, intermediary quantity and commercial quantity. It is submitted that in the present case, when the purity of the charas is not established by the prosecution even after examining PW-5 Dr. Mohendrasing, view favourable to the accused be taken and the only presumption available is that the accused were having small quantity. It is submitted that Forensic Science Laboratory report, which is at Exhibit 96, is of no avail to the prosecution as it does not contain the reasons for analysis. Reliance is placed on a decision of this Court in the matter of Suleman Usman Memon vs State of Gujarat, reported in 1961 GLR 402 . 33.1 Evaluating the above contention, we have also referred to the evidence of PW-5 Dr. Mohendrasing and we again refer to it. Reliance is placed on a decision of this Court in the matter of Suleman Usman Memon vs State of Gujarat, reported in 1961 GLR 402 . 33.1 Evaluating the above contention, we have also referred to the evidence of PW-5 Dr. Mohendrasing and we again refer to it. In his evidence PW-5 Mohendrasing stated that to know the exact contents of the substance, quantitative test was necessary, but the same was not necessary in cannabis plant. He had analyzed homogeneous sample. When he was confronted by the court, the witness stated that if any neutral substance is mixed in resins or cannabis, then also, the pure quantity of charas could be known through para-amino-phenol test, which he had undertaken. If any neutral substance is found in the sample, then it would be known to Analyst through this para-amino-phenol test. He has deposed to the extent that for para-amino-phenol test, organic solvent is used, and in that organic solvent, charas would dissolve while any neutral substance would not dissolve and could be discarded. In the present case, according to this witness, there was no neutral substance and all that sample which was analyzed was of charas as defined under Section 2(3)(c) of the NDPS Act. He has been asked about the organic solvent substances used in the test and he emphatically stated that in organic solvent, chloroform is included, which is necessary in para-amino-phenol test. He has also produced his worksheet at Exhibit 119 which is prepared by his Assistant Mrs. R.J.Vageda under his supervision. 33.2 From the evidence of PW-5 Mohendrasingh Dahiya, what is established is that it is necessary to undertake quantitative test of the substance, but it is necessary only when it is found that some neutral substance is mixed with the samples. This could be known by para-amino-phenol test and when he undertook this test, he did not find any neutral substance, and all that substance was charas, which was sent to him as a sample and, therefore, there is no merit in the contention that relying upon the deposition of PW-5 Mohendrasing Dahiya, the prosecution has failed to establish the actual contents quantity wise of charas in the sample. The evidence of the witness has to be read as a whole and not in pieces. The evidence of the witness has to be read as a whole and not in pieces. It is true that he has stated that the quantitative test is necessary and he had not conducted that test, but at the same time, it must be noted that, this witness had given the reasons for not conducting such test because he had conducted para-amino-phenol test and what was there was also the charas because the whole sample which was analyzed was dissolved in organic solvent. All the three decisions referred to above by learned Advocate for the Appellants are not at all helpful to him in the present case. E. Micheal Raj (supra) is a case of heroin, while analyzing the substances, some neutral substance was found and the percentage was not ascertained by the Analyst. In the case of Noor Alam vs. State of H.P. (supra), the Analyst expressly stated the percentage of charas in his analysis and, therefore, it was observed by the Apex Court in E. Micheal Raj (supra) that only when it was found that some neutral substance is mixed with the sample, for the purpose of imposition of punishment, it is pure quantity of narcotic substances, which shall be taken into consideration, but in the present case, prima facie, it is proved that there was no neutral substance added to charas which was sent to Forensic Science Laboratory for analysis and, therefore, there is no merit in this contention also. There is no merit in the contention that Forensic Science Laboratory report Exhibit-94 does not contain the reason. Sufficient it is to say that when Analyst himself examined as PW-5, the question of reasoned report would not arise at all, other wise, the Forensic Science Laboratory report contains the test undertaken by the Analyst and, therefore, there is no force in the contention that the view favourable to the accused be taken in consideration. 34. Next it is contended that the identity of the muddamal and the sample sent to Forensic Science Laboratory is not established and moreover there was all possibility of tampering with the contents of the sample and moreover the samples were not kept in safe and proper custody. It is contended that the sealing procedure is also defective. 