1 SNS IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CRIMINAL JURISDICTION CRIMINAL APPEAL NO.24 OF 2007 WITH CRIMINAL APPLICATION NO. 475 OF 2011 Sudhir Sajeev Age 41 years, Occ: Service, R/at- Room No.2, Mukund Nagar, P.L.Lokhande Marg, Chembur (West), Mumbai 400 089 (At present detained in District Jail, Kolhapur) ...Appellant. (Org. Accd.No.1) v/s. 1 Prasun Singh Intelligence Officer, Directorate of Revenue Intelligence, Waldrof Hotel, Arthur Bunder Road, Mumbai- 400 005. (Org. Complainant) 2 The State of Maharshtra ...Respondent. Mr. A.G.Toraskar ,adv. Appointed For the Appellant. Ms A.A.Mane, adv. For the Respondent No.1/Union of India. Mr. Y.S.Shinde, APP for the R.No.2/State. CORAM : J.H. BHATIA, J. DATED : AUGUST 26, 2011. ORAL JUDGMENT: 1 Original Accused No.1 has preferred this appeal challenging the order passed in N.D.P.S. Special Case No.63 of 2003 by the learned Special Judge, Greater Bombay whereby he was convicted for he 2 offences punishable under Sections 8(c) punishable under Section 21 of the N.D.P.S.Act. 1985 and was sentenced to undergo R.I. for ten years and to pay fine of Rs.1 lac and in default to pay fine, further R.I. for one year. 2 Prosecution case in brief is that on 2.4.2003 intelligence was received in the office of DRI that one S. Sajeev would be occupying seat no.17 in the bus of National Travels situated at Sion proceeding to Bangalore from Bombay and he was carrying heroin concealed in black coloured handbag. After completing certain formalities in the office, team of officers of the D.R.I. alongwith two panch witnesses, who were duly informed about the substance of the information and purpose of the said, reached the Sion circle where office of National Travels was situated. Team of the officers and the panchas waited till the passengers occupied their seats. Before the bus was to leave, the officers of the DRI and the panchas entered into the bus and found that the present applicant was sitting on seat no.17 of that bus and was having a black coloured handbag with him. On enquiry, initially he denied that he was carrying any contraband but after persistent querry, he admitted that he was carrying two kgs of heroin in the said bag. Therefore, he alongwith his bag was off loaded from the bus and taken to the office of DRI at 3 Colaba. He was informed in writing about his right to be searched in presence of the Magistrate or Gazetted Officer if he desired but he refused to exercise that right and stated that the search could be taken by the officers of the DRI. Accordingly, in presence of the panch witnesses, his black coloured hand bag was opened. It contained some of his personal articles and four polythene bags containing brown coloured powder. A small quantity of the powder taken from one bag was tested with the help of field testing kit. It showed positive result indicating that the contents were heroin. Total quantity was 2 kgs in the four bags. Thereafter, the samples were taken from the said bulk quantity. Samples were duly heat, sealed, labelled and signed by the panchas as well as officers of the DRI. The remaining bulk quantity was also duly sealed and labelled. About all these proceedings, panchanama was prepared, which was duly signed. Copy of the same was supplied to the accused, i.e., the applicant no.1. 3 His statement was recorded under Section 67 of the N.D.P.S. Act wherein he informed that said assignment was given to him to be delivered at the Bangalore and for that he was to be paid an amount of Rs.2500/-. He also gave some other information on the basis of which different premises were searched and one kg of heroin was allegedly 4 seized and accused no.2 K.V.Sibichan @ Sebastian and the accused no.3 Aboobacker Siddique came to be arrested. 4 Samples were referred to the Central Laboratory and it was confirmed that they were heroin. After investigation, DRI filed case against all the three accused persons and they were prosecuted, charged and tried for the offences under Sections 29 r/w section 8(c), 21, 23 , 27- A and 28 of the N.D.P.S. Act. After trial accused nos.2 and 3 were acquitted. Accused no.1, i.e., the present appellant was also acquitted of the charge of conspiracy under Section 29 but he was convicted and sentenced for the offence punishable under Section 21 of the N.D.P.S. Act for being in possession of two kg of heroin, which was seized from him in the said bus. 5 Heard the learned counsel for the appellant and the learned APP. Perused the record and proceedings of the trial Court. In view of the acquittal of the accused nos.2 and 3 as well as acquittal of the accused no.1 for the charges under Section 29, voluminous evidence in respect of those charges need not be considered in the present appeal. We have to carefully scrutinise the evidence in respect of charge that appellant was found in possession of two kg of heroin in his black coloured hand bag, when he was sitting on seat no.17 of the Bombay- 5 Bangalore bus run by National Travels office at Sion Circle. 