Delhi District Court
Ncb vs . Michael Shibambo on 27 September, 2014
NCB Vs. Michael Shibambo
IN THE COURT OF MS. ANU GROVER BALIGA: SPECIAL JUDGE
NDPS : PATIALA HOUSE COURTS:NEW DELHI
SC No. 32/13
ID No. 02403R0184572013
Narcotics Control Bureau
Through: Shri Azad Singh
Intelligence Officer,
Narcotics Control Bureau, New Delhi
Versus
Michael Shibambo
S/o Salmon Wilson Shibambo
R/o H.No. 1960, Aron Mashaba Street,
Musina Mushonqoville, Limpopo,
South Africa
Date of Institution : 09.12.2013
Judgment reserved on : 17.09.2014
Date of pronouncement : 27.09.2014
JUDGMENT
11 The Narcotics Control Bureau (herein after referred to as NCB) through its Intelligence officer (IO) Sh. Azad Singh has filed the present complaint against the accused u/s 9A and 25A of the Narcotic Drugs and Psychotropic Substances Act (herein after referred to as NDPS Act). SC No. 32/13 Page No. 1 of 15 NCB Vs. Michael Shibambo 11 Briefly stated, the facts that can be culled out from the assertions made in the complaint and the documents filed therewith are as follows :
(a) On 10.10.2013 at about 1800 hours Sh. C.S.K. Singh, IO received an information that one foreign national namely Michael Shibambo who was to depart from IGI Airport for South Africa by Ethiopian Airlines no. ET 689 is suspected to be carrying huge quantity of narcotic drugs in his baggage.
(b) The information was reduced into writing and was put up before Sh. Jai Kishan, Superintendent, NCB who issued search authorization warrant in favour of IO Azad Singh and on the instructions of Sh. Jai Kishan, a raiding team consisting of Intelligence Officers of NCB namely, Sh. C.S.K. Singh, Sh. C.S. Rai, Sh. Azad Singh, Sepoy Mohinder and Driver Babu Lal proceeded for the airport from NCB office and reached the IGI airport. On reaching the airport, IO Azad Singh approached the official at check in counter of Ethiopian Airlines and introduced himself and the other members of raiding team. IO Azad Singh then shared the information available with the NCB team with the staff of Ethiopian Airlines. The manifesto of flight no. ET 689 was then checked and it was confirmed that one passenger by the name of Michael Shibambo was travelling by that flight. The airlines staff was then SC No. 32/13 Page No. 2 of 15 NCB Vs. Michael Shibambo instructed to keep an eye on the said passenger and signal the IO when he comes on the checkin counter.
(c) At about 0100 hours, when the airlines staff indicated towards a dark complexioned passenger holding a parrot green colour bag who had come for checkin, the said person was apprehended by the NCB team and on inquiry, he revealed his name as Michael Shibambo. IO Azad Singh thereafter introduced himself and the team members to him and the information that the NCB officials were having was also disclosed to him.
(d) He was then served with a notice u/s 50 NDPS Act and was made to understand that he has a legal right to be searched before a Magistrate or a Gazetted Officer but he refused to exercise the said right and informed that any NCB officer could conduct his search. Thereafter, IO Azad Singh conducted the personal search of the accused but nothing incriminating was recovered therefrom.
(e) Thereafter the accused alongwith his parrot green colour trolley bag was taken to CISF Coordination control room where the said bag was opened and it was found to contain some personal clothes. On minutely examining the trolley bag it was found to have a bulge at the bottom from where a pouch wrapped in blue carbon paper was recovered. On cutting one side of the said pouch, it was found lined with SC No. 32/13 Page No. 3 of 15 NCB Vs. Michael Shibambo yellow tape from inside and the said wrapping was further found containing some white colour substance. The white powder on being tested with the help of Field Testing Kit gave positive result for pseudoephedrine. Thereafter the upper lid of the said trolley bag was also checked and it was also found concealing the white powder in the same manner and it also gave positive result for pseudoephedrine. As the colour, texture, nature and property were found to be the same, the substance from both the polythenes was mixed together and on weighing, its weight came out to be 17.400 kg. Two samples of 5 gram each were drawn out from the recovered substance and were put in separate pouches and were then placed inside separate paper envelopes.
The samples were given marks A1 and A2 and the mouth of the polythene bags containing the remaining substance were tied with green plastic string and were kept in the same green colour trolley bag which was then put inside a white plastic gunny bag and was given mark B.
(f) The contraband along with other items were properly seized and sealed. Panchnama and test memo in triplicate were also prepared.
