The main legal point established in the judgment is the application of the presumption under Section 35 read with Section 54 NDPS Act and the failure of the appellant to rebut the presumption, leading to the conclusion that the appellant was found in possession of a commercial quantity of heroin, thereby committing an offence under Section 21(c) NDPS Act.

S. Muralidhar, J.:--

1. This appeal is directed against the impugned judgment dated 22nd September 2010 passed by the learned Special Judge, NDPS in SC No. 38 of 2008 convicting the Appellant for the offence under Section 21(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS’) and the order on sentence dated 23rd September 2010 sentencing him to rigorous imprisonment (‘RI’) for ten years with fine of Rs. 1 lakh and in default to undergo simple imprisonment (‘SI’) for six months.

2. The case of the prosecution is that on 23rd December 2006, Sub-Inspector (‘SI’) A.K. Singh of Special Cell (PW-5) received a secret information that the Appellant, a Pakistani national who was in Delhi, would come to deliver heroin to his Punjabi contacts near PVR Plaza, Connaught Place at 9.30 pm. PW-5 then took the secret informer to Inspector Devender Singh (PW-4) who verified the information and produced him before the Assistant Commissioner of Police (‘ACP’) Rishipal who directed them to conduct raid. A Daily Diary (‘DD’) No. 17 was recorded in the roznamcha and a copy was sent to the ACP, Special Cell.

3. A raiding party comprising PW-5, PW-4, Sub-Inspector Satender Sangwan, Head Constable (‘HC’) Balraj, HC Baljender Singh and Constable Naresh (PW-7) proceeded to the spot in two private vehicles with the informer. They reached the PVR Plaza, Connaught Place and requested 4-5 passersby to join the proceedings but none agreed.

4. Around 9.30 pm, a person came from the side of outer circle on foot with a white polythene bag in his right hand. He stood near ‘no parking sign board’ waiting for someone. He was pointed out by the secret informer. After waiting for about 10 minutes when he starting going towards the outer circle, he was apprehended. The raiding officer introduced himself to the Appellant and told him about the information received and gave him a notice under Section 50 NDPS Act apprising him of his right to be searched before a Gazetted officer or a Magistrate which he declined. Prior to his search some passersby were again requested to join the proceedings as witnesses but they refused.

5. The polythene bag carried by the Appellant was searched. Inside it was a black polythene bag which was found to contain 2 kg heroin. Two samples of 50 grams each were taken out and given marks S1 and S2. The remaining case property was given mark E. The bags and the samples were sealed with seal of AKS and counter sealed by PW-4 with the seal of DS. Form FSL was filled on the spot on which same seal impression was affixed. The seal was returned to PW-4 and a seizure memo was prepared. A rukka was sent from the spot along with the FSL form, case property, the samples and the copy of the seizure memo through HC Bijender (PW-8) to the Police Station (‘PS’).

6. After registration of the FIR, PW-8 produced the case property before the Station House Officer (‘SHO’) Inspector Parasnath (PW-3) who put a seal of PNC on it and deposited it in the malkhana. Further investigation was conducted by Sub-Inspector (SI) Binay Singh (PW-6). He prepared the site plan, arrested the Appellant and recorded his disclosure statement under Section 67 NDPS Act. The sample was sent to Forensic Science Laboratory (‘FSL’) through PW-7. When analysed the sample tested positive for the presence of diacetylmorphine (‘DAM’) with purity of 19.6%.

7. After investigation the Appellant was sent for trial and charged with the aforementioned offence. Nine witnesses were examined by the prosecution. In his statement under Section 313 of the Code of Criminal Procedure (‘Cr PC’), the Appellant denied the evidence and claimed to have been falsely implicated. He claimed to have been picked up forcibly from the place near PCO Turkman Gate, taken to the office of the Special Cell at New Friends Colony where he was tortured and his signatures were obtained on many blank papers. He denied that anything was recovered from his possession or at his instance.

8. The Appellant ex