Kerala High Court
Abdulla Ibrahim, S/O. Abdulla vs State Of Kerala on 25 June, 2002
Author: M.R. Hariharan Nair
Bench: M.R. Hariharan Nair
JUDGMENT M.R. Hariharan Nair, J.
1. The challenge in the appeal is with regard to the conviction entered against the appellant as accused in S.C. No. 150 of 1998 of the Special Court for trial of N.D.P.S. Act cases (Sessions Court, Trivandrum) for the offence under Sections 21 and 28 of the N.D.P.S. Act and the sentence of R.I. for 20 years and fine of Rs. 2 Lakhs imposed for each of the said two offences.
2. The prosecution alleged that on 24.3.1998 the first accused completed the check in procedure at the Trivandrum Airport for leaving for Colombo and that just before he was about to board the Aircraft concerned he was stopped and questioned on suspicion by the Customs Superintendent. Though the accused originally disowned possession of any contraband, he subsequently conceded that he had concealed in his body contraband for smuggling out and thereupon he was produced before the Magistrate for orders for X-Ray screening under Section 103 of the Customs Act. Since the first accused expressed before the Magistrate his readiness to co-operate with the authorities in the matter of disgorging the contraband he was taken to the Medical College Hospital and in subsequent search conducted through intervention of the medical officers 102 capsules which had been swallowed by the first accused and two bigger capsules which had been inserted into his rectum were brought out. The contents of all these were brown sugar of net weight 504 grams. These items were seized as per Ext. P2 series mahazars. The identity of the substance seized was confirmed by the Analyst who examined the sample prepared under Ext. P2 as 'Heroin'.
3. Though there were four more accused arrayed in the case, the case against accused 3 and 4 were split up and re-filed. After trial of original accused 1, 2 and 5 the present appellant alone was convicted and original accused Nos. 2 and 5 (re-arrayed as accused Nos. 2 & 3 in S.C. 150 of 1998) were acquitted.
4. Mr. Devaraj of the Chennai Bar, who argued the case for the appellant, submitted that there is no evidence to show that the accused was in conscious possession of the contraband. Reliance was placed on the confession statement of the first accused allegedly recorded by PW1 himself, to show that he was under the belief that the items handed over to the accused by others, with instruction to transport it to Sreelanka, were all dollar notes and that he never knew that the capsules that he had swallowed and inserted into his rectum contained any narcotic drug or psychotropic substance. Based on the said contention it is further argued that even if the prosecution case is believed, the accused has committed the offence under Section 135 of the Customs Act only by virtue of the operation of Section 79 of the N.D.P.S. Act. It is also alleged that the seizure effected in this case was without recourse to the mandate in Section 50 of the N.D.P.S. Act. Lastly it is argued that the punishment imposed is, in any event, excessive in so far as the Court has inflicted the maximum punishment allowed under the law for both the offences for which he was convicted. Yet another contention is that when there is a conviction under Section 21 for possessing brown sugar, there is no scope for invoking Section 28, which actually contemplates only an offence of attempt.
5. I have heard the learned Public Prosecutor, according to whom, the appellant is a professional carrier, who had undertaken similar missions in the past also and his expertise is revealed by the fact that he could swallow as many as 102 capsules besides the capacity to carry two big capsules in his rectum. As regards the compliance with Section 50 of the N.D.P.S. Act, it is pointed out that the seizure was effected in the presence of PW3, who is a Gazetted Officer, notwithstanding the fact that in a case where contraband is brought out from inside the body through medical help, Section 50 is not attracted. As regards the contention that the appellant was unaware that what he was carrying in the form of capsules was any manufactured drug, the learned Public Prosecutor points out that the accused is bound by the presumptions contemplated in Sections 35 and 54 of the N.D.P.S. Act. The punishment imposed is also sought to be justified on the ground that the accused is a professional carrier and this is not his first errand.
6. On the arguments advanced in the case the points that arise for decision are:
1) Whether there is reliable evidence to conclude that the accused was in conscious possession of 504 grams of heroin as alleged?
2) Whether the seizure is in conformity with the requirement of Section 50 of the N.D.P.S. Act?
3) Whether the conviction under Section 28 is justified when there is a conviction for the offence under Section 21 of the N.D.P.S. Act? and
4) Whether the conviction and sentence entered against the appellant are justified?