6 Evidence of P.W.12 Prasun Ramlala Singh shows that he was posted in C- Cell of DRI, Bombay Zone. On 12.4.2003, he was present in his office at Colaba alongwith his senior P.W.13 P. Madhavan and Mr. Samir Bajaj, who was the Deputy Director. At about 18.00 hrs. , P.W.12 Prasun got telephonic message from a person, who did not disclose his identity, that one person namely S. Sajeev would be occupying seat no.17 of the National Travel bus bearing no.KA- 01- AA 2006 going to Bangalore from Mumbai and said person would be occupying seat in the bus at the Sion Circle office of National Travels. The informant also informed that S.Sajeev would be carrying large quantity of heroin in his black coloured hand bag. This information was reduced to writing by P.W.12 Prasun Singh and he immediately submitted the said written information to his superior officer P. Madhavan. He counter signed the said note and instructed him to rush at Sion Circle to nab the said person. Mr. Samir Bajaj, who was the Deputy Director also counter signed the said note with instructions to take immediate action. That intelligence note is Ex.70. P.W.13 P. Madhavan has corroborated this evidence. 7 Evidence of P.W.12 Prasun Singh and P.W.13 P. 6 Madhavan shows that Mr. P. Madhavan immediately contacted another intelligence officer P.W.1 Derek Picardo and some other officers to come to Sion Circle immediately. Accordingly, these officers reached Sion Circle and gathered near the office of National Travels. They also called two panch witnesses including P.W.3 Ashok Aherwar. Panch witnesses were also informed about the information received. Evidence of these witnesses reveals that they watched for some time till the Bombay-Bangalore bus of National Travels was occupied by the passengers at Sion Circle. Bus number was same which was given by the informant. At about 8.45 p.m., these persons had assembled near the bus and after sometime, this team including panch witnesses entered into the bus. Seat No.17 was occupied by a passenger. On enquiry, the said passenger disclosed his identity as S. Sajeev, who is the accused no. 1/appellant before the Court. Evidence of all these witnesses show that he was having solitary hand bag of black coloured without any other article with him. He was asked as to whether he was having narcotic drugs in his bag, which he initially denied but on persistent enquiry, he admitted that he had heroin in the bag. Therefore, immediately he was off-loaded from the bus alongwith his black coloured hand bag. The witness explained that the procedure of the seizure of the bag could not 7 be taken up in the bus because it would take sufficient time and would unnecessarily cause delay and inconvenience to the other passengers in the bus. Office of the National Travel was also located in crowded area and, therefore, it was not feasible to take search and complete the other procedure at that place. Therefore, officers decided to take the accused alongwith his bag to DRI office at Colaba. Accordingly, the accused and his bag were taken to the office of DRI at Colaba by the DRI officers. Both the panchas also accompanied them to the DRI office. 8 Evidence of all these witnesses also reveals that after going to the DRI office, the accused was informed about the right to be searched in presence of the Gazetted Officer or the Magistrate but he declined to exercise that right by giving written note Ex.14 in his own handwriting and signature. Ex.14 was also signed by both the panch witnesses. After that the said black coloured hand bag was opened. Besides personal belongings, four transparent polythene packets containing brown colour powder were found in that bag. A small quantity of the brown coloureded powder was taken from one of the packets and was tested with the help of field test kit in presence of the accused and the panchas. Testing result was positive for heroin. Thereafter each of the polythene bags containing powder