Bombay High Court
Mrs. Khan Rukhsena Banoo vs B.S. Rawat, Assistant Collector Of ... on 15 June, 1993
Equivalent citations: 1994(2)BOMCR414, 1994CRILJ785
Author: S.P. Kurdukar
Bench: S.P. Kurdukar
JUDGMENT Saldanha, J.
1. The appellant, a young lady, who hails from South Africa was charged with having committed offences under the N.D.P.S. Act and the Customs Act in so far as it was alleged that on 20th January, 1989, she had checked in at Sahar International Airport, Bombay, for an Air Mauritius Flight No. M.K. 745 which flight was bound for Durban via. Mauritius. She had checked in three suit cases which are the subject-matter of the present prosecution and which, on examination were found to contain women's clothing, principally maxis. The defence, however, disputes this fact and maintains that the accused only had hand-baggage, that the owner of the 3 suit cases could not be traced and that the officers have falsely alleged that they were checked in by the accused. Concealed within the folds of these maxis and wrapped in cotton were as many as 49 packages, each one containing 1000 tablets of Mandrax.
2. The Appellant had gone to the Airport on that day and was required to get the checked in baggage examined by the security staff. On the suit-cases being scanned through the X'ray screening machine, the Security Officer, who did not find anything objectionable by way of weapons or explosives noticed a large number of tablets in the baggage. He therefore proceeded to Customs Superintendent Raghvan (P.W. 1) and informed him that the lady concerned was carrying three suit cases which appeared to contain large number of tablets. The passenger viz. the appellant had completed the check in formalities and the three suit cases which weighed over 49 Kgs. involved a payment of excess baggage fare. The staff at the check in counter therefore, collected approximately 452 Dollars as excess fare and issued a separate ticket against the said payment in the name of the appellant and setting out her passenger ticket number. As is the practice, three luggage tags bearing the destination Mauritius were affixed to the three suit cases and the counterfoils bearing the same serial numbers as the tags were stuck to the passenger's ticket, as is the normal practice. The appellant thereafter proceeded through immigration and when she came to the Customs Hall, she was intercepted by the officer who asked her to produce her tickets and tallied the numbers of the tickets with the tags on the said suit cases. She was asked to open the said suit cases, when she stated that the keys were not with her and therefore, the first of the three suit cases was opened and it was found to contain maxis. Concealed within the folds were several packets containing Mandrax tablets. The appellant along with the three suit cases was thereafter taken to the office and the Officers summoned panchas in whose presence the suit cases were checked. In all 49 packages were recovered from the three suit cases each one containing 1000 tablets weighing 1 Kg. each. The officer took out 18 samples containing 5 tablets each and sealed the same as representative samples. Summons under section 108 of the Customs Act, was therefore, served upon the appellant and her statement was recorded.
3. In her statement recorded under section 108 of the Customs Act, the appellant has stated that she is a South African National; that she is the mother of four children; that her one child is blind and that she had come to India for the purpose of praying and fulfilling a vow. She has spent a few days in Bombay and one Shyam is alleged to have been very helpful to her during this period. It was he who had approached her and handed over to her the three suit cases with a request that she should carry the same to South Africa. She had not much luggage of her own and, therefore, she agreed to carry the suit cases without the least of suspicion that there was anything wrong. She contended that she was totally innocent. She had no knowledge of the fact that the suit cases contained contraband and in these circumstances she prayed that the Court should pardon her. The Customs Officer has drawn up a detailed panchanama in respect of the seizure of the concealed contraband that came to be attached. The accused was placed under arrest and on completion of the investigation, she was put up for trial.
