JUDGMENT
D.R. Dhanuka, J.
1. This is an appeal against order of conviction and sentence passed against the appellant on 27th July 1994 by the Narcotic Drugs and Psychotropic Substances Court at Mapusa in Special Criminal Case No. 3 of 1994. The learned Special Judge found the appellant accused guilty of charge of having been in unlawful possession of 16 gms. of white powder known as Heroin valued at Rs. 80,000/- in contravention of Section 8 of the Narcotic Drugs and Psychotropic Substances Act, 1985 hereinafter referred to as the said Act and thereby committing an offence punishable under Section 21 of the said Act. The learned Special Judge convicted the accused and sentenced him to undergo rigorous imprisonment for a period of ten years and also pay a fine of Rs. 1 lac and in default to undergo rigorous imprisonment for a period of one year. The learned Judge issued various directions concerning confiscation of the muddemal property etc., as set out in his judgment dated 27th July, 1994.
2. The learned Counsel for the appellant has raised several legal as well as factual contentions during the course of his submissions at the hearing of the appeal. The learned Public Prosecutor has replied to the submissions made on behalf of the appellants during the course of his arguments at the hearing.
3. We shall first summarise broadly the prosecution case as unfolded at the trial of the said case.
(a) Sometime in November, 1993 one Kiran J. Poduval was working as P.S.I, attached to Anti-Narcotic Cell, Panjim. On 11th November, 1993, the said Mr. Poduval led a team consisting of certain members of the staff of Anti-Narcotic Cell for drug checking at St, Anthony’s Chapel, Anjuna area. The said team of Anti-Narcotic Cell consisted of PSI Kiran Poduval, ASP ANC Shri S.K. Gautam, PI ANC Shri Alex Pereira, two head constables namely K.G. Desai and P.R. Gawas and lady constable namely Milan Parshenkar. The said raiding team accompanied by the two pancha witnesses reached the spot near St. Anthony’s Chapel at St. Anthony Prais Anjuna Bardez.
(b) This was during night time. The said raiding team had started its work at about 6.45 p.m. At this stage the two head constables Desai and Gawas saw the accused Dilkush Sinai who, according to them, was a drug peddler. It appears that the accused had been arrested in the past also for similar offence in the year 1987 by Calangute Police Station. The jeep of the raiding party was brought to a halt. PSI Kiran Poduval said that he had reason to believe that the accused was in unlawful possession of narcotic drug and he wished to conduct search of the person of the accused. PSI Kiran Poduval was an authorised officer duly entitled to conduct such search. The said officer told the accused that the accused was free to take search of the police party and the panch witnesses before the search of the accused was conducted. The accused declined. The said officer told the accused the search of the person of the accuse d could be taken in the presence of a gazetted officer and/or a Magistrate if he so desired. The accused declined. The accused told the said officer that he was willing to be searched in the presence of ANC Shri Gautam who was one of the gazetted officers and who had accompanied the raiding party.
(c) Thereupon the said officer PSI Poduval told the two panch witnesses namely Shri Sanjay Gauntankar and Shri Satguru Parab to conduct the personal search of the accused instead of conducting the said search himself. As a result of the said search, one spectacle case of rexin concealed inside the under-wear below the navel of the accused was found. The accused was wearing a short pant, shirt and the under wear. On opening the said spectacle case, it was found that the plastic bag containing heroin was wrapped in a Marathi newspaper. On opening this bundle one polythene packet containing white powder known as heroin had been found. The said article was weighed and found to be 16 gms. of heroin alongwith the polythene packet. This polythene packet containing 16 gms. of heroin was heat sealed and wrapped in the Marathi Newspaper as it was found and the same was put in an envelope which was packed and sealed with the seal of ANC on the spot. After sealing of the said envelope, the signatures of both the panch witnesses PW-3 ASP ANC and the accused were taken on the said envelope. During the further search, a cash amount of Rs. 1425/- was found in the left side shirt pocket of the accused. The accused could not produce any licence or authorisation to show that the possession of the said contraband with the accused was lawful. The accused was arrested. The accused was taken by the police to his residence for further search. Nothing incriminating was found at the residence of the accused. The search and seizure which led to the arrest of the accused was effected at about 9.30 p.m. on 11th November, 1993. The accused was asked to remove the clothes which he was wearing as the authorised officer from ANC was required to take charge of the clothes which the accused was wearing at that time. The accused made some arrangement from someone for a fresh set of clothes. The clothes which the accused was wearing earlier were attached, packed and sealed with the seal of ANC i.e. the short pant, a shirt and the under wear. The panchanama was drawn and signed by various persons. The necessary legal formalities were thereafter completed by P.W. 3. The accused was thereafter taken to Calangute Police Station. The PSI Poduval lodged a complaint at the same police station charging the accused with an offence under Section 21 of the said Act. By that time, the Anti-Narcotic Cell was not declared as a police station under the provisions of the said Act.