7. Point No. 1: The fact that 102 capsules which had been swallowed by the first accused and two bigger capsules which had been concealed inside the rectum of the appellant were actually brought out through medical help while in the Medical College Hospital is not seriously disputed before me. There is also the evidence of PW1, who was the Intelligence Superintendent, Air Customs, Trivandrum to the effect that the apprehension of the accused took place based on Ext. P21 information, pursuant to which surveillance was mounted in the vicinity of departure lounge in the International Airport on the particular day and that at about 8 a.m. the first accused was seen waiting inside the departure lounge for proceeding to the security check point after completing the immigration clearance. The first accused was questioned and when his answer denying possession of any such contraband was found unacceptable, he was apprised of his right under Section 50 of the N.D.P.S. Act to have the search done in the presence of a Gazetted Officer or Magistrate. Based on Ext.P16 statement to the effect that search might be conducted in the presence of a Gazetted Officer, PW3, who is a Gazetted Officer of the Central Excise Department, was brought and in the subsequent body search nothing was found concealed inside his dress nor on his body outwardly. It was therefore decided to have an X-ray examination.
8. The fact that the accused was subjected to X-ray examination is spoken to by PW4, who was the Head of the Department of Radio Diagnosis, Medical College, Trivandrum. His evidence shows that multiple foreign bodies were found inside the stomach and rectum of the first accused. Exts.P17 and P18 are the X-ray films showing the said fact and Ext.P1 certificate issued by PW4 shows the relevant details.
9. PW3, who is a Gazetted Officer, has corroborated the evidence of PW1 in the above matter. His evidence shows the details of ejectment of capsules from inside the body of the appellant.
10. PW1 has spoken about the details of sampling and the seizure effected. His evidence shows that the total weight of the contraband seized in the case was found to be 504 grams. Four of the samples produced in Court were sent over to the Central laboratory at Delhi for analysis and Ext.P13(a) report confirmed the fact that it contained diacetyl morphine, which is the constituent of heroin. The result revealed by the analysis directly made by the departmental laboratory evidenced by Ext.P14(a) also to the same effect. In these circumstances there is adequate evidence available in the case to show that heroin weighing 504 grams was actually found concealed inside the body of the first accused when he had completed immigration formalities and was about to subject himself to security check after having checked in at the Trivandrum International Airport for taking flight to Sreelanka on 24.3.1998.
11. Point No. 2: The trial court has observed that in a case where contraband is seized from inside the body of a person Section 50 of the N.D.P.S. Act is not attracted. In the instant case, the medical examination or the X-ray test was not the first step followed by PW1. Initially the appellant was alerted of his right under Section 50 of the N.D.P.S. Act and the body search was conducted, but that was futile. But before doing so, the necessary formalities had been followed and in Ext.P9 statement the appellant had stated that presence of any Magistrate was not essential. The examination was in fact made in the presence of PW3. During the recovery of the items at the hospital also he was present. In such circumstances the appellant cannot be heard to contend that there is violation of Section 50 of the N.D.P.S. Act justifying acquittal.
12. The appellant has a contention that he was not in conscious possession and that hence the offence is not complete. In this regard it is pointed out that even before the Magistrate he had mentioned that he was having dollar notes concealed in his body and that this indicates that the accused was under the belief that what he had swallowed and concealed in the rectum were only dollar notes. Pursuant to the said contention the M.Os. in the case were brought down and examined. What is seen is that the capsules were not factory made. Actually the heroin was inside a plastic packet. That was covered with yellow insulation tape and to cover it further an outer balloon was used. This is presumably to avoid contamination of the substance while inside the body of the first accused. It may be that the accused did not have an opportunity to see what was inside the capsules before they were put into his body. That, however, is not sufficient to conclude that he had not knowledge of the contents.
13. Section 35 of the N.D.P.S. Act provides that in such a prosecution requiring culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence. The accused did not go to the box to speak about the knowledge that he had. Nor was any other witness examined or documents produced to show that his knowledge was otherwise. On the other hand, the statements recorded by the authorities go to indicate that the accused had in fact the information as to the contents. It is to be mentioned here that even according to his statement he had gone abroad thrice and this is not the first occasion when he was acting as a carrier. Again, Section 54 of the Act enables this Court to presume that unless and until the contrary is proved that the accused has committed the offence under the Act in respect of any narcotic drug or psychotropic substance as long as possession of the item is not accounted for satisfactorily by the accused.
