The judgment emphasizes the extra burden of strict proof imposed by the N.D.P.S. Act and the need for the prosecution to discharge its burden of proving the facts.

G.R. Udhwani, J.

1. All these criminal appeals arise out of judgment and order dated 3.8.2011 passed by learned Special Judge and Additional Sessions Judge, City Civil and Sessions Court, Ahmedabad in Sessions Case No. 246 of 2006 convicting Mohammed Irfan Gulam Jafar Shaikh, Shamsher Mohammadhusain Butwala and Smt. Mumtazbanu Tazuddin Malek for the offences punishable under Sections 8(C), 20(b)(2)(c) and Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'N.D.P.S. Act'). They have been sentenced to rigorous imprisonment for ten years with fine of Rs. 1 lakh or simple imprisonment for one year in default of the fine. No separate sentence came to be passed under Section 29 of the Act.

2. The convicts were prosecuted by Narcotics Control Bureau (for short 'NCB'). Criminal Appeal No. 1210 of 2011 has been preferred for enhancement of the sentence against the aforesaid persons by NCB. Criminal Appeal No. 1540 of 2011 has been preferred by NCB questioning acquittal of respondent No. 1-original accused No. 4. Rest of the three appeals question the conviction.

3. As per the prosecution case, a secret information about transportation of contrabands on 10.1.2006 by the convicts and acquitted accused in Maruti Car bearing registration No. GJ18-AA-3080 was received on 9.1.2006 and therefore after necessary formalities P.W.2-Exh. 59 Jitendra Niranjanbhai Raghuvanshi constituted a raiding team, proceeded to the spot in question, intercepted the vehicle in question, found therein Mohammed Irfan Jafar Shaikh (accused No. 1) on the driver's seat and Shamsher Mohammad Hussain Bhutwala (accused No. 2) occupying the seat adjoining to the driver's seat and other accused Mumtazbanu (accused No. 3) occupying the rear seat. According to the prosecution, accused No. 4 was aide of the three accused aforestated.

4. After the interception of the car and on search, a concealed cavity beneath the rear seat containing six packets of charas weighing 18.490 kgs. was detected. The vehicle and contraband were seized and the accused persons were taken in the vehicle of NCB whereas one of the personnel of NCB drove the seized car to the office of NCB. All other formalities of drawing of the samples, packing and sealing etc. were done at NCB office and panchanama in that regard was also drawn there. The statements of the accused persons under Section 67 of the Act were also recorded in the NCB office.

5. In the aforesaid background, the complaint was registered and the case was ultimately tried as aforesaid and the Court on consideration of the material on record and rival contentions was satisfied that the offences as charged are proved against the three convicts herein and thus recorded the conviction as stated above.

6. We have heard learned advocate Mr. R.M. Agarwal, Mr. Vinod M. Gamara for the convicts and Mr. K.T. Dave for NCB.

7. Besides many other points, one convincing point going to the root of the matter has been advanced by the learned advocates for the convicts. According to them, right from the inception, the safe custody of the muddammal contraband was not ensured. While relying upon the oral and documentary evidence particularly that of P.W.2 and P.W.3, it was argued that though P.W.3 is godown incharge, he did not deal with the custody of muddammal but it is P.W.2-the raiding officer and investigator who was given a free hand to deal with the contraband after seizure. It was argued that the claim of P.W. 2 and P.W.3 that muddammal was safely dealt with was not supported by any documentary evidence in the trial Court and, therefore, substantial doubt about safe custody of contraband looms large.

8. As against that, learned counsel Mr. K.T. Dave invited the attention of this Court to the testimony of P.W.2 and P.W.3 and would contend that on 1.1.2006, from the place of incident on search of the car in question six packs of charas were found and therefore the car along with two panchas and Jitendra Raghuvanshi P.W.2 wa