(d) On 12th November, 1993, PSI Kiran Poduval forwarded the necessary report/intimation in respect of the arrest and seizure affected as aforesaid to his immediate superior officer as contemplated under Section 57 of the said Act.
(e) The officer incharge of Calangute Police Station also affixed his seal on the sealed newspaper containing the seized contraband.
(f) On 12th November, 1993, the Police Inspector, CID Anti Narcotic Cell addressed a letter to the Director, Forensic Drugs Laboratory, Bombay, forwarding the sealed article for analysis and examination. The description of the said article as set out in the said letter reads as under:
Ex-1 -One sealed envelope containing one polythene bag heat sealed and having one Marathi Newspaper piece wrapper bundle with sixteen (16) grams of White Powder in a polythene bag (Heroin). NOTE
Sealed envelope having Seal of Calangute Police Station and Anti Narcotic Cell, Panaji.
(g) Alongwith the forwarding letter i.e. letter dated 17th November, 1993, the Superintendent of Police forwarded the said sealed cover to the Director, Forensic Science Laboratory, Bombay 98. The sealed envelope was found by the Laboratory with seals intact. The analysis report duly signed by the Assistant Director, Forensic Drugs Laboratory discloses result of the analysis as under:-
Heroin (diacetyl morphine) Hydrochloride is detected in the Exhibit.
It falls under Section 2(xvi) of Narcotic drug and defected in Psychotropic Substances Act 1985.
On 31st December, 1993 the Chemical Analyser submitted his report. Ultimately the learned Special Judge framed the charge against the accused on 17th February, 1994 whereby the accused was charged with contravention of Section 8 and Section 21 of the Act on the footing that the accused was found in an unlawful possession of 16 grams of white powder known as heroin valued at Rs. 80,000/-
4. The accused denied the charge.
5. The prosecution examined three witnesses at the trial in support of prosecution case as indicated below.
(1) Shri Abdul Rahim Malik, Assistant Director in the Forensic Science Laboratory at Kalina, Bombay.
(2) Shri Sanjay Gauntankar one of the panchas.
(3) Shri Kiran Poduval, PSI attached to Anti Narcotic Cell, Panaji. The prosecution also led documentary evidence at the trial inter alia by proving the analysis report, personal search panchanama, house search panchanama, seizure report, complaint lodged by P. W. 3 at Calangute Police Station and report forwarded by PSI Kiran Poduval to his immediate superior as contemplated under Section 57 of the Act. The Trial Court also recorded statement of the accused on various aspects of the matter as contemplated under Section 313 of the Code of Criminal Procedure. No defence evidence was led at the trial.
