Delhi High Court
Emmanneul Uchenna Ezenwosu vs Narcotics Control Bureau on 10 July, 2001
Equivalent citations: 2002(142)ELT564(DEL)
Author: R.C. Chopra
Bench: R.C. Chopra
ORDER R.C. Chopra, J.
1. This appeal under Section 374 of the Code of Criminal Procedure (hereafter referred to as the 'Code' only) challenges appellant's conviction and sentence under Section 21 read with Section 29 of the NDPS Act (hereafter referred to as the 'Act' only). The appellant stands convicted by the learned Additional Sessions Judge vide orders dated 18-12-1996 and sentenced to undergo RI for a period of 10 years and pay a fine of Rs. 1 lakh vide orders dated 20th December, 1996. In default of payment of fine, the appellant has been ordered to undergo further RI for one year.
2. I have heard learned Counsel for the appellant and learned Counsel for the respondent. I have gone through the Trial Court records.
3. The prosecution allegations against the appellant, briefly stated, are that on 25-11-1993 H.M. Customs and Excise, U.K. seized 1.5 kg. heroin at Cargo Customs Station, Heathrow Airport, London which was concealed in a parcel booked from India under shipping/airway Bill No. 451813. This parcel was booked for Lagos Nigeria. The intimation of the seizure was given to Narcotic Control Bureau India on 6th December, 1993. The NCB Officers found that this consignment had been booked from M/s. Skypak Couriers, Rajendra Place, New Delhi under Airway Bill dated 24-11-1993. It was also revealed that this consignment had been booked by an African National who had booked a parcel earlier also and someone had been making inquiries regarding this parcel as it had not reached Nigeria. M/s. Skypak Couriers were directed to ask the person making enquiries to come to their office. On 24-1-1994 at about 12.00 Noon the appellant approached the booking counter of M/s. Skypak and asked them about the parcel in question. The officers of NCB who were keeping surveillance intercepted him and took his personal search. The original airway bill dt. 24-11-93 was recovered from him along with one more Airway bill of M/s. DHI, Couriers dated 21-1-1994 by which was also a parcel booked for Lagos, Nigeria via U.K., London, the information regarding this parcel was immediately passed on to H.M. Customs London who confirmed that the said parcel also had been intercepted by them on 22-1-1994 and 2 kg. of heroin had been recovered there from. The appellant was examined under Section 67 of the NDPS Act. He admitted having booked both these parcels and also admitted having booked parcels containing heroin on earlier occasions also. The liaison Officer H.M, Customs posted at Delhi handed over the documents regarding seizure of heroin on 24-11-1993 and 22-1-1994 at Heathrow Airport along with the reports of the Scientific Officers of H.M. Customs, London to show that the samples were of heroin and contained diacytal morphine. After necessary investigations a complaint was filed against the appellant.
4. The learned Trial Judge framed charges against the appellant to which he pleaded not guilty and claimed trial.
5. In support of HM case the prosecution examined PW1 Mr. S. Bhatnagar, Territorial Manager, M/s. Skypak couriers. He deposed about the inquiries made by NCR Officers on 24-1-1994 and the apprehension of the appellant when he had come to enquire about the delivery of his parcel. He also deposed about the recovery of certain documents from the appellant vide Memo Ex. PW1/A. The documents were proved as Ex. PWQ1/B1 ro Ex. PW1/B21. These included the original booking slips regarding the parcels in question. PW2 Sh. J.P. Singh proved the complaint Ex. PW2/A filed by him. Arrest of the appellant and the recovery of the documents from hi. PW3 Sh. Manoj Grover is a Chemist at Faridabad. He deposed about the purchase of certain medicines from him by the appellant and proved the carbon copies of the bill book. PW4 Shri P.G. Shenoy, Inspector Customs, deposed about the interception of the appellant at the office of M/s. Skypak Couriers and stated that he had recorded his statement Ex. PW4/B after serving the summons Ex. PW4/A upon him. He denied that the appellant was tortured or threatened for making a statement. PW5 Frank Johns Fmile is a Customs Officer at H.M. Customs, Heathrow Airport, London. He deposed that on 22-1-1993 he was on duty in the Customs building at Heathrow Airport, London as a Customs Officer. One card-board box was received from Delhi which was for a Nigerian consignee. He entertained suspicion and after