4. We need to mention at this juncture that we are rather shocked by the size of the record of this case. This is a simple case of seizure at the airport which involves the evidence of the concerned officers, panchanama and Chemical Analyser's report. Totally only six witnesses have been examined. The evidence however runs into as many as 165 pages towards which effort both the learned Counsel, who appeared, the Special Prosecutor and the Defence Counsel have contributed in equal measure. The trial unfortunately commenced on 22-8-1989 and carried on till 31-7-1991, almost for two full years. A perusal of the roznama shows that on all sorts of grounds the trial was dragged on. The 313 statement consists of 150 pages and to our mind, the evidence could have easily been summarised in 1/10th of this volume. Thereafter, Volume III consists almost entirely of the judgment which accounts for close to 200 pages. We specifically refer to this aspect of the matter because it is a matter of serious concern, in Special Cases and trials under the NDPS Act, as grievances are always made to this Court that the accused have to wait abnormally long before completion of the trial. The accent must be on expediency. Where the accused are detained in custody it is the sacred duty of the Defence Counsel, the Public Prosecutor as also the learned trial Judge to ensure utmost speed in all matters relating to the trial. This necessarily involves the avoidance of prolixity both in recording evidence as also delivering of the judgment and includes all aspect of the matter, particularly 313 statements. It is necessary that a copy of this judgment be sent to the learned Principal Judge of the City Civil Court with a request that the same may be brought to the notice of the Special Judges that having regard to the limited number of Courts that are available for the trial of these cases, special conscious efforts be made to completely avoid situations of the present type.
5. The learned trial Judge after hearing Counsel and considering the evidence on record found the appellant accused guilty and convicted and sentenced her under section 8(c) read with Sections 28 and 23 of the NDPS Act and sentenced her to suffer R.I. for 10 years and pay a fine of Rs. 1,00,000/- in default R.I. for one year. The appellant was also found guilty of the offence under section 8(c) read with Section 22 of the NDPS Act and sentenced her to suffer R.I. for 10 years and pay a fine of Rs. 1,00,000/- in default R.I. for one year. The trial Court also found the appellant guilty under section 135(1)(a) r.w. S. 135(i)(iii) of the Customs Act. However, no separate sentence is passed under this count. Substantive sentences were directed to run concurrently. The appellant has been in custody all through and has assailed the validity and correctness of this conviction through the present appeal.
6. Mr. Nimbalkar, learned Counsel appearing for the appellant has challenged the conviction initially on the ground that the prosecution evidence bristles with infirmities and contradictions. It is his contention that all of these are of an exceptionally grave character and that they are so manifest, thereby sufficient to create a serious doubt in the mind of this Court. He drew our attention to the evidence of P.W. Raghavan (P.W. 1) who is the Seizing Officer and K. V. S. Raju (P.W. 2), Customs Officer, Arun Tandon (P.W. 4), Hallowen Mathias, who is a lady panch and lastly P.W. 6 - Satyapal Chawla - Chemical Analyser. What is contended by Mr. Nimbalkar is that the learned trial Judge was in error in so far as he has examined the calibre and veracity of each of the witnesses and tried to find out whether the evidence is corroborated by the documents on record. He virtually contended that in a case of the present type, where the evidence consists of the Seizing Officer, panch etc. the defence would not be able to make any headway at all because the officers stick to their statements and stand by each other; if it can be demonstrated that there are inconsistencies inter se or if it can be demonstrated that the oral evidence is contrary to documentary evidence such as panchanama or other documents on record etc. that this would generally cast a grave doubt on the prosecution case.
7. Initially, Mr. Nimbalkar has pointed out that the oral evidence of the officers is quite clear about the fact that they intercepted the accused at 11.30 p.m. in the night. He contends that if this is so, the accused had completed the baggage formalities and completed immigration formalities before being intercepted by the officers; that it is impossible for them to put the immigration stamp on her passport on 20-1-1989, which clearly shows that her baggage was checked at past mid-night and the accused was apprehended on suspicion prior to her going to the prohibited area. Learned Counsel argues that it was a case of contraband being foisted on accused and because the real culprit could not be apprehended. He contends that there is something serious that emerges from the evidence as it is obvious that the officers thereafter got the immigration stamp affixed to her passport. He submitted that this inconsistency cannot be accepted and it casts a serious doubt on the evidence of the officers. It should be also seen that panch witness Mrs. Mathias has been rather hesitant and inconsistent with regard to the number of packages recovered from the said accused and the number of tablets contained therein, exact time when the seizure was made and more importantly, that she has in her evidence stated that she was on duty with M/s. Cambata Aviation P. Ltd. and she had attended to as many as 42 passengers on that day. She has stated that she signed the panchanama at 2 a.m. on that night and Mr. Nimbalkar contended that it is physically impossible for her to have done so because the panchanama concluded only at 3.15 a.m., also if she had been called at 1.24 a.m. midnight and the panchanama is alleged to have commenced then according to Mr. Nimbalkar, her evidence suggests that she was on duty for Swiss Air and she had attended 42 passengers. Mr. Nimbalkar also drew our attention to the fact that on the subsequent date of hearing the panch witness had corrected some inconsistency in her evidence. He submitted that undoubtedly the Customs Officer had called her to act as panch from Cambata Aviation. She was on duty on that night and has affixed her signatures on the panchanama without having witnessed anything. Mr. Nimbalkar contended that in view of such state of the record it would be unsafe to sustain the conviction.
