JUDGMENT

Shiv Narayan Dhingra, J.

1. The present appeal under Section 378 (4) of the Code of Criminal Procedure, 1973 has been preferred by the appellant Union of India assailing the judgment dated 20th March, 2003 passed by learned Special Judge, NDPS Act, New Delhi acquitting the respondent/accused of the charges under Section 21, 23 and 28 of Narcotic Drugs and Psychotropic Substances Act ("NDPS Act" for short).

2. Brief facts relevant for the purpose of deciding present appeal are that respondent/accused, a Nigerian citizen holding Nigerian Passport No.C-420048 was intercepted on 15th September, 1998 while he had checked in for going to Lagos at Indira Gandhi International Airport. After checking in for boarding Ethiopian Airline and after clearance of immigration and custom formalities, while he was proceedings towards Security Hold Area, he was intercepted by the custom officers and was asked if he was carrying a narcotic drug for foreign currency or any contraband goods either on his person or in any checked-in-baggage or hand baggage. To this, the respondent/accused replied in negative. Thereafter, he was served a written notice under Section 50 of NDPS Act informing him that his baggage and person would be searched and if he desired, his search could be conducted in presence of either a Magistrate or a Gazette Officer of Customs to which he replied, in writing, that his baggage could be searched in presence of any custom officer. His baggage which he had already checked was retrieved noting down the baggage number from his ticket tag and called from the belt. He was also having hand baggage. On checking checked-in-baggage nothing incriminating was found. However, when his black coloured leather executive handbag was checked, a false bottom was found in this executive bag which on opening resulted in the recovery of two polythene bags containing brown powder. The brown powder was tested with the help of Field Test Kit. It gave result of heroin. The respondent/accused was taken to Custom Prevention Room situated in the Departure Hall itself and his personal search was conducted. Nothing incriminating was found on the personal search. This entire operation of search had taken place in presence of witnesses. The respondent/accused was asked if the brown powder recovered from the false bottom of his handbag in the polythene was heroin, to which he admitted. The brown powder in two polythene bags was marked as A and B weighed. Packet marked A was having gross weight of 1090 gms and net weight of 1065 gms and packet marked B was having weight of 1065 gms and net weight of 920 gms. Thus the total quantity of heroin was found to be 1985 gms. This brown power was confiscated by the custom authorities along with executive handbag and polythene bag used for packing and sealing the brown powder. Two representative samples each of 5 gms were taken from the two polythene bags and were marked as A1 and A2, B1 and B2 and kept in small polythene bags separately further kept in paper envelops and sealed with the seal of custom officers. Rest of the brown powder was placed in a round metal container and was sealed separately under the signatures of the signatories to the punchnama. Torn inner lining of handbag and its plywood rectangular sheet were put in the black coloured leather executive handbag itself and then the bag was wrapped with while cloth and sealed under the signatures of the signatories of the punchnama. The boarding card of the respondent/accused in respect of flight ET-619, his air ticket, his baggage claim stubs affixed on his ticket, handbag, tag of economy class of Ethiopian Airline were also seized. The statement of respondent /accused under Section 67 of NDPS Act was recorded by the custom officer wherein respondent admitted recovery of brown powder and other incriminating facts. The respondent was arrested and was produced before the concerned court and remanded to judicial custody. On 16th September 1998 i.e.