(g) Accused was served with summons u/s 67 NDPS Act and was directed to appear in the NCB office on 11.10.2013 to tender his statement and in pursuance of the same he tendered his voluntary statement in the office of the NCB wherein he admitted to having made SC No. 32/13 Page No. 4 of 15 NCB Vs. Michael Shibambo an attempt to illegally export pseudoephedrine hydrochloride outside India.
(h) Since the accused appeared to have committed offences punishable under Section 25A of the NDPS Act, he was arrested on 11.10.2013 and was thereafter got medically examined.
(i) Reports of arrest and seizure under Section 57 of the NDPS Act were submitted by the seizing and arresting officers Sh. Azad Singh and IO Amar Shankar to Sh. Jai Kishan, Superintendent and the intimation of the arrest of the accused persons was also conveyed to the Ministry of External Affairs.
(j) During the course of further investigation, the case property along with samples and test memo was deposited with the Malkhana Incharge and on 14.10.2013 the samples along with test memos were sent to the CRCL, New Delhi for testing and after receiving the report from CRCL that all the samples gave positive test for pseudoephedrine hydrochloride, the present complaint was filed.
11 On the basis of the material on record vide order dated 25.03.2014 charges were framed against the accused for having made an attempt to illegally export pseudoephedrine hydrochloride outside India and thus for having committed an offence punishable under Section 25A read SC No. 32/13 Page No. 5 of 15 NCB Vs. Michael Shibambo with section 28 of the NDPS Act to which the accused pleaded not guilty and claimed trial.
11 The prosecution in order to prove its case has examined 6 witnesses. 11 PW1 Sh. C.S.K. Singh and PW6 Sh. Azad Singh being members of the raiding team have more or less, in their examination in chief, deposed on similar lines. The secret information deposed to have been received by PW1 Sh. C.S.K. Singh has been exhibited as Ex.PW1/A. The legal notice under Section 50 of the NDPS Act stated to have been issued to the accused by PW6 has been exhibited as ExPW6/A. The panchnama deposed to have been prepared by PW6 has been exhibited as Ex.PW6/B. The summons given to accused u/s 67 NDPS Act have been exhibited as Ex.PW1/B. Seizure report submitted to the Superintendent has also been duly proved during trial. The case property and the samples were also duly produced before the court and were duly exhibited.
11 PW2 Sh. Jai Kishan, Superintendent has deposed that on 10/10/2013, he was posted as Superintendent NCB and on the said day, he had been shown a secret information Ex.PW1/A and he had issued search authorisation and a departmental seal of Narcotics Control Bureau DZU 3 to IO Azad Singh at about 0630 hours and that entry to this effect was made by him in the seal movement register. According to this witness, SC No. 32/13 Page No. 6 of 15 NCB Vs. Michael Shibambo the said seal was returned to him by IO Azad Singh at 0715 hours on 11/10/2013 and that a corresponding entry with respect to the same was again made by him in the seal movement register. The relevant page of the seal movement register containing the said entries has been exhibited as Ex.PW2/A. This witness has further deposed that on 14/10/2013, he had forwarded the samples and test memo to CRCL and that he had sent also a letter to Ministry of External Affairs regarding arrest of accused. Same has been exhibited as Ex.PW2/F. The forwarding letter has also been duly proved by this witness as Ex.PW2/E. The letters issued to Nodal officer and licensing authority have been exhibited as ExPW2/G, ExPW2/H and ExPW2/I respectively.
