JUDGMENT - PARKAR S.S., J.:---The appellant, Nigerian national, has challenged his conviction and sentence under the provisions of the N.D.P.S. Act awarded by the Judgment and Order dated 16th March, 1995 delivered by the Additional Sessions Judge and Special Judge, Greater Bombay. 2. The brief facts leading to the present Appeal are as under : The appellant, who is a Nigerian national, was found to be in possession of 12.325 kgs. Heroin (a narcotic drug) from his baggage while he was at Mumbai Airport in order to board an Air India flight No. AI-840 scheduled for Delhi at 10.30 p.m. on 15-4-1989 en route to Nairobi. He was also found in possession of 1545 US$ in his personal baggage. The Officers of the Intelligence Unit of the Airport, on information from Air India security staff, intercepted the appellant after he had checked-in two pieces of baggages. He was holding an air ticket of Ethiopian Airlines in his name. He was also holding Indian Airlines ticket in his name and two baggage identification tags bearing Nos. 167186 and 167187. He was also having boarding pass for the said Flight No. AI-840. The officers questioned the appellant whether he was carrying any narcotic drugs in the checked-in baggages to which he replied in the affirmative. He identified two pieces of checked-in baggages which were bearing the identification tag numbers as above. They were examined in the presence of panch witnesses resulting in the recovery of 12.325 kgs. of brown powder i.e. heroin in 26 polythene packets concealed in the pair of bed sheet and pillow covers which were found in the two baggages. Preliminary test of the sample drawn of the said brownish powder was tested with the field testing kit which indicated the presence of brown sugar. On examination of the brown colour leather hand bag in his possession the officers found that he was carrying US $ 1545. The officers seized the said narcotic drugs in the said 26 polythene bags along with US dollars and the travel documents of the appellant along with two zipper bags used for the concealment of the narcotic drug under the seizure panchanama prepared in the office of AIU after the samples were drawn from the brown coloured powder. The samples were collected, packed, labelled and sealed in the presence of independent witnesses. The samples were collected, packed, labelled and sealed in the presence of independent witnesses. Thereafter the statement of the appellant was recorded under section 108 of the Customs Act pursuant to the summons served on him on 16-4-1989 by the Superintendent of Customs. In the said statement the appellant had admitted the possession, concealment and recovery of heroin from the aforesaid baggages. He stated that he had received monetary consideration of 2000 US $ for carrying the brown sugar, out of which he was in possession of balance of 1545 US $. 3. The sample drawn from the aforesaid heroin was sent to the C.A., Dy. Chief Chemist, Bombay for analysis, Report of the Chemical Analyser (Exh. 9) shows that each of the two samples sent for analysis were brown powder and tested for heroin. 4. The appellant was tried before the Special Judge, Greater Bombay. He was charged by the Special Judge under section 21 of the N.D.P.S. Act for being found in possession of 12.325 kgs. of heroin. Secondly he was charged under section 8(c) of the N.D.P.S. Act read with section 28 and section 23 of the said Act for attempting to export narcotic drug out of India. He was thirdly charged under section 67 of the Foreign Exchange Regulation Act and under section 135(1)(a) read with section 135(1)(ii) of the Customs Act for attempting to export narcotic drugs and 1545 US $. He was fourthly charged under section 29 read with section 8(c) and sections 21 and 23 of the N.D.P.S. Act for entering into conspiracy to commit and abet the commission of the offence under the N.D.P.S. Act by acquiring, purchasing, transporting and exporting the narcotic drugs weighing 12.325 kgs. 5. In order to prove the case of the prosecution, the prosecution had examined nine witnesses. P.W. 1 is Shri. B.R. Verma, the Asst. Chemical Analyser who was attached to the Laboratory of Deputy Chief Chemist, Customs House who analysed the sample sent for test and submitted the CA report along with his notes of observation. He produced CA report (Exh. 9). P.W. 2 is Shri Karanjia working as Junior Security Assistant in Air India and who located the appellant when the appellant presented his baggages at the X-ray counter. He produced CA report (Exh. 9). P.W. 2 is Shri Karanjia working as Junior Security Assistant in Air India and who located the appellant when the appellant presented his baggages at the X-ray counter. He suspected concealment in the two pieces of baggages presented by the appellant for screening at the X-ray machine and, therefore, he brought it to the notice of the officers of the Customs. P.W. 3 is Shri. K.K. Mukhopadhya who was an Intelligence Officer attached to AIU, Customs, Bombay who seized the brown powder under the seizure panchanama. He witnessed the search and seizure of the contraband and drew sample of the narcotic drugs. P.W. 4 is K.V. Karmarkar who acted as panch to the seizure panchanama (Exh. 15). He has proved the panchanama and also corroborated the Customs Officer who seized the narcotic drugs from the appellant. P.W. 5 is K.S. Shetty who is Superintendent of AIU, Customs who conducted the seizure and also recorded the statement of the appellant after the seizure was effected. P.W. 6 is B.D. Goel who has filed his complaint (Exh. 32) and proved the sanction (Exh. 31). P.W. 7 is Ved Prakash who proved the drawing of the sample as per the procedure laid down under section 110-B of the Customs Act. P.W. 8 is Dandawala who was the custodian of the warehouse of New Customs House, Bellard Estate, Bombay with whom the balance of the drugs along with the sealed samples were deposited. And lastly P.W. 9 is Shamlal who had carried the balance of drugs along with the sealed covers from the office of AIU, to the Customs Warehouse. 