JUDGMENT : Akil Abdul Hamid Kureshi, J. 1. These proceedings arise out of a judgment dated 31.8.2010 passed by the learned Additional Sessions Judge, Valsad in Spl. NDPS Case No. 1/2003. Originally, the four accused were charged for commission of offence under section 22 read with section 29 and for offence under section 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 ("the NDPS Act" for short). Accused No. 3 Prabhakar Vishnubhai Salvi expired during the trial. Remaining three accused were convicted for offence under section 22(c) of the NDPS Act and sentenced to rigorous imprisonment of 12 years. Fine of Rs. 1 lakh was also imposed. The three accused had filed individual Criminal Appeals. The Narcotic Control Bureau ("NCB" for short) had also filed Criminal Appeal No. 305/2011 for enhancement of sentences. By the time, these appeals could be taken up for hearing before the High Court, all the three accused had served out the entire sentence. Original accused No. 2 and 4 did not press their appeals against conviction. Likewise, the Narcotic Control Bureau did not press the Criminal Appeal No. 305/2011 for enhancement of sentence qua these accused, as was recorded by the Court in order dated 18.1.2016. 2. Learned Additional Central Government Standing Shri Kartik Pandya for the Narcotic department pointed out at the outset that in the present appeal also, the accused has served out the entire sentence and he is already released. His suggestion therefore, was that this appeal also should be disposed of as infructuous. Learned counsel Ms. Kruti Shah for the accused however, submitted that number of immovable properties of the accused have been attached due to his involvement in the present case. The question of confiscation of these properties would depend on his conviction in the present case. She therefore, requested that his appeal be decided on merits. 3. When the question of conviction is related to other issues, we are bound to decide the appeal on merits even though the convict may have served out the sentence in the meantime. There is yet another reason why we cannot dispose of the appeal of the accused as infructuous. The department's appeal for enhancement is pending before us. The question of enhancement of the sentence cannot be gone into without first deciding the correctness of the conviction. 4. There is yet another reason why we cannot dispose of the appeal of the accused as infructuous. The department's appeal for enhancement is pending before us. The question of enhancement of the sentence cannot be gone into without first deciding the correctness of the conviction. 4. Broadly stated, prosecution version was that the present accused No. 1 Mansukhbhai Chhaganlal Bhatt was a resident of Dubai and had links with international drug dealers. He had in connivance with the other three accused decided to manufacture methaqualone, a substance used for manufacture of banned drug called Mandrax. On a prior intelligence, the officers of Narcotic Control Bureau carried out a raid at a factory at Vapi called Garden Colours on 1.9.2002 from where all the four accused were apprehended and their statements under section 67 of the NDPS Act were recorded. From the factory, sizeable quantity of methaqualone powder was seized. Such interrogation led to further information that similar manufacturing activities were going on at three more establishments i.e. Prem House, Harshal Chemicals and Bony Chem, all situated at Vapi. Combined catch of narcotic drugs from these four premises was more than two tonnes. 5. A charge to this effect was therefore, framed at exh,7 alleging that all the four accused had hatched a conspiracy and also committed offence punishable under section 22(c) read with section 8(c) of the NDPS Act. 6. Learned Additional Sessions Judge convicted all the three surviving accused for offence under section 22(c) of the NDPS Act and sentenced them to rigorous imprisonment of 12 years and imposed a fine of Rs. 1 lakh each. 7. The evidence relied upon by the prosecution mainly revolved around the depositions of the officers of the raiding party and some panch witnesses. We may refer to the gist of such evidence. 8. Divyakant Ratilal Patel, PW-1, exh.55, was the panch witness to the raid at Garden Colours. He deposed that he was contacted by the officers of Anti-Evasion division for being a panch witness. Along with him, another panch was his friend Ujjvalbhai. He had accompanied the raiding party to Garden Colours situated in phase-4 of GIDC Vapi. The officers after entering the premises showed the search warrant to the factory owners who were three or four in number, upon which, these people had tried to run away who were caught by the officers. Along with him, another panch was his friend Ujjvalbhai. He had accompanied the raiding party to Garden Colours situated in phase-4 of GIDC Vapi. The officers after entering the premises showed the search warrant to the factory owners who were three or four in number, upon which, these people had tried to run away who were caught by the officers. The members of the raiding party took out the gunny bags from the factory and tested the material with a testing kit. The material was in powder form. He identified the accused No. 2 to 4 before the Court. He stated that son of Ujjvalbhai was suffering from fever and, therefore, after taking permission from the officers, he and Ujjvalbhai had left the place later at night and returned only the next morning. Next morning, they were taken to another place which was a go-down and thereafter, to yet another place which was a chemical factory where drums were lying. The officers sealed the drums and the factory. From there, they were taken to yet another factory nearby, where there were some laboratory instruments lying. This factory was also sealed. In the cross examination, he stated that he was engaged in dealing in chemicals. His customers are mainly local factory owners. For such business he had obtained license from the Central Excise department. The attempt on part of the defence thus was to suggest that this witness was under the influence or obligation of the Excise department, therefore, he was called as a panch witness and was unlikely to state correct facts. 9. Monish Harbans Bhalla, PW-2, exh.74, was the authorised officer of the raiding party. He deposed that at the relevant time, he was on deputation to the Narcotic Control Bureau. On 1.9.2002, his Zonal Director Shri Ashu Jindal had called him and instructed him to reach Vapi by the afternoon. At that time he was already in Silvassa for office work along with his colleague Shri Umesh Pathak. As instructed, he met Shri Ashu Jindal near Galaxy hotel at Vapi where he was explained that he had to take part in a joint operation with Narcotic Control Bureau officers of Mumbai. He was instructed to stay put at Vapi till further instructions. As instructed, he met Shri Ashu Jindal near Galaxy hotel at Vapi where he was explained that he had to take part in a joint operation with Narcotic Control Bureau officers of Mumbai. He was instructed to stay put at Vapi till further instructions. In the evening at about 6 O' clock, Shri Jindal told him that such operation was to be conducted at Vapi and that for such purpose, he would be given search authorisation by Senior Intelligence officer, Mumbai, Shri Sanchez. Accordingly, he was given search authorisation to carry out the search operation at Garden Colours factory. At 6:30 in the evening, he along with other members of the raiding party whom he named, had started for Shah Paper mill and reached there in 10 minutes. They were carrying a search kit. The panch witnesses also joined them. All of them then proceeded towards Garden Colours factory, where they reached at about 7 O' clock. Upon reaching the factory, they found that the main gate was closed. The inner entrance had a