14. The Apex Court had occasion to deal with the scope and ambit of Section 35 of the N.D.P.S. Act in Abdul Rashid Ibrahim Mansuri v. state of Gujarat (2000 Crl. L.J. 1384). A Bench of three Judges held therein that when it is shown that a narcotic drug was in the possession of a person or vehicle driven by him, the burden is on him to prove that he had no knowledge about the fact that the item carried was a substance under the N.D.P.S. Act. The standard of proof required is proof beyond a reasonable doubt. If the Court, on an appraisal of the entire evidence does not entertain doubt of a reasonable degree that the accused had real knowledge of the nature of the substance concealed, then the appellant is not entitled to acquittal. However,if the Court entertains strong doubt regarding the accused's awareness about the nature of the substance carried by him, it would be a miscarriage of criminal justice to convict him keeping such strong doubt undispelled. Even so, it is for the accused to dispel any doubt in that regard. The burden of proof cast on him under Section 35 can be discharged through different modes, viz. (1) he can rely on the materials available in the prosecution evidence; (2) he can elicit answers from prosecution witnesses through cross examination to dispel the doubt; and (3) he may adduce other evidence at the stage of defence evidence. If the circumstances appearing in prosecution case or in the prosecution evidence are such as to give reasonable assurance to the Court that the appellant could not have had the knowledge or the required intention, the burden cast on him under Section 35 of the Act would stand discharged even if he has not adduced any other evidence of his own when he is called upon to enter on his defence.
15. Applying the said decision to the facts of this case, I do not find any reason to accept the defence contention that the accused has discharged his burden arising under Section 35 of the Act. The mere statement, when questioned by PW1 that he was under the impression that what was conveyed to him was dollar notes is insufficient to discharge the burden arising under this section.
16. In the circumstances the conviction for the offence under Section 21 of the N.D.P.S. Act is certainly justified and the alternative suggested by the accused i.e. to alter the conviction to one under Section 135 of the Customs Act involving Section 79 of the N.D.P.S. Act is unacceptable.
17. Point No. 3: It is true that when there is a conviction for the offence under Section 21 an attempt to commit the same offence does not deserve any separate conviction or sentence. But in the present case Section 28 is invoking against the accused not because he was trying to possess the contraband. On the other hand, the allegation is that he was trying to export the items by boarding the Sreelanka Flight, which was to take off within minutes of his check in at the Airport after loading himself with the contraband. Section 21 does not cover merely possession. Export is also one of the ingredients mentioned in Section 21. As far as that aspect of Section 21 is concerned, only an attempt stands established. If the accused had not been apprehended at the particular time and he could manage to get into the Aircraft, the office of 'export' also would have been completed. In that perspective there was scope for involving Section 28 also as far as the offence 'attempt to export' was concerned. That the appellant has accepted the contraband given to him by other persons and was acting only as a carrier does not alter the situation. In the circumstances the conviction entered against the accused for the offence under Section 21 and 28 of the N.D.P.S. Act cannot be assailed.
18. Point No. 4: What remains is the aspect of sentence. The learned Public Prosecutor submitted that there is no justification for reducing the sentence imposed by the trial court in so far as it is established that the accused had engaged himself in activity as carrier even earlier and since the quantum of brown sugar seized in the case is substantial. He however, concedes that there is no previous conviction against the accused for any offence under the N.D.P.S. Act. The value of the contraband seized in the case, according to the market price prevailed in India, is said to be around Rs. 50,000/-. Taking into account this aspect I think some reduction is called for in the matter of sentence. The substantive term of imprisonment for the offence under Sections 21 and 28 of the N.D.P.S. act are hence brought down from R.I. for 20 years to R.I. for a period of 12 years. Both will be suffered concurrently. The fine imposed in the case, which is the maximum under Section 21, is also brought down to Rs. 1 Lakh for each of the two offences with alternative term of R.I. for one year each.
The appeal is disposed of with this reduction in sentence.