The prosecution must prove the case beyond reasonable doubt, and the reliability of official witnesses and the voluntariness of statements are crucial in establishing guilt under the NDPS Act.

Mukta Gupta, J.

1. By the present appeal the Appellant impugns the judgment dated 26th August, 2010 convicting him for offence punishable under Section 21(c) of the NDPS Act and the order on sentence dated 30th August, 2010 directing him to undergo rigorous imprisonment for a period of 10 years and a fine of Rs. 1 lakh and in default of payment of fine to undergo further simple imprisonment for three months.

2. Learned counsel for the Appellant contends that as per the secret information received at 6.45 AM on 22nd December, 2005 a person of African origin around 6 feet tall with the red and black bag containing some narcotic substance would cross the Roop Nagar roundabout, near Delhi University at about 10.30 AM. Thus, a raid was conducted and at 9.40 AM the Appellant was allegedly apprehended at Roop Nagar roundabout. Since the place was not found to be conducive for search, the Appellant was taken to the office of the Respondent at ITO where a notice under Section 50, NDPS Act was given to him vide Ex.PW1/B. As per the notice under Section 50, NDPS Act it was stated that there was a specific information and there were reasons to believe that the Appellant was carrying narcotic drugs i.e. heroine on his person or in his shoulder bag. Thus, the so-called secret information was a total farce and before giving notice under Section 50 NDPS Act and conducting the search, the investigating agency was aware that the narcotic drug was heroine. The introduction of the word `heroine’ in the notice under Section 50 NDPS Act belies the version of the prosecution totally. Allegedly two public witnesses were called, however no member of the raiding party knew who called them and from where they were called. As per the prosecution case, the panchnama Ex.PW1/C was prepared at 1.30 PM, summons were served on the Appellant at 2.00 PM and a statement under Section 67 NDPS Act was recorded. He was formally arrested at 5.30 PM. On the same day between 4.00 PM to 6.00 PM, Room No. 9 of Virat Tourist Lodge at Pahar Ganj was searched where the Appellant was staying. From the search some US $, Nigerian currency and air tickets were seized. This version of the prosecution is belied by the entry Ex.9/DX. Entry in the Foreign Guest Register of the hotel Ex.PW9/DX shows the time and date of departure of the Appellant as 22nd December, 2005 arrested by DRI Department, ITO Second Floor at 8.30 AM. Despite the fact that Government officials were available at and near the DRI office, the two panch witnesses allegedly joined with the investigation were those who did not give their complete address and thus they could not be served and examined during the trial.

3. The defence of the Appellant is that he was arrested while leaving the Tourist Lodge in the morning and the handbag was planted on him. The time of seizure, arrest, place of apprehension are all shrouded in mystery. PW1 the seizing officer D.P. Saxena stated that he was accompanied by PW2, however PW2 stated that the apprehension of the Appellant did not take place in his presence. Though it is alleged that the Appellant was apprehended at Roop Nagar and thereafter taken to the DRI office where heroine was recovered from him, however the relevant entries in the valuable godown register Ex.PW4/A and B indicate that the place of seizure of heroine was Room No.9, Virat Tourist Lodge and place of seizure of currency was DRI. The version that the area of apprehension was not conducive to search is wholly incorrect as near the roundabout where the alleged apprehension took place, Roop Nagar Police Station is situated and the same cannot be said to be a place not conducive for search. As per the prosecution, DRI seal No. 10 was used in both the proceedings by different officials i.e. PW1 and PW3 on the same day. As per the evidence the seal was returned by PW1 after seizure proceedings which concluded at 1.30 PM. There is no entry in the seal movement register Ex.PW1/T of handing over the seal to P