6. The learned Counsel for the appellant submitted that there was clinching evidence on record to prove that the search of the person of the accused was not conducted by an officer duly authorised under Section 42 of the Act but was conducted by an unauthorised person i.e. a panch witness i.e. P.W. 2 who had no authority in law to conduct the search. The learned Counsel contended that Section 50 of the said Act was thus clearly contravened. The learned Counsel contended that Section 50 of the Act is mandatory as already held by the Supreme Court. The learned Counsel contended that the illegal and unauthorised search of the person of the accused by the panch witness P. W. 2 has the effect of vitiating the trial and the conviction itself. The learned Counsel submitted that the panch witnesses were not members of the raiding party but were merely expected to watch and observe the search and seizure to be conducted by the authorised officer as independent persons and were not entitled themselves to search the person of the suspect. The learned Public Prosecutor submitted that the PSI Poduval had merely taken assistance of panch witness Sanjay Gauntankar in effecting the search and it was not correct to contend that the said search was conducted by the panch witness Shri Gauntankar as such. The learned Public Prosecutor submitted that in substance PSI Poduval an authorised officer of ANC had effected the search of the person of the accused and not panch witness P. W. 2. The learned Public Prosecutor further submitted that even if the search effected was illegal, the trial and the conviction of the accused was not affected thereby merely because of such search being illegal or irregular.
7. P. W. 3 PSI Kiran Poduval was also the Investigating Officer. The said officer during the course of his testimony before the learned Special Judge in terms admitted as under:
I told the panchas to conduct the search of the accused to be on the safer side. What I mean by saying to be on the safe side is that it will be better if the search is conducted by the independent person by panchas, this is what we were taught in the police training school.
The said witness further stated during the course of his testimony as under:-
In all my cases where I am the I.O. wherever personal search is taken of the suspect/accused I instructed the panchas to conduct the search, if I am not mistaken.
Witness Sanjay Gauntankar i.e. the panch witness (P.W. 2) has admitted in his evidence as under :-
I first searched the lower portion of the body of the accused and thereafter the upper portion.
Again
We both the panchas have carried out the personal search of the accused. It was not done by Shri K. G. Desai Head Constable or H.C. Gawas. It was I who removed the contraband drugs from the pant pocket’s front portion of the accused. It was the PSI Poduval who instructed us to conduct the personal search of the accused near the Chapel or any other place.
It must be stated in the passing that the said witness Sanjay Gauntankar had given a totally different version on this aspect of the case during the course of his examination-in-chief. The said witness had at that time stated as under:-
Then the personal search of the accused was being conducted by the head constables Desai and Gawas in the presence of PSI Poduval.
In view of the above material on record, we have no hesitation in reaching the conclusion in light of the evidence of P. W. 3 that the search of the person of the accused was conducted by the panch witnesses and not by P. W. 3. In view of the above referred evidence, it is not correct to contend that the said search was conducted by P. W. 3 merely with the assistance of panchas. We must read the evidence as it stands. It is not open to the Court to misread the evidence.
8. The next question which arises for consideration of the Court is as to what is the legal effect of the search having been conducted by the panch witnesses and not by the authorised officer.
9. Section 41(1) of the Act empowers a particular category of magistrates to issue a warrant for the arrest of a person or for the search in the situation set out therein. Section 41(2) of the Act empowers only officers of certain rank to conduct the search. Section 41(3) of the Act provides that the officer to whom a warrant under Sub-section (1) is addressed and the officer who authorised the arrest or search or the officer who is so authorised under Sub-section (2) of Section 41 of the Act shall have all the powers of an officer acting under Section 42, Section 42 of the Act provides that any such officer being an officer superior in rank to a peon, sepoy or constable of the departments of Central Excise, narcotics, customs, revenue intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as was empowered in this behalf by general or special order of a State Government, may effect the search by entering into any building, conveyance or place between the sunrise and the sunset subject to the conditions prescribed by the said section being complied with. Proviso to Section 42(1) of the Act takes care of a situation where search of building, conveyance or enclosed place is required to be searched between the sun set and sunrise. Section 43 of the Act provides that any officer of any of the departments mentioned in Section 42 may seize, in any public place or in transit, any narcotic drug or psychotropic substance subject to the conditions prescribed by the said section being complied with. Section 50(1) of the said Act deals with the subject-matter of conditions under which search of persons shall be conducted. The said Sub-section (1) of Section 50 reads as under:-
50. Conditions under which search of persons shall be conducted-! 1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate.
