The main legal point established in the judgment is that the recovery of contraband must be proved beyond reasonable doubt, and compliance with mandatory requirements, such as Section 50 of NDPS Act, is essential for a conviction.

Pratibha Rani, J.

1. The appellant Sunday Emegha is a Nigerian national. He is aggrieved by the judgment dated 25.07.2009 vide which learned Special Judge (NDPS) has convicted him under Section 21(c) NDPS Act for being found in possession of commercial quantity of heroine. The appellant was also convicted under Section 14 Foreigners Act for being in India even after expiry of visa.

2. The learned Special Judge (NDPS), after hearing the convict on the point of sentence on 28.07.2009, sentenced him under Section 21(c) NDPS Act to undergo RI for 10 years with fine of Rs.1 lac and in default of payment of fine, to undergo SI for six months and under Section 14 of Foreigners Act to undergo RI for 3 years. Both the sentences were ordered to be run concurrently and benefit of Section 428 CrPC was also given.

3. On the basis of secret information received, the appellant was apprehended on the night of 17.04.2009 at about 9.25 PM. The secret information was conveyed to the senior officers including ACP and on the directions of the senior officers, raiding party was constituted headed by SI Hari Kishan and consisting of Ct. Ved Pal and Ct. Satish and the raiding party left the PS vide DD No.38-A alongwith secret informer in Gypsy No.DL-1C-J-4863 driven by Ct. Hans. The Gypsy was parked at Gali No.11, Krishna Puri, Tilak Nagar and driver was left in the vehicle. Thereafter, efforts by raiding team to join public witness could not succeed.

4. The raiding party took position in Gali No.10 and at about 9.25 PM one Nigerian person, whose identity was subsequently revealed as Sunday Emegha, who is appellant before this Court, was seen coming with a bag on his right shoulder from Outer Ring Road side towards Krishna Puri and on the pointing out of the informer, he was apprehended.

5. As the appellant was not conversant with Hindi, he was communicated in English about the information being received and his legal right to get the search conducted in the presence of Gazetted Officer or Magistrate and notice to this effect under Section 50 NDPS Act Ex.PW4/A was served upon him by handing over carbon copy of the notice. The appellant vide his reply Ex.PW4/B on the reverse side of the notice Ex.PW4/A, refused to get his search conducted in presence of Gazetted Officer or Magistrate. On search of the bag of the appellant, one plastic transparent polythene, the mouth of which was tied with rubber band, was recovered and it contained brown colour powder. A very small quantity was taken out and checked with the help of narcotic kit and it was found to be heroine. The total quantity was found to be 1400 grams out of which two samples of 5 grams each were taken and thereafter the samples and the remnants were separately sealed with the seal of HK and seized. FSL form was also filled on which seal of HK was affixed. Seal after use was handed over to HC Rajbir. Thereafter rukka was prepared and Ct.Ved Pal was handed over the rukka as well as three sealed parcels, copy of the seizure memo, FSL form with directions to produce the rukka before Duty Officer and other articles before SHO.

6. On registration of the FIR by the Duty Officer, further investigation was assigned to ASI Padam Singh. The SHO affixed his own seal on the parcels. The second IO reached the spot alongwith Ct. Ved Pal alongwith copy of FIR where site plan was prepared. During investigation, the Nigerian Embassy was informed and search was made for Stanley, associate of the appellant and LOC was also issued for him.

7. Efforts were made to verify about the passport and visa of the appellant to verify whether his stay in India was authorized.

8. After completion of investigation, chargesheet was filed against Sunday Emegha for committing the offences punishable under Sections 21/61/85 of NDPS Act and under Section 14 of Foreigners Act. In order to prove its case, the prosecution has examined 13 witnesses. Statement of the appellant was also recorded under Section 313 CrPC wherein he has simp