Suresh Kait, J.

1. Vide the instant Appeal, the appellant has challenged the impugned judgement dated 22.03.2009 passed by ld. Special Judge, NDPS, New Delhi in Sessions Case no.38-A/05, whereby the appellant has been held guilty and convicted for the offence punishable under Section 21 (C) of NDPS Act.

2. Also challenged the order on Sentence dated 25.03.2009, whereby he was sentenced to undergo RI for a period of 12 years with a fine of Rs.1,50,000/- and in default of payment of the fine further sentenced to undergo RI for a period of 1½ years.

3. Benefit of Section 428 Cr.P.C. has also been extended to the convict.

4. The case of the prosecution before the Trial Judge, in brief was that on the basis of specific intelligence that one person of African original, travelling in a Indica-V2 Car bearing registration no. RJ-02-TEP-56822 was carrying about 4 Kgs. of heroin, a surveillance was mounted on NH-8 at Bilaspur Toll Tax Barrier on 02.04.2005 by the officers of DRI. Further the intelligence suggested that car would be coming from Jaipur side to Delhi between 13.15 Hrs. to 15.00 Hrs. Accordingly, the said vehicle came at about 13.50 Hrs. and was spotted while leaving the toll tax barrier towards Delhi and started follow-up through heavy traffic. As soon as, it was confirmed that there was a male of African Original sitting in the said Car, the same was intercepted at about 14.30 Hrs, just after Mahipalpur Crossing in Delhi on NH-8.

5. It is further case of the DRI that at the time of interception, car was found to be occupied by one Driver of Indian origin, a man of African origin, two women and a child. The officers disclosed their identity and asked the occupants of the car about their identity. They identified themselves as Rajesh Yadav (Driver of the car), James Ezea Franky, Nizerian Citizen (Appellant), Angela Julie and Suzanna Saili with her 5 year old daughter namely Chi Chi.

6. On enquiry by the officers, the appellant admitted that he was carrying Narcotic Drugs with him in the Car. Accordingly, Notice under Section 50 of NDPS Act was served upon the Appellant and driver Rajesh Yadav as well. The appellant expressed his consent to be searched by any officer of DRI and that he may not be searched at heavily crowded and a congested spot, therefore he was escorted to DRI Office at CGO Complex, Lodhi Road. To the notice served upon him under Section 50 of NDPS Act, he declined to require the presence of any Magistrate or Gazetted Officer and similarly driver Rajesh Yadav gave his consent for his search and of his Car by any Officer of DRI and also declined to require the presence of any Magistrate or Gazetted Officer.

7. The Officers of DRI served summons under Section 67 of NDPS Act to both the ladies who also escorted to the Office of DRI. Both the ladies mentioned above were also served notice under Section 50 of NDPS Act, but nothing incriminating was recovered in their search conducted by Mrs. Anju Singh, IO of the case. From the search of driver Rajesh Yadav, Toll Booth Receipts ACM 134077 dated 20.04.2005 and business cards were recovered and nothing incriminating was recovered.

8. However, from the personal search of the appellant, a paper on which Jaipur Road, Rajasthan, Main Road, Kotputli was written in green ink by pen, Indian Currency of Rs.3,600/-, US$ 2000, two mobile phone sets were recovered and in search of the Car led to recovery of bag of Feroze-grey-black colour of “Genovaclub” from rear seat and documents i.e. temporary registration Certificate no. 0056822 dated 30.03.2005, Insurance Cover note from the Dash Board of the Car were recovered.

9. Further, the case of DRI is that on opening the bag, three packets taped over with brown adhesive tapes were found and one more packet was found inside the bag which was kept in a packet polythene bag. The bags were removed and the packets were found plain polythene packets containing white powder and granules secured in double polythene transparent bags giv