shutter which was half open. They called from outside and asked for the gate to be opened. One person came and opened the gate who was Prabhakar Salvi accused No. 3. There were two middle aged persons inside. Upon seeing the fleet, they ran inside. The two Sipahis ran after them to catch them. These people tried to climb the stairs, from where, the Sipahis caught them. These people had slipped in the process and received minor injuries. Upon being asked, they gave their names as Rohit Desai accused No. 2 and Mansukh Bhatt accused No. 1. The fourth person present there was Kirit Rana accused No. 4. Shri Sanchez showed them search authorisation, obtained their signatures and started search before which they were made aware about the provisions of section 50 of the NDPS Act and asked if they wanted their search to be conducted in presence of a gazetted officer or a Magistrate. It was also pointed out to them that Shri Sanchez was a gazetted officer. All the four persons agreed for their personal search before the raiding party and for the search of the factory premises as well. Upon being asked, accused No. 2 told them that the gunny bags contained methaqualone powder. There were in all 80 bags, 78 of them contained such powder, two had anthranilik acid. All the four persons agreed for their personal search before the raiding party and for the search of the factory premises as well. Upon being asked, accused No. 2 told them that the gunny bags contained methaqualone powder. There were in all 80 bags, 78 of them contained such powder, two had anthranilik acid. They took out the powder from the bags and with the aid of testing kit ascertained that it was methaqualone. The weighing scale which they carried could not weigh the bags at the factory, so they used the weighing scale lying in the factory itself, separated the bags in three lots, weighed them, sealed them and obtained the signatures of the panchas and the four accused. The total weight of methaqualone powder turned out to be 2350 kgs. Before sealing, they had taken out samples from the bags and sealed them. During the questioning, accused No. 2 revealed that the chemicals required for manufacturing methaqualone were stored in nearby area. Rohit Desai accused No. 2 and Prabhakar Salvi accused No. 3 also showed them the machinery used for manufacturing methaqualone which was lying in the rear portion of the factory. The raiding party sealed such machinery also. During the personal search of Mansukh Bhatt accused No. 1, certain incriminating documents were found such as visiting card of Chemisol industries and some loose papers on which there were writings. The accused pointed out that these writings pertained to production of methaqualone and details of the chemicals required. According to this witness, a perusal of the documents would show the batch-wise production details of methaqualone and date-wise details of consumption of all the chemicals. The chemicals were referred to in code words. It was also learnt through the accused that some of the methaqualone produced was stored in a go-down called Prem House which was rented by Kirit Rana accused No. 4 under the instructions of accused No. 1 Mansukh Bhatt. The machinery at Garden Colours was defective and, therefore, manufacturing activity was being carried out at Harshal Chemicals, phase-3, GIDC and part of production also was carried out at Bony Chem, GIDC, Vapi. After sealing this factory at Garden Colours and taking out the bags of methaqualone powder in sealed condition, they proceeded along with all the four accused to the go-down at Prem House. After sealing this factory at Garden Colours and taking out the bags of methaqualone powder in sealed condition, they proceeded along with all the four accused to the go-down at Prem House. This place was showed to them by accused No. 4 Kirit Rana and was opened with the key found from Garden Colours premises. In the go-down, there were seven bags containing white coloured powder and upon testing it was found to be methaqualone. A total of 175 kg of powder in seven bags was sealed, seized and loaded in a tempo, as instructed by Shri Jindal, in which the bags from Garden Colours were already loaded. From there they went to Harshal Chemicals factory where they found three drums. One of the drums had processed methaqualone solution, the other one had unprocessed methaqualone solution. These articles were seized and loaded in the tempo which was in charge of Shri Jindal. From there, they went to Bony Chem which was of the ownership of Rohit Desai accused No. 2. The factory had machine for manufacturing chemicals which was sealed and seized. The witness identified all the accused before the Court. He referred to the statements of the accused recorded during such search and further statements recorded thereafter. He pointed out that the Court had granted remand of Mansukh Bhatt accused No. 1 on 3rd September till 18th September. During such search, the flat of Mansukh Bhatt at Mumbai and his locker in the bank were also searched. In the cross examination, he was questioned about the absence of two panchas because of sickness of one of them, for some period during the raid. He agreed that when the remand application was presented, accused No. 1 Mansukh Bhatt had complained to the Magistrate of being beaten up during the remand, pursuant to which, he was also sent to medical examination. He agreed that the fact that said accused had fallen down from the stairs while being chased and received injuries was not mentioned in the panchnama. He did not have written evidence of the seized material being handed over to Shri Jindal. He however, denied that he had not handed over such muddamal to Shri Jindal. He was also questioned on the use of the premises of England Container Depo (ICD for short) without any written authorisation. He did not have written evidence of the seized material being handed over to Shri Jindal. He however, denied that he had not handed over such muddamal to Shri Jindal. He was also questioned on the use of the premises of England Container Depo (ICD for short) without any written authorisation. The attempt on part of the defence was to challenge prosecution version that the statements of the accused were recorded at this place. He stated that the muddamal seized during 1st and 2nd September was in custody of Shri Jindal but he did not have any written documents to show this. He did not know who had paid freight for the tempo in which such muddamal was carried. 10. Umeshbhai Jayantbhai Pathak, PW-3, exh.132, was also a member of the raiding party. He was also present at Silvassa when his colleague Shri Bhalla received telephonic instructions from Shri Jindal to participate in a raid. He also referred to the raid jointly carried out by Narcotic Control Bureau officers of Mumbai and Ahmedabad at Garden Colours in the evening of 1.9.2002. He also referred to all the four accused present at the factory at that time and the seizure of the bags from the said premises. He had also accompanied the raiding party to Prem House and other premises. He also referred to the search of flat of Mansukh Bhatt at Mumbai and his bank locker from which several incriminating documents were found. In the cross examination, he could not state precisely when he had handed over the investigation as per the instructions of his superior Shri Sahjanand. He had also referred to two accused at the Garden Colours trying to climb the stairs to run away and receiving injuries in the process of being caught. In the cross examination, however, he agreed that such injuries were not immediately visible. He denied that reference to seizure of Rs. 1 lakh from flat of Mansukh Bhatt was added later on in the panchnama. 