The court upheld the conviction under the NDPS Act and modified the sentence based on the appellant's personal circumstances.

JUDGMENT

Manoj Kumar Ohri, J. - The present appeal has been preferred under Section 374 Cr.P.C. on behalf of the appellant assailing the judgment on conviction dated 11.06.2021 and the order on sentence dated 16.06.2021 passed by the learned Special Judge (NDPS), Patiala House Courts, New Delhi in SC No. 64/2019.

2. Vide the impugned judgment, the appellant was convicted for the offence punishable under Section 20(b)(ii)(B) read with Section 23(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter, referred to as the 'NDPS Act'). By way of the impugned order, the appellant was sentenced to undergo Rigorous Imprisonment for a period of 04 years, alongwith payment of fine of Rs.50,000/-, in default whereof, to further undergo Simple Imprisonment for a period of 06 months. The benefit of Section 428 Cr.P.C. was extended to the appellant.

3. Brief facts of the case, as noted by the Trial Court, are as under:-

1. Prosecution case in brief is that IO Virender Kumar on 04.12.2018 at around 2230 hours received an information that accused Mohd. Anas, Sri Lankan national travelling to Muskat by Jet Airways was detained by officials of CISF and suspected to carry narcotic drugs/psychotropic substances, thereafter the said information was given to zonal director who endorsed the said information to IO Rajesh Yadav to constitute the team and take action as per law. Then, raiding team was prepared headed by IO Rajesh Yadav left the office at around 2300 hours and reached airport at around 2350 hours where shared the information with SHA incharge who pointed towards the accused detained by CISF officials. IO requested 2-3 persons to join raiding team. SI Sanjeev Kumar Sharma and SI Robin Lakra of CISF agreed to be the independent witnesses. Accused was explained the secret information then accused disclosed that he is a resident of Sri Lanka. and declined to take search of raiding team members. Notice u/s50 was given to the accused apprising him his legal right to search before gazette officer or magistrate but accused wrote that he does not require presence of gazette officer or magistrate for personal search, however nothing recovered from his personal search. On opening the blue colour pithu bag, nothing incriminating was found in the clothes however the base bottom part looked abnormal and on touching feel like a solid substance then on cut open of the bottom part of the said bag, it was noticed that wrapped/brown adhesive tape was concealed. On taking out the whole brown tape and on cutting open, a brown colour solid substance was found which accused told that it was charas. On testing it gave positive result for charas, total weight of charas is found 200 gm, thereafter two samples of 25 gm each were drawn, panchnama was prepared. All recovered material alongwith samples, passport of accused, e-ticket, cancelled boarding pass, ticket information and visa confirmation documents were taken in possession. Seizure and sealing proceedings were completed.

2. On 05.12.2018 statement of accused Mohd Anas u/s 67 was recorded in which he disclosed that he came to India at Chennai Airport from 01.12.2018 from Colombo thereafter came to Delhi and went Bhuntar where stayed at Hotel HHH in Kasol then purchased charas in Kasol from one Raji of Malana village having mobile no. 9805612904 thereafter came back to Delhi on 04.12.2018 and stayed in Shyama Palace Hotel in Pahargunj however during security check at airport some suspicious thing is noted in X-ray machine thereafter he was detained. He further stated that he has purchased the said charas for Rs. 22,000/-, thereafter, statement of independent witnesses u/s 67 NDPS Act were also recorded. The samples were duly deposited in malkhana. Entries in seal movement register were made. After recording of voluntary statement u/s 67, accused was arrested. Proceedings u/s 57 was conducted. CDR and CAF of mobile recovered from accused collected. As per CRCL report, the contra band was f