1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1218 OF 2008 IN CRIMINAL APPEAL NO. 873 OF 2007 WITH CRIMINAL APPEAL NO.873 OF 2007 Mr Raymond Ishola Yusuf ..... Applicant/Appellant V/s Niraj Rai, (I.O.), N.C.C.P R & I Division Mumbai ..... Respondent. ----- Mr. Atul Sarpande for the applicant/appellant. Mr. Vinod Joshi Addl. PP for respondent No.1. Mr. P.A. Pol, APP for respondent No. 2 – State. ----- CORAM: V.M. KANADE, J. DATE : 25th November, 2008 P.C.: 1. Heard the learned Counsel for the appellant and the learned Additional Public Prosecutor for respondent No.1. 2. This is an application for bail. Appellant has been convicted for the offence punishable under section 8(c) read with sections 21 and 28 read with section 23 of the NDPS Act and sentenced to suffer rigorous imprisonment for 10 years and to pay fine of Rs 1 lac on each count and he is also convicted under section 135 of the Customs Act and sentenced to suffer rigorous imprisonment for three years. Appellant was granted bail in the sum of Rs 1 lac with two sureties and subject to payment of fine amount by order dated 10/04/2008. However, the appellant was unable to pay the said fine amount and, 2 therefore, was not released on bail. Thereafter, he has filed this application renewing his request for modification of the condition imposed by this Court. 3. Appellant, admittedly, has already undergone nine and half years of sentence out of 10 years awarded by the trial court. Hence, appeal itself is taken up for hearing. His application for bail does not survive and it is disposed of. 4. Prosecution case is that the appellant had booked a consignment of 7 parcels in the name of one lady. This consignment was brought by the appellant and, thereafter, the appellant was apprehended and out of 7 parcels, in one parcel heroin of 5 kg. was found. 5. Counsel appearing on behalf of the appellant submitted that the only allegation against the appellant is that he had brought the consignment which contained the said heroin weighing 5 kg. He invited my attention to the evidence of P.W. 6 and P.W 7. He submitted that apart from this evidence, the Trial Court had also relied on the statement of a lady in whose name the consignment was brought. He submitted that the prosecution has not examined this witness and her statement which was recorded under section 67 has been used by the prosecution. Counsel appearing on behalf of the appellant further submitted that the lady whose statement was recorded under section 67 had admitted that she had brought the consignment. He submitted that this evidence also clearly discloses that the 3 appellant was not responsible for booking the said consignment. This is the only point which is urged by the learned Counsel appearing on behalf of the appellant. 6. It is not possible to accept this submission. From the evidence of P.W. 6 – Ravindra Rochlaney and P.W. 7 – Shaikh Mohd. Asif Mohd. Aslam, it is evident that the appellant had booked this consignment personally though it was booked in the name of some other lady and he had brought this consignment alongwith him and he was caught red-handed while he was handling this consignment. Taking into consideration this evidence, the Trial Court has rightly held that the prosecution has established that the said heroin was put by the appellant in the said consignment and he was aware and conscious of this fact. Perusal of evidence discloses that a dog handler was called and the dog Johny sniffed the packages and after the said dog sniffed package No.17, the dog gave an indication and with the help of packers, the said package was opened and the said contraband was found. Out of 50 capsules, 10 were cut opened and the contents in the capsules were emptied in one packet and samples were taken. They were sealed and labelled. The emptied capsules were kept in separate envelopes and they were also sealed. The signatures of panch witnesses were obtained alongwith signatures of the officers . All this has been established by the prosecution by examining panch witnesses. 7. Counsel appearing on behalf of the appellant further submitted that the lady whose statement was recorded under 4 section 67 had admitted that she had brought the consignment. He submitted that this evidence also clearly discloses that the appellant was not responsible for booking the said consignment. This, however, has not been accepted by the owner of the “Valentine Girl” who has stated that the appellant himself had brought the said consignment. The Trial Court, therefore, accepted the statement of the owner of the “Valentine Girl”. Merely because the lady has stated in her statement that she had brought the consignment, on the basis of the said statement, obviously, the testimony of the owner of the “Valentine Girl” cannot be discarded. 8. Looking at the peculiar facts and circumstances of this case, therefore, the submissions made by the learned Counsel appearing on behalf of the appellant cannot be accepted. No case, therefore, is made out for interfering with the judgment and order of the Trial Court. Default sentence on each count, however, is reduced from six months to one month. Rest of the sentence is confirmed. 9. Appeal is partly allowed to the aforesaid extent. 10. Appeal is disposed of. (V.M. KANADE, J.) 5