MP 1 Apeal1297_07.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1297 OF 2007 WITH CRIMINAL APPLICATION NO.1334 OF 2010 WITH CRIMINAL APPLICATION NO.710 OF 2011 Mrs. Agnes Ruddy Odhoch ) Age 40 years, Kenya National, ) R/o.: West Lands, House No.119, ) Barindi Lane, Nairobi, Kenya ) (At present in custody at Yerwada ) Central Prison, Pune) ) ... Appellant Versus 1. Union of India ) Narcotic Control Bureau, Mumbai ) 2. State of Maharashtra ) ... Respondents Mr. Ayaz Khan, Advocate for the Appellant. Mr. Y.M.Nakhwa, Special Public Prosecutor for UoI / NCB. Smt.P.P. Shinde, APP for the Respondent No.2-State. CORAM : J. H. BHATIA, J. Reserved on: 21st OCTOBER, 2011 Pronounced on : 19th DECEMBER, 2011 JUDGMENT : The appeal is preferred by the original accused challenging the judgment and order dated 05.12.2007 passed by the Special Judge, Greater MP 2 Apeal1297_07.doc Mumbai, whereby the accused / appellant was convicted for the offences punishable under Section 21(c), Section 23(c) r/w. Section 28 and Section 29 r/w. Section 21(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in brief “NDPS Act”) and was sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs.1 lakh, and in default to pay fine, to undergo further rigorous imprisonment of one year on each count. 2. Prosecution case, in brief, is that Narcotic Control Bureau, Mumbai Zone (II) (for brief “NCB”) received an intelligence on 05.05.2002 that two African ladies namely Josephine Funsani and the present appellant Agnes Ruddy Odhoch were to smuggle substantial quantity of heroin out of India in their baggages or on person. Both the ladies were to board Kenya Airways Flight No. KQ-201 scheduled at 3.00 a.m. on 06.05.2002 from Mumbai to Nairobi. The Intelligence Officer Rosario noted down the information and passed on the same to his superiors. Thereafter, a team of the NCB officers arranged to apprehend the said passengers. Firstly, pre-flight manifest of flight No.KQ-201 was collected. At serial No.1, name of the appellant / accused was shown while, name of Josephine Funsani was shown at serial No.35. Two panch witnesses were also called. The officers of NCB along with the panch witnesses intercepted the appellant and two boarding cards, one for Mumbai - Nairobi Sector and another for Nairobi - Johansburg Sector were found with her. On her air-ticket, two baggage claim tags were affixed having details of the accused and her journey. It also contained details of charges paid for the MP 3 Apeal1297_07.doc excess baggage. The accused identified her two suitcases, which were found locked and affixed with security stickers as well as identification tags. 3. The keys of the suitcases were in possession of the accused. She produced the same, and with those keys, the bags were opened. Upon opening the bags, only her personal articles were found. However on lifting each suitcase, they were found unusually heavy, for which the accused could not give any satisfactory reply. The officers opened the zip of the inner cloth lining of both the suitcases, which exposed the PVC sheets on which two pipes were fitted for the movement of telescopic pulling handles. On pulling the PVC sheet, one black coloured polythene bag was found pressed flat in between the inner and outer PVC sheets in each of the bags. The said polythene bag contained brown powder. It tested positive for the presence of heroin. As both the bags contained the similar material, they were emptied in another transparent polythene bag. On weighing, that brown powder was found to be 5.400 kg. 4. From the composite mixture of the brown powder taken from both the bags, two representative samples of 5 gm each were drawn in separate small polythene sachets which were heat-sealed and kept in separate envelopes. The envelopes were pasted and sealed with “NCB Seal No.03”. The said sample sachets were marked “BK-BL-I” and “BK-BL-II” respectively. The remaining bulk of 5.390 kg of brown powder was retained in the large polythene bag MP 4 Apeal1297_07.doc which was also heat-sealed and then kept in the carton and sealed with 'NCB Seal No.03'. On all the bags, labels bearing signatures of both the panchas, accused and NCB Inspector Kanta Tejwani P.W.1 were affixed. The two empty polythene bags from which the contraband was recovered along with the personal belongings were kept in respective suitcases from which they were found. Those suitcases were also closed and sealed with 'NCB Seal No.03' and a label bearing signatures of P.W.1 Mrs.Tejwani, panch witnesses and accused was affixed on each of the suitcases. 