1. This appeal is directed against the judgment and order dated 28.12.2010 passed by the Special judge, Greater Bombay in Special Case No.48 of 2006, thereby convicting the appellant/accused for the offence punishable under section 21(C) r/w 8(c) of the Narcotic Drugs and Psychotropic Substances Act, thereby sentencing him to suffer R.I. for 10 years and payment of fine of Rs.1 lakh, i/d, to undergo R.I. for six months. On 24.10.2005, the appellant was apprehended when he was carrying 13.800 kg of heroin in 46 pieces of shock absorbers at Bombay Central railway station, pursuant to an information received by the Directorate of Revenue Intelligence (DRI). The appellant on that day, travelled by Rajdhani express from Delhi to Mumbai Central. He collected the baggage from brake van. He collected his luggage of 4 black colour heavy bags from the break van and the officers of the DRI who were present, questioned him about the said baggage and in the presence of panchas, he was taken to DRI office. Thereafter upon completion of procedural formalities, when the bags were opened, they found number of capsules with heroin kept in the shock absorbers. Seizure panchanama was drawn in the presence of panchas. The officers from the DRI took samples and sent them to the Chemical Analyser. The CA gave a positive report about the heroin and thereafter the police after completion of the investigation, filed chargesheet. Charge was framed before the Special Judge. The accused pleaded not guilty. The prosecution examined in all 13 witnesses including the DRI officers, C.A. and the panch to establish its case.

2. The learned Counsel for the appellant has challenged the judgment of the trial Court on certain grounds. The main limb of challenge is that the seizure panchanama is not proved and the evidence of Panch, PW13, should not have been believed by the trial Court. He submitted that there are many infirmities and contradictions in the evidence of Panch PW13. Only one Panch i.e., PW13 is examined at exhibit 13 by the prosecution. Both the panchas are not examined. The Panch, who was examined, gave admission in the cross-examination that he did not understand English and the Roznama was explained to him by other pancha, who is not examined and, therefore, the panchanama is hearsay and it cannot be stated as a document of panchas. Thus, the DRI officers did not comply with the provisions of section 100 (5) of the Criminal Procedure Code.

3. He further submitted that the panch PW13 has stated that on 24.10.2005, he was residing at Colaba and PW1 Mr.M. A. Juwale, the Investigating Officer, called him on phone at around 7 to 7.15am and he asked him to come to Mumbai Central railway station and accordingly, he went there near platform No.5. There he met PW13 Juwale. However, in the panchanama, i.e., exhibit 13, there is a contrary statement that the panch went to the DRI office at Colaba where the officer explained them the purpose and then, they went to the railway station. He also admitted that he could not read the panchanama when it was shown to him. The learned Counsel submitted that if the panchas evidence is not found reliable and the panchanama is not proved, then, the prosecution has miserably failed to establish the nexus between the possession of heroin and the appellant. In support of this submission, he relied on Ritesh Chakravarti vs. State of Madhya Pradesh, Appeal (Cri.) No.1016 of 2006.

4. He further argued that under section 42 of the NDPS Act, the information received is to be recorded by the Investigating Officer. However, no information was reduced into writing and there is a non compliance of section 42(2) of the Act. The evidence of DRI Officers, who have participated in the trap and evidence of panch PW13 is contradictory on the point of arrival of panch whether at the DRI office or at Mumbai Central railway station and, therefore, should have been disbelieved. The learned Counsel further submitted that it was necessary o