Bombay High Court
Central Prison vs Union Of India on 19 December, 2011
Author: J. H. Bhatia
Bench: J. H. Bhatia
MP 1 Apeal1297_07.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1297 OF 2007
WITH
CRIMINAL APPLICATION NO.1334 OF 2010
WITH
CRIMINAL APPLICATION NO.710 OF 2011
Mrs. Agnes Ruddy Odhoch )
Age 40 years, Kenya National, )
R/o.: West Lands, House No.119, )
Barindi Lane, Nairobi, Kenya
(At present in custody at Yerwada
)
)
Central Prison, Pune) ) ... Appellant
Versus
1. Union of India )
Narcotic Control Bureau, Mumbai )
2. State of Maharashtra ) ... Respondents
Mr. Ayaz Khan, Advocate for the Appellant.
Mr. Y.M.Nakhwa, Special Public Prosecutor for UoI / NCB.
Smt.P.P. Shinde, APP for the Respondent No.2-State.
CORAM : J. H. BHATIA, J.
Reserved on: 21st OCTOBER, 2011
Pronounced on : 19th DECEMBER, 2011
JUDGMENT :
The appeal is preferred by the original accused challenging the judgment and order dated 05.12.2007 passed by the Special Judge, Greater ::: Downloaded on - 09/06/2013 18:01:05 ::: MP 2 Apeal1297_07.doc Mumbai, whereby the accused / appellant was convicted for the offences punishable under Section 21(c), Section 23(c) r/w. Section 28 and Section 29 r/w. Section 21(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in brief "NDPS Act") and was sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs.1 lakh, and in default to pay fine, to undergo further rigorous imprisonment of one year on each count.
2. Prosecution case, in brief, is that Narcotic Control Bureau, Mumbai Zone (II) (for brief "NCB") received an intelligence on 05.05.2002 that two African ladies namely Josephine Funsani and the present appellant Agnes Ruddy Odhoch were to smuggle substantial quantity of heroin out of India in their baggages or on person. Both the ladies were to board Kenya Airways Flight No. KQ-201 scheduled at 3.00 a.m. on 06.05.2002 from Mumbai to Nairobi. The Intelligence Officer Rosario noted down the information and passed on the same to his superiors. Thereafter, a team of the NCB officers arranged to apprehend the said passengers. Firstly, pre-flight manifest of flight No.KQ-201 was collected. At serial No.1, name of the appellant / accused was shown while, name of Josephine Funsani was shown at serial No.35. Two panch witnesses were also called. The officers of NCB along with the panch witnesses intercepted the appellant and two boarding cards, one for Mumbai -
Nairobi Sector and another for Nairobi - Johansburg Sector were found with her. On her air-ticket, two baggage claim tags were affixed having details of the accused and her journey. It also contained details of charges paid for the ::: Downloaded on - 09/06/2013 18:01:05 ::: MP 3 Apeal1297_07.doc excess baggage. The accused identified her two suitcases, which were found locked and affixed with security stickers as well as identification tags.
3. The keys of the suitcases were in possession of the accused. She produced the same, and with those keys, the bags were opened. Upon opening the bags, only her personal articles were found. However on lifting each suitcase, they were found unusually heavy, for which the accused could not give any satisfactory reply. The officers opened the zip of the inner cloth lining of both the suitcases, which exposed the PVC sheets on which two pipes were fitted for the movement of telescopic pulling handles. On pulling the PVC sheet, one black coloured polythene bag was found pressed flat in between the inner and outer PVC sheets in each of the bags. The said polythene bag contained brown powder. It tested positive for the presence of heroin. As both the bags contained the similar material, they were emptied in another transparent polythene bag. On weighing, that brown powder was found to be 5.400 kg.
4. From the composite mixture of the brown powder taken from both the bags, two representative samples of 5 gm each were drawn in separate small polythene sachets which were heat-sealed and kept in separate envelopes. The envelopes were pasted and sealed with "NCB Seal No.03". The said sample sachets were marked "BK-BL-I" and "BK-BL-II" respectively. The remaining bulk of 5.390 kg of brown powder was retained in the large polythene bag ::: Downloaded on - 09/06/2013 18:01:05 ::: MP 4 Apeal1297_07.doc which was also heat-sealed and then kept in the carton and sealed with 'NCB Seal No.03'. On all the bags, labels bearing signatures of both the panchas, accused and NCB Inspector Kanta Tejwani P.W.1 were affixed. The two empty polythene bags from which the contraband was recovered along with the personal belongings were kept in respective suitcases from which they were found. Those suitcases were also closed and sealed with 'NCB Seal No.03' and a label bearing signatures of P.W.1 Mrs.Tejwani, panch witnesses and accused was affixed on each of the suitcases.
5. The keys of the suitcases were also kept in separate envelopes and were pasted and sealed. Baggage identification tags were removed from the respective suitcases for safety purposes. The serial numbers of the claim tags and the identification tags had tallied with each other. About the complete proceedings, a panchnama was drawn, which was duly signed by P.W.1 Mrs. Tejwani and the panch witnesses. Copy of the same was served on the accused and she also signed at the bottom of the panchnama in acknowledgment of the receipt of the same.
6. One of the samples was submitted to the Deputy Chief Chemist, New Custom House, Mumbai along with test memo dated 07.05.2002 and another sample was forwarded to the Forensic Science Laboratory, Kalina, Mumbai for its analysis. The report from both of them confirmed that the samples contained heroin. Forensic Science Laboratory, Kalina confirmed that the ::: Downloaded on - 09/06/2013 18:01:05 ::: MP 5 Apeal1297_07.doc heroin contents were 44%. The statement of the accused was recorded on 06.05.2002 and again on 11.05.2002 where she gave personal details and also admitted as to how and when she had started trafficking in drugs.