5. The keys of the suitcases were also kept in separate envelopes and were pasted and sealed. Baggage identification tags were removed from the respective suitcases for safety purposes. The serial numbers of the claim tags and the identification tags had tallied with each other. About the complete proceedings, a panchnama was drawn, which was duly signed by P.W.1 Mrs. Tejwani and the panch witnesses. Copy of the same was served on the accused and she also signed at the bottom of the panchnama in acknowledgment of the receipt of the same. 6. One of the samples was submitted to the Deputy Chief Chemist, New Custom House, Mumbai along with test memo dated 07.05.2002 and another sample was forwarded to the Forensic Science Laboratory, Kalina, Mumbai for its analysis. The report from both of them confirmed that the samples contained heroin. Forensic Science Laboratory, Kalina confirmed that the MP 5 Apeal1297_07.doc heroin contents were 44%. The statement of the accused was recorded on 06.05.2002 and again on 11.05.2002 where she gave personal details and also admitted as to how and when she had started trafficking in drugs. 7. Similarly, another lady namely Josephine Funsani was also intercepted. No contraband was found in her two bags. However, 900 gm heroin was found concealed in her shoes. After completing certain formalities as per law, the said contraband was seized. During the investigation, it was revealed that the present appellant and Josephine were travelling independently and they had different modus operandi for drug trafficking, and therefore, case against Josephine was separated and separate charge-sheet was filed. She was also put to trial separately. It may be noted that the intelligence note, panchnama and some other documents were initially prepared jointly for the present accused as well as Josephine but as they were put to separate trials in two different cases, the original documents were produced before the Court in the case against Josephine and certified copies of the same were produced in the present case. 8. The accused was charged for the offences under Section 21(c) r/w. Section 8(c), Section 29 r/w. Section 21(c) and Section 28 r/w. Section 23(c) of the NDPS Act. She pleaded not guilty. She also retracted from her statements allegedly recorded on 06.05.2002 and 11.05.2002 by the NCB officers. MP 6 Apeal1297_07.doc 9. To prove the offence and to bring home guilt to the accused, in all eight witnesses were examined by the prosecution. A large number of documents were placed on record. The learned Special Judge, after hearing the parties, convicted and sentenced the accused as stated above. 10. Heard the learned Counsel for the accused appellant and the learned Special Public Prosecutor. Perused record and proceedings of the case. 11. The learned Counsel for the appellant, Mr. Khan vehemently contended that the prosecution case suffers from several drawbacks. According to him, the identification tags were not affixed on the suitcases from which the contraband was found. The prosecution story about finding of identification tags affixed on the suitcases is not reliable. The prosecution has failed to prove that the said suitcases containing the contraband were of the accused appellant, and that, she was in possession of the contraband. The evidence on record is contradictory and inconsistent about the manner in which the contraband was found in the said suitcases. The provisions of Section 42 of the NDPS Act about recording of information were not strictly followed nor the Intelligence Officer Rosario was examined to prove that such intelligence was received in respect of the present accused appellant. The samples were not deposited in the warehouse/ godown nor the samples were sent to the Chemical Analyser immediately, and there was unexplained delay in that respect . The seals were easily available to the Investigating Officer P.W.1 Mrs. Kanta Tejwani. He MP 7 Apeal1297_07.doc also contended that the samples sent to the Forensic Science Laboratory were not the same which were allegedly seized at the time of Panchnama. He further contended that there is reason to doubt if the muddemal property produced before the Court is the same which was allegedly seized from the accused. According to him, the alleged statements of the accused recorded on 06.05.2011 and 11.05.2002 by the NCB Officers cannot be taken into consideration because they were recorded after the accused was virtually arrested though the arrest panchnama was prepared after recording of the first statement. The said statement was retracted. He also tried to contend that if the said statement is to be believed, the accused believed that she was in possession of sensitive drug, which falls in Schedule ‘H’ Drugs and is not narcotic drug, and therefore, she was not in conscious possession of heroin, and hence, she cannot be held guilty under the provisions of NDPS Act. 12. The learned Special Public Prosecutor for the prosecution however, vehemently supported the impugned order of conviction and sentence and tried to explain that there is no material deficiency or discrepancy or contradiction in the prosecution case and the evidence. 