6. After appreciating the entire evidence on record, the learned Special Judge by his judgment and order dated 16th March, 1995 convicted the accused under section 21 of the N.D.P.S. Act and sentenced him to suffer RI for 15 years and to pay a fine of Rs. 1,50,000/- in default RI for four years. He also convicted the appellant under section 23 of the N.D.P.S. Act and sentenced him to RI for 15 years and to pay a fine of Rs. 1,20,000/- in default RI for three years. 1,50,000/- in default RI for four years. He also convicted the appellant under section 23 of the N.D.P.S. Act and sentenced him to RI for 15 years and to pay a fine of Rs. 1,20,000/- in default RI for three years. He further convicted the appellant under section 29 of the N.D.P.S. Act and section 8(c) read with sections 21 and 23 of the N.D.P.S. Act and sentenced him to suffer RI for ten years and to pay a fine of Rs. 1,00,000/- in default RI for three years. Lastly the appellant was convicted under the provisions of section 135(1)(ii) of the Customs Act and sentenced to suffer RI for 3 years and to pay a fine of Rs. 10,000/- in default RI for six months. The substantive sentences were directed to run concurrently. It is the said order of conviction and sentence which is under challenge in this appeal. 7. Ms. Balwani, learned Advocate appearing on behalf of the appellant took us through the evidence of the prosecution witnesses and contended firstly that there is non-compliance of provisions of sections 42 and 50 of the N.D.P.S. Act. In support of her contention she relied on the decision of the Supreme Court in the case of (State of Punjab v. Balbir Singh)1, A.I.R. 1994 S.C. 1872. According to her the procedure laid down under the said provisions which is mandatory was not complied with. In our view the said provisions cannot be invoked for the simple reason that this was a case of chance recovery and the officers were not acting on the prior information which is the requirement of section 50 of the Act. It was only when the baggages of the appellant were taken through X-ray screening counter that the officer suspected the concealment in the said baggages and, therefore, informed the P.W. 3 and other officers of the customs about the suspicion. 8. Secondly the said provision would be applicable only in case of personal search that is the search of articles from the person or body of a person or the search is made of articles in immediate possession such as bag and other baggage carried by the person or in physical possession of the person to be searched. 8. Secondly the said provision would be applicable only in case of personal search that is the search of articles from the person or body of a person or the search is made of articles in immediate possession such as bag and other baggage carried by the person or in physical possession of the person to be searched. The decision of the Supreme Court in Balbir Singh's case was considered and interpreted by the Full Bench of this Court in the case of (Ebanezer Adebaya @ Monday Obtor v. B.S. Rawat, Collector of Customs and another)2, reported in 1996(4) Bom.C.R. 185 . According to the Full Bench the provisions of section 50 would be applicable only in case of personal search of a person i.e. of articles on the person or body of the person or of articles in immediate possession of such person such as bag and other luggage carried by him or in physical possession of the person to be searched and such search was effected on prior information and not in case of accidental recovery of the contraband from any person. The Full Bench was further pleased to observe that the provisions of section 50 would not be applicable to a search of bag or baggage which are presumed to be in possession of the person even though it may be lying in a house or railway compartment or at the Airport nor would it be applicable to a case of search of a place, conveyance or a house if the accused is physically present at the time of search. Similarly view was taken by the later decision of the Supreme Court in the case of (Namdi Francis Nwazor v. Union of India and another)3, 1998(8) S.C.C. 534 the facts of which are similar to the facts in the present case. In para 3 of the judgment of the Supreme Court it was observed as follows: "3. Similarly view was taken by the later decision of the Supreme Court in the case of (Namdi Francis Nwazor v. Union of India and another)3, 1998(8) S.C.C. 534 the facts of which are similar to the facts in the present case. In para 3 of the judgment of the Supreme Court it was observed as follows: "3. On a plain reading of sub-section (1) of section 50, it is obvious that it applies to cases of search of any person and not search of any article in the sense that the article is at a distant place from where the offender is actually searched." In that case also the Court was concerned with the accused who was a Nigerian National and was found in possession of narcotic drugs while on his way to Lagos at the Indira Gandhi International Airport, New Delhi. In that view of the matter reliance on the aforesaid judgment of the Supreme Court in Balbir Singh's case is misplaced. The view taken by the Supreme Court in Balbir Singh's case has been upheld by the Constitution Bench of the Supreme Court in the case of (State of Punjab v. Baldev Singh)4, in Criminal Appeal No. 396 of 1999 decided on 21st July, 1999 reported in 2000(5) Bom.C.R. (S.C.)236(C.B.). 