11. Abhijit Chintman Bhave, PW-13, exh.205, was the branch manager of HSBC bank, Borivali branch. Accused No. 1 Mansukh Bhatt had a bank locker at this place. Locker was first sealed. Later on, this bank locker was broken open by the officers of the NCB department since apparently in absence of the person in whose name bank locker was, the bank would not permit them to open it. Accused No. 1 Mansukh Bhatt had a bank locker at this place. Locker was first sealed. Later on, this bank locker was broken open by the officers of the NCB department since apparently in absence of the person in whose name bank locker was, the bank would not permit them to open it. From the locker, the department had collected under panchnama dated 11.9.2002, several documents which included currency declaration form of 30,000 US dollars, T.T. Transfer to Geetaben Rohit Desai dated 18.9.2000 of Bank of Baroda. We may record that Geetaben is wife of Rohit Desai accused No. 2. It also contained cash deposit slips of large amounts between 1.5.2002 to 5.5.2002 in Dirhams. 12. Sailendra Jayprakash Lodha, PW-15, exh.211, was also a member of the raiding party. He had assisted Shri Bhalla under the instructions of Shri Jindal. He referred to the raid at Garden Colours where all four accused were present and seizure of bags and handing it over to Shri Jindal. He referred to taking out photographs of the machinery on 14.9.2002. He had also gone to Harshal Chemicals but not to Bony Chem. He denied that accused No. 1 was brought to Garden Colours half an hour after the raid was carried out. 13. Namboodiri Prasana Shankarnarayan, PW-16, exh.217, was the officer who had received the intelligence. He was the Intelligence officer, NCB, Mumbai. According to him on 31.8.2002, he had received specific information that accused No. 1 Mansukh Bhatt along with other accused had entered into a conspiracy for manufacturing methaqualone at Vapi. The other accused have accordingly made arrangements for manufacturing this substance at Garden Colours factory. He had intelligence to the effect that nearly two tonnes of such substance is already manufactured which would be sent to Dar-e-Salaam to the associates of Mansukhbhai where it would be converted into Mandrax tablets. He had information to the effect that Mansukhbhai was acting under the guidance of Vijaygiri Anandgiri Goswami alias Vicky Goswami who was at that time in jail at Dubai for dealing in Mandrax. He had recorded such information in his computer and took out a print out in the form of intelligence note which contained his suggestions also. He signed this intelligence note and presented before his immediate superior Shri K.J. Sanchez, Superintendent of NCB, who in turn put his signature and placed it before the Director General Smt. Alka Tyagi. He had recorded such information in his computer and took out a print out in the form of intelligence note which contained his suggestions also. He signed this intelligence note and presented before his immediate superior Shri K.J. Sanchez, Superintendent of NCB, who in turn put his signature and placed it before the Director General Smt. Alka Tyagi. She had put her seal and signature and instructed the Superintendent that Shri Ashu Jindal, Zonal Director of Ahmedabad also wants to participate in the raid. She had instructed Shri Sanchez to proceed to Vapi with his team and be in touch with Shri Jindal. He produced such intelligence note at exh.218. Accordingly, on 1.9.2002, he along with other officers had started for Vapi in two Government vehicles and reached there at 2 O' clock. Shri Sanchez and Shri Jindal discussed the general strategy and decided to give search authorisation to Shri Bhalla. He had prepared such search authorisation and assembled in the evening near the Galaxy hotel where Shri Sanchez had given search authorisation to Shri Bhalla and raided the factory in presence of the panchas. He also referred to presence of all the four accused at that time, two of them trying to escape and receiving minor injuries in the process. He identified all the accused before the Court. He also referred to the premises containing 80 bags, 78 of them containing methaqualone powder weighing approximately 2350 kgs. He also referred to the follow-up raids at other three premises and handing over seized muddamal to Shri Jindal. In the cross examination, he agreed that in the intelligence note exh.218, it was not recorded that all four accused would be found at the factory premises. He denied that at the factory all the machines were out of order. No information was collected about the electricity consumption and in whose name the meter was running. He denied that exh.218 was a got-up document and was prepared later on. He agreed that the panchnama did not mention about the two accused trying to run away at Garden Colours factory who were chased by Shri Umesh Pathak and Shri Ashok Thakker. To this witness, the defence suggested that accused No. 1 was not found at Garden Colours factory during the raid but was brought from outside later on. He of-course denied this suggestion. 14. To this witness, the defence suggested that accused No. 1 was not found at Garden Colours factory during the raid but was brought from outside later on. He of-course denied this suggestion. 14. The intelligence note exh.218 records that the officer had got intelligence from reliable source indicating that Mansukh Bhatt, resident of Mumbai, had entered into a conspiracy with other three accused and in furtherance of which they had established facility for manufacturing methaqualone at Garden Colours, Vapi. Under the instructions and command of Mansukh Bhatt, the accused had manufactured more than two tonnes of methaqualone powder and stored the same in the factory. The intelligence indicates that Mansukh Bhatt was manufacturing such substance for and on behalf of Viki Goswami presently in Dubai jail. Such substance would be shifted to Dar-e-Salaam where it would be converted into Madrax tablets. The information was that Mansukh Bhatt was an Indian citizen operating from Dubai where his family is settled. It was noted that Rohit Desai was also earlier arrested by Mumbai police for manufacturing methaqualone but later on acquitted. It was suggested that appropriate action be taken to neutralize this methaqualone manufacturing facility at Garden Colours and apprehend the concerned persons. This intelligence note contained signature of Shri P.S. Namboodiri with date of 31.8.2002. His superintendent had simply put his signature on the same date. Below the signatures of Shri Namboodiri and Shri Sanchez, the following marks were made also on 31.8.2002 by the Zonal Director : "(1) Appropriate action has to be taken as discussed. (2) ZD, Ahmedabad has been communicated the intelligence & he will take appropriate action as planned." 15. Bhushan Shriram Mule, PW-17, exh.228, was also a member of the raiding party. He also referred to presence of all the accused at Garden Colours during the raid and seizure of material from Garden Colours and further raids at the other premises. He also referred to breaking open of the bank locker of Mansukh Bhatt on 11.9.2002 in presence of the bank officers. Panchnamas in this respect were produced at exh.204 and 207. In the cross examination, he stated that the bank refused to permit opening of the locker since the owner was not present. He however, could not state why the accused though under remand could not be brought to the bank for opening the locker. Panchnamas in this respect were produced at exh.204 and 207. In the cross examination, he stated that the bank refused to permit opening of the locker since the owner was not present. He however, could not state why the accused though under remand could not be brought to the bank for opening the locker. He denied that from the locker only 10,000 USD were shown to have been seized though actually 17,000 USD were found. 