:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE CRIMINAL APPELLATE SIDE CRIMINAL APPELLATE SIDE CRIMINAL APPEAL NO.162 OF 2007 CRIMINAL APPEAL NO.162 OF 2007 CRIMINAL APPEAL NO.162 OF 2007 Mrs. Zainab Bte Yousuf Age 43 years, Singaporean National. R/o.:BLK 426, Bukit Batok West Ave 2 #04-125, Singapore 650426 (At present in custody at Byculla Prison) ...Appellant/Accused No.1. v. 1. Union of India (The Supdt. of Customs, A.I.U., Sahar Airport, Mumbai) 2. State of Maharashtra ...Respondents. Mr.Ayaz Khan with Ms.Nilofer Saiyed, advs. for the appellant/accused no.1. Mr.Vijay Kantharia, APP for the Union of India/Respondent No.1. Mr.A.S.Shitole, APP for the State/Respondent no.2. WITH WITH WITH CRIMINAL APPEAL NO.325 OF 2007 CRIMINAL APPEAL NO.325 OF 2007 CRIMINAL APPEAL NO.325 OF 2007 Mr. Tetsuo Hirayama aged 60 years, Japanese National, presently lodged at Kolhapur Central Prison, Kalamba Road, Kolhapur-416 007 ..Appellant/Original Accused No.2. v. 1. The Union of India (Through Supdt. of Customs, A.I.U. CSI Airport, Sahar, Mumbai) 2. The State of Maharashtra ..Respondents. Mr.Lalit Chari Sr.Adv. alongwith Adv.Deepa Bajaj a/w Mrs.Aparna Shinde, advs. for the Appellant/accused no.2. Mr.Vijay Kantharia, APP for the Union of India/Respondent No.1. :2: Mr.A.S.Shitole, APP for the State/Respondent no.2. CORAM: CORAM: CORAM: R.V.More,J. R.V.More,J. R.V.More,J. DATE: 30th January, 2009. DATE: 30th January, 2009. DATE: 30th January, 2009. ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. Appellant in Criminal Appeal No.162 of 2007 is the accused no.1 and the appellant in Criminal Appeal No.325 of 2007 is the accused no.2 (Hereinafter for the sake of brevity are referred as ’Accused No.1 and Accused No.2’) Both the accused by the impugned judgment and order dated 19th December, 2006 passed by the Special Judge in N.D.P.S. Special Case No.21 of 2001 came to be convicted for the offences under Sections 8(c) read with 20(b)(c), Section 8(c) read with Sections 23 read with 28, Section 8(c) read with Section 29 of the N.D.P.S. Act and sentenced to suffer R.I. for ten years each, and to pay a fine of Rs.1 lakh each, in default to suffer R.I. for a period of one year on each count. Substantive sentence imposed on the accused are ordered to run concurrently. 2. Prosecution case in brief is as under: . On 27.11.2000 officers of the complainant’s department while on duty at Chhatrapati Shivaji International Airport (CSI airport), Bombay were maintaining surveillance on the passengers departing by :3: flight no.AI 430. They were contacted by Mr.Pandit P.W.5 working as Air India Security Officer and informed that two passengers, i.e., a female and male, who were travelling by above flight had got their baggages screened at Air India Security counter and on screening the baggage, he suspected concealment of something inside both the suitcases. Mr.Pandit led Customs Officers to Air India screening machine and from a distance pointed both the accused. Accordingly, the Customs Officers maintained discreet watch on the movements of the accused and after they checked-in three pieces of their baggage including two suitcases and one golf kit and after they cleared immigration and Customs counter, were intercepted by the officers while they were proceeding towards the transit lounge. 3. On interception, the accused were enquired if they are carrying any narcotic drugs. However, the accused replied in negative. Officers having not satisfied by the reply given by the accused decided to search them and their baggage and for that purpose arranged for two independent pancha witnesses. After completing legal formalities, the checked-in pieces of the baggages of the accused were brought to the baggage examination counter near the Customs counter. In the meanwhile travel documents of the accused which were in their possession were searched which consisted of passports and Air India tickets for flight no.AI-430 :4: dated 27.11.2000. Accused no.1 was carrying one hand bag as her hand baggage. 4. Prosecution case further reveals that in presence of both the panchas, accused jointly claimed ownership of their check-in pieces of baggages and on the direction of the officers, accused no.1 produced key from her possession and stated that the same can be used for opening both the suitcases. Accused no.1 accordingly opened one black colour suitcase. After emptying the same, it was noticed to be unusually heavy. After minute examination of the suitcase, it was noticed that it has a false bottom and was, therefore, broke open, which resulted in recovery of eight plastic packets. Due to above recovery, it was decided to have detail search of the packets and, therefore, both the panchas, accused alongwith the baggages were taken to the office of A.I.U. In the office of A.I.U. all the eight packets were cut open and were found containing in it dark brown colour substance in the form of slabs. Small quantity of the substance was collected from each of the slabs and was individually tested on field testing kit which tested positive for Charas. 