7. Similarly, another lady namely Josephine Funsani was also intercepted.
No contraband was found in her two bags. However, 900 gm heroin was found concealed in her shoes. After completing certain formalities as per law, the said contraband was seized. During the investigation, it was revealed that the present appellant and Josephine were travelling independently and they had different modus operandi for drug trafficking, and therefore, case against Josephine was separated and separate charge-sheet was filed. She was also put to trial separately. It may be noted that the intelligence note, panchnama and some other documents were initially prepared jointly for the present accused as well as Josephine but as they were put to separate trials in two different cases, the original documents were produced before the Court in the case against Josephine and certified copies of the same were produced in the present case.
8. The accused was charged for the offences under Section 21(c) r/w.
Section 8(c), Section 29 r/w. Section 21(c) and Section 28 r/w. Section 23(c) of the NDPS Act. She pleaded not guilty. She also retracted from her statements allegedly recorded on 06.05.2002 and 11.05.2002 by the NCB officers.
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9. To prove the offence and to bring home guilt to the accused, in all eight witnesses were examined by the prosecution. A large number of documents were placed on record. The learned Special Judge, after hearing the parties, convicted and sentenced the accused as stated above.
10. Heard the learned Counsel for the accused appellant and the learned Special Public Prosecutor. Perused record and proceedings of the case.
11. The learned Counsel for the appellant, Mr. Khan vehemently contended that the prosecution case suffers from several drawbacks. According to him, the identification tags were not affixed on the suitcases from which the contraband was found. The prosecution story about finding of identification tags affixed on the suitcases is not reliable. The prosecution has failed to prove that the said suitcases containing the contraband were of the accused appellant, and that, she was in possession of the contraband. The evidence on record is contradictory and inconsistent about the manner in which the contraband was found in the said suitcases. The provisions of Section 42 of the NDPS Act about recording of information were not strictly followed nor the Intelligence Officer Rosario was examined to prove that such intelligence was received in respect of the present accused appellant. The samples were not deposited in the warehouse/ godown nor the samples were sent to the Chemical Analyser immediately, and there was unexplained delay in that respect . The seals were easily available to the Investigating Officer P.W.1 Mrs. Kanta Tejwani. He ::: Downloaded on - 09/06/2013 18:01:05 ::: MP 7 Apeal1297_07.doc also contended that the samples sent to the Forensic Science Laboratory were not the same which were allegedly seized at the time of Panchnama. He further contended that there is reason to doubt if the muddemal property produced before the Court is the same which was allegedly seized from the accused. According to him, the alleged statements of the accused recorded on 06.05.2011 and 11.05.2002 by the NCB Officers cannot be taken into consideration because they were recorded after the accused was virtually arrested though the arrest panchnama was prepared after recording of the first statement. The said statement was retracted. He also tried to contend that if the said statement is to be believed, the accused believed that she was in possession of sensitive drug, which falls in Schedule 'H' Drugs and is not narcotic drug, and therefore, she was not in conscious possession of heroin, and hence, she cannot be held guilty under the provisions of NDPS Act.
12. The learned Special Public Prosecutor for the prosecution however, vehemently supported the impugned order of conviction and sentence and tried to explain that there is no material deficiency or discrepancy or contradiction in the prosecution case and the evidence.
13. Evidence of P.W.2 Keith John Sanchis, who was the superintendent of NCB at that time, reveals that, Mr. Rosario, the Intelligence Officer, had submitted intelligence note exhibit-45 before him to the effect that two African ladies namely Josephine Funsani and Agnes Ruddy Odhoch would be carrying ::: Downloaded on - 09/06/2013 18:01:05 ::: MP 8 Apeal1297_07.doc substantial amount of heroin in their baggage or on their person, and would be trying to smuggle the same out of India by Kenya Airways flight No.KQ-201 on 06.05.2002 at 03.30 hours. This note was submitted on 05.05.2002 at 14 hours and P.W.2 Sanchis endorsed and proposed to work-out on the intelligence and submitted the same to his superior Assistant Director Mr. Vijaydharan, who also endorsed and approved the same. Accordingly, a team of NCB officers was constituted. Responsibility of raid and seizure was put on P.W.1 Kanta Tejwani.
14. P.W.1 Kanta Tejwani deposed about the information received by the Intelligence Officer Rosario and some other superior officers and their directions to her and other officers for surveillance. Her evidence shows that two panch witnesses were called and the surveillance was kept at the custom counter at departure module 2A. She collected pre-flight manifest from Kenya Airways vide exhibit 10/1. She has deposed in detail about the identification of the present appellant as well as another African lady Josephine on the basis of the pre-flight manifest. Her evidence about obtaining pre-flight manifest, exhibit-34, is also corroborated by P.W.6 Bharat Seraiya, the Administrative Officer of Kenya Airways. According to him, the said document was signed by Mark Felsinger, the then officer of the Kenya Airways. He identified his signature on the same. This document is not seriously disputed. Admittedly, on the pre-flight manifest of Kenya Airways, flight No.KQ 201 of 06.05.2002 at 03.10 hours, the name of the accused appellant was at serial No.1. When the ::: Downloaded on - 09/06/2013 18:01:05 ::: MP 9 Apeal1297_07.doc appellant was intercepted, she was asked about her name and it was also confirmed from the air ticket and passport in her possession. The air ticket of the appellant was for the two sectors, that is, from Mumbai to Nairobi and then from Nairobi to Johansburg. Two baggage claim tags No.519831 and 519832 were also affixed on the said ticket of the accused. Two suitcases having the zipper locks were already checked-in by the accused and security stickers were also affixed on them. The two suitcases of the accused were also having baggage identification tags affixed on them. The numbers of those identification tags tallied with the number of the baggage claim tags affixed on the air ticket of the accused. As per the evidence of P.W.1 Kanta Tejwani, she had apprised the accused of the right of search in the presence of the Magistrate or Gazetted Officer but she waived her right and offered to be searched by the officer of the NCB on the spot.
15. As per her evidence, on her request, the accused herself opened both the suitcases with the help of the keys which she was carrying in her hand bag.
The baggage of the accused comprised one large dark blue coloured suitcase of "Samsonite" brand and one black coloured suitcase having "The Best of the Bags" "LYS Paris" brand. Both the suitcases were of soft nylon tops with hard sides and bottom and having zipper locks. The bags were also having the zippered pouches. Both the bags had inbuilt wheels with telescopic handles.