34. Next it is contended that the identity of the muddamal and the sample sent to Forensic Science Laboratory is not established and moreover there was all possibility of tampering with the contents of the sample and moreover the samples were not kept in safe and proper custody. It is contended that the sealing procedure is also defective. Many decisions are relied upon by the learned Advocate for the appellants in this respect and those decisions are as under : 1 AIR 1994 SC 117 : 1993 Suppl. (3) SCC 665 2 AIR 1980 SC 1314 : (1980) 3 SCC 303 3 1996 Criminal Law Journal, 3670 4 1998 Criminal Law Journal, 299 5 1997 Criminal Law Journal, 2843 6 Criminal Appeal No. 366 of 2001, decided on 19.02.2004 by the Division Bench of this Hon'ble High Court of Gujarat (Coram: JM Panchal & MH Kadri, JJ) 7 Criminal Appeal No. 699 of 1998 decided on 16.03.2004 by the Division Bench of this Hon'ble High Court of Gujarat (Coram: J.M. Panchal & M.R. Shah, JJ) para 11. 8 1989 (1) Prevention of Food Adulteration Cases page No. 153, Hon'ble Gujarat High Court decision by the M.B. Shah and P.M. Chauhan,JJ of the Hon'ble Gujarat High Court on 15.12.1987 for the offences under the NDPS Act. 9 1995 (1) Crimes 274 . 34.1 In this respect we have perused and appreciated the evidence of panch witness PW-1 Bhimsing Kanchansing Mina, PW-2 Mrs. Krishnaben Vinaykumar Chaube, PW-3 Pavansing Shrigajesing Tomar; PW-4 Upendrakumar Harilal Patel and PW-5 Mohendrasing Jagiram Dahiya. There is no pinpoint loophole in the evidence of any of the witnesses to come to the conclusion that sealing on the muddamal was defective. It is also contended that no description or inscription of the seals was given in the evidence. 34.2 In respect of this contention, again we would like to observe that from the evidence i.e. documentary evidence as well as oral, it is established that muddamal article found from the rickshaw Marked `A' and was not sealed at that place but was handed over to the panch immediately after preliminary test as there was possibility of finding narcotic material from the residence of accused No.4 and who was absconded. After seizing the muddamal from the house in the presence of accused No.1 both the muddamals were wrapped and the muddamal which was found from the residence of accused No.4 was marked as Mark `B'. Sampling thereafter was performed and two samples from each Mark `A' and Mark `B' were taken and numbers were given like A1, A2, A3, B1, B2 and B3 and wrapped of these samples in plastic bags and then in envelopes as deposed by the witnesses, there is no reason to doubt the deposition of PW-3. The samples were signed by the panchas and necessary seals were applied. Muddamal, Mark -`A' and Mark `B' were produced before the Court and it is found from the evidence that it did contain seals as has been deposed by the witness. The samples which were sent to Forensic Science Laboratory also found that the samples were intact with seals as has been mentioned by the witnesses at Exhibit 89. A receipt is produced from Forensic Science Laboratory wherein it has been mentioned that the said packets were received by the Forensic Science Laboratory. Vide letter dated 18th of December, 1999, which is part of Exhibit 96, it is clearly mentioned by the Forensic Science Laboratory that the seal was of Narcotic Control Bureau AZU-4 . The seal was intact and was according to the sample seals. The description is also given that how the adhesive tape was found by them. Therefore, evidence of this witness as well as documentary evidence of Forensic Science Laboratory eliminates all possibility of tampering with the muddamal. This is more so when the muddamal was sent to the Forensic Science Laboratory on the very next day, probability of removal of tapes also must be eliminated because PW-3 Tomar explained before the court that how the adhesive tapes were applied upon the seals containing the signatures of panchas. It was clear that without disturbing that seal, no substance could be taken out from that envelopes. On the day of the raid, PW-2 Mrs. Krishna Chaube handed over the muddamal to Mr. Tomar PW3 at 10.30 a.m. which was entered in the muddamal register. Though muddamal register is not produced but a receipt of muddamal is produced on record. The deposition of Mrs. Chaube and the deposition of Mr. On the day of the raid, PW-2 Mrs. Krishna Chaube handed over the muddamal to Mr. Tomar PW3 at 10.30 a.m. which was entered in the muddamal register. Though muddamal register is not produced but a receipt of muddamal is produced on record. The deposition of Mrs. Chaube and the deposition of Mr. Tomar PW-3 are supported by documentary evidence of Forensic Science Laboratory and panchnama do not create any doubt that either the muddamal having been tampered with or sealing was defective one or any tampering even possible or probable with the sealed muddamal and, therefore, this contention has no merit at all. Only because the custody of seal was with the Zonal Director or Inspector, it would not raise a presumption that the said seals were misused unless it is shown from the evidence by the defence even remotely that there was such possibility. It is not the law that such seal should be given to the independent person like panch. It was a seal of the Department and it must be presumed that the custody of the seal must be with