5. The accused no.1 thereafter asked to open second black colour suitcase. On opening, it was found containing personal effects and on emptying, the same was found unusually heavy. After minute search, it was :5: noticed that this bag is also having similar false bottom. On breaking open the said portion of the suitcase, ten plastic packets came to be recovered. The first suitcase was marked as ’A’ and eight packets on being weighed were found 7944 gms. Second suitcase was marked ’B’ and ten packets found weighing 9292 gms. Thus, in all 17.235 kgs Charas came to be recovered from all the 18 plastic packets. Two samples of 25 gms each from each of the 18 slabs recovered as above were drawn and each of the samples were separately packed in polythene pouches. All the sample packets were marked as ’A1a’ to ’A8a’, ’A1b’ to ’A8b’, ’B1a’ to ’B10a’ and ’B1b’ to ’B10b’. Sample packets recovered from the respective suitcases were kept separately in two envelopes, which were marked as A-I to A-II. All the sample packets were sealed with AIU seal no. 132. Muddemal involved in this case alongwith bulk quantities of Charas, sample packets, both the suitcases, travel documents were seized under the panchanama at Exhibit 56. 6. After effecting search and recovery as above on the same day, i.e., on 27.11.2000 statements of both the accused came to be recorded under Section 108 of the Customs Act, 1962 wherein it was stated that both the suitcases where from contraband Charas came to be recovered were handed over to them by one Ramu at Hotel King’s at Juhu where the accused were staying. :6: 7. On recording the statements of both the accused, both of them were placed under arrest on 27.11.2000. During investigation, 18 sealed representative samples were deposited with the Dy.C.C. for the purpose of analysis which are certified to have tested positive for Charas. After completion of investigation, complaint came to be filed against the accused for the offences punishable under Sections 21, 23, 28 read with Section 29 of the N.D.P.S. Act. 8. Charge at Exhibit 3 was framed against both the accused for the offences mentioned above. Both the accused pleaded not guilty to the charge and claimed to be tried. Defence of the accused was of total denial. 9. In order to prove the guilt of the accused, prosecution examined following twelve witnesses. P.W.1 Dawa Injung who is the I.O. and the raiding party member. He instructed the Airline to keep the bags of the accused separately. He has also drawn panchanama, Exhibit 56. P.W.2 Shyampal Das Superintendent of Customs who drew samples and recorded statement of accused no.2. P.W.3 Trupti Chavan, who searched accused no.1 and in whose presence, statement of the accused no.1 was recorded and who arrested the accused no.1. P.W.4 Bhargavram Jadhav, who recorded the statement of accused no.1. P.W.5 Vandesh Pandit, Air India Security :7: Officer, who screened the baggage of the accused. P.W.6 Shishir Jha who deposited articles in Customs warehouse under the document at Exhibit 31 and withdrew one box of sample in order to forward the same to Dy.C.C. P.W.7 Balkrishna Bavkar who withdrew samples from the godown and deposited with FSL on 1.12.2000. P.W.8 Vivek Patil is the warehouse officer, who received the muddemal articles on 28.11.2000. P.W.9 N.Negi who arrested accused no.2. P.W.10 Suhas Bakre Chemical Analyser, FSL Kalina carried out percentage test on the samples which he received on 30.12.2000. P.W.11 Mahadev Metraskar Chemical Analyser, FSL, Kalina, who carried out tests on the samples for Charas. P.W.12 S.S.Roy, a seizure panch. 10. The learned Special Judge after considering the evidence led by the prosecution and after hearing the learned counsel, convicted the accused for the offences as stated above. 11. Mr.Chari learned senior counsel and Mr.Khan learned counsel, appearing for the accused nos.1 and 2 respectively submitted that the accused have been falsely implicated in this case. They submitted that the prosecution failed to prove beyond any reasonable doubt connection between the accused and the alleged baggages from which contraband is recovered. They submitted that it is specific case of the prosecution :8: that after screening the bags, security straps are affixed on the bags, however, the same does not find place either in the panchanama or in the statements of the P.W.1 and 2. Prosecution has also not produced key of the bags though it was alleged to have been seized under seizure panchanama. It was also submitted that the bags when produced