16. Sanjay Vishwanath Gokhle, PW-18, exh.232, was also a member of the raiding party. He referred to recording of the statements under section 67 of the NDPS Act at ICD, Valsad. In the cross examination, he agreed that when he was recording the statement of Mansukh Bhatt, he was not totally calm. He however clarified that he started recording the statement after verifying that the mental condition of the person was proper. He denied that accused No. 1 was beaten up during the questioning. 17. Vikramratnu Kanidan Ratnu, PW-19, exh.237, had also participated in the raid under the instructions of Shri Jindal. He left from Ahmedabad to reach Vapi as directed. He also referred to the presence of all the four accused during the raid at Garden Colours and seizure of different materials from there and follow-up raids at other three premises. He was called by Shri Jindal on 3.9.2002 and instructed to deposit seized muddamal in the Customs office, Valsad. Shri Jindal had handed over such muddamal which was kept in a vehicle. He had gone in Government vehicle to the Customs office. Muddamal was carried in a tempo which was deposited with Customs officer, Valsad and handed over to Shri Rajeevkumar Vyas and had taken receipt for the same. He produced receipt at exh.238. The receipt shows the signature of the officer in charge of the go-down and it carries the date of 3.9.2002. On 4.9.2002, he had again under the instructions of Shri Jindal prepared a test memo for sending 13 samples of the substance to the FSL. In the cross examination, he could not state where Muddamal collected from Garden Colours was kept till 2.9.2002 or where the entire muddamal collected from different sites was kept till 3.9.2002 when it was handed over to the Customs officers at Valsad. Said exh.238 is a forwarding memo containing details of seized goods by the NCB. In the cross examination, he could not state where Muddamal collected from Garden Colours was kept till 2.9.2002 or where the entire muddamal collected from different sites was kept till 3.9.2002 when it was handed over to the Customs officers at Valsad. Said exh.238 is a forwarding memo containing details of seized goods by the NCB. Total quantity deposited is shown to be 2525 kg of powder supposed to be methaqualone. The Customs Officer had acknowledge receipt of 85 bags containing a total of 2525kg of powder and other articles. 18. Kith John Sanchez, PW-20, exh.250, was the Superintendent, NCB, Mumbai, at the relevant time. He stated that on 31.8.2002, in the evening Shri Namboodiri had presented intelligence note before him. He had signed such intelligence note exh.218 and presented before the Zonal Director Smt. Alka Tyagi. He was then called in the cabin by her and they discussed the issues connected with such intelligence and finalised the general strategy. She told him that she had also spoken to Zonal Director, Ahmedabad and instructed him to take a team to Vapi and to meet Shri Ashu Jindal, Ahmedabad Zonal Director. Accordingly, he had met Shri Ashu Jindal and handed over the intelligence note to him and discussed the strategy for raid. He also referred to presence of all the four accused during such raid and collection of powder and other items from the four premises. 19. Sahjanand Sachidanand Sing, PW-21, exh.256, was also the member of the raiding party. He was instructed by Shri Ashu Jindal to reach Vapi after 8 O' clock in the morning on 2.9.2002. Since he was unwell, he had left after taking permission from Shri Bhalla but later on rejoined the raiding party to participate in the raid at Bony Chem. He again left because of ill-health and they left for Ahmedabad. He was handed over investigation by Shri Jindal somewhere in November 2002. 20. Rakeshbhai Kantibhai Dantaniya, PW-2, exh.266, was the departmental employee who had under the instructions of Shri Jindal on 5.9.2002 deposited the samples before the FSL along with a forwarding letter. 21. Janmohammad Fakirbhai Mansuri, PW-22, exh.261, was the Chemical Analyzer who had carried out the analysis. He deposed that he had received the samples along with the forwarding letter. 20. Rakeshbhai Kantibhai Dantaniya, PW-2, exh.266, was the departmental employee who had under the instructions of Shri Jindal on 5.9.2002 deposited the samples before the FSL along with a forwarding letter. 21. Janmohammad Fakirbhai Mansuri, PW-22, exh.261, was the Chemical Analyzer who had carried out the analysis. He deposed that he had received the samples along with the forwarding letter. He had carried out the chemical analysis and found that various samples presented before him showed presence of methaqualone which was a psychotropic substance as per the NDPS Act. In the samples D.U.P.-1 and D.P.-1 which was in liquid form, presence of ethyl alcohol was detected, contained methaqualone in the concentration of 13.07% V/Vi and 13.090% V/Vi. Like-wise, the sample marked C.P.-1 showed presence of methyl alcohol with methaqualone concentration of 0.35% V/Vi. He produced his report at exh.255. This witness was cross examined at length on the question of validity and accuracy of his analysis. He was also questioned on the inaccuracy of sealing process of the samples. The attempt obviously on part of the defence was to discredit chemical analysis on the basis of doubtfulness of the samples or of the chemical protocols followed. 22. Accused No. 1 had examined Dr. Virendra Pradhyuman Garai, DW-1 at exh.320. He was the medical officer at Pardi Community Health centre. He had treated Mansukh Bhatt at the said centre on 3.9.2002 at 11:15 at night when he was brought before him under the Court's order. He had given the injury certificate in which he had recorded the history given by the accused of having been beaten up. He had recorded five minor injuries on various parts on various parts of the body. Significantly, one of them shown to be a mark left by a stick on the left thigh where there was evidence of blood clotting. In the cross examination, this witness agreed that in the history, the accused had not given the names of the officers who might have caused such injuries. He agreed that injury No. 1 could be caused by falling down but not injury No. 2. He agreed that on the stick related injury, wheel marks were not seen. He agreed that the patient was fully conscious and composed. 23. He agreed that injury No. 1 could be caused by falling down but not injury No. 2. He agreed that on the stick related injury, wheel marks were not seen. He agreed that the patient was fully conscious and composed. 23. In addition to denying all the suggestions put to him during the recording of his statement under section 313 of the Code of Criminal Procedure, accused No. 1 had also given a written further statement in which he had stated that on 1.9.2002 he had come to Vapi to meet Kirit Rana accused No. 4 since he had import export business. Kirit Rana legally exports the machinery on his behalf. On 1st September in the evening, he learnt that Kirit Rana was in GIDC area. He was therefore, going towards the said place when he was caught by two people from Narcotics department and persuaded to accompany him to the factory for questioning. From there, he was taken to hotel Daan where his statement was forcefully recorded on 2.9.2002 by the officers. He was merely asked to put the signature. He was subjected to extreme torture. He pointed out that he had been treated by the doctor on 3.9.2002 for the injuries and had also given retraction application before the Magistrate. His signature was obtained on blank papers. 24. Before we proceed to assess the evidence on record, we may refer to Criminal Misc. Application No. 18499/2013 filed by this accused. In this application, it is averred inter-alia that the accused had filed one application exh.340 before the trial Court in which it was pointed out that NCB officers have not made proper clarification regarding disposal of the muddamal articles. No documents are presented by the department. It was therefore, prayed that NCB be directed to produce necessary documents in this regard before the Court and after production of such documents, on the basis of such documents only can the defence decide what will be the effect of such explanations. 