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1. This appeal is directed against the judgment and the order of conviction dated 11.12.1998 passed by the Additional Sessions Judge in Sessions Case No. 74/96 convicting the appellant under Sections 21/23 of the Narcotic Drugs and Psychotropic Substances Act (for short 'the Act') and sentencing her to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000/- or in default to suffer further rigorous imprisonment for a period of six months.

Briefly stated the prosecution case is that on 3.4.1996, two postal parcels bearing Nos. R-250012 and R-250013 arrived at Frankfurt Airport, Germany, with flight No. AV018 from Bogota, Columbia destined for further transport to India. At Frankfurt Airport, both the parcels were intercepted by the Custom Officer Mr. Rabolt, who had handed over them to the Chief Inspector Customs Mr. Prior. Both the parcels, when opened in the presence of the Custom Officer Mr. Hilder Brand, tested positive for cocaine. Consequently, a criminal case was registered vide Reference No. 89Js 141520/96 and both the parcels containing contraband were seized and confiscated by the Custom Authorities, Government of Germany. After obtaining sanction from the Chief Public Prosecutor, Government of Germany, Dr. Leistner, the Narcotics Control Bureau, Govt. of India (for short "the NCB") was requested for a controlled delivery. By the order dated 4.4.1996 (Ex.PW-16/A), the Government of India empowered the NCB to undertake controlled delivery of the said consignment. On 9.4.1996, the aforesaid parcels were handed over to the Captain of the Lufthansa Airlines Mr. Manfred Montjoge for their delivery to Mr. Berned Engel, German Drug Liaison Officer posted in India. On 10.4.1996, the said consignment arrived at I.G.I., Airport, New Delhi by the morning flight. Mr. Montjoge delivered the parcels to Mr. Berned Engel, who in turn handed over them to Mr. Shailendra Sharma (PW-12) at the airport. The parcel No.251002 destined for Goa had been handed over to the Officers of the NCB, Bombay Zonal Unit and the parcels No. 251003 destined for Delhi remained in the custody of Shri Shailendra Sharma. The further case of the prosecution is that Deputy Chief Post Master, Mr. R.P. Sharma was contacted by the Zonal Director NCB, Mr. Mukesh Khullar and a plan was chalked out to nab the claimant of the parcel bearing No. 251003. According to the plan, the intimation slip (Ex.PW-1/D) was prepared and kept in the post rest ante counter under surveillance of the Officers of the NCB.

The learned Additional Sessions Judge, on an assessment of evidence adduced by the prosecution, accepted the prosecution case and convicted and sentenced the appellant as indicated above.

5. At the outset, I must make it clear that the present case pertains to the controlled delivery. As per prosecution case, two postal parcels bearing Nos. R-250012 and 250013 arrived at the Frankfurt Airport, Germany with flight No.AV018 from Bogota, Columbia, destined for further transport to India. On suspicion, both the parcels containing cocaine were intercepted at the airport by the customs officer Mr. Rabolt, who handed over them to the Chief Inspector Customs Mr.Prior. Consequently, a criminal case in respect of the said parcels was registered at Frankfurt (Germany) and the said parcels were seized and confiscated by the Customs Authorities. After obtaining the requisite sanction from the Chief Public Prosecutor, Government of Germany Dr.Leistner, the NCB was requested to undertake a controlled delivery. By the order dated 4.4.1996 (Ex.PW-16/A), the Government of India empowered the NCB to undertake the 'controlled delivery' and pursuant thereto, the said parcels were despatched from Germany and received on 10.4.1996 at the I.G.I. Airport by Mr.Shailendra Sharma (PW-12).

15. In the instant case, there is not an iota of legal evidence on record to show that on 28th March, 1996, the parcel in question was posted by the appellant. Admittedly, the addressee of the parcel in question was one Elizabeth Evans and on 3.4.1996, the parcel in question was intercepted at the Frankfurt Airport, Germany. It is also undisputed that a criminal case was registered at Frankfurt, Germany in respect of the parcel in question and the same was seized and confiscated by the Customs Authorities, Government of Germany. As per prosecution case, on 9.4.1996, the parcel in ques-

tion was despatched to India by the German Authorities. That being so, the parcel in question is the property of the criminal case registered at the Frankfurt (Germany) and it was sent to India with a view to identifying the person involved in the commission of the offence. It follows that the contraband in question was sent to India at the instance of the Government of Germany and not at the instance of the appellant. Reference may, in this context be made to the decision of the Punjab Chief Court in Bostan Vs. Emperor, 1911 Crl.L.J.(vol.12) 116. In that case, the accused tendered a parcel of opium at the Post Office for despatch to Burma but the parcel was opened by the Postmaster at the place of despatch on account of information received and sent on to Burma by the Postal authorities marked "doubtful" with a view to the identification of the consignee. It was held:-