the concerned officer only. Moreover, as stated above, we have appreciated the evidence of concerned officers and we have not found a slightest suspicion that misuse was done of the seal. It is noteworthy here that a godown receipt of the muddamal has been produced at Exhibit-94 and from the oral evidence the movement of the mudammal was found beyond doubt. As the muddamal register is not produced on record, it could not be said that adverse inference could be drawn against the prosecution. Like wise, it is not the law, as contended, that the forwarding note which was sent to the Forensic Science Laboratory, ought to have been prepared, at the spot. There may be cases even if the forwarding note is prepared at the spot, the court may not believe the case of the prosecution for given reasons. It all depends upon the credibility of witnesses irrespective of the places at which the forwarding note is prepared. 34.5 Then it is emphatically submitted that the contents of panchnama of seizure at Exhibit-89 was not proved by the prosecution as per the provisions of law. It is submitted that panch witness is great lier and if the cross-examination of the witness is taken into consideration, it would be clear that this witness is not credit-worthy. 34.5 Then it is emphatically submitted that the contents of panchnama of seizure at Exhibit-89 was not proved by the prosecution as per the provisions of law. It is submitted that panch witness is great lier and if the cross-examination of the witness is taken into consideration, it would be clear that this witness is not credit-worthy. It is submitted that the panch is got up witness and not reliable. It is contended that evidence of PW-1 Bhimsing Kanchansing Mina minutely be scrutinized by the Court, so that the liberty of the innocent person can be protected. In this respect it is again submitted that there is flagrant violation of Section 52-A of the NDPS Act and in respect of muddamal, the procedure laid down under Section 52-A of the NDPS Act and the Standing Instructions/Orders issued by the Central Government are not followed by the prosecution witnesses. Again in this respect a decision of the Hon'ble Supreme Court in the case of Noor Aga vs. Sate of Punjab (supra) is relied upon. 34.6 We have scrutinized each line of the deposition of PW-1 panch witness Bhimsing Kanchansing Mina, as aforesaid, except who called him as panch either by PW-3 Tomar or PW-2 Mrs Chaube, there is no contradiction at all in his deposition. The learned Advocate for the appellant has failed to point out that what portion of the cross-examination of this witness rendered this witness unreliable. We have gone through the panchnama and the other evidence also. We do not find any such suspicion in the evidence of PW-1 Bhimsing Kachansing Mina that he was a lier or that he is not credit-worthy witness. Once, the witness deposed on oath, he must be given a sanctity unless his say is controverted either by the examination-in-cross or by other circumstances of the prosecution case. Nothing could be elicited by the defence in cross-examination of this witness that we may brand this witness as a lier only because he willingly became panch and this would not render him uncreditworthy. He has supported in all respects the panchnama and, therefore, there is no merit at all in this contention that PW-1 Bhimsing Kanchansing Mina should not be believed, for which the defence is not in a position to show a single reason. While assessing the evidence of this witness we have found him extremely truthful. 35. He has supported in all respects the panchnama and, therefore, there is no merit at all in this contention that PW-1 Bhimsing Kanchansing Mina should not be believed, for which the defence is not in a position to show a single reason. While assessing the evidence of this witness we have found him extremely truthful. 35. So far as compliance with Section 52-A of the NDPS Act is concerned, for ready reference, the provisions is mentioned as under : 52A Disposal of seized narcotic drugs and psychotropic substances - (1) The Central Government may, having regard to the hazardous nature of any narcotic drugs or psychotropic substances, their vulnerability to theft, substitution, constrains of proper storage space or any other relevant considerations, by notification published in the Office Gazette, specify such narcotic drugs or psychotropic substances or class of narcotic drugs or class of psychotropic substances which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may from time to time, determine after following the procedure hereinafter specified. (2) Where any narcotic drug or psychotropic substance has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under Section 53, the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs or psychotropic substances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identify of the narcotic drugs or psychotropic substances in any proceedings under this Act and make an application, to any Magistrate for the purpose of -- (a) certifying the correctness of the inventory so prepared; or (b) taking, in the presence of such Magistrate, photographs of such drugs or substances and certifying such photographs as true; or (c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn. (3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application. (3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application. (4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs or psychotropic substances and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence. 35.1 Assessing the above contention and having seen the provisions of Section 52-A of the NDPS Act and the instructions issued under the said provision, it clearly transpires that, this provision is meant for disposal of seized narcotic drugs or psychotropic substances before trial. If concerned Department thinks it proper that the substance is of the hazardous nature and vulnerable to theft, substitution, constraints of proper storage space or any other reason may apply to the Magistrate for disposal of such muddamal and as mentioned in subsection (2) an inventory will be prepared as to the disposal of the muddamal including taking of the photograph. Sub-section (4) therefore provides that notwithstanding anything contained in the Indian Evidence Act, such inventory, such photographs shall be treated as primary evidence in respect of such offence as to muddamal. Again, learned Advocate for the appellants wrongly placed reliance upon the decision of the Apex Court in the case of Noor Aga vs State of Punjab (supra). In the said case, without following the procedure as laid down under Section 52-A of the NDPS Act, the muddamal was destroyed and was not produced before the court and, therefore, from paragraph-116 onwards, the Apex Court considered the fact of non-production of physical evidence in the trial and, ultimately, came to the conclusion that non-production of physical evidence i.e. muddamal was fatal to the prosecution case. So far as the present case is concerned, the physical evidence i.e. muddamal sample Mark-`A' and Mark `B' are very well produced before the court. Not only that the muddamal packets were shown to the witnesses and were found in sealed condition. This is not a case where physical evidence was not produced before the Trial Court and was destroyed in contravention of Section 52-A of the NDPS Act, as was done in the case of Noor Aga vs. State of Punjab (supra). Not only that the muddamal packets were shown to the witnesses and were found in sealed condition. This is not a case where physical evidence was not produced before the Trial Court and was destroyed in contravention of Section 52-A of the NDPS Act, as was done in the case of Noor Aga vs. State of Punjab (supra). The physical evidence is still in the custody of the Trial Court and, therefore, the question of compliance with Section 52-A of the NDPS Act would not arise at all. When muddamal packets Mark`A' and Mark `B' were produced and were shown to the witness, seals were found intact and, therefore, the contention has no merit at all. It is not the ratio of the decision of Noor Aga vs. State of Punjab (supra) that it is not the muddamal itself i.e. physical evidence but the photograph and inventory only should be produced before the trial court. True it is that, if the physical evidence is not produced before the Court and has not been destroyed in compliance of Section 52-A of the NDPS Act, adverse inference must be drawn against the prosecution, but this is not the fact of the present case and, hence, the contention is merit less. 36. It is also argued that there is breach of Sections 41, 42(2), 43, 36, 53, 54-A and 57 of the NDPS Act as well as Section 50(1) of the Code of Criminal Procedure. So far as Section 41 is concerned, authorized officer Mr. Tomar was accompanying the raiding party and, therefore, it was not necessary at all to issue authorization warrant. Otherwise also, as per the facts of the case, it was only a chance recovery so far as the house of accused No. 1/4 is concerned. True that, no resolution had been passed, as required under the law. Only when rickshaw was abandoned by the accused No.4 near his house, which occurred to the officers that his residence may be searched. Therefore, under the circumstances, the raid has been carried out at the residence of accused No.4, it would not be non-compliance of Sections 41 or 42 especially when the authorized officer himself was leading the raiding team. Therefore, there is sufficient compliance of Sections 41 and 42. Therefore, under the circumstances, the raid has been carried out at the residence of accused No.4, it would not be non-compliance of Sections 41 or 42 especially when the authorized officer himself was leading the raiding team. Therefore, there is sufficient compliance of Sections 41 and 42. Exhibit-80 is a conclusive evidence of compliance of Section 42 (2), the same is the case so far as the compliance under Section 43 of the NDPS Act is concerned as to seizure of charas in rickshaw is concerned. There is no breach of Section 36 or Section 53, as has been contended. Exhibit 87 and Exhibit 112 are the reports in compliance of Section 57 of the NDPS Act and, therefore, there is no merit in this contention. 37. It is then contended that though there were many independent persons gathered at the time of raid, no independent person from public was examined. Reliance is sought to be placed on the decision of the Apex Court in the matter of Ritesh Chakravarty vs. State of Madhya Pradesh reported at JT 2006 (12) SC 416. 