After the suitcases were opened, they were emptied but nothing incriminating was found. However, upon lifting, each suitcase was found unusually heavy ::: Downloaded on - 09/06/2013 18:01:05 ::: MP 10 Apeal1297_07.doc even though their contents were emptied. The accused could not give any satisfactory explanation as to why the suitcases were so heavy. Therefore, zips of the inner cloth lining of both the suitcases were opened exposing the PVS sheets on which two pipes were fitted for the movement of telescopic pulling handles. Edges of the PVC sheets of the suitcases were opened which revealed a large black coloured polythene bag pressed flat between the inner and outer sheets in both the suitcases. The black polythene bags were extricated from both the suitcases. The black polythene bag extricated from blue coloured suitcase was cut opened and found to contain the brown coloured powder. A small quantity of powder was tested with the help of Field Testing Kit and the result was positive for heroin. This polythene bag was marked "BL" with the help of scotch tape. Then the black polythene bag extricated from black coloured suitcase was also cut opened and was found to contain brown powder in it. A small quantity of powder from that bag was also tested with the help of Field Testing Kit and the result was positive for heroin. The said black polythene bag was marked as "BK" with the help of scotch tape. As the powder in both the bags appeared to be similar in appearance, the contents of the same were emptied into one large transparent polythene bag. The powder weighed 5.400 kg. Two representative samples of 5 gm each were drawn from the composite mixture of the powder in two small polythene sachets. Both the sachets were then heat-sealed and put into separate paper envelopes. The envelopes were then pasted shut and sealed with NCB Seal No.03 and marked as "BK BL I" and "BK BL II". The details were written on the said envelopes.
::: Downloaded on - 09/06/2013 18:01:05 :::MP 11 Apeal1297_07.doc P.W.1 Kanta Tejwani, both the panch witnesses and the accused put their dated signatures on the said envelopes.
16. The large polythene bag containing the remnant bulk quantity was also heat-sealed and put in a carton which was taped shut and jute string was tied on it on which NCB Seal No.03 was put. A label giving details thereof were pasted on the carton. P.W.1 Kanta Tejwani, panchas and the accused put their dated signatures on the said cartons. The black polythene bags from which the contraband was recovered, were put in the respective suitcases along with the personal effects and those suitcases were also locked with locks having security stickers. The blue suitcase was marked exhibit-F while black suitcase was marked exhibit-G for identification. Their keys were put in an envelope which was pasted shut and sealed with NCB Seal No.03. The details thereof were written on the said envelope and it was marked exhibit-H. About these proceedings as well as seizure of heroin from Josephine, a common panchnama was drawn. The panch witnesses signed on each page of the panchnama, while P.W.1 Kanta Tejwani put her signatures on the last page.
Copy of the panchnama was given to the accused as well as Josephine. As acknowledgment of receipt of the panchnama, the accused put her signature on the same. The certified copy of the panchnama is marked exhibit-10. P.W. 5 Nasir Rashid was an officer working with Kenya Airways. He was a panch witness. He has fully supported the evidence of P.W.1 Kanta Tejwani.
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17. P.W. Kanta Tejwani deposed that after completing the proceedings at the airport, she proceeded to the office of the NCB along with the accused persons and the seized material. On the way, she had a conversation with the accused as well as Josephine . After reaching the office, she submitted search and seizure report to her superior P.W.2 Sanchis, the Superintendent of NCB.
Exhibit-17 is proved to be the same search and seizure report which bears signature of P.W.1 Kanta Tejwani. It is also signed by P.W.2 Sanchis.
According to him, this report was also submitted before his superior, Assistant Director of NCB, who had also signed the same. This report also gives the details about the search and seizure in respect of the present appellant as well as Josephine. She also submitted a note dated 06.05.2002 to the Superintendent P.W.2 Sanchis about offloading of the accused as well as Josephine because of the seizure of contraband material from them. According to her, she recorded statement of the accused under Section 67, wherein she gave all the personal details as well as the circumstances in which she had entered into the business of narcotic drugs. That statement was signed by the accused and proved to be exhibit-25. She also recorded the statement of Josephine. In view of their statements as well the manner in which they had concealed and were trying to export heroin, it appeared that they were not working together and they were independently involved in the illicit business.
Therefore, there could not be a common intention nor there could be a common case against them. Therefore, P.W.1 Kanta Tejwani bifurcated their cases.
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18. As per her evidence, P.W.1 Kanta Tejwani deposited the muddemal except the samples with the custodian of NCB along with her letter at exhibit-27. P.W.2 Sanchis, being the Superintendent, was the custodian and he received the said two suitcases and the carton containing the remaining 5.390 kg of heroin. Her evidence shows that after recording the statement of the accused, she arrested her on 06.05.2002 itself as per the memo of arrest exhibit-28. It also bears dated signature of the accused. She also submitted report of arrest exhibit-29 to P.W.2 Sanchis. It was placed before the Assistant Director of NCB on the same day who also signed it.
19. Evidence of P.W.1 Kanta Tejwani shows that on 07.05.2002, she prepared test memo in triplicate for depositing sample packet marked "BK BL I" with Deputy Chief Chemist, Mumbai and she herself carried the same along with the sample in sealed condition to the office of the Deputy Chief Chemist and deposited the same. Two copies of the test memo were retained by the Deputy Chief Chemist and the third copy was returned to her with acknowledgment of receipt by the office of Deputy Chief Chemist in the form of lab No.129/seizure/7.5.02. Exhibit-30 and 32 are the same test memos and they also bear endorsement from the office of the Deputy Chief Chemist, Mumbai to show that the sample was received with the test memo on 07.05.2002.
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20. As per the evidence of P.W. Kanta Tejwani, on 08.05.2002, she forwarded the sealed sample "BK BL II" with the covering letter addressed to Forensic Science Laboratory, Kalina, through P.W.7 Narayan Panigrahi, who was a Hawaldar working with NCB, Mumbai. Evidence of P.W.7 Narayan Panigrahi shows that he had received the said sample in sealed condition and with intact seals and had produced the said sample as well as the covering letter in the office of Forensic Science Laboratory, Kalina on the same day.