9. The defence Advocate also relied on the observations of the Supreme Court in the case of (Mohinder Kumar v. State)5, reported in 1995 Cri.L.J. 2704. In our view the ratio of the said decision also would not be applicable to the facts in the instant case. The Full Bench of this Court in Ebanezer's case (supra) had occasion to consider the judgment of the Supreme Court in Mohinder Kumar's case also and had distinguished the Mohinder Kumar's case by observing that that was a case where two pieces of charas were recovered from the right pocket of his pant. This is also from para 1 of the judgment of the Supreme Court in Mohinder Kumar's case. Provisions of section 42(1) proviso will therefore have no application to the present case. Moreover, in Mohinder Kumar's case the search had taken place of the house. The Full Bench in Ebanezer's case in para 5 and para 22 of the judgment has categorically held that the provisions of sections 42 and 50, will not be attracted in cases covered by Clauses (c) and (d) of para 5. Moreover, in Mohinder Kumar's case the search had taken place of the house. The Full Bench in Ebanezer's case in para 5 and para 22 of the judgment has categorically held that the provisions of sections 42 and 50, will not be attracted in cases covered by Clauses (c) and (d) of para 5. The facts of the present case are similar to the facts of the case decided by the Full Bench in Ebanezer's Adebaya @ Monday Obtor v. B.S. Rawat, Collector of Customs and another (supra). 10. Apart form the fact that the appellant had admitted in his 108 statement about the seizure of the contraband from the baggage which he was carrying on the date, time and place when he was at Sahar Airport at Bombay on his way to Nigeria by Air India flight which was at that time bound from Bombay to Delhi en route to Nigeria, he has also admitted in his 313 statement in answer to Question No. 41 that he was initially scheduled to travel on the flight of Ethiopian Airlines for which he had purchased the ticket and thereafter he took Air India flight and when he came to the Airport to depart along with two pieces of baggages and hand bag, he stood near the X-ray screening machine when the officers present near the said machine brought him and his baggage to the office of AIU, Customs on the Airport. He also admitted in the said statement that Article No. 2, which is one of the two baggages, carried by the appellant was before the Court. From the evidence led on behalf of the prosecution, we find that the appellant was found in possession of the aforesaid narcotic drug in such a large quantity which he was carrying in his baggage on his way from Bombay to Nigeria. He was also found in illegal possession of US $ 1545 being the balance of 2000 US dollars which he had received as consideration for carrying the heroin from Bombay to Nigeria as admitted in his statement under section 108 of the Customs Act. The narcotic drug which he was carrying was as per the report of the Chemical Analyser, tested for heroin i.e. brown sugar the possession of which is prohibited under the provisions of the N.D.P.S. Act. The narcotic drug which he was carrying was as per the report of the Chemical Analyser, tested for heroin i.e. brown sugar the possession of which is prohibited under the provisions of the N.D.P.S. Act. In the aforesaid circumstances, we are satisfied that the prosecution had established the guilt of the appellant in respect of the aforesaid charges for which he was convicted by the trial Court. 11. The learned Advocate for the appellant then submitted that the sentence is excessive inasmuch as though the law has prescribed the minimum sentence of 10 years and one lakh rupees fine, the trial Court has imposed the sentence of 15 years each under the provisions of sections 21 and 23 and the fine imposed is Rs. 1.50 lakhs and Rs. 1.20 lakhs respectively though the minimum fine required to be imposed under sections 21 and 23 is Rs. 1 lakh. She stated that the appellant is a married person having two children and has already undergone sentence of 10 years and, therefore, urged that the substantive sentence as well as the fine amount should be reduced. She further submitted that the appellant is a foreigner and will not be in a position to pay the fine for which he will have to further undergo default sentence. 12. No doubt both sections 21 and 23 of the N.D.P.S. Act prescribe a minimum sentence of 10 years imprisonment and minimum fine of Rs. 1 lakh, however, each of the said two provisions prescribe maximum substantive sentence of 20 years and maximum fine which can be imposed is Rs. 2 lakhs. The learned Judge has not imposed the maximum sentence under the said provisions. Bearing in mind the quantity of narcotic drug weighing 12.325 kgs. valued at Rs. 24,64,000/- carried by the appellant, we do not think that the sentence of 15 years imposed under sections 21 and 23 and the fine of Rs. 1.50 lakhs imposed by the trial Court is excessive or disproportionate to the offence committed by the appellant. We, therefore, see no reason to interfere either with the conviction or sentence by the trial Court. 13. In the result, we confirm the order of conviction and sentence passed by the Special Judge on 16th March, 1995 in Special Case No. 887 of 1989 and dismiss the appeal. Appeal dismissed. -----