sns 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.552 OF 2007 Ousmane Diallo a Foreign National, aged 44 years, resident of HAFIA MOSQUEE, C/DIXINN, CONAKRY, Africa and presently undergoing sentence at Kolhapur Central Prison, Kolhapur ..Appellant. (Org. Accused) v/s. 1 Union of India, through Intelligence Officer, Narcotics Control Bureau, Exchange Building, 3rd floor, Sprott Road, Ballard Estate, Mumbai 400 038. 2 The State of Maharashtra ..Respondents. Mr. Anil Lalla i/by M/s Lalla & Lalla , adv. for the Appellant. Mr. Francis E. Saldanha , Special P.P. for the respondent no.1/UOI. Smt. P.P.Shinde, APP for the R.No.2/State. CORAM : J.H.BHATIA, J. DATE : 14th September, 2011 ORAL JUDGMENT: 1 This appeal is preferred by the accused challenging his conviction for the offence under Section 21 r/w section 8(c) and under Section 23 r/w section 28 of the N.D.P.S.Act and sentence to undergo R.I. sns 2 of 10 years and fine of Rs.1 lakh on each count awarded by the learned Special Judge (NDPS), City Civil & Sessions Court, Greater Bombay in N.D.P.S. Special Case No.11 of 2003. 2 Prosecution case, in brief, is that P.W.1 Vipin Nair and P.W.2 B.S.Muley , who were the intelligence officers of the Customs Department attached to the Narcotics Control Bureau, Mumbai received intelligence on 11.11.2002 at 17.30 hours to the effect that one African person would be boarding flight no.LX-155 at 1.40 hours on 12.1.2002 bound for Zurich from Sahar International Airport, Mumbai and would be carrying huge quantity of heroin. Information was reduced to writing and was placed before the Superintendent, NCB and then before the Assistant Director, who approved action on the same. Thereafter, P.W.1 Vipin Nair and other officers namely Mr. Muley , Mr. Sanchese, Mr. Felix and one sipoy went to the Sahar Airport and took position near the Customs Counter. At about midnight one African person, who is the accused, approached the Customs counter with his travel documents. At that time he was having one suit case as baggage. On enquiry , he disclosed his name. At that time, two panch witnesses were called and the accused disclosed that he had three checked-in baggages and baggage claim tags were with him. He identified those three baggages. They included two black coloured canvas carry bags with label of ‘Nike’ . Third was canvas black and khaki coloured carry bag. It was also having sns 3 label of ‘Nike’. On all these three baggages, there were baggage claim tags bearing name of the accused, flight number and the name of the airlines. Bags were found locked and there were security stickers on the same. Security stickers were affixed on the locks, after they were screened. Said two black coloured bags were opened. Some automobile spare parts such as condenser coils, back-up alarm, electronic back alarm, steering wheel cover, empty cartons were found in them. There were 29 condenser coils in one bag and 32 condenser coils in another bag. Each condenser coil contained one capsule made up of electric insulation tape. On opening one capsule , it was found to contain brown coloured powder. Then all the coils were opened. It was found that each one had one capsule containing brown powder. The random check of the substance was conducted with the help of field testing kit. Result was positive for heroin. Thereafter, all these capsules were emptied into a polythene bag. It was weighed and found to be 9.400 kgs. Two samples of 5 gms each were drawn from the bulk quantity. They were drawn in polythene sachet, were heat sealed and thereafter were put in the separate paper envelopes and were heat sealed with seal of 03-NCB. The descriptions were written on the envelops. After that third black and khaki coloured bag was opened. It did not contain any contraband article but contained only personal belongings of the accused. Panchanama of the seizure of the bags and their contents was prepared in presence of the sns 4 panchas. 3 Thereafter, the statement of the accused was recorded under Section 67 of the N.D.P.S.Act wherein he disclosed that he was citizen of the Republic de Guinee and was residing at Conakry in that country. He had previously also visited India on one occasion. He disclosed that he had come to India on 9.10.2002 and had stayed at Good Day at Karol Baug, Delhi. On 11.11.2002, he reached Mumbai from Delhi and had checked into the Hotel Highway Residency. At 10 p.m. on 11.12.2002 he had checked out of the said hotel and left for the airport. He explained that baggages containing heroin were given to him by a fellow Guinean national, whose name was Lullu, who was introduced to him by one Mohamedi. According to him, his money was swindled by Mohamedi. Lullu showed some sympathy towards him in purchasing tickets and had also given some money to pay hotel bills for which he had to carry his two bags in which condenser coils containing heroin were found to be concealed. 4 After recording the seizure panchanama and the statements of the accused, he was arrested on 12.11.2002 at about 14.15 hours under memo of arrest and report was submitted by P.W.1 Vipin to the superior officers. Muddemal property was deposited with the Superintendent. Samples were referred to the Chemical Analyser and it was confirmed that the sample contained heroin. After investigation, formal complaint was sns 5 lodged by P.W.1 Vipin Nair in the Court of Special Judge, NDPS Court and case was registered as NDPS Special Case No.11 of 2003. 