8. The last head of challenge by Mr. Nimbalkar is with regard to the C.A. report. He pointed out that as many as 18 representative samples each one containing 5 tablets had been drawn by the Customs Officers and sealed by them. He pointed out that as many as 90 tablets had been collected for the purpose of analysing out of entire stock of 49,000 tablets. The forwarding letter to the C.A. indicates that 3 packets each containing 5 tablets were forwarded, in all 15 tablets. It is Mr. Nimbalkar's submission that there is no explanation forthcoming as to why only three packages were sent to the Chemical Analyser and the remaining 15 packages were not forwarded to the C.A. He submitted that this is a very crucial aspect of the case and there is nothing to conclusively establish that the tablets recovered from the accused were of Mandrax and that consequently, the C.A. report is of no avail to the prosecution.
9. In response to this submission, Mr. Patwardhan, learned Counsel appearing for the Department has pointed out that the Court will have to, in the first instance look into the basic credibility of each of the witnesses. He referred us in detail to the evidence of each of the witnesses, who, as discussed by us earlier, has gone into abnormally laborious detail. He, thereafter drew our attention to the cross-examination. It was contended by the learned Counsel that the evidence of the officers has essentially remained unshaken. They received information pursuant to which they kept a watch. That information had come from the security officer, who had noticed during the X-ray of the three suit cases that they contained several packets of tablets and, the officers, therefore, traced out the passenger viz. the appellant who had checked in those suit cases is completely and clearly established. To our mind, the evidence of these witnesses inspires complete confidence and we have no reason whatsoever to doubt their veracity. As regards the controversy as to how the immigration stamp bears the stamp of 00.15, we do not see any difficulty in accepting the same because, panchanama commenced at 00.15 Hrs. i.e. 15 Minutes past-midnight and it is the evidence of the officer that immediately on the appellant passing through the immigration barrier and coming to the Customs Hall that they were waiting for her and that they immediately intercepted her and tallied the baggage tags numbers from her tickets with the corresponding ones with the three suit cases. On opening the first suit case and finding contraband, a search of all the baggage was conducted in the presence of the panchas. The time factor, therefore, is consistent with the fact that the appellant must have come into the immigration barrier soon after midnight and not before midnight and it bears the stamp dated 20-1-1989.
10. The evidence of P.W. 5 Hallowen Mathias requires special mention. It is of some significance to record that this lady is a well educated person and holds a responsible job with M/s. Cambata Aviation and is a person of some status. It is however necessary for us to ascertain whether she is a witness of truth and has in fact witnessed this panchanama. She has been seriously cross-examined and the only ground of criticism which is levelled by Mr. Nimbalkar is that there are several inconsistencies in relation to the number of packages, number of tablets, number of samples etc. which, to our mind, going into would be unnecessary. She was in fact attending to the passengers and had been brought there for witnessing the panchanama. We need to record the departure time of the Swiss Air Flight, which she states was 1.20 a.m. and passengers are required to be checked in several hours earlier. Taking into account the time factor, it is quite obvious that the majority of the passengers must have been checked in at about 10.30 or 11.00 p.m. that night and, therefore, when she was called by the officers to act as a panch, the check-in-formalities must have been completed and the counter must have been closed. This lady was cross-examined by the defence and there is no serious challenge presented by the defence on this score. P.W. 5 is the panch who has witnessed the panchanama and this document clearly corroborates the evidence of the witness and the seizure made in the present case.
