1 The appellant is aggrieved by the judgment and order dated 31st August, 2005 passed by the Special Judge appointed under the NDPS Act. The appellant has been convicted of the offences punishable u/ss. 21(C) r/w. 29 and 23(C) r/w. 28 of the NDPS Act. For both the conviction he has been sentenced to suffer RI for 10 years each and to pay a fine of Rs.10 lakhs each and in default, to undergo RI for 3 months each.

2. The appellant is a Nigerian national. He had come to Mumbai on 30th June, 2002 and was staying at Hotel Colaba Causeway. The officers of Narcotics Control Bureau, Mumbai, has intercepted him at Sahar International Airport on the basis of certain information that he would be carrying Heroin by Swiss International Airlines Flight No.LX 155 ETD. His checked-in baggage and cabin baggage was subjected to search. He was given opportunity of being searched in presence of a Gazetted Officer or the Magistrate as provided by the law. He refused to avail the said opportunity. Nothing incriminating was found during the course of search of his checked-in baggage. However, Heroin weighing 1.200 kgs. was recovered from his cabin baggage which was concealed in a false bottom of his VIP skybag. The same was seized. Two samples were drawn. The samples were named as Awah-I and Awah-II, respectively. The bulk quantity was packed in cartoon and sealed. Panchnama was prepared. The documents found during personal search of the appellant and his travel documents were seized under the panchnama. His statement u/s. 67 of the NDPS Act was recorded.

3. During the course of recording of statement of appellant, it was revealed that he was staying at Spain since 1998. He came to Mumbai on 30th June, 2002. He had a Nigerian friend by name Peter who stays in Amsterdam. The appellant was offered 2000 US Dollars by the said Peter for carrying drugs from India. The appellant was assured that there would not be any chance of appellant being apprehended. The appellant, therefore, accepted the proposal and undertook to carry out the job. His arrangements for journey from Spain to India were made by Peter. After reaching India, the appellant had received Rs.2,70,000/- from Mr.Peter through Western Union Money Transfer. One African National had visited hotel room of the appellant on 11th July, 2002. The appellant had paid Rs.2 lakhs to the said African national as directed by the Peter and in exchange received suitcase from the said African national.

4. It is the case of the prosecution that it is the same suitcase in which there was a concealed bottom and Heroin was kept in the concealed bottom. The said suitcase was carried by the appellant and, as already stated, the appellant was intercepted at the Airport. The suitcase was found to be cabin baggage of the appellant.

5. The field test of the alleged Heroin tested positive for the Heroin. Sample Awah-I was sent to Deputy Chief Chemist by Narcotics Bureau. The Deputy Chief Chemist reported that the sample is in the form of white powder and it answers the tests for diacetyl Morphine (Heroin). The sample Awah-II was sent to Forensic Science Laboratory on 16th July, 2002. The Assistant Chemical Analyser of the Laboratory had reported that the sample contained Heroin (Diacetyl Morphire) Hydrochloride along with other opium and that alkaloids is detected in the Exhibit. It is stated by the Chemical Analyser that Exhibit fell u/s. 2(xvi)d of the MDPS Act, 1985. The bulk of Heroin which was sealed in the carton was opened by the Special Magistrate for drawing a sample as per Section 52-A of the NDPS Act. The Special Magistrate prepared panchnama after drawing the sample. The carton was repacked and resealed after the panchnama was drawn by the Special Magistrate. After completion of investigation, complaint was filed in the Court of Special Judge, Mumbai.

6. Charge for the offences stated in para one of this judgment was framed against the appellant and it was explained to him. He pleaded not guilty to the