13. Evidence of P.W.2 Keith John Sanchis, who was the superintendent of NCB at that time, reveals that, Mr. Rosario, the Intelligence Officer, had submitted intelligence note exhibit-45 before him to the effect that two African ladies namely Josephine Funsani and Agnes Ruddy Odhoch would be carrying MP 8 Apeal1297_07.doc substantial amount of heroin in their baggage or on their person, and would be trying to smuggle the same out of India by Kenya Airways flight No.KQ-201 on 06.05.2002 at 03.30 hours. This note was submitted on 05.05.2002 at 14 hours and P.W.2 Sanchis endorsed and proposed to work-out on the intelligence and submitted the same to his superior Assistant Director Mr. Vijaydharan, who also endorsed and approved the same. Accordingly, a team of NCB officers was constituted. Responsibility of raid and seizure was put on P.W.1 Kanta Tejwani. 14. P.W.1 Kanta Tejwani deposed about the information received by the Intelligence Officer Rosario and some other superior officers and their directions to her and other officers for surveillance. Her evidence shows that two panch witnesses were called and the surveillance was kept at the custom counter at departure module 2A. She collected pre-flight manifest from Kenya Airways vide exhibit 10/1. She has deposed in detail about the identification of the present appellant as well as another African lady Josephine on the basis of the pre-flight manifest. Her evidence about obtaining pre-flight manifest, exhibit-34, is also corroborated by P.W.6 Bharat Seraiya, the Administrative Officer of Kenya Airways. According to him, the said document was signed by Mark Felsinger, the then officer of the Kenya Airways. He identified his signature on the same. This document is not seriously disputed. Admittedly, on the pre-flight manifest of Kenya Airways, flight No.KQ 201 of 06.05.2002 at 03.10 hours, the name of the accused appellant was at serial No.1. When the MP 9 Apeal1297_07.doc appellant was intercepted, she was asked about her name and it was also confirmed from the air ticket and passport in her possession. The air ticket of the appellant was for the two sectors, that is, from Mumbai to Nairobi and then from Nairobi to Johansburg. Two baggage claim tags No.519831 and 519832 were also affixed on the said ticket of the accused. Two suitcases having the zipper locks were already checked-in by the accused and security stickers were also affixed on them. The two suitcases of the accused were also having baggage identification tags affixed on them. The numbers of those identification tags tallied with the number of the baggage claim tags affixed on the air ticket of the accused. As per the evidence of P.W.1 Kanta Tejwani, she had apprised the accused of the right of search in the presence of the Magistrate or Gazetted Officer but she waived her right and offered to be searched by the officer of the NCB on the spot. 15. As per her evidence, on her request, the accused herself opened both the suitcases with the help of the keys which she was carrying in her hand bag. The baggage of the accused comprised one large dark blue coloured suitcase of “Samsonite” brand and one black coloured suitcase having “The Best of the Bags” “LYS Paris” brand. Both the suitcases were of soft nylon tops with hard sides and bottom and having zipper locks. The bags were also having the zippered pouches. Both the bags had inbuilt wheels with telescopic handles. After the suitcases were opened, they were emptied but nothing incriminating was found. However, upon lifting, each suitcase was found unusually heavy MP 10 Apeal1297_07.doc even though their contents were emptied. The accused could not give any satisfactory explanation as to why the suitcases were so heavy. Therefore, zips of the inner cloth lining of both the suitcases were opened exposing the PVS sheets on which two pipes were fitted for the movement of telescopic pulling handles. Edges of the PVC sheets of the suitcases were opened which revealed a large black coloured polythene bag pressed flat between the inner and outer sheets in both the suitcases. The black polythene bags were extricated from both the suitcases. The black polythene bag extricated from blue coloured suitcase was cut opened and found to contain the brown coloured powder. A small quantity of powder was tested with the help of Field Testing Kit and the result was positive for heroin. This polythene bag was marked “BL” with the help of scotch tape. Then the black polythene bag extricated from black coloured suitcase was also cut opened and was found to contain brown powder in it. A small quantity of powder from that bag was also tested with the help of Field Testing Kit and the result was positive for heroin. The said black polythene bag was marked as “BK” with the help of scotch tape. As the powder in both the bags appeared to be similar in appearance, the contents of the same were emptied into one large transparent polythene bag. The powder weighed 5.400 kg. Two representative samples of 5 gm each were drawn from the composite mixture of the powder in two small polythene sachets. Both the sachets were then heat-sealed and put into separate paper envelopes. The envelopes were then pasted shut and sealed with NCB Seal No.03 and marked as “BK BL I” and “BK BL II”. The details were written on the said envelopes. MP 11 Apeal1297_07.doc P.W.1 Kanta Tejwani, both the panch witnesses and the accused put their dated signatures on the said envelopes. 