Section 50 of the said Act is held to be mandatory by the Supreme Court in its decision in the case . In the said case it was held by the Supreme Court that if the said section was contravened, the accused was entitled to an acquittal. If any person other than an officer duly authorised under the Act conducts the search of the person of a suspect, such search would contravene Section 50 of the Act and would be illegal so as to vitiate the trial. The said Act prohibits effecting of search by a person who is not duly authorised to do so under the Act.
10. The learned Public Prosecutor relied on the ratio of the judgment of the Supreme Court in the case of State of Maharashtra v, Natwarlal Damodardas Sont, . In the said case, Sarkaria J. speaking for the Court held up as under:-
Assuming argument, that the search was illegal, then also, it will not affect the validity of the seizure and further investigation by the Customs Authorities or the validity of the trial which followed on the complaint of the Assistant Collector of Customs.:
This was a case where the accused was charged with the offence of possessing or keeping contraband gold. This was a case where the search was effected in contravention of Section 165 of the Code of Criminal Procedure.
11. The learned Counsel for the appellant has submitted that the case directly on the point is the latest decision of the Supreme Court in State of Punjab v. Balbir Singh . In this case, the Supreme Court dealt with the subject matter under consideration in two different categories. It is obvious from perusal of the provisions contained in the said Act that the Act makes special and specific provisions for effecting search, seizure and arrest under Sections 41, 42, 43 and 50 of the said Act. Section 51 of the said Act however provides that the provisions of the Code of Criminal Procedure, 1973 shall apply In so far as they are not inconsistent with the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 to all warrants issued and arrests, searches and seizures made under the Act.
12. In the above referred well known judgment in the case of State of Punjab v. Balbir Singh, the Supreme court held that the breaches and contraventions of mandatory provisions of the Act like Sections 41 and 42 of the Act would vitiate the trial itself. The Supreme Court held that in so far as non-compliances with Sections 100 and 165 of Code of Criminal Procedure is concerned, such non-compliance would not by itself vitiate the prosecution and it all depended on the facts and circumstances of each case. In para. 25 of the said judgment K. Jayachandra Reddy J. speaking for the Apex Court formulated the statement of law concerning interpretation of some of the provisions of the said Act of 1985. The said formulation is of direct assistance to the learned Counsel for the appellant. In Sub-para (2-A) of para. 25 of the said judgment, the Court held that only empowered officers could act under the provisions of the NDPS Act and if arrest or search was made under the provisions of the NDPS Act by any one other than such officers, the same would be illegal. In sub-para (2-B) of para. 25 of the said judgment the Apex Court referred to the provisions of law contained in Section 41(2) of the Act whereby only the empowered officer could authorise his subordinate officer to carry out the arrest of a person or effect the search as mentioned therein. The Court held in terms that if there was a contravention of the said provision, that would affect the prosecution case and vitiate the conviction. In sub-para (2-c) of para. 25 of the said judgment, the Court observed that under Section 42(1) the empowered officer if he has a prior information given by any person on the basis of which he desires to effect the search such information should necessarily be taken down in writing. The Court held that under the proviso to Section 42(1) if the authorised officer has to carry out such search between the sunset and sunrise, he must record the grounds of his belief. At the end of sub-para (2-c) of para. 25 of the said Judgment, the Court observed as under:-
To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial.
In sub-para (5) of para. 25 of the said judgment, the Supreme Court observed that while effecting the search of the person, the authorised officer must comply with the requirements of Section 50 of the Act. It was held that it was obligatory on the part of the empowered officer to inform the person to be searched as to whether he would like to be searched before a gazetted officer or a magistrate as provided in the said Section. It was held that the non-compliance with Section 50 of the Act which was mandatory would affect the prosecutions case and vitiate the trial.