11 PW3 Sh. Amar Shankar has deposed that in pursuance to the summons issued by PW1, accused Michael Shibambo had appeared before him and had tendered his statement Ex.PW3/A. The arrest cum jamatalashi memo of accused have been exhibited as ExPW3/B. PW3 has also deposed that he had submitted arrest report of accused u/s 57 NDPS Act and the same has been exhibited as Ex.PW2/B. 11 PW4 Sanjeev Kumar, Sepoy has interalia deposed that on 14/10/2013 he had carried the sample packet to the CRCL on the instructions of Sh. Jai Kishan, Superintendent, NCB. The acknowledgment issued in his name by CRCL has been exhibited as Ex.PW4/A. SC No. 32/13 Page No. 7 of 15 NCB Vs. Michael Shibambo 11 PW5 Sh. Vikas Yadav, IO has inter alia deposed that on 11/10/2013 he was working as Intelligence Officer Malkhana Incharge in NCB, DZU, R.K. Puram and that in the present case, the entire case property, test memo in triplicate were deposited with him in the Malkhana and he had made an entry to this effect in the Malkhana register. He has also deposed that sample mark A1 was sent to CRCL and that the remnant sample along with test report were deposited back with him in the Malkhana on 18/11/2013. According to this witness he had made relevant entries in the register. The relevant page of the malkhana register containing the said entries has been exhibited as Ex.PW5/A. 111 The entire aforementioned incriminating evidence discussed hereinabove was put to the accused on 12.09.2014, the date fixed for recording of statement of the accused u/s 313 Cr.PC. On the said date during recording the statement of the accused, the accused admitted before this court that he was apprehended in the manner deposed by the NCB officials and that on search of his luggage some powder had been recovered from the trolley bag being carried by him and that the NCB officials had told him that the same is pseudoephedrine and that its weight had come out to be 17.5 Kg. The accused however inter alia stated in the said statement that he had no knowledge as to who had packed the said powder in his trolley bag. According to the statement SC No. 32/13 Page No. 8 of 15 NCB Vs. Michael Shibambo tendered by this accused he had come to India on 05.10.2013 to meet a family friend namely one Rahul and that he had checked himself into Ashoka Hotel and that the house of his family friend Rahul was about 1520 minutes drive from the said hotel. He had further narrated before this court that one day before his apprehension in this case there was a party at the Ashoka Hotel which he and his friend had attended and that in the said party, he had been assaulted by 56 Indian boys because of which he got very scared and had wanted to leave India immediately. He has further stated that his friend had suggested him that he should not sleep in the hotel the said night and that he should come to his (Rahul's) home and that he will arrange a return ticket for him to South Africa on the next day. As per the statement tendered by this accused he left the hotel as suggested by Rahul and went to his house and the next morning picked up his luggage from the hotel and went to Rahul's home where the said Rahul packed his luggage and then dropped him at the airport. Thus according to the accused though the trolley bag from which the contraband was recovered belonged to him and was in his possession, he had no knowledge when and where 17.5 Kg of pseudoephedrine was sealed and put in the said bag. He further has stated before this court that he had not voluntarily tendered any statement before the NCB officials u/s 67 NDPS Act and the NCB officials had threatened and forced him to SC No. 32/13 Page No. 9 of 15 NCB Vs. Michael Shibambo write the said statement that they were beating and threatening him that they will electrocute him if he does not follow their instructions. 111 No defence evidence has been led by the accused and Ld. SPP Sh.
Mukesh Malik and Ld. Legal Aid Counsel Arvind Kumar have advanced final arguments before this court on 17.09.2014. Ld. SPP has prayed that since the accused himself in his statement tendered before this court u/s 313 Cr.PC has admitted that contraband was recovered from his trolley bag, this court must hold him guilty of the offence that he has been charged with.
111 Ld. Legal Aid Counsel Sh. Arvind Kumar, on the other hand, has submitted that though the accused has admitted in his stated u/s 313 Cr.PC the fact that he was apprehended in the manner deposed by the NCB officials and that pseudoephedrine had been recovered from his luggage in the manner deposed by the NCB officials, his contention his that the accused has never admitted that he had the knowledge that the said contraband was concealed in his luggage. According to Ld. Legal Aid Counsel the accused did not have the mensrea to export pseudoephedrine outside India as he had no knowledge that the said substance was concealed in his trolley bag and his contention therefore is that the accused cannot be held guilty of having made an attempt to illegally export pseudoephedrine outside India. SC No. 32/13 Page No. 10 of 15 NCB Vs. Michael Shibambo 111 I have carefully considered the submissions made by the Ld. Counsels.
In the present case the accused has faced trial for having made an attempt to export pseudoephedrine hydrochloride in contravention of the orders issued by the Central Government u/s 9A of the NDPS Act. Section 9 A of the NDPS Act gives the Central Government the power to issue orders to control and regulate controlled substances and Section 25 A of the Act provides the punishment for contravention of the orders issued u/s 9A of the NDPS Act. In exercise of the said powers, the Central Govt. has issued the Narcotic Drugs and Psychotropic Substances (Regulation of Controlled Substance) Order, 1993 to regulate the manufacture, distribution, sale, import, export or consumption of any controlled substance. The said Order inter alia provides that a person cannot deal with a controlled substance without holding a license therefor. Further vide notification no. SO 1296 (E) dated 28/12/1999, the Central Govt. had declared pseudoephedrine and its salts as a controlled substance and therefore it is clear that no person can export pseudoephedrine hydrochloride outside India in contravention of the provisions of the Narcotic Drugs and Psychotropic Substances (Regulation of Controlled Substance) Order, 1993. 111 As narrated hereinabove in support of its case the prosecution has examined six witnesses in all. The main seizing officer PW6 Azad Singh SC No. 32/13 Page No. 11 of 15 NCB Vs. Michael Shibambo and other NCB official PW1 C.S.K. Singh have described the search and seizure proceedings that were conducted at the spot. PW5 Vikas Yadav has proved that the case property was deposited with him in the malkhana. PW4 Sepoy Sajeev Kumar has deposed that he had carried the sample packets to CRCL. The report of the CRCL expert has been tendered u/s 293 Cr.PC and has not been questioned by the defence. Thus the prosecution has placed on record the entire link evidence which shows that the contraband recovered from the luggage of the accused at the airport was properly sealed, the samples were properly preserved and sent to CRCL for analysis and that no tampering had been done in the case property at any stage.