37.1 On going through the facts of the case, it is found that there were many infirmities in the case of Ritesh Chakravarty (supra) and, therefore, the Apex Court observed that no other independent witnesses was examined. The Apex Court observed that it was difficult to perceive as to why despite presence of other officers, entire work was done by PW-5 only. He being the only witness in the mater, contradicted himself in all material particulars and was not reliable. While PW-6 though was part of raiding team and IO, did not examine any witnesses nor performed any other job nor corroborated PW-5 who had done everything. Signatures of the accused on material exhibits were found doubtful and in those circumstances the Apex Court held that the appellant was entitled to benefit of doubt especially when no other independent witness was examined. While in the present case, when the case is proved through one independent witness i.e. PW-1 Panch Bhimsing Kanchansing Mina and by the impeccable evidence of other officers, it is not necessary that, in all cases, independent witnesses should be examined and this is not the law of the land. While in the present case, when the case is proved through one independent witness i.e. PW-1 Panch Bhimsing Kanchansing Mina and by the impeccable evidence of other officers, it is not necessary that, in all cases, independent witnesses should be examined and this is not the law of the land. It is only when the evidence of official witness is found deficient, as has been observed by the Apex Court in the case of Ritesh Chakaravarti vs. State of MP (supra), it is necessary for the prosecution that independent witnesses should be examined to prove its case. 37.2 In the matter of STATE OF HARYANA vs. MAI RAM, SON OF MAMCHAND, as reported at (2008) 8 SCC 292 , in para -11, the Apex Court observed as under : 11 The High Court was clearly in error in holding that the reason for the suspicion was not recorded. So far as the examination of only official witness is concerned, it is to be noted that the only independent witness who was examined to speak about the seizure did not support the prosecution version. No material was brought on record by the defence to discredit the evidence of the official witnesses. The ultimate question is whether the evidence of the official witness suffers from any infirmity. In the instant case nothing of the nature could be pointed out. Further PWs 1 and 2 categorically stated that no other person was willing to depose as witness. Therefore, the High Court was clearly in error in holding that the prosecution version became vulnerable for non-examination of persons who were not official witnesses. 37.3 Thus, when the evidence of the official witnesses do not suffer from any infirmity, there was no need to examine any independent witness, though in the present case the panch is independent witness. There is no substance in this contention as well. 38. It is then contended that violation of the decision of the Apex Court in the matter of D.K. Basu vs. State of Bengal, reported at AIR 1997 SC 610 is committed by the prosecution witnesses as no documentary evidence from the arrest register is produced by the prosecution to show that any entry regarding arrest of the appellants accused was made. There is no substance in this contention also. There is no substance in this contention also. Firstly, in pursuance of Section 57, arrest reports were made to the superior, arrest memo of accused No.4 is produced at Exhibit-110, arrest memo of accused No.1 is produced at Exhibit-84 and intimation given to the next kin of the accused are also produced at Exhibit 22, Exhibit-111 and Exhibit-86 and, therefore, it could not be said that said breach was committed by the prosecution witnesses. 38.1 It is also contended that no documentary evidence is proved by the prosecution as per the provisions of the Evidence Act. It is contended that where a document is written by one person and signed by the another, handwriting of the former and the signature of the later have both to be proved in view of Section 67 of the Evidence Act. A decision of this Court in the case of Jamla Harisinh Meda vs. State of Gujarat, reported at 1999 (1) GLR 584 has been relied upon. 38.2 It is submitted that all the documents are duly proved when the evidence of handwriting can be given by any person who is acquainted with such handwriting and the signature of the accused also can be proved by leading the evidence in whose presence the signatures were subscribed. Above all, when these documents were proved and exhibited, it appears that, defence has not taken any objection of exhibiting such documents and now at this stage it could not be said by the defence that documents are not proved according to law and, therefore, this contention is also without any merit. 