The voluntary nature of the appellant's statement and the shift of onus under Section 54 of the NDPS Act were central to the court's decision.

H.R. Panwar, J.-This criminal jail appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 (for short, “the Code” hereinafter) is directed against the Judgment and order dated 11.06.2003 passed by the Special Judge NDPS Cases, Udaipur

(for short, “the trial Court” hereinafter) in Sessions Case No. 5/2002, whereby the trial Court convicted the appellant for the offence under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, “the NDPS Act” hereinafter) and sentenced him to undergo ten years rigorous imprisonment and a fine of Rs. One lac, in default of payment of fine further to undergo one year’s rigorous imprisonment. Aggrieved by the Judgment and order impugned, the appellant has filed the instant appeal through jail.

2. Briefly stated, the facts, to the extent they are relevant and necessary for the decision of this appeal, are that on 10.2001, at about 2:00 PM, PW 6 Dharam Singh Meena, Inspector, Central Narcotic Bureau, Udaipur, received a secret information that the appellant, who is a resident of Mainpuri (U.P.), is carrying 10 to 12 kgs of opium from Bhatewar in a vehicle. The information was reduced to writing vide Exhibit P/10 and was forwarded to the Commissioner, Narcotics Headquarter, Gwalior and the Deputy Narcotics Commissioner Unit vide Exhibit P/18. Thereafter, alongwith PW 1 Nagendrapal Singh and other officials of Narcotics Bureau, he reached Sewashram Tiraha, Udaipur at about 1600 hrs. The motbirs were called and their consent to carry out the search in their presence was obtained. At about 4:15 PM, a suspected person came carrying plastic bag in his right hand and stood under a Shisham tree (Indian rosewood tree). It was stopped and after introducing that PW 1 Nagendrapal Singh is Inspector of Central Narcotics Bureau. Suspecting that person to be in possession of contraband opium, a notice under Section 50 of the NDPS Act Exhibit P.8 was served on him and he was apprised of his right to be searched by a Magistrate or a gazetted officer or the seizure officer. The appellant gave his consent that he does not wish to be searched by a Magistrate or a gazetted officer but consented that his search may be carried out by the seizure officer PW 1 Nagendrapal Singh. On being searched, the appellant was found in possession of contraband opium weighing 11.500 kg. Two samples of 25 grams each were taken and the remaining opium as well as the samples were sealed on the spot. The statement of the appellant under Section 67 of the NDPS Act was recorded. Thereafter the appellant was arrested. The sample as also the remaining contraband opium were deposited in the Malkhana. After usual investigation, a complaint was filed against the appellant for the offences under Section 8/18 of the NDPS Act. The trial Court framed charge, to which the appellant denied and sought trial. The prosecution adduced evidence by producing as many as seven witnesses and the documents Exhibit P/1 to Exhibit P/19 The appellant made statement under Section 313 of the Code and denied the allegation. The trial Court, vide impugned Judgment and order, convicted and sentenced the appellant as noticed above, Hence this appeal through jail.

3. I have heard learned Amicus Curiae for the appellant and the learned Counsel appearing for the Central Narcotics Bureau. Carefully gone through the Judgment and order, as also the record of the trial Court.

4. It is contended by the learned Amicus Curiae appearing for the appellant that the statement of the appellant (Exhibit P/6) recorded by the Central Narcotics Bureau, does not bear the time when it was recorded. Learned Amicus Curiae submits that in the arrest memo Exhibit P/7, the time of arrest of the appellant has been shown and likewise, in the seizure memo Exhibit P/2 also, the time has been shown and, therefore, non-mentioning of time on the statement of the appellant (Exhibit P/6) recorded under Section 67 of the NDPS Act, shows that the statement