Exhibit-31 is the office copy of the covering letter addressed to the Director, Forensic Science Laboratory, Kalina. It shows the endorsement and signature of the officer from the Forensic Science Laboratory, Kalina to show that the sealed envelope was received by that office on the same day.
21. Below test memo exhibit-32 sent to the Deputy Chief Chemist, there is a report from the Chemical Examiner which shows that, the sample was in the form of brown powder and tested for diacetyl-morphine (heroin), which is covered under the NDPS Act. CA report from Forensic Science Laboratory, Kalina also shows that one sealed envelope with seals intact and as per copy was received. It contained brown coloured powder in a polythene bag in an envelope and marked "BK BL II". The result of the analysis was that heroin (diacetyl-morphine) was detected in the exhibit along with the other opium alkaloids. Director of Forensic Science Laboratory also reported that the sample contained 44% of heroin. P.W.4 Murlidhar Sevalkar, who was the Assistant Chemical Analyser at Forensic Science Laboratory, Kalina, Mumbai ::: Downloaded on - 09/06/2013 18:01:05 ::: MP 15 Apeal1297_07.doc during the relevant time, deposed about the receipt of the sample with intact seals and also about the analysis of the sample. He has also given the data of the analysis in his evidence before the Court and deposed that the sample contained 44% heroin (diacetyl-morphine) along with paracetamol and caffeine. The data sheet exhibit-57 and the report exhibit-33 were proved by him.
22. The learned Counsel for the appellant contended that the Intelligence Officer Rosario was not examined by the prosecution, and therefore, it has failed to prove the receipt of the intelligence. It is also contended that as no register is maintained about the intelligence received and it is on the loose sheet exhibit-45, much importance cannot be given to it. P.W.2 Sanchis has deposed that Rosario was in service of Union of India and working with NCB during the relevant period, but he has resigned from this job and has settled somewhere in New Zealand. Therefore, his attendance could not be procured without the amount of delay and huge expenses which would not be necessary because he would only prove that he had received the intelligence and submitted intelligence note before his superior officers. The intelligence note was a kind of statement made by the public servant in discharge of his official and professional duty. He had not done anything more. He himself had not conducted the raid or investigation. His signature on the intelligence note exhibit-45 is proved by his superior P.W.2 Sanchis to receive that note and thereafter gave necessary instructions to P.W.1 Kanta Tejwani and other ::: Downloaded on - 09/06/2013 18:01:05 ::: MP 16 Apeal1297_07.doc officers for surveillance and appropriate action. Therefore, non-examination of intelligence officer cannot be fatal to the prosecution. It is admitted by the prosecution witnesses that no register was maintained in the office of NCB about the receipt of intelligence or about submission of such intelligence to the superior officers but that itself should not be the serious matter particularly when on the basis of the intelligence, immediate action was taken and as per prosecution case, the necessary documents including pre-flight manifest was collected from the Kenya Airways about the particular flight, which revealed the name of the accused at serial No.1. The air ticket purchased by the accused from Kenya Airways with two boarding passes were recovered from her and the evidence also shows that the baggage claim tags were found affixed on her air ticket. She was also in possession of the keys of the suitcases from which the contraband was recovered. In view of these circumstances, merely because in the office of NCB, they did not maintain the intelligence register, prosecution evidence about the receipt of such intelligence by Rosario and submission of the same to his superiors cannot be doubted.
23. The learned Counsel also contended that the provisions of Section 42 are mandatory and non-compliance of the same would be fatal to the prosecution. For this purpose, he relied upon Abdul Rashid Ibrahim Mansoori vs. State of Gujarat, JT 2000 (1) SC page 471 and Karnail Singh Vs. State of Haryana, 2009 (2) Drug Cases (Narcotics) 16. In Mansoori's case (supra), the accused was a driver of an auto-rickshaw in which four gunny bags ::: Downloaded on - 09/06/2013 18:01:05 ::: MP 17 Apeal1297_07.doc containing charas were found. In that case, it was found that the information received was neither noted down nor it was submitted to the Senior Officer as per the provisions of Section 42(1). Section 42 is applicable where the entry, search or seizure is to be made from any building, conveyance or enclosed place. In Mansoori's case, the search of auto-rickshaw, which is a conveyance, was to be taken, and therefore, provisions of Section 42 were found applicable. The Karnail Singh's case (supra) was decided by the Constitution Bench of the Supreme Court consisting of five Judges because of the conflicting opinions in Mansoori's case (supra) and Sajan Abraham Vs. State of Kerala, 2001 Drugs Cases (Narcotics) 457. In fact, Constitution Bench of the Supreme Court found that the facts of the two cases were different. In Sajan's case, the accused was allegedly found selling the narcotic drugs at the public place, and therefore, the Supreme Court had held that the provisions of Section 42 were not mandatory. While in Mansoori's case, it was held that Section 42 was mandatory because it was a case of search and seizure from the conveyance. The Supreme Court also dealt with as to how the provisions of Section 42 can be applied. In a chain of cases including Ravindran @ John Vs. Superintendent of Customs, (2007) 6 SCC 410, it has been consistently held by the Supreme Court that when search, seizure and arrest is made at public places like railway station, bus stand or airport provisions of Section 42 are not applicable and that the provisions of Section 43 would be applicable. In the present case, there was no entry, search or seizure from any building, conveyance or enclosed place. The contraband was ::: Downloaded on - 09/06/2013 18:01:05 ::: MP 18 Apeal1297_07.doc found in the bags which were checked-in at the airport. Therefore, strictly speaking, provisions of Section 42 would not be applicable, though on facts, I find that the provisions of Section 42 have been complied with.
24. The learned Counsel for the appellant contended that P.W.5 Nasir Rashid and P.W.6 Bharat Seraiya, both from Kenya Airways, admitted that it is necessary to remove relevant portion of the butter paper of the package identification tags to affix them on the baggage. However, in the present case, the butter paper was found on both the identification tags.