39. Then it is contended that there are contradictions in the evidence of the Officers of NCB and those are material contradiction, concoction and fabrication of material particular to suit the prosecution story for their own purpose. It is submitted that, therefore, they are unreliable witnesses and cannot be believed at all. 39.1 Assessing this contention, we have observed aforesaid that the evidence of NCB Officers are found trustworthy and credit-worthy. Nothing could be shown by the defence as to why these witnesses should not be believed. As stated above, there are only two contradictions which surfaces from the evidence and those contradictions are the variations. One is in respect of who called the panchas and second is in respect of the recording of the statement of accused No.2. Nothing could be shown by the defence as to why these witnesses should not be believed. As stated above, there are only two contradictions which surfaces from the evidence and those contradictions are the variations. One is in respect of who called the panchas and second is in respect of the recording of the statement of accused No.2. As aforesaid, this is not a contradiction going to the root of the prosecution case. We have observed earlier also that only because of some variations, the whole prosecution case cannot be thrown out. We have noted the decision in the case of Krishna Mochi and Ors vs. State of Bihar (supra). The law goes to establish that even if the witness tries to implicate some of the accused falsely, their evidence cannot be jettisoned so far as other accused are concerned. In the matter of STATE OF MAHARASHTRA vs. TULSHIRAM BHANUDAS KAMBE, as reported in AIR 2007 SC 3042 , in para 34, the Apex Court observed as under : 34. As regards the second ground for rejecting the evidence of these eye witnesses given by the High Court, namely that they have falsely implicated Laxman Shirsat @ Paparkar, this too, in our opinion was hardly a good ground of rejecting their evidence. It is well known that in India the doctrine of falsus in uno falsus in omnibus (false in one false in all) does not apply. The court can partly reject and partly accept the evidence of a witness, and it is not correct to say that merely because some of the evidence is found to be false, the entire evidence has to be rejected (See Krishna Mochi) and Others vs. State of Bihar (2002) 6 SCC 81 ). If the Court finds that out of several co-accused, one or more are falsely implicated, that does not necessarily mean that everyone was falsely implicated. Similarly, the third ground for rejecting the testimony of the four eye witnesses, namely that they have falsely stated that Suresh Sobaji had witnessed the incident, is in our opinion not a good ground for rejecting the prosecution version in toto. 39.2 Again in the matter of DALBIR SINGH vs. STATE OF HARYANA, as reported in (2008) 11 SCC 425 , the Apex Court in paras 12 and 13 observed as under : 12. 39.2 Again in the matter of DALBIR SINGH vs. STATE OF HARYANA, as reported in (2008) 11 SCC 425 , the Apex Court in paras 12 and 13 observed as under : 12. It is emphatically urged that the evidence is partisan, lacs cogency and credibility. Acquittal of other accused persons is the foundation for such plea. 13. Coming to the applicability of the principle of falsus in uno, falsus in omnibus, even if major portion of evidence is found to be deficient, residue is sufficient to prove guilt of an accused, notwithstanding acquittal of large number of other co-accused persons, his conviction can be maintained. However, where large number of other persons are accused, the court has to carefully screen the evidence : Then the Apex Court reproduced para-51 of the decision of the Apex Court in the matter of Krishna Mochi vs. State of Bihar, as reported in (2002) 6, SCC 81. 39.3 In the matter of BATHULA NAGAMALLESWAR RAO vs. STATE, as reported in (2008) 11 SCC 722 , the Apex Court observed in para 55 and 56 as under : 55 It is well settled that the court can rely upon that part of of the statement of the witness which is cogent, trustworthy, consistent and believable for the purpose of holding the accused guilty of the offence. Simply because the name of PW-3 finds mention in FIR for the murder of the son of A-6, the cogent and credible testimony of PW-3 holding A-1, A-2, A-10, A-11 and A-12 responsible for the murder of Deceased 2 cannot be lost sight of on that ground alone. The presence of PW-3 on the scene of occurrence has been fully established by the evidence of PW-1 and PW-2 and his name also finds mention as an eyewitness in the FIR which was lodged by PW-1 immediately after the incident of murder. The High Court has found a portion of the evidence of PW-3 deficient in regard to the involvement of A-4 to A-9 for committing the offences levelled against them and accordingly given them benefit of doubt. 56. It is settled that even if a major portion of the evidence is found to be deficient, in case the residue is sufficient to prove guilt of an accused, conviction can be maintained. It is the duty of the court to separate grain from chaff. 56. It is settled that even if a major portion of the evidence is found to be deficient, in case the residue is sufficient to prove guilt of an accused, conviction can be maintained. It is the duty of the court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the court to convict an accused notwithstanding the fact that evidence of some of the witnesses has been found to be deficient. Falsity of a particular material witnesses or material particular would not ruin it from the beginning to the end. The maxim falsus in uno, falsus in omnibus has no application in India and the witnesses cannot be branded as liars. 