perusing the Airway Bill and the invoice he cut open that parcel which was containing 12 electric lamps. When one cut was given inside the card board box a plastic bag was found between the two layers of the card board. This plastic bag was taken out. It contained brown powder. It was checked with the help of test kit and gave a strong indication that the powder was heroin. The said bag was kept inside and the parcel was re-sealed and deposited in the Custom lock up. On 11-2-1994 he was asked by his superiors to cut open the other three sides of the card board box to find out if some other contraband was concealed therein. He again reopened the parcel and after taking out the plastic bag cut open the other three sides of the box and found three more polythene bags concealed in the two layers of the three sides of the box. The box as well as the contraband was sealed, photographs of the card board box, copies of which are marked X & Y, were taken. Four polythene packets recovered from the card board box were sent to the laboratory of the Government Chemist. Ms. Jacqueline Maria Connoley, the Scientific Officer in the Government laboratory gave her report marked 'Z'. This witness identified her signatures on the report and stated that he knew her. The photocopy of the Airway Bill was marked Z-1 and photocopy of the Invoice Z-2. The photographs Ex. PW. 5/A and 5/B were also proved on record by this witness. He also deposed that on analysis by the Scientific Officer the sample was found to be of heroin. The card board box, four plastic packets as well as contents of the remaining contraband were destroyed as nobody was being charged for trial in U.K. In his cross examination on behalf of learned Counsel for the appellant, he stated that as per practice in England, he had written down his own statement and had prepared notes also as to what he had done with the consignment. Nothing material could be brought out in his cross-examination. PW6 Ms. Vijay Kapila a Customs Officer from U.K., Heathrow Airport deposed that she had taken the sample to the contraband from the warehouse at Heathrow Airport to Government Chemist Laboratory at Teddington with seals intact. In her cross-examination she stated that she had written her own statement. She also stated that when she deposited sample in the laboratory the seal was intact. PW7 Mr. Ashley Welman, Customs Officer, Heathrow Airport deposed about the receipt of the card board box on 22-1-1994, its checking and the recovery of the contraband there from. He also deposed about the sealing of the sample as well as card board box and dispatch of the sample to Government Chemist for analysis. He proved on record the photographs Ex. PW7/1 in Ex. PW7/19. He identified the signatures of the Scientific Officer, Government Laboratory who had analysed the four packets. In his cross examination, he denied the suggestion that nothing was recovered. It is noteworthy that except giving him a suggestion he was not subjected to any cross examination.
6. PW8 Mr. B.N. Mishra, SP CBI deposed that the letter Ex. PW8/A was received from U.K. High Commissioner. PW9 Sh. Anil Kr. Pandey an employee of Skypak Couriers deposed that the appellant had booked parcels for Nigeria on several occasions. In September, 1993, he had booked a box containing 50 sets of the scopes for sending the same to Lagos Nigeria. In November, 1993 also he had booked a parcel for Lagos Nigeria. In third week of December, 1993 NCB Officers had come to their office and informed that the parcel sent by us had been intercepted in London at Heathrow Airport. In January, 1994 the appellant was called to their office and on 24-1-1994 when he came there he was apprehended by NCB Officers and the documents regarding booking of the parcels were recovered from him. At the time of his apprehension, he had tried to escape also and there was a big scuffle between him and the Officers. He stated that parcel was booked by the appellant under the name of Rajiv Khanna. He denied the suggestion that the appellant had not booked the parcels in question and he had been falsely implicated in this case.
7. After the close of the prosecution case, the appellant was examined under Section 313 Cr.P.C He denied the case of the prosecution in to and stated that he had been falsely implicated. He did not lead any evidence in defense.
8. After considering the evidence on record, the learned Trial Judge held the appellant guilty and as such convicted and sentenced him under Section 21 read with Section 29 of the Act.