Therefore, he argued that, it is doubtful if the baggage identification tags were really affixed on the suitcases and hence it is not proved beyond reasonable doubt that these bags belonged to the accused and she had checked in the same. The evidence of P.W.1 Kanta Tejwani shows that for the safety purpose, that is, for the protection of the material evidence, the identification tags were removed from the bags and they were kept in sealed packet. They were produced before the Court. I have carefully seen the said tags. The instructions on the said tags read thus "peel back only if used as stickers".
Thus, it could be used as stickers by peeling back. It does not mean that the butter paper should be completely removed and thrown away. Even the witnesses deposed that the relevant portion of the butter paper should be removed for the purpose of using the tag as sticker. If the relevant part from both the ends is peeled back, it can be used as sticker and affixed but as the butter paper was not completely removed and thrown away, the peeled back ::: Downloaded on - 09/06/2013 18:01:05 ::: MP 19 Apeal1297_07.doc portion of the butter paper could get stick with the tags after they were removed from the baggages. The identification tags were taken out from sealed packet and shown to the witness five years after the seizure. Therefore, merely because the butter papers were found stuck with the identification tags, it could not be said that the identification tags were not actually affixed on the said suitcases. In fact P.W.1 Kanta Tejwani and P.W.5 Nasir Rashid both have deposed that identification tags were on both the suitcases and they were removed. Therefore, I do not find much substance in this argument of the learned Counsel.
25. The learned Counsel contended that the weight of the two suitcases which were seized by the NCB was 57 kg. As per the evidence on record, the passenger of economy class is allowed to take baggage with weight of only 20 kg free of charges. For excess baggage, one has to pay. Exhibit 23 shows that the excess weight charges for 17 kg was paid. According to him, in view of this, the weight of the baggage should have been 37 kg but in fact it is 57 kg, and therefore, it is doubtful that the two suitcases, which were seized by NCB really belonged to the present accused. It is true that there is discrepancy in this respect and it is difficult to say why the excess weight charge for 17 kg only was collected by the officers of Kenya Airways while the excess weight was 37 kg. taking into consideration the total weight of two bags. In my opinion, this discrepancy alone cannot be sufficient to throw away the prosecution case, particularly when, on both the suitcases baggage ::: Downloaded on - 09/06/2013 18:01:05 ::: MP 20 Apeal1297_07.doc identification tags with particular numbers were found and two baggage claim tags with same numbers were found affixed on the air ticket in possession of the accused. This shows that both the bags were checked-in by her and the baggage claim tags were affixed on her air ticket while identification tags were affixed on the suitcases. Matter does not stop there. The keys of both the suitcases were in possession of the accused and on demand by the NCB officers, she herself opened the locks of both the suitcases with the keys in her possession. That conclusively goes to prove that she was in possession of those suitcases and eventually in possession of the contraband contained in those bags.
26. The learned Counsel for the appellant contended that the evidence of P.W.1 Kanta Tejwani and P.W.5 Nasir Rashid, was the panch witness is conflicting about the circumstances in which the contraband was found in the said bags. As per the evidence of P.W.1 Kanta Tejwani, the black polythene bags were found below the false bottom of the respective suitcases. P.W.5 Nasir Rashid deposed that the bags containing the powder were found in the pipes. On careful perusal of the evidence of these two witnesses as well as panchnama, I find that as per the evidence of P.W.1 Kanta Tejwani as well as the contents of the panchnama, on opening the zips of the inner cloth lining of the suitcases exposing the PVC sheets, large black coloured polythene bags were found pressed flat between the inner and outer sheets. They were placed in between the pipes which were fitted for the movement of telescopic pulling ::: Downloaded on - 09/06/2013 18:01:05 ::: MP 21 Apeal1297_07.doc handles. Both the bags have wheels, and therefore, they also have the telescopic pulling handles for the movement of the bags. The handle can be pulled up for the purpose of pulling the bag and it can be pushed down when the bag is not to be in movement. The handles have got the telescopic sticks which make movement in the said pipes. Therefore, it is impossible to keep any other material inside the pipes. When P.W.5 Nasir Rashid deposed that the bags containing powder were in the pipes, it actually means that they were kept in between the pipes and the panchnama also speaks accordingly. Merely because the word 'between' is not used in recording his evidence, it cannot be said that there is any conflict in the evidence of two witnesses about the condition in which the said polythene bags containing contraband were found.
The learned Counsel also contended that P.W.5 Nasir Rashid admitted that he did not see the pipes in the bags which were shown to him at the time of evidence. On the basis of this, the learned Counsel contended that the bags produced before the Court may not be the same, which were allegedly seized.
I have called the muddemal property and carefully seen both the bags. Merely by opening the bags, the pipes cannot be seen because the pipes are fixed on the PVC sheets from inside, and therefore, the pipes are not visible from the outside. As stated earlier, there was also inner cloth lining covering the bottom of the suitcases, therefore, unless the zip of the inner cloth lining is opened, the real bottom of the suitcase could not be seen, and therefore, pipes fitted on the PVC sheet of the bottom also could not be seen. On careful perusal of the bags, I find that such pipes are in fact found fixed with the PVC sheets with ::: Downloaded on - 09/06/2013 18:01:05 ::: MP 22 Apeal1297_07.doc provision for movement of telescopic pulling handles. Both the pipes, wheels and handles are intact and in a perfect working condition. I, therefore, do not find any substance in the argument of the learned Counsel that the bags produced before the Court may be different from those which were seized.