in the Court, tags were not on it. Both the learned counsel further submitted that samples allegedly drawn at the time of seizure are not in the same condition when produced in the Court, therefore, the prosecution failed to prove that the samples, which were analysed by the Chemical Analyser are infact samples drawn from the contraband seized under seizure panchanama at Exhibit 56. . So far as the evidence of the panch witnesses are concerned, it is submitted that the same is not trust worthy. P.W.12 panch has admitted that he signed panchanama without reading the contents. They submitted that this panch is amenable to the department. Reliance was placed on the judgment in Appeal No.769 of 2005 in this regard. Regarding the statements of the accused recorded under Section 108 of the Customs Act, 1967, it was argued that the same are not voluntary and they are retracted on the very first day when they were produced before the Court. They also submitted that these statements are hit by Section 25 of the Evidence Act. They relied upon the Apex Court judgment in Noor Aga v. Noor Aga v. Noor Aga v. :9: State of Punjab and another in 2008(3) Recent Criminal State of Punjab and another in 2008(3) Recent Criminal State of Punjab and another in 2008(3) Recent Criminal Reports (Criminal) 633 Reports (Criminal) 633 Reports (Criminal) 633. 12. Mr.Kantharia learned APP per contra submitted that the evidence of P.W.1 Dawa Injung, P.W.2 Das, P.W.3 Trupti Chavan, P.W.5 Vandesh and P.W.12 Roy alongwith search and seizure panchanama and other relevant documents are sufficient to establish the guilt of the accused. He submitted that P.W.12 is an independent panch witness and mainly because he acted as a pancha in other cases, that fact itself is not sufficient to discard his evidence. He further submitted that nexus of the accused with the bags, which were seized under panchanama is established in view of the fact that the baggage claim tags pasted on the tickets and baggage identification tags on the check-in baggages were found tallying. He also relied upon the statement of the pancha that the accused no.1 produced key from her possession in order to open the locks of the two suitcases. He also submitted that seized samples packets were examined by the C.A. and the evidence of P.W.10 and P.W.11 discloses that the same tested positive for Charas. So far as the statements under Section 108 are concerned, he submitted that the same can be acted upon in spite of the fact that same are retracted since it is shown that same are given voluntarily. He lastly submitted that the learned Special Judge correctly appreciated the evidence on :10: record and convicted both the accused. 13. Having heard the learned counsel for the appellants/ accused and the learned APP and having gone through the depositions of the witnesses and other relevant documentary evidence, I find merit in the submissions of the learned counsel for the appellants/accused that the prosecution failed to prove complicity of the accused in the offence alleged against them beyond any reasonable doubt. In order to prove the guilt of the accused, the prosecution must establish beyond any reasonable doubt that the baggages from which contraband is recovered were belonging to the accused or they were in conscious possession of the same. Prosecution is further obliged to prove that the samples, which were tested positive for the charas are infact drawn from the contraband , which were recovered from baggages under search and seizure panchanama at Exhibit 56. 14. Firstly, I will consider whether the prosecution has proved the connection of the accused with the alleged baggages from which contraband Charas was recovered. It is the prosecution case that P.W.5 Pandit while screening the baggages of the accused suspected concealment of some articles in the false bottom of the suitcases and accordingly, intimation was given to the Customs officers. P.W.5 in his cross specifically :11: admitted that he is empowered to stop the baggage from proceeding to check-in counter if he suspected any concealment in it. He further deposed that he is authorised to refuse to put Air India security strap till he is satisfied about the nature of the concealment in baggage. He also made a statement that in the present case he neither refused to put Air India security strap on the bag nor prohibited accused from proceeding to check-in counter. Thus, it can be safely taken that the P.W.5 after screening the baggages, affixed security strap on it. The search and seizure panchanama at Exhibit 56 does not reveal that the packages allegedly recovered from the accused were affixed with the security straps. Evidence of P.W.1 and 2 in this regard also does not indicate that there were security straps affixed on the baggages. The absence of security straps on the baggages at the time of panchanama at Exhibit 56 creates reasonable doubt in the prosecution story that the alleged baggages seized under seizure panchanama at Exhibit 56 are belonging to the accused. 