16. The large polythene bag containing the remnant bulk quantity was also heat-sealed and put in a carton which was taped shut and jute string was tied on it on which NCB Seal No.03 was put. A label giving details thereof were pasted on the carton. P.W.1 Kanta Tejwani, panchas and the accused put their dated signatures on the said cartons. The black polythene bags from which the contraband was recovered, were put in the respective suitcases along with the personal effects and those suitcases were also locked with locks having security stickers. The blue suitcase was marked exhibit-F while black suitcase was marked exhibit-G for identification. Their keys were put in an envelope which was pasted shut and sealed with NCB Seal No.03. The details thereof were written on the said envelope and it was marked exhibit-H. About these proceedings as well as seizure of heroin from Josephine, a common panchnama was drawn. The panch witnesses signed on each page of the panchnama, while P.W.1 Kanta Tejwani put her signatures on the last page. Copy of the panchnama was given to the accused as well as Josephine. As acknowledgment of receipt of the panchnama, the accused put her signature on the same. The certified copy of the panchnama is marked exhibit-10. P.W. 5 Nasir Rashid was an officer working with Kenya Airways. He was a panch witness. He has fully supported the evidence of P.W.1 Kanta Tejwani. MP 12 Apeal1297_07.doc 17. P.W. Kanta Tejwani deposed that after completing the proceedings at the airport, she proceeded to the office of the NCB along with the accused persons and the seized material. On the way, she had a conversation with the accused as well as Josephine . After reaching the office, she submitted search and seizure report to her superior P.W.2 Sanchis, the Superintendent of NCB. Exhibit-17 is proved to be the same search and seizure report which bears signature of P.W.1 Kanta Tejwani. It is also signed by P.W.2 Sanchis. According to him, this report was also submitted before his superior, Assistant Director of NCB, who had also signed the same. This report also gives the details about the search and seizure in respect of the present appellant as well as Josephine. She also submitted a note dated 06.05.2002 to the Superintendent P.W.2 Sanchis about offloading of the accused as well as Josephine because of the seizure of contraband material from them. According to her, she recorded statement of the accused under Section 67, wherein she gave all the personal details as well as the circumstances in which she had entered into the business of narcotic drugs. That statement was signed by the accused and proved to be exhibit-25. She also recorded the statement of Josephine. In view of their statements as well the manner in which they had concealed and were trying to export heroin, it appeared that they were not working together and they were independently involved in the illicit business. Therefore, there could not be a common intention nor there could be a common case against them. Therefore, P.W.1 Kanta Tejwani bifurcated their cases. MP 13 Apeal1297_07.doc 18. As per her evidence, P.W.1 Kanta Tejwani deposited the muddemal except the samples with the custodian of NCB along with her letter at exhibit-27. P.W.2 Sanchis, being the Superintendent, was the custodian and he received the said two suitcases and the carton containing the remaining 5.390 kg of heroin. Her evidence shows that after recording the statement of the accused, she arrested her on 06.05.2002 itself as per the memo of arrest exhibit-28. It also bears dated signature of the accused. She also submitted report of arrest exhibit-29 to P.W.2 Sanchis. It was placed before the Assistant Director of NCB on the same day who also signed it. 19. Evidence of P.W.1 Kanta Tejwani shows that on 07.05.2002, she prepared test memo in triplicate for depositing sample packet marked “BK BL I” with Deputy Chief Chemist, Mumbai and she herself carried the same along with the sample in sealed condition to the office of the Deputy Chief Chemist and deposited the same. Two copies of the test memo were retained by the Deputy Chief