11. There is on record a statement under section 108 of the Customs Act. Mr. Nimbalkar contended that this Court should not attach any importance to this statement, because the accused is a young woman travelling all alone. She had been apprehended all of a sudden and she was intercepted by a set of officers and she was virtually terrorised and threatened and in these circumstances, it is contended that once the officers had decided to frame her that she had no option except to sign whatever statements were attributed to her. Mr. Nimbalkar criticised the statement under section 108 from another angle, because it is his contention that the authorities did not make any attempts to get the main accused Shyam who is alleged to have handed over the suit cases to her and he contends that this contention is undisputedly true because, otherwise the accused would have had the keys of the suit cases; also from the fact that at the earliest occasion she had disclosed the name of Shyam. Mr. Nimbalkar contends that it is quite certain that she was a victim of somebody else's game, for she never suspected that the suit cases contained contraband and in these circumstances either knowledge nor liability can be foisted on her. He also submitted that there is no further investigation pursuant to her statement and he contends that had the authorities investigated, they would have been able to apprehend Shyam and if this was not possible, the statement under Section 108 should be discarded. Mr. Patwardhan on the other hand submitted that the statement is a voluntary and true and correct statement; that there are circumstances to establish the complete credibility of what is mentioned in it. The most important aspect of the matter is that the statement clearly indicates that the appellant was paid considerable amount of money for carrying the suit cases which were very heavy. It is his submission that there is precious little challenge to the statement under section 108. The evidence of the officers ought to be accepted and this statement must be relied upon very strongly. As indicated earlier, we have little hesitation in holding that the evidence of the officers inspires confidence, and beyond non-investigation of the man indicated in the statement under Section 108 viz. Shyam, regardless whether the story was true or not, this statement, which forms part of the record cannot be discarded. The learned trial Judge was right in relying upon this piece of evidence.
12. There is one more important head of evidence which has been seriously challenged by Mr. Nimbalkar. Undoubtedly, the suit cases did not bear any name or label and they only contained garments, which may or may not be belonging to the accused. There is nothing to definitely indicate whether the suit cases belonged to the accused. In such circumstances, the solitary link whereby the prosecution fastens a nexus to the appellant is the baggage tags. Undoubtedly, there were baggage tags on the three suit cases, the counterfoils of which were stuck to the passenger ticket of the appellant. Mr. Nimbalkar challenges both these pieces of evidence by contending that the three counterfoils have been removed from the suit cases of the passenger and are pasted on a separate sheet of paper. Undoubtedly they bear the signatures of the panchas and the officers, but Mr. Nimbalkar contended that if the baggage tags were attached to the suit cases which were seized and if the counterfoils were stuck to the passenger's ticket which also has been seized, that they should have been retained in those positions any removal therefore, according to him, would be fatal to the prosecution. It was submitted by him that in order to support the prosecution, the officers had stated that since these pieces of paper were crucial that they removed the same and fastened them to a separate sheet of paper in order to avoid their getting lost or damaged. Mr. Nimbalkar submitted that this explanation is clearly ridiculous and it must be discarded. He submitted that the panchanama does not make any reference to the fact that this very document was detached and separately pasted to another piece of paper and consequently, the Court must reject this crucial evidence. It is his contention that if this evidence goes, the Court must suspect the involvement of the accused. Mr. Patwardhan submitted that from the fact that the counterfoils were detached and affixed to a separate piece of paper, this Court should accept the explanation that it was only in order to avoid a possible situation of this vital evidence being misplaced at any subsequent point of time. In these circumstances, the officers were justified in detaching them and affixing them to a separate sheet of paper. He has asked the Court to compare the signatures on the paper sheet with the signatures on the panchanama and so far as this is concerned, it is his contention that non-mentioning in the panchanama specifically that these had been detached and attached to a separate sheet of paper is of no consequences. In our considered view, the submission of the learned Counsel will have to be viewed not in isolation but in relation to the totality of the evidence.