5 Accused was charged for the offences punishable under Sections 21 and 23 r/w section 28 of the NDPS Act, for possessing 9.400 kgs. heroin without any permit or licence and for making attempt to export the same from India. Accused pleaded not guilty . Accused also retracted his alleged statement recorded under Section 67 of the NDPS Act contending that he could not understand English language and he could understand only French and he did not know what was recorded by the Intelligence Officers. According to him, he was falsely implicated. 6 On behalf of the prosecution in all 7 witnesses were examined. A large number of documents were also placed on record. The trial Court convicted the accused of both the charges and sentenced him as stated above. 7 Mr. Lalla the learned counsel for the accused/appellant vehemently contended that the provisions of Section 42 of the NDPS Act, which are mandatory, were not complied with as there was no register or record about noting down intelligence received by the Intelligence Officer. According to him, intelligence note Ex.12 was on loose sheet of paper and it could be prepared at any time according to the convenience of the prosecution. He also contended that the accused came from Republic of sns 6 Guinee, where only French language is spoken and the accused was not acquainted with the English language and, therefore, he could not have made statement in chaste English language as recorded by the I.O. and the said statements are liable to be rejected. He also contended that the bags checked in by the passengers were taken behind the screen after they were produced by the concerned passenger and, therefore, there could be possibility of bags getting mixed with bags of other passengers as a large number of passengers might be travelling by different flights and boarding from Sahar International Airport at Bombay. According to him, panchas were also not called before the accused was actually apprehended. He also urged that as per the panchanama itself condenser coils were closed and taped in such a manner that it was impossible for the accused to know the contents of the same and as according to him, said baggages were given to him by one Lullu, accused can not be held to be in conscious possession of narcotic drugs contained therein. According to the learned counsel, the accused did not make any attempt to escape from the spot and that indicates his innocence and inference can be drawn that he was not aware about the contents of the coils. 8 On the other hand, Mr. Saldanha the learned Special Public Prosecutor contended that the contraband drug or heroin was not found in personal search of the accused and, therefore, provisions of section 42 sns 7 would not be applicable. According to him, provisions of Section 43 would be applicable and there has been no violation of any mandatory provisions of the NDPS Act. He also contended that statement of the accused was recorded on the basis of information given by him in presence of the panch witnesses. He had given all his family background, place of residence, nature of work done by him and this information could not be available to the I.O. unless that information was given by the accused himself to them. According to him, statement of a person recorded under Section 67 prior to formal accusation by filing complaint by the Customs Officer does not amount to statement made by accused person and, therefore, it is admissible in evidence. He contends that the accused was the only African person among the passengers travelling by particular flight to Zurich and it was not impossible for the I.O. to locate him. Baggage claim tags were found with the accused alongwith the tickets of that flight. Said tags had the serial numbers. Similar tags with serial no., ticket no., name of passenger, flight no. were on the bags. The bags were checked in and screened and then tags were affixed to them and , therefore, there was no possibility of the bags getting mixed up with bag of any other person. Evidence of P.W.1 is fully corroborated by the evidence of panch witness as well as intelligence officers as well as other documentary evidence and C.A. Reports. He strongly supported the impugned order of conviction and sentence. sns 8 9 Perused the oral and documentary evidence led by the prosecution in support of its case. I have carefully gone through the same, to appreciate the rival contentions of the learned counsel for the parties, Evidence of P.W.1 Vipin Nair reveals that he was working as I.O. attached Narcotics Control Bureau of the Customs Department at Bombay. P.W. 2 Bhushan Muley was another I.O., attached to the Narcotics Control Bureau. According to P.W.1 Vipin Nair on 11.11.2002, he was on duty at the Narcotics Control Bureau at Mumbai alongwith P.W.2 Bhushan Muley . At about 17.30 hours , they received information that one African person would be boarding the flight no. LX-155 bound for Zurich from Sahar Airport and would be carrying huge quantity of heroin. This information was immediately reduced to writing as intelligence note Ex.12, which was signed by P.W.1 Vipin Nair and P.W.2 Bhushan Muley. It was immediately placed before their superior. P.W.7 K.J.Sanchese, who was working as Superintendent with Narcotics Control Bureau. He endorsed the said intelligence note and placed the same before his superior Assistant Director Vijaydharan for further action. Assistant Director approved the proposed action. 