15. Search and seizure panchanama at Exhibit 56 clearly makes mention that the accused no.1 produced one key from her possession and both the baggages from which contraband was recovered was opened by her. This panchanama further makes reference that "two suitcases of the black colour and the keys were taken over and :12: seized as Court exhibits and the same were sealed." The keys however never produced before the Court. Non production of the keys is one more circumstance which makes prosecution case regarding connection of accused with the alleged baggages doubtful. 16. In order to establish the link between the accused and the baggages, prosecution also relied upon baggage identification tags affixed on the baggages and the baggage claim tags affixed on the air tickets of the accused no.2. However, the baggage identification tags were not found on the baggages when the said bags were produced in the Court. Theory of the prosecution that the baggage identification tags which were affixed on the bags and the baggage claim tags, which were affixed on the tickets of the accused no.2 are found tallying becomes doubtful. 17. In order to establish the link of the accused with the baggages, the prosecution could have produced the clothes of the accused, which were allegedly kept in the baggages seized under panchanama. However, prosecution failed to produce the clothes in the Court. P.W.5 who firstly witnessed the baggages containing contraband has not identified the same during his evidence. These baggages were also not shown to P.W.5 at the time of drawing of alleged panchanama at Exhibit 56. The circumstances mentioned above create reasonable :13: doubt about the link of the accused with the alleged baggages from which contraband Charas was recovered. 18. Now, I will consider whether the prosecution established that the samples which were allegedly examined by the C.A. are the same which were drawn from the contraband concealed in the baggages which were recovered under seizure panchanama at Exhibit 56. It is the prosecution case that eight plastic packets containing Charas were recovered from the bottom of the first bag and ten packets were recovered from the second bag. It is further case of the prosecution that two samples of 25 gms each from each of the eighteen slabs were drawn and each sample was separately packed in polythene pouches. Samples drawn from the first bag was given marking as ’A1a’ to ’A8a’ which were kept in green envelope marked as ’A-I’ and ’A1b’to ’A8b’ which were kept in green envelope marked as ’A-II’. Thus, there were 16 sample packets from the first bag. The sample packets from the second bag were marked as ’B1a’ to ’B10a’ which were kept in green envelope marked as ’B-I’ and ’B1b to ’B10b’ which were kept in green envelope marked as ’B-II’. Thus, there were 20 sample packets drawn from the second bag. Panchanama at Exhibit 56 specifically mentions that all the sample packets were signed by the panchanama officer, i.e., P.W.1, panchas and two accused and same were put in an envelope marked as ’A-I and ’A-II’ in the case of first bag and ’B-I’ :14: and ’B-II’ in respect of second bag and the signatures of both the panchas were taken on these envelopes. P.W.1 in his evidence corroborated above statement when he stated that he alongwith panchas and accused signed on the packets. I have perused the muddemal, sample packets. Surprisingly none of the sample packets bears signature of the panchanama officer, P.W.1. The absence of signature of P.W.1 on the sample packets, which were produced in the Court creates reasonable doubt that the samples, which were analysed by the C.A. are the same, which were drawn from the contraband recovered from the baggages seized under seizure panchanama Exhibit 56. 19. Prosecution produced and relied upon the letter dated 1st December, 2000 written by Manish Goyal, Dy.C.C. to the Director, F.S.L. With this letter sample packets were forwarded to the Director, F.S.L. for conducting qualitative as well as quantitative tests. Mr.Manish Goyal was not a member of the raiding party. However, it is surprising that in this letter, description of the sample packets was given as follows: "Eighteen representative samples, each weighing 25 gms. were drawn from the eighteen packets recovered from their baggage and were put in plastic packets which were sealed with white masking tape bearing the signatures of panchas and the accused persons and were numbered as A1b to A8b and B1b to B10b. Out of these sealed plastic packets, eight packets bearing numbers A1b to A8b were kept