13. We are conscious of the fact that the above referred judgment of the Supreme Court in the case of State of Punjab v. Balbir Singh as well as the judgment of the Supreme Court in the case , the Supreme Court has specifically dealt with later part of Section 50 of the Act. After considering the ratio of the above referred two judgments of the Supreme Court we hold that the entire Section 50 of the said Act is mandatory and non-compliance or contravention of the said Section would vitiate the trial and the conviction. In other words, if a search is conducted by a person howsoever high or low other than an authorised officer under the Act such search would be illegal so as to affect the prosecution case and so to vitiate the trial itself.
14. In our opinion, the judgment of the Supreme Court in the case of State o/Maharashtra v. Natwarlal Damodardas Soni is not applicable to the cases under NDPS Act, 1985. The said Act of 1985 is a special statute. Various sections of the said Act are already interpreted and applied authoritatively by the Supreme Court as well as by the High Courts. It is not open to us to make a Departure from the analysis of the scheme and provisions of the said Act as done by the Supreme Court and the High Courts while interpreting the said special statute.
15. We have therefore no hesitation in upholding the submission of the learned Counsel for appellant on this aspect of the case. We hold that the search effected by the panch witness was illegal. We hold that the said search was effected by a person unauthorised to effect the search under the law. We hold that the trial of the accused was vitiated as a result of the said unauthorised illegal search. It must be stated in the passing that on this aspect of the case the learned Counsel for the appellant also relied on the observations made by the Division Bench of this Court in the case of Ramchandra Totaram Khatri and another it. The State reported in AIR 1956 Bom. 287. In this case, it was held by the Court that merely because the police took the panchas with themselves before the raid, the panchas do not become members of the raiding party and cannot be looked upon as partisan witnesses. It was held that the police took the panchas with themselves so that they could watch what happens. The panchas are not interested in what happens nor are they parties to the trap. It was held that the panchas were taken by the police along with themselves while conducting the search so that the search was conducted in presence of independent and respectable persons. It is obvious from this case also that it was very wrong on the part of the PW-3 to abdicate his function to conduct the search and instruct the panch witnesses to effect the search of the person of the accused. The P.W. 3 might have committed a bona fide error but the legal consequences of such error is fatal for the prosecution case. It shall be for the Inspector General of Police to issue a circular to all the police officers concerned informing them that the search should be conducted only by the officer duly authorised under the Act and not by an outsider, not even a panch or any other independent person.
16. The learned Counsel for the appellant then submitted that PSI Poduval was not entitled to conduct the investigation at the material time as Anti Narcotic Cell was then not notified as the police station under Section 53 of the said Act. It is true that at the material time, the Central Government had not issued any notification investing any officer or department of Anti Narcotic Cell with the power of an officer incharge of the police station investigation of the offence under the Act. The question to be asked is as to whether the trial of the accused was vitiated merely because the investigation of the offence was conducted by the officer attached to Anti Narcotic Cell. In para. 28 of the judgment in Criminal Misc. Application No. 134 of 1992 being judgment and order dated 28th August, 1992, a learned Single Judge of this Court held that the investigation done by the Anti Narcotic Cell despite the fact that it was not yet declared as a police station and its officers were not invested with the powers of officers in-charge of the police station did not render the investigation null and void or vitiate the trial unless it was shown that the accused was prejudiced as a result of the alleged irregularity in this behalf. We are of the same view. We are not satisfied that the accused suffered any prejudice or that there was any miscarriage of justice merely because the investigation of the offence was conducted by PSI Poduval (P.W. 3).
17. The learned Counsel for the appellant then contended that the raiding officer and the investigating officers should be different persons and the seizing officer himself should not be permitted to investigate the offence. In All Hussain Sayyed it. State of Maharashtra reported in 1993 Cri. L.J. 277 the Division Bench of this Court held that the factum of investigation having been carried on by the same officer who filed the F.I.R. did not vitiate the trial but in such a situation the Court would investigate the prosecution case with greater caution. In view of the above, we have no hesitation in holding that the trial of this case was not vitiated merely because the investigation was conducted by the same officer who had lodged his complaint at Calangute Police Station.