was duly 8 numbered as nos.1 to 4. These packets were opened and the contents were taken in another polythene packet . All this powder was homogeneously mixed and weighed. It was two kgs. Three samples of approximately 5 gm each were taken from the said powder. The samples were placed in separate polythene bags which were duly heat, sealed and then put in different brown envelopes on which case details were mentioned. Each of that envelope was marked as ‘Sample Original’, ‘Sample Duplicate’ and ‘Sample Triplicate’ and they were sealed with seal using DRI AC-1 seal. Panchas and the officers put their signatures on the same. Remaining 1.985 kg heroin, which was in polythene packet, was then tied and put in a tin box, which was locked and sealed with the DRI seal. Tag was affixed on the tin box bearing case details. After completing formalities, panchanama of the complete proceedings was prepared on a computer by P.W.1 Derek Picardo. Print was taken and it was signed by P.W.1 Derek Picardo and both the panch witnesses. Copy of the panchanama was supplied to the accused immediately. He also signed the same in acknowledgment of having received copy of the panchanama. Ex. 13 is the panchanama. 9 Evidence of P.W.1 Picardo shows that after completing seizure panchanama, the summons was served under Section 67 of the 9 N.D.P.S. Act to the accused calling him to make statement about the facts and circumstances and accordingly, statement Ex.16 was recorded wherein he admitted that he was carrying two kg heroin to Bangalore. That statement is relevant only to corroborate prosecution story that the accused admitted that he was in possession and was carrying two kg heroin from Bombay to Bangalore. After recording that statement, he was duly arrested as per the arrest memo Ex.17. Then he prepared arrest report Ex.18, which was submitted to the senior officers. Similarly, seizure note Ex.19 prepared by P.W.1 Picardo was submitted to P.W.12 Prasun Singh to whom he handed over the seized articles as well as panchanama. P.W.12 Prasun Singh and P.W.13 P. Madhavan as well as P.W.3 Ashok Aherwar, panch witness fully supported the evidence of P.W.1 Picardo. 10 Evidence of P.W.12 Prasun Singh and P.W.5 Vinod revealed that on 16.4.2003, P.W.12 Prasun Singh had handed over two samples in original alongwith the forwarding letter Ex.42 and test memos Ex.43 and 44. P.W.5 Vinod took the said samples, forwarding letter and test memos and after signing the same went to the office of the Dy.C.C. and submitted the same. He deposed that forwarding letter Ex.42 was signed by Mr. Samir Bajaj . He also deposed about the depositing of remaining 10 samples and remission of bulk quantity in the warehouse. It may be noted that the Ex.43 is the test memo with C.A. report pertaining the sample taken and seized from the black coloured hand bag of the present accused while Ex.44 was the test memo pertaining the sample taken from the contraband seized from different place during search. Therefore, test memo Ex.44 is not relevant for the purpose of present appeal. Similarly, report Ex.49 about that sample is also not relevant. Ex.48 is the report from the Chemical Examiner in respect of sample in original taken from the accused. It shows that the sample was in the form of brown powder and it answered test for diacetyl morphine (heroin). The sealed reminant sample was returned alongwith the report. Evidence on record shows that the said remaining samples were produced before the court. Thus, it is established that the samples, which were taken from the said bulk quantity seized from the accused, were heroin and thereby it is established that bulk quantity seized from the accused was heroin. 11 Evidence of P.W.9 Ali shows that he was working with National Travels at Sion Circle, Bombay as a booking clerk. Tickets were prepared in duplicate. One was given to the passenger and other was retained by the travelling agency. Charges were collected in cash. On 12.4.2003, he was on duty. As per his evidence, ticket bearing nos. 11 18485 dated 12.4.2003 was booked and the booking was made by him. He had taken entry of the same in the booking register. Copy of the register was marked Ex.63/2. While carbon copy of the ticket of the passenger was marked Ex.63/1. He identified the accused as passenger , who had booked ticket. According to him, ticket was booked in the name of passenger “Sajeev”. It appears that initially instead of writing name “Sajeev”, it was written as “Anju” but