in one envelope marked as ’AII’ and ten packets bearing numbers B1b to :15: B10b were kept in one envelope marked as ’BII’. These envelopes were then sealed with P.O.Seal No.132 and white masking tape bearing the signatures of panchas and the accused persons." When the samples were separately packed in polythene pouches and the same were signed by the panchanama officer, panchas and the accused and then put in envelope and thereafter signatures of both the panchas were taken on the envelope, it was not possible for Manish Goyal to know who has signed on the sample packets as he was not the member of the raiding party nor he was present at the time of seizure panchanama at Exhibit 56. In spite of this, in the above letter dated 1st December, 2000, he describes the sample packets as stated hereinabove. I have perused the sample packets and I have found that they are tallying with the description given by Manish Goyal in his forwarding letter dated 1st December, 2000. This creates doubt as to whether the sample packets were drawn from the contraband recovered from the packets seized under Seizure Panchanama Exhibit 56 or they were prepared subsequently. The circumstances mentioned above goes to suggest that the sample packets were not actually drawn under seizure panchanama at Exhibit 56 and infact, the same must have been drawn and prepared subsequently, at the time of sending the above letter dated 1st December, 2000 by Mr.Manish Goyal to the Director, F.S.L. :16: 20. The prosecution also failed to explain delay in depositing the sample packets with DS-I godown. Prosecution in this regard examined P.W.6. He deposed that after the alleged seizure, he had deposited samples and bulk on 27.11.2000 vide Exhibit 31. However, perusal of the documents at Exhibit 31 reveals that the said bulk and sample packets were not deposited on 27.11.2000 but the same were deposited on 28.11.2000. Prosecution has not produced any evidence or explanation as to who was in possession of the muddemal and the sample packets till 28.11.2000. In these circumstances, the possibility of tampering with the sample packets can not be ruled out. 21. The next circumstance is also very vital, which creates reasonable doubt about the prosecution story. P.W.6 is a carrier of sample packets to the Dy.C.C. He deposed that on 1.12.2000, he withdrew samples vide Exhibit X-3 from the same warehouse where it was deposited and carried it to the office of Dy.C.C. P.W.7, who is the carrier of the sample packets to the F.S.L. also deposed that on 1st December, 2000, he withdrew samples from DS-I Customs godown vide Exhibit X-5 and deposited the same with F.S.L. In contrast to this, P.W.8 Officer-in-charge of the DS-I godown categorically stated that the samples were received on 28.11.2000 and on 30.11.2000 same were shifted from his godown, i.e., DS-I. If the samples were already shifted :17: from DS-I godown on 30.11.2000, it is not understood how these samples were withdrawn by P.W.6 and P.W.7 from DS-I godown on 1st December, 2000. Prosecution in this regard has not examined any witness from the godown to show that the samples were actually handed over to P.W.6 and P.W.7 on 1st December, 2000. These circumstances goes to the root of the matter, which according to me destroy the prosecution case that the samples which were drawn from the contraband recovered from the alleged packets under the seizure panchanama Exhibit 56 were actually sent for analysis. 22. Yet, there is one more circumstance which creates reasonable doubt about the drawing of the samples as alleged by the prosecution. It is the specific case of the prosecution that total weight of the contraband recovered was 17 kg. 236 gms and this contraband was kept in 18 plastic packets. It is further specific case of the prosecution that from each of the packets, two samples of 25 gms were withdrawn and thus, total weight of the samples drawn comes to 900 gms. If the quantity of the contraband, which is utilised for the samples is excluded from the total contraband then the balance remains about 16 kg and 336 gms. According to the panchanama, same was packed in separate carton as bulk contraband. P.W.6 has deposed that he deposited bulk in godown under document at Exhibit 31. If the document at Exhibit 31 is perused, :18: it indicates that the bulk contraband, which deposited in carton was weighing 17 kgs. 236 gms. If the bulk quantity of 17 kgs. 236 gms. is deposited in DS-I godown under Exhibit 31 then it gives rise to the suspicion that whether really samples were drawn or not. Had the samples were drawn as per the prosecution case then surely total weight of the bulk quantity would not have mentioned as 17 kgs. 236 gms under Exhibit 31. 23. This takes me to consider the evidence of the pancha witness. P.W.12 is the panch