25. On such application, exh.340, learned trial Judge on 8.4.2009 passed the following order : "Heard. Notice to be issued at this stage on the complainant and the advocate of the complainant to produce the documents that may be in their possession." 26. It appears that thereafter, no further order was passed in this application till the trial was completed. 25. On such application, exh.340, learned trial Judge on 8.4.2009 passed the following order : "Heard. Notice to be issued at this stage on the complainant and the advocate of the complainant to produce the documents that may be in their possession." 26. It appears that thereafter, no further order was passed in this application till the trial was completed. In other words, judgment in the trial came without disposing of such application exh.340. 27. In Criminal Misc. Application No. 18499/2013, it is prayed that the direction be issued for production of the documents demanded by the accused under application exh.340 and for production of 9 covers consisting sample of muddama sent to FSL and for production and examination of unopened muddamal seal covers and thereafter, to permit examination of the witness Shri Nitesh Shrivastav, Customs, ICD, Valsad and reexamination of witness Jan Mohammad Fakirbhai Mansuri. These prayers are made in context of non disposal of application exh.340 by the trial Court before rendering its judgment and prayers have a base of the allegations of defence that : "(1) the samples were not properly taken, preserved and sent for FSL and (2) that the prosecution could not produce the muddamal allegedly stored at ICD Customs, Valsad, before the trial Court though directed." 28. To these aspects of the matter, we would advert to when we take up the Criminal Misc. Application for disposal. 29. In background of such materials on record, learned counsel Ms. Kruti Shah for the accused raised the following contentions : "(1) Application exh.340 filed by the appellant accused was not decided by the trial Court. Without disposing of such application, the trial Court proceeded to render the judgment. Through the said application, the accused wanted to bring on record certain important documents, copies of which were though supplied, were not produced by the prosecution. Counsel submitted that non production of these documents and at any rate not deciding application exh.340, resulted into grave miscarriage of justice. (2) Regarding the main appeal, counsel contended that procedure contained in sections 42(1) and 42(2) of the NDPS Act was not followed. Though the raid was carried out after sunset and before sunrise, proper authorisation was not granted. Such authorisation was granted afterwards. It was further submitted that the intelligence was not immediately communicated to the higher authorities. (2) Regarding the main appeal, counsel contended that procedure contained in sections 42(1) and 42(2) of the NDPS Act was not followed. Though the raid was carried out after sunset and before sunrise, proper authorisation was not granted. Such authorisation was granted afterwards. It was further submitted that the intelligence was not immediately communicated to the higher authorities. (3) There was no independent evidence to establish the involvement of the accused. Only Divyakant Ratilal Patel, PW-1, had partially supported the prosecution. Here also, he had clearly stated that on the night of 1.9.2002, he had left the premises when the search was still going on and returned only the next morning. Thus substantial portion of the search was conducted in absence of any panch witnesses. (4) There was no evidence to connect this accused with any of the premises from where the objectionable materials were found. He was neither the owner nor a tenant nor a person in possession of such premises. His actual or constructive possession of psychotropic substance was not shown. (5) This accused was illegally detained and subjected to physical torture. This was complained by him to the Magistrate immediately upon production, upon which, he was sent to a doctor for physical examination. Dr. Virendra Pradhyuman Garai, DW-1, had recorded injuries on him. The statements of this accused were immediately retracted. No reliance therefore, could be placed on the so-called confessional statements. (6) Muddamal articles though directed by the trial Court, could not be produced by the prosecution. Counsel submitted that same was claimed to have been destroyed by the authorities which was not authorised by the Court. This coupled with the fact that there was no evidence as to where such muddmal articles were kept after their seizure on 1st September and 2nd September till the same were deposited before the ICD, Valsad on 3rd September, would make the entire version of prosecution of having found more than 2000 kg of methaqualone from various premises completely unbelievable. (7) Counsel submitted that neither of the two senior officers Smt. Alka Tyagi or Shri Jindal were examined. Shri Ashu Jindal had actively participated during the raid and as per the witnesses was present all throughout at different sites. (7) Counsel submitted that neither of the two senior officers Smt. Alka Tyagi or Shri Jindal were examined. Shri Ashu Jindal had actively participated during the raid and as per the witnesses was present all throughout at different sites. He was in charge of possession of muddamal articles collected from various factory premises on 1st September and 2nd September and as per the witnesses got the same deposited before the ICD, Valsad on 3rd September. He was thus an extremely important witness. His non examination would therefore, be fatal to prosecution. (8) Counsel lastly contended that the department though available did not examine several independent witnesses. As per the witnesses, there were several labourers and other persons present when the raid was first carried out at Garden Colours. Statements of some of these labourers were also recorded during the investigation, despite which, not a single independent witness was examined. (9) In support of her contentions, counsel relied on the following decisions : (1) In case of Karnail Singh v. State of Haryana reported in (2009) 8 SCC 539 , in which the Constitution Bench of the Supreme Court considered the provisions of section 42(1) and 42(2) of the NDPS Act regarding writing down and conveying information to the superior officer prior to entry, search and seizure. It was observed that adequate and substantial compliance of such requirement would be sufficient. However, whether there has been an adequate or substantial compliance or not, must be decided in facts of each case. (2) In case of Central Bureau of Narcotics v. Bahadur Singh reported in (2010) 15 SCC, where on facts, the Supreme Court finding that the confessional statements could not be relied upon, they were resiled by the accused and the version given by the official witnesses was inconsistent, acquitted the accused. (3) In case of State of Karnataka v. Dondusa Namasa Baddi reported in (2010) 12 SCC 495 , where finding that even as per the prosecution, time was not insufficient to record the information in writing and send before the superior officers, it was held that there was breach of section 42(2) of the Act and the oral evidence to the contrary cannot be relied upon. (4) In case of Narcotics Control Bureau v. Sukh Dev Raj Sodhi reported in (2011) 6 SCC 392 , in which it was observed that requirements of section 50 of the Act are mandatory. (5) In case of State of Rajasthan v. jag Raj Singh alias Hansa reported in AIR 2016 SC 3041 , where