J. M. MALIK, J.

( 1 ) THIS order shall decide the above said two appeals. Both the appellants are Nationals of Nepal. They were sentenced to undergo Rigorous imprisonment for 14 years each under Sections 29 and 21 respectively of NDPS Act and to pay a fine in the sum of Rs. 1,00,000/- each for each of the offences separately, failing which they were to further undergo Rigorous Imprisonment for one year under each Section i. e. 29 and 21 of NDPS Act. Learned Additional sessions Judge further held that both the sentences would run concurrently and the appellants were given the benefit of Section 428 Cr. P. C.

( 2 ) THE facts of the prosecution case are these. On the night falling between 28/29. 01. 2000, eleven Nepali Nationals were travelling to bangkok by different flights at I. G. I. Airport, New Delhi. They were arrested. They admitted having swallowed capsules filled with Heroin. Few capsules were recovered from them at the spot and few were recovered as a result of evacuation in R. M. L. Hospital. On a follow up action on 31. 01. 2000, the custom officer raided room No. 102, Yak House, New Tibetan Camp, Majnu Ka Tila, Delhi in presence of two independent witnesses. Appellant Gita Lama Tamang opened the room. He informed that the said room was booked in the name of Feli Bahadur. Notice under Section 50 NDPS Act was given to the appellant but he did not make avail of this opportunity. A blue black zipper bag, containing 104 white coloured capsules, was seized. All the capsules were cut open and powder weighing 874 grams was recovered. One Nepali passport in the name of Gita Lama and a small pocket note bearing mark "shankar" were also recovered from the abovesaid blue black zipper bag.

( 3 ) THE appellant made the following explanation. He had gone to Lahore on 27. 01. 2000 from I. G. I. Airport, New Delhi. There, he met Anil Kumar Tamang, his co-accused, who gave him abovesaid capsules. He swallowed the same, came back to India via Wagah border, Amritsar, hired a taxi and arrived in Delhi. He took out all the 104 capsules through his rectum, washed them with water and kept the same in a bag, which was finally concealed in the abovesaid blue black zipper bag. Two samples weighing 5 grams each were separated. Sample packets were sealed and panchnama was prepared. Statement of Gita Lama Tamang was recorded under Section 67 NDPS Act.

( 4 ) DURING investigation, it transpired that accused Anil Kumar tamang was already in judicial custody in another case under NDPS Act. His two days custody remand was obtained, his statement under Section 67 NDPS Act was recorded, wherein he admitted the abovesaid allegation that he had handed over those capsules to Gita Lama Tamang in Lahore at Badees Hotel. He also pointed out that he was working in cahoots with Budha Tamang, Sunil Kumar etc. and was sending the Nepali youths in drug trafficking with Sunil Kumar. However, the above named persons could not be traced.

( 5 ) THE argument urged by learned counsel for the appellants is many branched. The principal argument urged by learned counsel for the appellants was that, although, two panch witnesses were arrayed as per Panchnama, yet, those were not produced in the dock for the reasons best known to the respondent. Learned counsel for the appellants drew the attention of the Court towards a recent authority reported in Jitesh Chakravorti v. State of M. P. , 2006 (9) SCALE 644, wherein it was held, firstly, that in a case under NDPS Act, recovery of contraband in presence of the independent persons assumes importance. In this judgment, cases of Jagdish v. State of M. P. , 2003 (9) SCC 159 and Bhola Ram v. State of M. P. , 2001 SCC 35 were relied upon. In both these cases, witnesses had turned hostile. Secondly, it was held that an adverse inference can be drawn for non-examination of material witnesses.

( 6 ) THERE is another side of the coin which ought not be overlooked. The record reveals that summons were sent to the abovesaid witness