27. The learned Counsel also argued that the powder found in both the bags was mixed and it is in violation of the Standing Instruction No.1/88 issued by the NCB, New Delhi. Para 1.7, Clause (a) of the Standing Instructions require that in the case of seizure of a single package / container, one sample in duplicate is to be drawn. Clause (b) of that para also provides that when the packages / containers seized together are of identical size and weight, bearing identical markings and the contents of each package give identical results on colour test by U.N. kit, conclusively indicating that the packages are identical in all respects, such packages and containers may be carefully bunched in lots and for each such lot, one sample in duplicate may be drawn. The evidence in the present case shows that small quantity of powder was taken from each of the polythene bags found in two suitcases and the said powder tested positively for heroin when tested with Field Testing Kit. Thus, P.W.1 Kanta Tejwani was satisfied that the contents of both the polythene bags were similar, and thereafter, she emptied the contraband from both the polythene bags in one and mixed the content. In view of para 1.7 (b) from the Standing Instructions No.1/88, I find that the instructions have been strictly followed and there was no violation. Further, both the bags containing contraband belonged to one ::: Downloaded on - 09/06/2013 18:01:05 ::: MP 23 Apeal1297_07.doc person and not to different persons. Thereby mixing the contents of both the bags, no prejudice was caused to the accused.
28. The learned Counsel also argued that there is no documentary evidence to show that the samples were in custody of P.W.1 Kanta Tejwani till they were sent to the Chemical Analyser. In fact evidence of P.W.1 Kanta Tejwani and P.W.2 Sanchis goes to show that the remnant bulk quantity of the contraband in sealed carton along with the two suitcases and other materials were deposited in the godown on the same day as per the letter exhibit-27. It shows that one carton sealed with NCB seal No.03 purporting to contain 5.390 kg of brown powder purporting to be heroin was received from P.W.1 Kanta Tejwani and it was entered in the godown register vide entry No.07/2002. Facsimile of the seal was also affixed on the said forwarding letter or memo. The letter also shows that besides the above carton, both the suitcases marked 'F' & 'G' were also received by the godown keeper. The evidence of P.W.1 Kanta Tejwani shows that both the sealed samples remained with her. On the next day, that is, 07.05.2002, she personally handed over one sample marked "BK BL I" with intact seals in the office of the Deputy Chief Chemist at Mumbai with test memo exhibit-30 and another sample marked "BK BL II" was forwarded to Forensic Science Laboratory on 08.05.2002 through P.W.7 Hawaldar Panigrahi. The evidence of P.W.7 Hawaldar Panigrahi goes to show that on the same day, he produced the same sample in the office of the Forensic Science Laboratory with intact seals and this is also proved by the report exhibit-33 as ::: Downloaded on - 09/06/2013 18:01:05 ::: MP 24 Apeal1297_07.doc well as the evidence of P.W.4 Murlidhar Sevalkar. When P.W.1 Kanta Tejwani specifically deposed on oath that both the samples were in her custody till one sample was deposited with Deputy Chief Chemist on 07.05.2002 and second sample was forwarded to the Forensic Science Laboratory on 08.05.2002, there is no reason to disbelieve her version and if she was herself in custody of the samples, there could not be any documentary evidence about the same.
Documentary evidence could be available if she would have deposited the said samples in the godown or with some other officer before they were sent to Forensic Laboratory. Therefore, I do not find any substance in this argument.
29. The learned Counsel also argued that when the office of the Deputy Chief Chemist is at a short distance from the office of NCB, there was no reason for delay in sending the sample to the Deputy Chief Chemist. It appears from the evidence that the seizure procedure and panchnama were completed on 06.05.2002 at about 06.00 a.m. Thereafter, these officers went to the office, completed certain formalities and on the very next day, that is, 07.05.2002, one sample was personally deposited by P.W.1 Kanta Tejwani in the office of Deputy Chief Chemist and on 08.05.2002, another sample was forwarded and deposited with the Forensic Science Laboratory, Kalina. As per para 13 of the Standing Instruction No.1/88, samples must be despatched to the Laboratory within 72 hours of the seizure. In the present case, both the samples were actually deposited with the two different laboratories well before the expiry of 72 hours from the time of seizure. Therefore, it cannot be said ::: Downloaded on - 09/06/2013 18:01:05 ::: MP 25 Apeal1297_07.doc that there was any unreasonable delay in forwarding the samples to the laboratory.
30. The learned Counsel also argued that no register about the movement of the seal was maintained in the office of NCB, therefore, the seal was easily available to the officers on oral request, and therefore, there could be misuse of the same and the samples could be tampered with. It is true that the prosecution witnesses admitted that no movement register about the seal was maintained. However, from the evidence of P.W.2 Sanchis it appears that seals used to remain in custody of the Zonal Officer of NCB. According to him, immediately after seizure of the contraband was completed, the seal was returned to him by P.W.1 Kanta Tejwani and he himself returned the same to his superior Zonal Officer. Thus, it appears that the seal was handed over to P.W.1 Kanta Tejwani for the purpose of search and seizure in the present case, and as soon as that work was over and she returned to the office, the seal was returned by her to her superior P.W.2 Sanchis, who in turn returned the same to the Zonal Officer. The test memo was prepared by P.W.1 Kanta Tejwani for forwarding sample "BK BL I" to the Deputy Chief Chemist on 07.05.2002, while according to her the covering letter forwarding the sample to Forensic Science Laboratory was prepared on 08.05.2002. On the said test memo and the forwarding letter sent to the Forensic Science Laboratory, facsimile of the NCB Seal No.03 was affixed to show that the said seals were used for the purpose of sealing the samples. The learned Counsel contended that it ::: Downloaded on - 09/06/2013 18:01:05 ::: MP 26 Apeal1297_07.doc indicates that the seals were available to her on 07.05.2002 as well as 08.05.2002. In fact the evidence on record shows that the seal could be made available to the officers on oral request but that does not mean that the officers misused the same. In the present case, the bulk remnant of the contraband was put in the carton, which was duly sealed and that carton was deposited with the godown keeper on 06.05.2002 itself. Only the sealed samples were in custody of P.W.1 Kanta Tejwani. The sachets containing the samples were put in the envelopes, and thus, envelopes were duly sealed with NCB Seal No.03 and also had the dated signatures of both the panch witnesses, P.W.1 Kanta Tejwani as well as the accused herself. The seals were found intact by the Deputy Chief Chemist as well as Forensic Science Laboratory. The said packets, which were returned from the Forensic Science Laboratory after the analysis, were also shown to the witnesses. The packet in the carton was also shown.