it was found that the information sent to the immediate superior was not as per the information recorded by the officer but it was on a separate memo differently prepared. On such basis, it was held that there was breach of section 42(2) of the Act. (6) In case of Union of India v. Mohanlal and Another reported in (2016) 3 SCC 379 , in which the Supreme Court highlighting the possibility of re-circulation of the seized narcotic substance, stressed on importance of protecting such drugs against theft, substitution and pilferage. (7) In case of Ram Singh v. Central Bureau of Narcotics reported in (2011) 11 SCC 347 , in which while upholding that the officers of Central Bureau of Narcotic are not the police officers and therefore, confession made before them would not be hit by sections 25 and 26 of the Evidence Act, it was reiterated that to rely on such confession, it has to be voluntarily made and as a rule of prudence, the Court would look for corroboration in addition to such confession. (8) In case of Rajinder Singh v. State of Haryana reported in (2011) 8 SCC, in which it was found that the information was relayed through wireless message. The Court observed that this would not satisfy the requirement of sections 42(1) and (2) of the Act. It was observed that delayed compliance with a satisfactory explanation can be countenanced but total non compliance of the requirement under section 42(1) and (2) of the Act, would be fatal to the prosecution." 30. On the other hand learned counsel Shri Kartik Pandya for the Narcotic Control Bureau opposed the appeal contending that the trial Court has recorded proper reasons. The evidence on record unequivocally suggest involvement of the accused. The department's witnesses have given clear and consistent version. All the procedural requirements have been complied with. He relied on the following decisions : "(1) In case of State of Rajasthan v. Udai Lal reported in (2008) 11 SCC 408 . The evidence on record unequivocally suggest involvement of the accused. The department's witnesses have given clear and consistent version. All the procedural requirements have been complied with. He relied on the following decisions : "(1) In case of State of Rajasthan v. Udai Lal reported in (2008) 11 SCC 408 . (2) In case of Arutla Shankariah v. State of Andhra Pradesh reported in 2015(9) Scale 223 . (3) In case of Sumit Tomar v. State of Punjab reported in (2013) 1 SCC 395 ." 31. At first, we may deal with and dispose of the Criminal Misc. Application No. 18499/2013. Quite apart from the question of production of documents and recalling the witnesses being fundamental and therefore, required to be decided at first, an important issue of allegedly unauthorised disposal of muddamal would also get sorted out while we decide this application. We may recall the accused had filed application exh.340 before the trial Court and pleaded for production of certain documents. We have also noticed that the trial Court merely issued notice asking the prosecution to respond to the request for production of documents. Without passing any final order, the judgment in the trial was rendered. This was undoubtedly a lapse on part of the trial Court. The application which is interim in nature, unless has become infructuous, must meet with some fate before the trial gets concluded. A litigant cannot have a no answer on an intermediary application but a final answer on the trial. Having said that, we would not reopen the entire issue, unless, in the process the accused can show prejudice. In other words, by not deciding such application, if no real prejudice has been caused to the accused, it would be futile to set back the clock, set aside the entire judgment of the trial Court, direct the trial Court to decide the application exh.340 and then to proceed to re-decide the case against the accused. 32. In this context, the main thrust of the contention of the counsel for the accused was that psychotropic substance of close to two and half tonnes was allegedly recovered by the Narcotics department from four different sites at Vapi. However, no such recoveries were made. In this regard, she had highlighted the question of movement of such seized muddamal articles and its deposit somewhat belatedly on 3.9.2012 before the ICD, Valsad. However, no such recoveries were made. In this regard, she had highlighted the question of movement of such seized muddamal articles and its deposit somewhat belatedly on 3.9.2012 before the ICD, Valsad. It was in this context, she had highlighted that such muddamal though directed by the trial Court were never produced and ultimately claimed to have been destroyed without the authority of law. It is in this context that the accused required certain documents. 33. From the documents annexed with the Criminal Misc. Application No. 18499/2013, we find that under application exh.15, the department had pointed out that 2525 kgs of methaqualone powder was seized and was under the safe custody of ICD, Valsad. It was also pointed out that certain valuable articles and documents were seized from locker and residence of Mansukh Bhatt. It was requested to grant necessary permission to seize the papers and documents in the Court pending finalisation of the case. On such application, the learned trial Judge passed the order on 11.7.2003 directing the prosecution to produce muddamal articles along with other documents before the Court on the next date of hearing. It was provided that the complainant should make arrangement for bringing such articles before the Court and return the same in the evening. This order dated 11.7.2003 passed by the trial Court was challenged by the department before the High Court in Special Criminal Application No. 60/2004. The Learned Single Judge allowed the application and directed as under : "4. In view of the facts and circumstances of the case and keeping in mind huge quantity of muddamal as well as the provisions of Section 52A (2) of the NDPS At, there was no need for the trial Court to pass the impugned order for presentation of the muddamal of huge quantity before the trial Court. In fact, upon proper application by the petitioner especially u/s. 52A (2) of the NDPS Act, an order could have been passed by the trial Court for disposal of the muddamal. 5. In view of the facts and circumstances of the case and provisions of 52A (2) of the NDPS Act, the order passed by the Sessions Court, Valsad below Exh. 15 in Sessions Case No. 1 of 2003 is quashed and set aside and the trial Court is directed to dispose of the application Exh. 5. In view of the facts and circumstances of the case and provisions of 52A (2) of the NDPS Act, the order passed by the Sessions Court, Valsad below Exh. 15 in Sessions Case No. 1 of 2003 is quashed and set aside and the trial Court is directed to dispose of the application Exh. 38 preferred by the petitioner in N.D.P.S. Case No. 1 of 2003 for disposal of the muddamal in question as early as possible preferably on or before 31-3-2005. Trial Court is also directed to proceed with N.D.P.S. Case No. 1 of 2003 speedily without waiting an order to be passed u/s. 52A (2) of the NDPS Act on the application Exh. 38 preferred in the aforesaid case. Rule is made absolute to the aforesaid extent." 34. It can thus be seen that Learned Single Judge in the said order provided for two things. (1) Set aside the order of the trial Court directing the department to produce such material before the Court. (2) Permitted the department to apply to the trial Court for disposal of such muddamal. In fact, the learned Judge was of the opinion that such muddamal should be disposed of expeditiously. 