111 As stated hereinabove the accused has also himself admitted that the NCB officials had infact recovered pseudoephedrine hydrochloride from the bag that he was carrying. The contention of the Ld. Legal Aid Counsel that the accused was not in conscious possession of the contraband because he did not have the knowledge that contraband was concealed in his bag cannot be accepted for the mere statement of the accused that he did not have the said knowledge, in the considered opinion of this court is not sufficient to hold that he had no intention to commit the offence with which he has been charged with. Present is a case where about 17.5 kg of a substance has been found concealed in the SC No. 32/13 Page No. 12 of 15 NCB Vs. Michael Shibambo trolley bag of the accused. It is inconceivable that the accused would not have felt the weight of the trolley bag that he was carrying and that he had no clue that the said bag could not contain anything more than his clothes. This court finds it very difficult to believe the defence taken by the accused namely that since his bags were packed in the trolley bag by his so called family friend Rahul, he i.e. the accused did not come to know when the contraband was concealed in the trolley bag. Present is not a case where the contraband was kept in a bag under the clothes present is a case where the contraband was concealed in the bottom and in the upper lid of the trolley bag and the pouch was first covered by a yellow tape and then a carbon paper was fixed on it and then the bottom and the upper lid were stitched. Such a concealment and packing could not have taken place, as contended by the accused without his knowledge by his so called family friend Rahul when all along he was present with his friend at the time of packing of his luggage. It is also very strange that the accused has been even unable to give the complete name or address of this family friend Rahul who assertedly packed his luggage and whom he had come to meet in India all the way from South Africa. Though this court agrees with the Ld. Legal Aid Counsel that since the accused was in the custody of the NCB officials when he was asked to tender his statement u/s 67 NDPS Act and that he had retracted SC No. 32/13 Page No. 13 of 15 NCB Vs. Michael Shibambo the said statement a few days after he was remanded to JC, the said statement cannot be made the basis for holding that the accused had the knowledge that he was carrying the contraband with the intention of exporting it outside India and was also getting paid for the same, in the considered opinion of this court the defence sought to be put up by the accused is found to be patently false and therefore in the considered opinion of this court the accused has been unable to rebut the statutory presumption which is to be made against him u/s 35 and 54 of the NDPS Act. The provisions of the section 54 of NDPS Act make it clear that in a trial under NDPS Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of a contraband, the possession of which he fails to account satisfactorily. The provisions of section 35 of the Act inter alia lay down that in any prosecution for an offence under this Act which requires culpable mental state of an accused, the court should presume the existence of such mental state but that it shall be a defence for the accused to have proved the fact that he was in such mental state. No doubt the onus of proof on the accused is not that of the same degree as that on the prosecution to prove its case but the accused must be atleast able to prove by a preponderance of probability that he had no mental state to commit the offence for which he has been charged. As narrated SC No. 32/13 Page No. 14 of 15 NCB Vs. Michael Shibambo hereinabove the accused has admitted that his luggage on being searched at the airport was found to contain 17.5 Kg of the contraband. His defence that he did not know that the said baggage/luggage contained such contraband, even by preponderance of probability cannot be believed in view of the discussion hereinabove. Further admittedly the accused holds no license to export controlled substance outside India. As such it is to be held that the accused did have the knowledge that contraband was concealed in his luggage and therefore he is deemed to have been in conscious possession of the same with an intention to illegally export the same outside India.
111 In view of the discussion hereinabove, this court is of the considered opinion that the prosecution has been able to prove beyond reasonable doubt that both the accused had made an attempt to export outside India, pseudoephedrine hydrochloride, a controlled substance, in contravention of the orders issued by the Central Government u/s 9A of the NDPS Act. Thus the accused is hereby held guilty of the offence punishable u/s 25A read with section 28 of the NDPS Act.
Announced in the open court on this 27th day of September, 2014 (Anu Grover Baliga) Special Judge, NDPS New Delhi SC No. 32/13 Page No. 15 of 15