18. The learned Counsel for the appellant then contended that the prosecution had contravened Section 52 and Section 57 of the Act. The’ learned Counsel contended that there was no material on record to show that the seized articles were deposited at the nearest police station. The learned Counsel contended that the report of arrest and seizure required to be submitted to the immediate superior under Section 57 of the Act did not disclose that the panchas had effected the search. The learned Counsel for the appellant contended that Section 57 of the Act clearly obligated the officer effecting arrest or seizure under the Act to make a full report of all the particulars of such arrest or seizure to his immediate superior within 48 hours next after such arrest or seizure. We are not persuaded to hold that the report made by P. W. 3 to his immediate superior as required by Section 57 of the Act contravenes Section 57 of the Act. Perhaps there are few omissions here and there in the said report. If the said report/ intimation is read together with the complaint filed at Calangute Police Station it would be clear that the prosecution has made substantial compliance of Section 57 of the Act. As far as the effect of alleged non-compliance of Section 57 of the Act is concerned, the Supreme Court held in sub-para (6) of para. 25 of the above referred judgment in Balbir Singh’s case that the provisions of Sections 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure under Sections 41 to 44 were by themselves not mandatory. The Court held that if there was non-compliance with the said provisions or if there are lapses like delay, etc., the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on appreciation of evidence regarding arrest or seizure as well as on merits of the case. We are satisfied that in this case the accused has not been able to show that the accused has suffered any prejudice by reason of non-mention of the name of panchas in the intimation forwarded by P.W. 3 to this immediate superior under Section 57 of the Act or the alleged non-compliance with the provisions of Section 52 of the said Act. On this aspect of the case we need say no more.
19. The learned Counsel for the appellant submitted that the evidence of prosecution witnesses led in this case was full of discrepancies and contradictions and the integrity of sealing process was not beyond doubt. The learned Counsel for the appellant submitted that the prosecution had failed to explain as to what had happened to the Marathi newspaper which was used as a wrapper. It is not in dispute that the time of sealing the envelope containing one polythene bag heat sealed, one Marathi newspaper was used as a wrapper for the bundle containing 16 grams of white powder. The learned Counsel for the appellant invited the attention of the Court to the evidence of witness Abdul Rahim Malik (P.W. 1). The said witness was asked a question in the cross-examination on behalf of the defence as under:
Q. Besides the polythene bag and the powder was there anything in the sealed envelop M.O.I/A.
A. In the sealed envelope M.O.I/A only the polythene bag containing the whitish powder was there. I say that the whitish powder which is now seen in the said envelope shown to me in the Court is being the balance quantity of the substance left over after analysis. In other words it excludes the whitish powder which was consumed for analysis.
In our opinion, no specific question was asked to the said witness as to what happened to the said Marathi newspaper used as Wrapper for the contraband even though the report of the analysis (Ex. P.W. 1/B.) clearly referred to the article contained in the parcel as whitish powder in a polythene bag wrapped in paper put in a polythene bag further put in an envelope labelled as, ‘Calangute….
We are not satisfied that the sealed envelope was tampered with. We are not satisfied that the defence has been able to throw any reasonable doubt on the integrity of the sealing process.