39.4 Thus, when there was no evidence as against the accused No.2, he has been acquitted and to that extent the Trial Court did not believe the prosecution case, but that does not mean that the case of the prosecution is not proved beyond doubt as against the other accused persons only that PW-2 Krishnaben Chaube expressed her desire to see the Trial Judge and the Trial Court has noted in the evidence that the learned APP In-charge and the learned defence Advocate did not object if PW-2 meet with the Presiding Judge and when Presiding Judge directed the witness to state truth and truth only would not make her evidence tainted as has been sought to be argued. There is nothing in whole of the trial that evidence against accused Nos. 1 and 4 present appellants of the officers and panch witness lacks cogency or is deficient or is tainted or is unbelievable. The prosecution has tried to produce best evidence available and from whatever evidence is produced, prosecution is able to prove the case against the present appellants without any doubt. There is no contradiction in the evidence of Investigating Officer as has been contended. 40 Then it is contended that there is no evidence in respect of the fact that the house in question was in exclusive possession or in exclusive occupation or of the ownership of the accused No.1 and accused No.4. No independent witness from that locality is examined by the prosecution. The reliance is placed on the decision in the case of Mohd. No independent witness from that locality is examined by the prosecution. The reliance is placed on the decision in the case of Mohd. Alam Khan vs. Narcotics Control Bureau, reported in AIR 1996 SC 3033 , where the prosecution has failed to prove ownership and possession of the flat in question. There is no substance in the contention because even from the evidence of defence witnesses, it is clearly transpires that the premises from where the narcotic substance was seized, was undoubtedly in possession of the present appellants. Even the brother of the accused No.4 deposed that the premise which was raided was occupied by them to entertain their guests. From the evidence of the officers, it is clear that accused No.1 at the relevant juncture was in control of the premises. This fact is corroborated by independent witness i.e. PW-1 Bhimsing Kanchansing Mina, Panch. This is further corroborated by the confessional statements of accused No.1 and accused No.4 both and accordingly this premises was used as residence and the same was ancestral property of the appellants which stood in the name of elder brother of accused No.4, who is examined as DW-3 by the defence and confirmed that the said premises was used by them for their guests and, therefore, the decision of the Apex Court relied upon by the appellants in this respect is not helpful to them. 41 It is then contended that carrier to Forensic Science Laboratory has not been examined and, therefore, adverse inference should be drawn. What is established through the evidence is that muddamal with seals intact on the goods was sent to Forensic Science Laboratory and was received the packets with seals intact condition by Forensic Science Laboratory. This is clear from the evidence that PW-2 Krishnaben Chaube and PW-5 Mohendrasing Jagiram Dahiya. Documentary evidence is on record that the samples were sent to Forensic Science Laboratory which was received by Forensic Science Laboratory and in these circumstances no adverse inference could be drawn, as contended. 42 It is then contended that the prosecution has not proved beyond doubt that who affixed seals on the samples and that there was no compliance of Section 42(2) of the NDPS Act because evidence of PW-2 Mrs. Krishnaben Chaube is found tainted and, therefore, Section 42(2) has not been complied with. 42 It is then contended that the prosecution has not proved beyond doubt that who affixed seals on the samples and that there was no compliance of Section 42(2) of the NDPS Act because evidence of PW-2 Mrs. Krishnaben Chaube is found tainted and, therefore, Section 42(2) has not been complied with. For this, decision of the Apex Court in the case of Beckodan Abdul Raheman vs. State of Kerala, reported in (2004) 4 SCC, 299; a decision of this Court in the case of Babubhai Dalaji Mali vs. State of Gujarat (Criminal Appeal No. 819 of 2000 date of decision on 31st of March, 2003) and a decision of the Hon'ble Apex Court in the matter of Abdulrashid Ibrahim Mansuri vs. State of Gujarat, reported in 2000 SC, 821, have been relied upon. The facts of the cases mentioned and relied upon by the learned Advocate for the appellants are altogether different so far as compliance of Section 42(2) of the NDPS Act is concerned. Vide Exhibit-79, gist of the information which was reduced to writing by PW-2 Mrs. Krishnaben Chaube has been produced. In her evidence, she has proved this fact beyond doubt. Nothing could be elicited in the examination-in-cross by the defence so far as this aspect is concerned, as noted above in the deposition