The signatures of the witnesses were found on them. Seals were also found.
Only the packets of the remnant samples which were received back from the laboratory and the carton containing remnant bulk appear to have been damaged. P.W.1 Kanta Tejwani explained that at the time of depositing these articles with the trial Court, they were intact but due to handling of the packages and the climate, the packets were damaged and the substance, which was in powder form had become sticky. I do not find any reason to disbelieve this explanation.
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31. The learned Counsel argued that as per the evidence of P.W.1 Kanta Tejwani, the polythene sachets in which the samples were put were heat-sealed and then put in the envelope, which was duly sealed with the seal of NCB.
According to him, P.W.4 Murlidhar Sevalkar did not find the polythene bag heat-sealed. Evidence of P.W.4 Murlidhar Sevalkar shows that the outer envelope was found sealed and the seals were intact and accordingly, he had mentioned it. He had not mentioned that the polythene bag found inside the envelope was heat-sealed, and therefore, he deposed that they were not found heat-sealed. He was expected to see the seals on the packet which he had done. In the test memo, it was not specifically stated that the said polythene sachets containing the contraband and put in the envelope were heat-sealed, and therefore, it is possible that the Chemical Analyser did not specifically note it. The samples were analysed in June 2002 and evidence of P.W.4 Murlidhar Sevalkar was recorded on 26.04.2007. His evidence shows that he had analysed about 400 to 500 samples of narcotic substance during his tenure of 4-5 years in Mumbai. When such large number of samples were analysed by him during that period, it would be impossible for him to state on the basis of his memory whether the polythene sachet inside the envelope was in fact heat-sealed or not. Therefore, I am not inclined to give much weightage to this admission of P.W.4 Murlidhar Sevalkar. As per his oral evidence as well as the report submitted by him, the sample packet was received with seals intact. The said packet not only had the seal of the NCB but also had the signatures of the panch witnesses, P.W.1 Kanta Tejwani as well as accused and that provided ::: Downloaded on - 09/06/2013 18:01:05 ::: MP 28 Apeal1297_07.doc additional security.
32. The learned Counsel also contended that the panchnama does not reflect that more than one seal was affixed on the sample, while P.W.5 Nasir Rashid deposed that three or four seals were affixed on each sample. As per the evidence of P.W.1 Kanta Tejwani, three samples were put on each sample but in the panchnama, it is simply mentioned that the samples were sealed. It was not necessary to mention the number of seals which were put. She has explained how the seals were actually affixed to protect and secure the contents. I do not find any inconsistency in their evidence merely because P.W.5 Nasir Rashid stated that three or four seals were affixed on each sample.
As stated earlier, the packets were found stuck with each other. The original envelope containing the sample had got stuck with the envelope in which the remnant sample was returned by the Forensic Science Laboratory. The record also reveals that they were tried to be separated and they were also torn and two seals were clearly seen on one sample packet. In view of this, if one of the seals was damaged that makes no difference and is certainly not fatal to the prosecution. P.W.7 Hawaldar Panigrahi admitted that he was not in a position to state whether the same envelope, which was shown to him in the Court, was handed over to the Forensic Science Laboratory. This admission also does not go to the root of the matter because the packets were stuck to each other and were damaged. P.W.1 Kanta Tejwani clearly stated that the damage to the packets was caused due to handling in the storeroom of the Court after the ::: Downloaded on - 09/06/2013 18:01:05 ::: MP 29 Apeal1297_07.doc property was deposited there and also because of the atmosphere and climate.
33. The learned Counsel attacked the prosecution on some minor discrepancies, which appear to be the result of lapse of memory due to lapse of about five years from the time of seizure till recording of evidence in the Court. For example, P.W.5 Nasir Rashid deposed that the polythene bags in which the powder was found were kept in the carton. The learned Counsel contends that the said empty bags were not found in the carton. In fact the evidence of P.W.1 Kanta Tejwani and the panchnama show that the polythene bags containing the contraband, after they were emptied, were put in the respective suitcases along with other personal belongings. On opening the suitcases, those empty polythene bags were in fact found there. The learned Counsel also tried to find some minor inconsistencies in the evidence in respect of condition of the carton after the proceeding under Section 52A were completed. In fact that proceeding was undertaken for the purpose of destruction of the remnant contraband but eventually, it was not destroyed and it was produced in the Court. Naturally, when the original carton was opened, photographs were taken and it was re-packed and sealed, some changes might occur. No importance can be give to the same. The learned Counsel contends that as per the evidence of P.W.5 Nasir Rashid, one lock and two keys were kept in an envelope but no such lock is produced before the Court, and that none of the bags have the facility to put a separate lock. This argument is also not correct. I have personally checked the property, found the lock as well as ::: Downloaded on - 09/06/2013 18:01:05 ::: MP 30 Apeal1297_07.doc the keys. One lock was actually opened with the key before the trial court, as per the record.
34. The learned Counsel contended that the accused was not in conscious possession of heroin, and for this purpose, he relied upon her retracted statement under Section 67 wherein, she stated that she was given assignment of taking a consignment containing sensitive drugs. The learned Counsel contended that the sensitive drugs comes under Schedule 'H' of the Drugs and they are not the narcotic drugs under the NDPS Act. In fact having retracted the statement under Section 67, she could not make the use of the same. It is also material to note that in her statement under Section 313 of the Code of Criminal Procedure, she never explained in what circumstances, the contraband had come in her possession nor she stated that the said contraband packets were given to her and she had received the same believing that the contents were some sensitive drugs and not heroin. She also did not give any evidence in support of this contention. Therefore, I do not find any substance in this contention of the learned Counsel.