35. In terms of the said order, the department pressed for its pending application exh.38 in which it was prayed as under : "7. That the applicant submits that the inventory of the seized narcotic drugs has been prepared and produced herewith as Annexure "A" to this application, with a request to a. Certify the correctness of the inventory so prepared, OR b. Taking in the presence of Hon'ble Magistrate, photographs of such drugs or substances and certifying the photographs as true; OR c. Allowing to draw representative samples of such drugs or substances in the presence of Hon'ble Magistrate and certifying the correctness of any list of samples so drawn. 8. Under the circumstances aforesaid the applicant prays before the Hon'ble Court that : a. Be pleased to allow this application. b. Be pleased to pass any other relief which deems fit and proper in the interest of justice." 36. On such application, the trial Court had previously passed an order on 25.6.2004 deciding to keep the application pending. 8. Under the circumstances aforesaid the applicant prays before the Hon'ble Court that : a. Be pleased to allow this application. b. Be pleased to pass any other relief which deems fit and proper in the interest of justice." 36. On such application, the trial Court had previously passed an order on 25.6.2004 deciding to keep the application pending. However, it appears that after the High Court passed the said order dated 4.2.2005 in Special Criminal Application No. 60/2004, trial Court passed an order permitting disposal of the muddamal in terms of provisions of the NDPS Act after maintaining the samples as suggested by the High Court. 37. It can thus be seen that the claim of the department that the muddamal articles were destroyed with permission is not baseless. A minute perusal of the proceedings which progressed from time to time would show that at one stage the trial Court had kept the application of the department for destruction of muddamal pending and simultaneously directed the department to produce the same before the Court on the next date of hearing. This position however, underwent a major change when the department pursued this issue before the High Court in which while setting aside the order of trial Court for production of muddamal, the Court permitted the department to pursue its application for its destruction. The trial Court thereupon permitted destruction after maintaining samples. If the department therefore, under this order claims to have destroyed the muddamal articles, the accused cannot complain about the illegal procedure being adopted or the muddamal articles have been destroyed without having authority of law. The entire application exh.340 was focused around this issue. It was in connection with this issue that we gather that accused wanted certain documents to be produced. When we come to a definite conclusion that muddamal articles were allowed by the trial Court under a specific order to be destroyed, not deciding application exh.340, in our opinion, would cause no prejudice, though we may reiterate the trial court ought not to have kept such application pending till disposal of the trial itself. 38. In the context of the merit of the decision of the trial Court, at the outset, we may record that we are not inclined to place reliance on the so-called confessional statement of the accused. 38. In the context of the merit of the decision of the trial Court, at the outset, we may record that we are not inclined to place reliance on the so-called confessional statement of the accused. We are made to understand that this accused has filed a complaint before the Magistrate against some of the department's officers for having committed offence under section 323 of the IPC. Such proceedings are pending. We would therefore, be advised not to express any opinion which may prejudice one side or the other on this issue. We may however, briefly record our reasons for discarding the confessional statement of this accused. Firstly, the retraction of the statement in the present case has come promptly and repeatedly. Secondly, immediately upon being presented before the Magistrate, the accused had stated that he was ill-treated. Thirdly, at his request, he was sent for medical examination during which defence witness Dr. Virendra Pradhyuman Garai had recorded certain minor injuries and treated him for the same. In facts of the case, we are not required to decide whether such injuries were actually received while the accused tried to run away and was caught midway on the stairs or were received during his stern interrogation. 39. Despite discarding the confessional statement, there is more than sufficient evidence to establish a clear link between the accused and the contraband goods. The departmental witnesses in large numbers, who had participated in the raid had brought on record several important aspects in this regard. We may recall, Monish Harbans Bhalla, PW-2, the authorised officer, had pointed out that the raiding party which comprised of officers from Mumbai as well as Ahmedabad Narcotics Bureau had on a prior intelligence, raided the premises at Garden Colours at about 7 O' clock on 1.9.2002. Accused No. 1 along with other three accused was present there. He had in fact, tried to run away upon seeing the officers. At the site, white colour powder suspected to be methaqualone was found in as many as 78 different bags. The questioning of these accused persons led the raiding party to three more premises where either substance was stored or manufacturing facilities were created. These premises i.e. Prem House, Harshal Chemicals and Bony Chem were situated at GIDC, Vapi. It is not necessary to repeat or reproduce the version of different raiding officers. The questioning of these accused persons led the raiding party to three more premises where either substance was stored or manufacturing facilities were created. These premises i.e. Prem House, Harshal Chemicals and Bony Chem were situated at GIDC, Vapi. It is not necessary to repeat or reproduce the version of different raiding officers. Suffice it to state that the version given by Monish Harbans Bhalla, PW-2 was substantially supported by Umeshbhai Jayantbhai Pathak PW-3, Sailendra Jayprakash Lodha PW-15, Namboodiri Prasana Shankarnarayan PW-16, Bhushan Shriram Mule PW-17, Sanjay Vishwanath Gokhle PW-18, Vikramratnu Kanidan Ratnu PW-19, Kith John Sanchez PW-20 and Sahjanand Sachidanand Sing PW-21. All these witnesses had referred to presence of all the four accused at Garden Colours when the raid was conducted. These witnesses also pointed out that there were in all 80 bags containing white coloured powder weighing more than 2000 kgs. The preliminary analysis through testing kit showed that powder was methaqualone. Samples from these bags were collected, sealed and sent for chemical analysis. Chemical Analyst, Janmohammad Fakirbhai Mansuri, PW-22, produced his report confirming that the substance was methaqualone. Liquid seized from the site also contained methaqualone in different concentration. 40. The evidence of the officers of the raiding party was substantially corroborated by panch witness, Divyakant Ratilal Patel, PW-1. He had supported the prosecution as panch of the raiding party. He of-course did not identify the present accused before the Court, nevertheless, referred to three or four people who were the owners of the factory who were present there and the recovery of large number of bags containing white coloured powder. It is true that at one stage this witness seems to have left the factory premises along with Ujjvalbhai to attend to Ujjvalbhai's sick son. As per his deposition, both of them had left for entire night. However, in the cross examination he clarified that Ujjval was not present for the whole night. He himself had left only for half an hour. 41. The departmental officers had no personal grudge against the accused. There was no reason for them to falsely implicate the accused. There were nearly one dozen departmental officers present during the raid. Majority of them were examined before the Court. All of them gave a consistent and largely harmonious version of the entire event. 