10 As per the evidence of P.W.1 Vipin Nair on 11.11.2002 at about 22.40 hrs. he alongwith P.W.2 Bhushan Muley , P.W.7 Sanchese and sipoy of the department went to the departure hall of the Sahar International airport. Passengers manifest was collected from Swiss Airlines by P.W.2 sns 9 Bhushan Muley. Thereafter, these officers and staff took position near the Customs counter and kept watch. At about midnight one African person approached the Customs counter. According to the witnesses, the accused is the same person. On enquiry the accused disclosed his name. He presented his travel documents including passport. At that time, he was holding one suitcase as cabin baggage. He was taken to the baggage examination hall at a distance of 10 feet from Customs counter. There two panch witnesses were called and they were informed about the intelligence and the said accused was introduced to them as the suspect. On enquiry the accused disclosed that he had three checked-in baggages. As per the evidence, he was also having ticket boarding pass and the baggage claim tags with him. As the schedule time of the flight was 1.40 hours of 12.11.2002, baggages were yet to be loaded. The accused was asked to identify the baggage. He himself identified three bags as his baggage. One was canvas bag of black and khaki coloured and other two bags were black coloured canvas carry all bags, having label of ‘Nike’. Each of the three bags was having baggage tag bearing name of the accused, flight number and name of the airline. They were found locked and security stickers were on the lock. Security stickers were affixed on the locks after the bags were screened. 11 After the identification of the said bags by the accused as his sns 10 baggage, he was asked to open the same. Keys of all the bags were with the accused. Firstly, he opened the black and khaki coloured bag but no incriminating articles were found in that bag. It contained only personal belongings. Thereafter the accused opened remaining two black coloured bags with the keys with him and those bags were found to contain automobiles spare parts such as condenser coil, back-up alarm, electronic back alarm, steering wheel cover and empty cartons. In one of those two bags, 29 condenser coils and in another bag 32 condenser coils were there. Condenser coils are of the size of small bottle having height of 8-10 inches. As the weight of these coils was unusually heavy, it raised suspicion of the I.O. On examination of one condenser coil, it was found that it was cut and thereafter, pasted with glue. The coil was then opened. In the coil there was one big capsule. It was made up of electric insulation tape. On opening the capsule, it was found to contain brown coloured powder. In view of this revelations, each of 61 condenser coils found in those two bags were opened. Each of them found containing capsule containing brown powder . The randum check of the substance was conducted with the help of field testing kit and the result was positive for heroin. Thereafter contents of all the capsules in the said condenser coils were emptied into a polythene bag. The powder weighed 9.400 kg. Two samples were taken from the said powder. Each sample was separately put in polythene sachet , which was sns 11 heat sealed. They were put in the separate paper envelops and were sealed with seal No.03-NCB. The descriptions were written on the envelops. Thus, both the samples were separately packed and duly sealed. Remaining bulk quantity of brown powder , which was in the polythene bag, was heat sealed and was packed in the carton, scotch taped and sealed by using 03-NCB seal. The label describing the contents with signatures of the panchas were pasted on the same. Labels were also signed by the accused. Remaining contents of the said two bags were kept in the said bags and the bags were also closed and sealed. The third bag, which contained only personal belongings of the accused and not incriminating articles was returned to the him. About all these proceedings the panchanama Ex. 20 was prepared. 12 P.W.2 Bhushan Muley , P.W.7 Sanchese and P.W.6 Ramroop Bhagwatiprasad, who was panch witness fully supported the evidence of the P.W.1 Vipin Nair. 13 Evidence of P.W.5 Deepak Bhayani, who was resident manager of Hotel Highway Residency deposed that on 11.11.2002 at about 12.00 hours one Diallo Ousmene had checked-in in the hotel and had checked-out at about 22.30 hours on the same day and put his signatures on the register marked Ex.45. He had arrived from Delhi. The accused was identified by him as same person. Thus, it is established that the accused had arrived Bombay from Delhi on 11.11.2002 itself at about noon time and sns 12 had checked out from the hotel at 22.30 hrs. The documentary evidence clearly shows that the accused was to travel from Mumbai to Zurich in Switzerland and from there to Brussels and then to Conakry, which is in the republic of Guinee. All the three boarding passes with flight tickets were found with him and they were seized under the panchanama. His photographs were also seized. 14 The evidence of P.W.1 Vipin Nair shows that after completion of the search and seizure panchanama, he recorded statement of the accused under Section 67 vide Exhibit 22 wherein the accused disclosed his background and the circumstances in which he had come in possession of the said bags. His evidence also shows that he had submitted his search and seizure report dated 12.11.2002 Exhibit 21 to his Superintendent P.W.7 Mr. Keith Sanchese, who endorsed the same and then it was placed before the Assistant Director. After recording the statement of the accused under section 67, P.W. 1 Vipin Nair arrested the accused at 14.15 hours under the memorandum of arrest Ex.24 and immediately he submitted arrest report Ex.25 to his superior P.W.7 Sanchese. His evidence also shows that on the same date, he deposited a carton sealed with NCB Seal No.03 containing 9.390 kg of brown powder for safe custody with P.W.7 Sanchese Superintendent of Narcotics