35. In view of the evidence on record, I find that prosecution has proved satisfactorily and beyond any reasonable doubt that the accused was in possession of 5.400 kg. heroin kept in two separate polythene bags, which were concealed in the false bottom of the two suitcases which she had checked-in as her baggage with the Kenya Airways. It is established that it ::: Downloaded on - 09/06/2013 18:01:05 ::: MP 31 Apeal1297_07.doc contained 44% of heroin. Therefore, it can be held that the total substance recovered contained 2.376 kg of heroin. Commercial quantity of heroin is 250 gm only. Thus, it is clear that the accused was in possession of commercial quantity of heroin and she was trying to export the same. Therefore, she was rightly convicted of the offences under Section 21(c) and Section 23 r/w.
Section 28 of the NDPS Act.
36. She was also held guilty under Section 21 r/w. Section 29, which provides for abetment and criminal conspiracy. In fact when she was found to be in possession of the contraband and was also found making attempt to export it from India, there was no need to convict her separately for the offence of abetment or conspiracy particularly when no other accused is involved in the case. For the purpose of conspiracy, the prosecution relied upon her statement under Section 67 recorded on 06.05.2002 as well as 11.05.2002. The learned Counsel contended that the said confessional statement under Section 67 cannot be relied upon because in view of the facts and circumstances, she must be in custody of the NCB when that statement was recorded, and therefore, the statement cannot be said to have made voluntarily. She had also retracted from the said statement. The learned Counsel relied upon the Union of India V/s. Balmukund and others, 2009 ALL MR (Cri) 1570 (S.C.). The Supreme Court observed thus:
"27. Exhibits 20 and 21 categorically show that they were interrogated. If they were interrogated while they were in ::: Downloaded on - 09/06/2013 18:01:05 ::: MP 32 Apeal1297_07.doc custody, it cannot be said that they had made a voluntary statement which satisfies the conditions precedent laid down under Section 67 of the Act. We, in the backdrop of the aforementioned events, find it difficult to accept that such statements had been made by them although they had not been put under arrest. As the authorities under the Act can always show that they had not formally been arrested before such statements were recorded, a holistic approach for the aforementioned purpose is necessary to be taken.
29. The court while weighing the evidentiary value of such a statement cannot lose sight of ground realities.
Circumstances attendant to making of such statements should, in our considered opinion, be taken into consideration."
37. In Francis Stanly alias Stalin Vs. Intelligence Officer, Narcotic Control Bureau, 2007 Cri. L. J. page 1157, the Supreme Court has held that confessional statements made before the officer of the Department of Revenue Intelligence may not be hit by Section 25 of the Evidence Act, yet such a confession must be subject to closer scrutiny than a confession statement made to private citizens. The Supreme Court also referred to the observations made by the Supreme Court in State (NCT of Delhi) Vs. Navjot Sandhu alias Afsan Guru, (2005) 11 SCC page 600 as follows:
"A retracted confession may form the legal basis of a conviction if the court is satisfied that it was true and was voluntarily made. But it has been held that a Court shall not base a conviction on such a confession without corroboration. It is not a rule of law, but is only a rule of prudence that under no circumstances can such a conviction be made without corroboration, for a court may, in a ::: Downloaded on - 09/06/2013 18:01:05 ::: MP 33 Apeal1297_07.doc particular case, be convinced of the absolute truth of a confession and prepared to act upon it without corroboration; but it may be laid down as a general rule of practice that it is unsafe to rely upon a confession, much less on a retracted confession, unless the court is satisfied that the retracted confession is true and voluntarily made and has been corroborated in material particulars."
38. Thus it is settled position of law that a confessional statement before the officers of NCB or Revenue Intelligence under Section 67 of the NDPS Act is not hit by Sections 25 or 26 of the Evidence Act and is admissible but it is necessary to scrutinize the same strictly though the Court may act upon it if it is satisfied about its absolute truth but at the same time it is held unsafe to rely on the confessional statement without some corroboration.
39. In the present case, the accused was found in possession of contraband heroin in her baggage on 06.05.2002 and the panchnama was also concluded at 06.00 a.m. Thereafter, she was taken to NCB office. It cannot be believed that she was not in custody of the NCB from the time when the contraband was recovered from her baggage. Therefore, though formal arrest was shown to have been made after recording of the statement under Section 67, there is reason to believe that the said statement was made when she was in custody of NCB. She had also retracted from that statement, and therefore, I am not inclined to give much importance to the same. However, that statement could be useful only for the purpose of proving the conspiracy. As per the evidence ::: Downloaded on - 09/06/2013 18:01:05 ::: MP 34 Apeal1297_07.doc on record, it is established beyond reasonable doubt that she was found in possession and also found to have made attempt to export heroin from India.
There was no need to go into the question of conspiracy, particularly when, no other accused is involved in this case. In view of this, in my opinion, conviction under Section 29 r/w. Section 21 cannot be sustained.
40. In view of the prosecution evidences and the material on record, I find that the prosecution has proved beyond reasonable doubt that the accused committed offence punishable under Section 21(c) and under Section 23 r/w.
Section 28 of the NDPS Act. However, conviction under Section 29 r/w.
Section 21 for abetment and conspiracy cannot be sustained.
41. The learned Counsel for the appellant contends that the appellant is a woman and in jail since 2002. The learned trial Court has awarded rigorous imprisonment of one year in default to pay fine on each count. He prays for lenient view in respect of imprisonment in default of fine.
42. In view of the above, the appeal is partly allowed. The impugned order of conviction and sentence to the extent of offence under Section 29 r/w.
Section 21 is hereby set aside. The order of conviction for the offences punishable under Section 21(c) and under Section 23 r/w. Section 28 of the NDPS Act is hereby maintained. However, the sentence on these two counts stands modified as follows:
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(a) Appellant shall undergo rigorous imprisonment for ten years and shall pay fine of Rs.1 lakh on each count and in default to pay fine shall undergo further rigorous imprisonment for six months on each count;
(b) Passport of the appellant shall be given back to her on her release from jail after undergoing sentence.
43. In view of the disposal of appeal, application Nos.1334 of 2010 and 710 of 2011 do not survive and the same stand disposed of accordingly.
(J. H. BHATIA, J) ::: Downloaded on - 09/06/2013 18:01:05 :::