then it was corrected as “Sanju”. P.W.9 Ali deposed that correction was made by his colleague Mr. Jadhav on a request of the passenger himself. He also produced original register showing the bookings of the tickets on that date. It has come in the evidence that said ticket was seized from the accused. During the cross- examination of the witness, attempt was made to show that the bus number was not mentioned on the ticket. However, it was explained by the witness that every bus has got similar seats and numbers but generally at the time of booking of the seats, it is not known which particular bus would be provided by the travel agency for particular journey and, therefore, bus number is not specifically mentioned on the ticket. The ticket only indicates place of boarding and its destination and this is clear from ticket Exs.63-1. Ex.63-2 is the photocopy of the relevant page of the booking register, which shows that on 12.4.2003 12 ticket no.18485 was booked for Bangalore for the travel on 13.4.2003. In fact, it is not relevant, who had booked ticket or in whose name ticket is booked nor it is relevant whether bus number was or was not mentioned on the ticket. What is relevant is that the accused was occupying seat no. 17 on the basis of ticket booked and at the time of raid, he was in possession of black coloured hand bag which contained two kg heroin. The learned counsel for the accused took pains to contend that the accused was not in conscious possession of the heroin. However, after perusal of the complete evidence and the statement of the accused recorded under Section 313 of the Cr.P.C. , it becomes clear that neither the accused had explained any of the circumstances in which he had come in possession of the black coloured hand bag containing heroin nor during the cross-examination of the witnesses, any circumstance was brought on record to show that he had come in possession of the said black coloured hand bag without knowledge of the contents of the same. Evidence on record shows that accused was having said black coloured hand bag in his hands and it was his solitary bag. He was not having any other bag or baggage with him. He was travelling from Bombay to Bangalore and in that bag, his personal belongings were also found, which were returned to him at the time of seizure panchanama. In these 13 circumstances, it is impossible to accept contention of the learned counsel that the accused was not aware about the contents of the said bag and was not in conscious possession of the contraband. 12 Taking into consideration the evidence on record , I find that the prosecution has proved beyond reasonable doubt that the accused was in possession of 2 kg heroin for which he had no licence, permit or authorisation and, therefore, he had committed breach of section 8(c) , which is punishable with Section 21 of the N.D.P.S. Act. The learned trial Court awarded imprisonment of ten years with fine of Rs.1 lac, which is minimum sentence for the said offence. Therefore, on that ground also, it needs no interference . 13 In the result, appeal stands dismissed. 14 Criminal Application No.475 of 2011 was moved by the accused for bail through jail. However, as his appeal against conviction is finally disposed off and dismissed, this application does not survive and stands disposed off accordingly. (J.H. BHATIA,J.) 14 SNS IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CRIMINAL JURISDICTION CRIMINAL APPEAL NO.24 OF 2007 WITH CRIMINAL APPLICATION NO. 475 OF 2011 Sudhir Sajeev Age 41 years, Occ: Service, R/at- Room No.2, Mukund Nagar, P.L.Lokhande Marg, Chembur (West), Mumbai 400 089 (At present detained in District Jail, Kolhapur) ...Appellant. (Org. Accd.No.1) v/s. 1 Prasun Singh Intelligence Officer, Directorate of Revenue Intelligence, Waldrof Hotel, Arthur Bunder Road, Mumbai- 400 005. (Org. Complainant) 2 The State of Maharshtra ...Respondent. Mr. A.G.Toraskar ,adv. Appointed For the Appellant. Ms A.A.Mane, adv. For the Respondent No.1/Union of India. Mr. Y.S.Shinde, APP for the R.No.2/State. CORAM : J.H. BHATIA, J. DATED : AUGUST 26, 2011. OPERATIVE ORDER: For the reasons recorded separately in the judgment, following order is passed: Appeal stands dismissed. 15 Criminal Application No.475 of 2011 was moved by the accused for bail through jail. However, as his appeal against conviction is finally disposed off and dismissed, this application does not survive and stands disposed off accordingly. (J.H. BHATIA,J.)