of PW-2 Mrs. Krishnaben Chaube. Exhibit-80 produced on record is the letter addressed by PW-2 Mrs. Krishnaben Chaube, Intelligence Officer to the Zonal Director, wherein in sealed cover, the gist of information at Exhibit -79 was forwarded. This fact is confirmed by PW-3 Pavansing Shrigajesing Tomar and nothing could again be elicited in examination-in-cross by the defence that why should not these two official witnesses be believed in respect of compliance of Section 42(2) of the NDPS Act. Only because Mrs. Krishnaben Chaube and PW-3 Pavansing Shrigajesinh Tomar and the panch witness PW-1 Bhimsing Kanchansing Mina, varied as to who called panchas, it could not be assumed that the evidence of PW-2 Mrs. Krishnaben Chaube should not be believed at all from the inception. As aforesaid, we have stated the law that variation must be ignored and that the evidence of PW-2 Mrs. Krishnaben Chaube should not be believed at all from the inception. As aforesaid, we have stated the law that variation must be ignored and that the evidence of PW-2 Mrs. Krishnaben Chaube and PW-3 Pavansing Tomar inspires confidence of this court and therefore in fact any grounds for the defence to urge that there is no compliance under Section 42(2) of the NDPS Act and, therefore, there is no merit in this contention as well. 43 Lastly it is urged that the story of the prosecution is improbable and sounds unnatural and, therefore, the prosecution has miserably failed to prove the charges levelled against the appellants. We have gone through threadbare the record, we do not find any improbable in the evidence of prosecution. There is nothing improbable that on receiving information by PW-2 Mrs. Krishnaben Chaube, a raid was carried out and from rickshaw, bulk of muddamal as well as from the premises occupied by accused Nos. 1 and 4 other bulk of charas was found. On the contrary, the way in which the evidence has disclosed the story of the prosecution, it appears that, the story is natural and there was no reason for these officers to falsely implicate accused Nos. 1 and 2 in this serious case. 44 No other contentions is raised. 45 In this view of the matter, both the Appeals are required to be dismissed. However, it appears that, in Criminal Appeal No. 1702 of 2004, filed by accused No. 1 Najmunisha, the learned Trial Judge has erred in punishing accused No.1. In the said Appeal the offence proved against the appellant No.1 Najmunisha is of Section 20(b) (ii)(C) of the NDPS Act where minimum punishment of 10 years rigorous imprisonment and fine of Rs. 1 lac is provided for. However, though the learned Trial Judge imposed rigorous imprisonment of 10 years to appellant Najmunisha which is minimum prescribed but she was fined for Rs. 30,000/- which is less than the minimum because the provision prescribes minimum punishment and leave no room for the court to reduce the same even for adequate reasons and, therefore to impose punishment less than the minimum is an error on the part of the learned Trial Judge and, therefore, the fine which is imposed upon the accused No.1 - appellant Najmunisha is required to be increased from Rs. 30,000/- to Rs. 1 lac. 30,000/- to Rs. 1 lac. However, in this respect the learned Advocate for the appellant was also heard. This is not an instance of enhancing the sentence but correcting the error of Trial Judge in this Appeal. At the same time, it is also required to be considered that having regard to the reasons which is advanced by accused No1 in the Trial Court, in default of paying fine, the Trial Judge imposed simple imprisonment of one year. For the very reasons, which have been advanced by accused No.1 before the Trial Court we proposed to reduce the default punishment from simple imprisonment of one year to simple imprisonment of three months and to that extent only, this Appeal is required to be allowed. While increasing the amount of fine from Rs.30,000/- to Rs. 1 lac we reduced the sentence in default of paying fine from the simple imprisonment of one year to simple imprisonment of three months. 46 Learned Advocate Mr. Rajesh M. Aggrawal alternatively submitted to reduce the sentence of accused No.4 in Criminal Appeal No. 2097of 2004 from 13 years to 10 years which is minimum, but this is a case wherein bulk of charas which is contraband, is found, totalling to almost about 4.300 Kgs and, therefore, we do not propose to reduce the sentence of accused No.4 i.e. appellant in Criminal Appeal No. 2097 of 2004. 47 In view of above, the following final order is passed : Criminal Appeal No. 2097 of 2004 filed by accused No.4 Abdul Hamid Chandmiya @ Ladoo Bapu stands dismissed in toto. Criminal Appeal No. 1702 of 2004 filed by accused No.1 Najmunisha wife of Abdul Hamid Chandmiya @ Ladoo Bapu is partly allowed to the extent that while confirming the conviction of the appellant, we increased the fine imposed upon the appellant from Rs. 30,000/- to Rs. 1 lac and at the same time we reduced the sentence in default of paying fine from one year simple imprisonment as imposed by the Trial Court to three months simple imprisonment. Except this modification, rest of the Appeal of the appellant stands dismissed. The remaining order of the Trial Court as to muddamal is not interfered with.