13. We have already held that the evidence does indicate that the appellant checked in three suit cases on the date in question. This is conclusively established from the fact that the appellant had paid the excess fare in respect of the three suit cases. It is only on the basis of the excess baggage ticket these three suit cases were located. To our mind, the officers in the present case had acted very correctly and no fault can be found with them. This evidence lends further credibility and establishes beyond any manner of doubt that it was the appellant and nobody else who had checked in the three suit cases.
14. In the light of the aforesaid, it is conclusively established that the appellant was in possession on 20-1-1989 of three suit cases in which she had concealed 49,000 tablets of mandrax. The C.A. report establishes that the tablets were of mandrax and consequently, they came within the ambit of Section 8(c) of the N.D.P.S. Act. Apart from the aspect of possession, the appellant admitted that she attempted to leave the country with these three consignments and further, the carrying of the contraband is also established. The conviction under the provisions of the Customs Act is therefore held to be proved.
15. Mr. Nimbalkar submitted that having regard to the statement under Section 108 of the Customs Act in its totality supported by the fact that the appellant did not possess the keys of the suit cases, that the Court would have to hold that she was an innocent carrier. He contended that if the entire story with regard to baggage having been given to her and handed over to her are to be accepted, as it should be, it would establish at the highest, that she agreed to the request to carry the suit cases, that it was not possible for her to know whether here was anything objectionable in the baggage, and therefore on these facts in the present case, there is no evidence to indicate knowledge and conscious possession. In this connection, Mr. Patwardhan drew our attention to the provisions of Section 138-A of the Customs Act which provides for a presumption in relation to items and persons. It is his contention that once possession is established, the legal presumption comes into operation. As regards the provisions of the NDPS Act, Mr. Patwardhan relied upon the provisions of Section 64 of the Act wherein the presumption arises once the aspect of possession is established. He also drew our attention to Section 35 of the Act. We find that there is a specific statutory presumption in relation to contraband, that comes within the ambit of NDPS Act. The law, therefore, makes provisions for certain legal presumptions that arise and for good reason, as otherwise, in our considered view, it would be a stero-type defence raised in every case where accused are found in possession of contraband, to contend that it was given to her by a third party, that the accused is not concerned with the baggage but is simply an innocent carrier. Experience shows that such statements are made in almost every case. In a large number of instances the racketeers and dealers deliberately pick passengers whom the authorities are east likely to suspect or persons who on the face of it may not appear to be regular smugglers and who are carriers for a small consideration.
16. It is for this reason that the law has made specific provisions under which any person found in possession of substances that come within the ambit of the NDPS Act shall be presumed to have knowledge of the nature of the contraband and the law presumes such guilty knowledge. This provision is undoubtedly harsh but it is still very necessary because in the absence of this provision in all such cases, the defence would be that the accused is an innocent carrier and that consequently, the Court should go back to the principle of conscious possession. To our mind, that principle which may apply to any other cases would not be applicable here in view of the specific provisions of the present Act.
17. Lastly, Mr. Nimbalkar drew our attention to certain decisions of this Court in relation to offences under the NDPS Act. Normally, we would have referred to all these decisions, but we refrain from doing so, because, the facts of this case are entirely different and the ratio of those cases will not be of any assistance to the appellant in this proceeding. Mr. Nimbalkar contended that the requirements of Section 43 of the Act have not been complied with. We have examined this argument. We find that this section is directory and not mandatory, and in any event would not make any appreciable difference.
18. In view of this position, the findings recorded by the Special Judge are required to be confirmed. We see no reason to interfere with the conclusions arrived at. As regards sentence, Mr. Nimbalkar makes a plea that the appellant is a young woman and assuming the charge is proved, considering that she is the mother of four children one of whom is blind, this Court should show her some sympathy. We find from the order of the learned trial Judge that she has already been awarded the minimum sentence. In the circumstances, there is no scope whatsoever for interference on the question of sentence also.
The appeal accordingly fails and stands dismissed.
19. Appeal dismissed.