9. The first and foremost contention of learned Counsel for the appellant is that the CFSL reports marked 'Z' and marked A-4 have not been properly proved on record and as such the prosecution has failed to establish that the consignments intercepted at London contained contraband punishable under the provisions of the Act. Learned Counsel submits that the reports of the Chemical Analysts placed on record cannot be admitted in evidence under Section 66 of the Act in as much as neither the Central Government has prescribed the manner in which such documents may be authenticated nor the experts who had examined the samples had been produced before the Court. The reports of the Scientific Officers regarding the analysis of the samples recovered at Heathrow Airport, London have been proved on record by PWs 5 and 7 who are the officers of H.M. Customs London. PW5 Frank John Fmile Bowers deposed before the Trial Court that he knew Ms. Jacqueline Maria Connoley working as Scientific Officer in the Laboratory of the Government Chemist and identified her signatures on the photostat copy of her statement containing the result of the analysis is incorporated in the statement of the Scientific Officer. He proved this statement as marked 'Z'. PW7 Mr. Ashley Welman, Custom Officer, Heathrow Airport, London identified the signatures of Ms. Richard Moorhouse, Scientific Officer, Government Laboratory who had analysed the four packages and the result of his analysis was contained in his statement marked A-4. This report was regarding the recovery of second parcel at Heathrow Airport on 22-1-1994. The Chemical analysis reports in regard to both the parcels sent from India and intercepted at Heathrow Airport, London on 25-11-1993 and 22-1-1994 are placed on record as marked 'Z' and marked A-4. The contention that these documents are not properly proved on record and as such it cannot be held that the articles recovered were contraband cannot be sustained firstly on the ground that these documents have not been tendered by the prosecution in terms of Section 66(ii) of Act. If these documents had been merely tendered in evidence the contention of the appellant Counsel that these had not been authenticated in the manner prescribed by Central Government could hold water but in the present case two witnesses from U.K. have identified the signatures of the experts who had analysed these samples and given their reports as per the practice in U.K. The mere marking of the document instead of exhibiting the same is of no consequence for the reason that a properly proved document even if marked may be read in evidence and on the other hand an exhibited document if not properly proved on record cannot be read for want of proper proof. PWs. 5 and 7 deposed on oath that they were in a position to identify the signatures of two Scientific Officers of Government Laboratory, London. Nothing could be brought out in their cross examination to hold that they were deposing falsely or wrongly. A perusal of the cross-examination of PW5 reveals that no question whatsoever was put to him in regard to the proof of the report marked Z nor any suggestion was given to him that he was deposing falsely. PW7 was also not cross examined in regard to the report marked A-4 and no suggestion was given to him that it was not bearing the signatures of Chemical Examiner, Government Laboratory, London. Therefore, the contention of learned Counsel for the appellant that the prosecution had failed to prove the reports to establish that the consignments intercepted at Heathrow Airport, London contained heroin cannot be accepted. This Court is further of the view that reports marked Z and A-4 are admissible under Section 293 of the Code also as both these reports are given by Scientific Officers of Government. Section 293 of Code nowhere says that it covers the experts of Government of India only.
10. The statement of the accused appellant Ex. PW4/B corroborates the prosecution case in as much as appellant admitted that he had sent these two parcels containing heroin which were destined for Lagos Nigeria and were intercepted at Heathrow Airport, London. The learned Trial Judge, therefore, was fully justified in holding that the two consignments intercepted at Heathrow Airport, London contained heroin which was a contraband as defined under the provisions of the Act.
11. Learned Counsel for the appellant has further argued that the provisions of Section 50 of the Act were not complied with in this case. According to him for the recovery of documents even a Notice under Section 50 of the Act was required to be served. It is argued that PW2 J.P. Singh, Investigation Officer had admitted in his cross-examination that no offer was given to the appellant for getting himself searched in the presence of a Mag-'istrate and no notice under Section 50 of the Act was given to him in writing. Learned Counsel for the respondent on the other hand has submitted that notice under Section 50 of the Act was required to be given only in case of a search where possession of contraband was suspected and it was not to be given when the Investigation Officer knew that the contraband had already been recovered and only incriminating evidence was to be collected to find out the connection of a person with the contraband. He has relied upon a judgment passed by the Apex Court in SLP Crl. No. 3688 of 1995 Namdi Francis v. Union of India and Ors., in which their Lordships had categorically held that Section 50 of the Act was not attracted if the article was at a distant place from where the offender is actually searched. It was clearly observed that when a contraband is lying elsewhere and not on the persons of the accused, Section 50 of the Act is not attracted and non-compliance thereof is not fatal to the prosecution case. Therefore, when the contraband had already been recovered and incriminating documents only were sought to be recovered from the personal search of the accused, Section 50 of the Act was not attracted and as such non-compliance thereof was inconsequential. The search of the person of an accused for the purpose of recovery of a contraband is altogether different from the search of a person with a view to collect incriminating evidence against him.
12. The evidence on record proves beyond reasonable doubt that the appellant was the person who had booked the two consignments in question through M/s. Skypak Couriers and DCL Couriers on two different dates which were seized by Her Majesty Customs and Excise Department at Heathrow Airport, London. The samples were drawn and sent to the Chemical Examiners for analysis who found the same to be of heroin. The original airway bills in regard to the booking of these consignments were recovered from the person of the appellant and in his statement recorded under Section 67 of the Act he admitted that these consignments were booked by him and he knew that these were containing heroin. Nothing could be brought out in the cross examination of the prosecution witnesses to show that the appellant had been falsely implicated in this case. Therefore, this Court is of the considered view that the learned Trial Judge was fully justified in holding the appellant guilty under Section 21 read with Section 29 of the NDPS Act and sentencing him accordingly. The sentence awarded to the appellant was minimum prescribed under the Act and as such no interference in the conviction and sentence is called for.
13. No other point has been raised.
14. In view of the foregoing reasons the conviction and sentence of the appellant is upheld. The appeal fails and is dismissed.
The Trial Court file be sent back.