20. The learned Counsel for the appellant pointed out certain discrepancies in the evidence of P.W. 2 i.e. panch witness Sanjay Gauthankar. The said witness stated in his examination-in-chief that the personal search of the accused was being conducted by the head constables Desai and Gawas in the presence of PSI Poduval. The said witness contradicted himself during the course of his cross-examination when he in terms stated that he i.e. P. W. 2 conducted the personal search of the accused. The said witness in terms stated during the course of his cross-examination that the search of the person of the accused was not done by Shri Desai head constable or head constable Gawas. The learned Counsel for the appellant pointed out one more discrepancy. It was the prosecution case throughout that the said contraband was found in the under-wear of the accused. The witness P. W. 2 however stated during the course of his deposition that he had removed the contraband drug from the pant pocket’s front portion of the accused. The learned Public Prosecutor has endeavoured to explain this discrepancy but we are not convinced with the explanation of the learned Public Prosecutor in respect of the same on these contradictions. The said panch witness P. W. 2 also stated in his evidence that the jeep had stopped on the head constables seeing the accused at the distance of seven metres. P. W. 2 stated in his evidence that the said head constables had gone ahead and talked to the accused and therefore came back towards the jeep and informed the other members of the raiding party as well as the panchas that the accused was the same person who was arrested earlier in the year 1986. The version of P. W. 3 on this aspect of the case is inconsistent with the version of P. W. 2.
21. The learned Counsel for the appellant has also pointed out that the pant of the accused attached by the police had no front pocket according to the deposition of P. W. 2 at page 52. The learned Counsel for the appellant pointed out that P. W. 2 had given a different version at page 53 when he stated that P.W. 2 had removed the contraband drug from the pant pocket’s front portion of the accused.
22. The learned Counsel for the appellant also pointed out that the evidence of P. W. 2 and P. W. 3 was mutually contradicting so far as the narration of the incident is concerned as indicated below.
23. Witness Kiran Poduval P. W. 3 stated in his evidence that on the relevant date i.e. 11th November 1993 all the persons concerned including the panch witnesses had on the way checked about four to five persons for the drugs at Calangute after complying with the provisions of the Act but nothing was found as a result of the general checking. The said witness has stated that the same panchas were also present at the time when the said four to five persons were searched at Calangute after complying with the provisions of the Act. The said search did not result into any recovery. P. W. 2 in his deposition has referred straightway to the accused being searched. The said witness has not stated in this deposition that prior to the accused being searched on the way on the same day before the accused was searched.
24. Perhaps there is some force in the contention of the learned Counsel for the appellant when he points out the contradictions and inconsistencies. We do not propose to record any positive finding on this aspect of the case as it is not necessary so to do for the purpose of deciding this appeal.
25. The learned Counsel for the appellant lastly submitted that Section 465 of the Code of Criminal Procedure empowers only the Court of appeal or confirmation or revision not to reverse a finding, sentence or order passed by Court of competent jurisdiction on account of any error, omission or irregularity in the proceedings unless in the opinion of the Appellate Court or Higher Court a failure of justice had in fact been occasioned thereby. The learned Counsel for the appellant wants this Court to lay down a law generally that the Trial Court is not empowered to apply the principal of Section 465 of the Criminal Procedure while holding the trial. The learned Counsel for the appellant wanted us to lay down the law as an absolute proposition that the prosecution case was bound to suffer if an irregularity in the conduct of the investigation or the prosecution was shown to the Court notwithstanding the fact that such irregularity had not led to failure of justice. We are not prepared to consider this submission of the learned Counsel for the appellant as it is not necessary to do so.
26. In the result, the appeal is allowed. The order of conviction and sentence imposed on the appellant by judgment and order dated 27th July 1994 passed by the Narcotic Drugs and Psychotrophic Substances Court at Mapusa in Special Criminal Case No. 3 of 1994 is set aside. We direct that the accused be set at liberty forthwith unless required in some other case. We direct that the muddemal M.O. 1 be and is hereby directed to be confiscated. Quantity of heroin M.O. 1 shall be forwarded to the N.D.P.S. Disposal Committee (Drug Disposal Committee) of Goa State Police Organisation through Inspector General of Police for disposal in accordance with the standing orders. The cash amount of Rs. 1425/- also stands forfeited in favour of the Government. The accused does not make any claim in respect of any of the Article 2, 3 and 4, the said Articles shall be destroyed.