JUDGMENT (S.B. SINHA, J )

1. Leave granted.

INTRODUCTION

2. Several questions of grave importance including the constitutional validity of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the Act"), the standard and extent of burden of proof on the prosecution vis-`-vis accused are in question in this appeal which arises out of a judgment and order dated 9.06.2006 passed by the High Court of Punjab and Haryana in Criminal Appeal No. 810-SB of 2000 whereby and whereunder an appeal filed by the applicant against the judgment of conviction and sentence dated 7.6.2000 under Section 22 and 23 of the Act has been dismissed.

PROSECUTION CASE

3. Appellant is an Afghan national.

4. He was arrested and later on prosecuted under Sections 22 and 23 of the Act allegedly for carrying 1 kg 400 grams of heroin as a member of crew of Ariana Afghan Airlines.

5. Appellant arrived at Raja Sansi Airport at about 6 p.m. on 1.08.1997. He presented himself before the authorities under the Customs Act, 1962 (for short "the Customs Act") for customs clearance. He was carrying a carton with him said to be containing grapes. The cardboard walls of the said carton were said to have two layers. As some concealment in between the layers was suspected by one Kulwant Singh, an Inspector of the Customs Department, the appellant was asked as to whether he had been carrying any contraband or any other suspicious item. Reply thereto having been rendered in the negative, a search was purported to have been conducted.

6. Kulwant Singh, who examined himself as PW-1 before the trial court, allegedly asked the appellant as to whether he intended to be searched by a Magistrate or a Gazetted officer of the Customs Department; in response whereto, he exercised his option for the latter, whereupon one Shri K.K. Gupta, Superintendent of the Customs Department and two independent witnesses, Mohinder Singh and Yusaf were sent for. K.K. Gupta disclosed his identity to the appellant as a Gazetted officer working in the Customs Department.

7. The layers of the walls of the carton were thereafter separated, wherefrom 22 packets of polythene containing brown powder were allegedly recovered. The same was weighed; the gross weight whereof was found to be 1 kg. 400 grams. Representative homogeneous samples from each packet in small quantities were taken weighing 5 gms. each. They were purported to have been sealed with a seal bearing No. 122 of the Customs Department. The cardboard carton was also sealed with the same seal. The recovered item being of brown colour was taken in possession vide recovery memo (Ex. PB), Panchanama (Ex. PC) prepared by Shri Kulwant Singh. The entire bulk was put into cotton bags and sealed.

ARREST AND PURPORTED CONFESSION

8. Although the appellant had all along been in the custody of the Customs Department, he was formally arrested at about 3 p.m. on 2.08.1997, i.e., 15 hours after the recovery having been effected. Grounds of arrests allegedly were supplied to him. His body was also searched wherefor his jamatalashi was prepared which was marked as Ex. PE.

9. Appellant purported to have confessed his guilt on 2.08.1997 as also on 4.08.1997.

INVESTIGATION

10. Samples were sent to the Central Forensic Laboratory on 5.08.1997. The weight of the said samples was found to be 8.7 gms. The document is said to have been tinkered with, as the words "net weight" were crossed and converted into `gross weight.

11. The alleged contraband was found to be of white colour containing Diacetyl Morphine. The report was submitted on 2.09.1997; on the basis whereof a complaint Ex. PL was filed in the Court and in a consequence thereof, appellant was to put on trial having been charged under Sections 22 and 23 of the Act.

12. The contraband articles were produced before the Magistrate on 30.01.1999. The purpose for production is mired in controversy. Whereas the appellant contends that the same was done for the purpose of authentication, according to the