41. The departmental officers had no personal grudge against the accused. There was no reason for them to falsely implicate the accused. There were nearly one dozen departmental officers present during the raid. Majority of them were examined before the Court. All of them gave a consistent and largely harmonious version of the entire event. Had the entire case been falsely got up, as was rather courageously suggested by the accused, somewhere the discrepancies and inconsistencies would have cropped up. 42. The written further statement of the accused is an interesting one. While claiming that he was falsely implicated in the entire case, he did mention that on the date of the raid, he had come to Vapi for his business work. He was engaged in the business of import and export and Kirit Rana accused No. 4 was exporting machinery for him. He had come to Vapi to meet Kirit Rana. In the evening when he learnt that Kirit Rana was in GIDC area, he had come there when the two officers of Bureau stopped him and took him to his factory. Significantly, therefore, this accused admitted his presence at GIDC around the time when the raid was going on. His claim that he was completely falsely implicated and he had nothing to do with any of the accused or with the factory premises or that he was picked up from somewhere and shown to be present at Garden Colours when the raid was going on is substantially belied by his own statement. Several incriminating documents were found from the residence and locker of this accused. 10000 US dollars in cash, proof of payment to wife of accused No. 3 and multiple passports in different identities are just some of the many documents which would indicate the nature of dealings of this accused. 43. Coming to the requirement of section 42 of the Act, it can be seen that the statutory provisions provide that a competent officer could carry out search at any premises after sunset and before sunrise with specific authorisation on this behalf. 43. Coming to the requirement of section 42 of the Act, it can be seen that the statutory provisions provide that a competent officer could carry out search at any premises after sunset and before sunrise with specific authorisation on this behalf. The proviso, originally the sole proviso, now the further proviso after insertion of proviso by Act 16 of 2014 with effect from 1.5.2014, provides that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. Sub-section(2) of section 42 provides that where an officer takes down any information in writing under subsection (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior. In the present case, Shri Namboodiri had recorded his intelligence note which was produced at exh.218. We have recorded the contents thereof. In brief, it referred to the role of accused Hasmukh Bhatt in having methaqualone manufactured at Vapi in connivance with three other accused. Such powder was to be shifted to Dara-e-Salaam where his accomplices would convert it into mandrax tablets. This note was prepared by Shri Namboodiri on 31.8.2002 and placed before his immediate superior i.e. Superintendent on 31.8.2002 who had put his signature in token thereof with the date. Shri Namboodiri as well as his superior Shri Sanchez in their depositions mentioned that Shri Sanchez had thereafter, carried the note to Zonal Director Smt. Alka Tyagi. Smt. Alka Tyagi also on 31.8.2002 had put remarks that appropriate action should be taken and that Zonal Director, Ahmedabad has been in communication and will take appropriate action as planned. This would show that intelligence note was prepared on 31.8.2002, was placed before the superior officers on the same date, who in turn, had carried such information to the Zonal Director also on the same date. We have no reason to doubt or dispute either the preparation or placing of the intelligence note as suggested by the departmental witnesses. This would show that intelligence note was prepared on 31.8.2002, was placed before the superior officers on the same date, who in turn, had carried such information to the Zonal Director also on the same date. We have no reason to doubt or dispute either the preparation or placing of the intelligence note as suggested by the departmental witnesses. The contention on part of the accused that first the raid was conducted and thereafter, this intelligence note was prepared to show compliance under section 42 of the Act has a fallacy. If the department had prior intelligence that a large quantity of psychotropic substance was manufactured and stored at a certain site, there was no reason for the officers not to record such intelligence in writing and follow the procedure envisaged in section 42 of the Act. On the other hand, if the department had no such intelligence and note was merely back-dated, we fail to understand why, not less than one dozen officers from Mumbai and Ahmedabad led by no less than Zonal Director would converge at a small factory premise in the GIDC shed at Vapi. Clearly the department had intelligence at its command and had acted on the basis of such intelligence after following the procedure envisaged under section 42 of the Act. 44. Mere fact that the department could not show the movement of the seized muddamal articles between 2nd September and 3rd September, would not be fatal. We may recall the raid itself was conducted on the night of 1st September and went on continuously first at Garden Colours and thereafter, at three different factory/go-down premises at Vapi and lasted till late hours of 2.9.2002. All the different muddamal articles collected from different places were from time to time handed over by the departmental officers to Shri Jindal who apparently had hired the tempo for such purpose. If therefore, such articles were not immediately deposited with ICD, Valsad, on the night of 2.9.2002 itself, would not be fatal to the prosecution. It is pointed out by the witnesses that muddamal articles were deposited with ICD, Valsad, in the morning of 3rd September duly countersigned by the Customs officer present there. 45. Appeal of the accused therefore, must fail. The State Appeal also has no merits. It is pointed out by the witnesses that muddamal articles were deposited with ICD, Valsad, in the morning of 3rd September duly countersigned by the Customs officer present there. 45. Appeal of the accused therefore, must fail. The State Appeal also has no merits. First of all, against the minimum conviction of 10 years and maximum of 20 years under section 22(c) of the NDPS Act, the trial Court had awarded rigorous imprisonment for 12 years, which by itself, does not appear to be inadequate. Secondly, the accused is presently aged about 75 years, He has served out the entire sentence. We would not send him back to serve further sentence, particularly, when there is no previous conviction of this accused in similar offence. There is one more reason why the department's appeal cannot succeed. We may recall, the department in case of other accused did not press the appeal for enhancement of the sentence. The department cannot pick and chose the accused for enhancement of the sentence. It is true that according to the prosecution case, accused was a kingpin. The other accused were merely engaged in manufacturing and storing of the methaqualone powder at the instance of the accused. However, for the combined reasons recorded above, the appeal of the department must also fail. 46. In the result, both the Criminal Appeals are dismissed. Criminal Misc. Application is also dismissed. R&P may be transmitted to the concerned trial Court. 47. In view of disposal of these appeals, amount of Rs. 1 lakh seized from the residence of the accused be released in his favour as directed by the trial Court in the impugned judgment.