Control Bureau with letter Ex.26 alongwith covering letter giving all the details of the said material. As per his evidence sns 13 on the same day, he also forwarded sample envelope marked “Diallo-II” to Forensic Science Laboratory alongwith covering letter Ex.27. It was received by that office on the next day, i.e., 13.11.2002. Ex. 28 is a C.A. Report, which shows that it was received through one Panigrahi, who was staff member of Narcotics Control Bureau. Report shows that ‘one sealed envelope with seals intact and as per the copy sent.” received with marking ‘Diallo-II’. On analysis heroin (Diacetyl Morphine) alongwith other opium alkaloids was detected in the exhibit Ex.29, another report from the Director of Forensic Science Laboratory, shows that the sample contained 16.375% heroin. P.W.4 Pradeep Kumar Bhatnagar, Assistant Chemical Examiner, who had analysed the sample, was examined by the prosecution and he also proved said reports. 15 In view of the prosecution evidence noted above, prosecution has established that the accused was in possession of 9.400 kg., of brown powder, consisting of heroin with other opium alkaloids and out of the same 16.375% was pure heroin, i.e., Diacetyl Morphine. It shows that quantity of pure heroin was 1.539 kg., which is commercial quantity. As he appears to have kept all these contraband material in his two bags, which were checked in by him for the flight for Zurich at Sahara International Airport. He had taken all necessary steps for export of the same from this country. Accused did not produce any permit or authorisation to possess the same sns 14 or to export the same from India 16 The learned counsel for the accused contended that provision of Section 42 were not complied. Under Section 42 of the NDPS Act, whenever any officer of the departments of the Central Excise, Narcotics, Customs, Revenue Intelligence , etc has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance or controlled substance in respect of which offence punishable under the NDPS Act has been committed, evidence of the same is kept or concealed in any building, conveyance or enclosed place , he may between sunrise and sunset enter into and search any such building, conveyance or place; and in case of resistance, break open any door and remove any obstacle to such entry ; seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act and detain and search, and if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act. He can sns 15 enter into such premises after Sunset and before sunrise only after obtaining necessary search warrant or authorisation. But in case, he has a reason to believe that a search warrant or authorisation can not be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. Sub-section (2) provides that where an officer takes down any information in writing under sub- section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior. Section 43 provides that any officer may seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, alongwith such drug or substance, any animal or conveyance or article etc. and may also detain and arrest person, who is believed to have committed an offence. Explanation to S. 43 provides that the expression “public place” includes any public conveyance, hotel , shop or other place intended for use by, or accessible to the public. In the present case, no entry or search was made in the building, conveyance or enclosed place. The bags containing contraband material were seized at the Sahar International Airport, which is sns 16 a public place and when the baggages were in transit as the accused had checked-in those baggages for transportation to Zurich alongwith him. In view of this provisions of section 42 to the extent of necessity of warrant or authorisation are not applicable. Provisions of Section 43 would apply to the matter. This view was taken by the Supreme Court in Narayanaswamy Ravishankar v. Asstt. Director, Directorate of Revenue Intelligence 2003 CRI. L.J.27 and in the light of similar facts, the Supreme Court held that where the search and seizure is taken at the airport, which is a public place, question of non-compliance of section 42 would be wholly irrelevant. 17 Section 42(1) requires that when any officer from personal knowledge or information received has reason to believe that an offence is committed under the NDPS Act, he shall take down that information in writing and he should submit the information to his superior. In the present case, as soon as the information was received by P.W.1 Vipin Nair and P.W.2 Bhushan Muley, they reduced it to writing and both the officers signed and put date and time. Not only this the intelligence note Ex. 12 was immediately placed before their superior P.W.7 K.J.Sanchese and then before the Asst. Director. Both of them approved proposed action. On that basis, immediate follow up action was taken and the contraband was also seized. Three prosecution witnesses, who are responsible officers, have proved. There is no reason to disbelieve. Therefore, merely because sns 17 the information was not written in a bound register, it can not be held that S. 42(1) was not complied. In the present case, during the personal search of the accused, which was taken after seizure of the contraband from the said bags, no incriminating articles were found, therefore, question of non- compliance of mandatory provisions of Section 50 also would not arise. 18 It was also argued by the learned counsel for the applicant that the I.O., did not have any identification marks or information about the particular person and, therefore, it can not be believed that I.O. Could apprehend the