Chemist and the third copy was returned to her with acknowledgment of receipt by the office of Deputy Chief Chemist in the form of lab No.129/seizure/7.5.02. Exhibit-30 and 32 are the same test memos and they also bear endorsement from the office of the Deputy Chief Chemist, Mumbai to show that the sample was received with the test memo on 07.05.2002. MP 14 Apeal1297_07.doc 20. As per the evidence of P.W. Kanta Tejwani, on 08.05.2002, she forwarded the sealed sample “BK BL II” with the covering letter addressed to Forensic Science Laboratory, Kalina, through P.W.7 Narayan Panigrahi, who was a Hawaldar working with NCB, Mumbai. Evidence of P.W.7 Narayan Panigrahi shows that he had received the said sample in sealed condition and with intact seals and had produced the said sample as well as the covering letter in the office of Forensic Science Laboratory, Kalina on the same day. Exhibit-31 is the office copy of the covering letter addressed to the Director, Forensic Science Laboratory, Kalina. It shows the endorsement and signature of the officer from the Forensic Science Laboratory, Kalina to show that the sealed envelope was received by that office on the same day. 21. Below test memo exhibit-32 sent to the Deputy Chief Chemist, there is a report from the Chemical Examiner which shows that, the sample was in the form of brown powder and tested for diacetyl-morphine (heroin), which is covered under the NDPS Act. CA report from Forensic Science Laboratory, Kalina also shows that one sealed envelope with seals intact and as per copy was received. It contained brown coloured powder in a polythene bag in an envelope and marked “BK BL II”. The result of the analysis was that heroin (diacetyl-morphine) was detected in the exhibit along with the other opium alkaloids. Director of Forensic Science Laboratory also reported that the sample contained 44% of heroin. P.W.4 Murlidhar Sevalkar, who was the Assistant Chemical Analyser at Forensic Science Laboratory, Kalina, Mumbai MP 15 Apeal1297_07.doc during the relevant time, deposed about the receipt of the sample with intact seals and also about the analysis of the sample. He has also given the data of the analysis in his evidence before the Court and deposed that the sample contained 44% heroin (diacetyl-morphine) along with paracetamol and caffeine. The data sheet exhibit-57 and the report exhibit-33 were proved by him. 22. The learned Counsel for the appellant contended that the Intelligence Officer Rosario was not examined by the prosecution, and therefore, it has failed to prove the receipt of the intelligence. It is also contended that as no register is maintained about the intelligence received and it is on the loose sheet exhibit-45, much importance cannot be given to it. P.W.2 Sanchis has deposed that Rosario was in service of Union of India and working with NCB during the relevant period, but he has resigned from this job and has settled somewhere in New Zealand. Therefore, his attendance could not be procured without the amount of delay and huge expenses which would not be necessary because he would only prove that he had received the intelligence and submitted intelligence note before his superior officers. The intelligence note was a kind of statement made by the public servant in discharge of his official and professional duty. He had not done anything more. He himself had not conducted the raid or investigation. His signature on the intelligence note exhibit-45 is proved by his superior P.W.2 Sanchis to receive that note and thereafter gave necessary instructions to P.W.1 Kanta Tejwani and other MP 16 Apeal1297_07.doc officers for surveillance and appropriate action. Therefore, non-examination of intelligence officer cannot be fatal to the prosecution. It is admitted by the prosecution witnesses that no register was maintained in the office of NCB about the receipt of intelligence or about submission of such intelligence to the superior officers but that itself should not be the serious matter particularly when on the basis of the intelligence, immediate action was taken and as per prosecution case, the necessary documents including pre-flight manifest was collected from the Kenya Airways about the particular flight, which revealed the name of the accused at serial No.1. The air ticket purchased by the accused from Kenya Airways with two boarding passes were recovered from her and the evidence also shows that the baggage claim tags were found affixed on her air ticket. She was also in possession of the keys of the suitcases from which the contraband was recovered. In view of these circumstances, merely because in the office of NCB, they did not maintain the intelligence register, prosecution evidence about the receipt of such intelligence by Rosario and submission of the same to his superiors cannot be doubted. 23.