- 1 - HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CRIMINAL APPEAL NO.506 OF 2007 Adesina Atanda ... Appellant Christian, Age 29 years, (Ori.Accused) Nigerian National, Residing at - 30, Aran Orin Street, Ifako, Lagos, Nigeria. Vs. 1 Shri M.S.A. Khan, I.O., NCB., Intelligence Officer, at the instance of Narcotics Control Bureau, Mumbai. 3rd Floor, Exchange Building, Ballard Peer, Mumbai. 2 State of Maharashtra ... Respondents (Ori. Complainant) Mr. Atul Sarpande & Ms. Rupali Shinde, Advocate for the Appellant. Mr. D.N. Salvi, Advocate for the Respondent No.1. Mr. Y.M. Nakhawa, APP for the State/Respondent No.2. - 2 - CORAM: R.V. MORE, J. DATED 1ST APRIL, 2009 JUDGMENT 1 The appellant was convicted for the offence under section 8 ( c) punishable under section 21, 28 and 23 of the Narcotic Drugs And Psychotropic Substances Act. The appellant was sentenced under section 21 of the Narcotic Drugs And Psychotropic Substances Act to suffer rigorous imprisonment for 10 years and to pay a fine of Rs. One Lac in default to suffer simple imprisonment for six months. He was further sentenced under section 28 read with section 23 of the Narcotic Drugs And Psychotropic Substances Act to suffer rigorous imprisonment for 10 years and to pay a fine of Rs. One Lac in default to suffer simple imprisonment for six months. The subsistence sentences were directed to run concurrently. 2 The prosecution case in brief was as under: The complainant PW1 and PW2 on 25th October, 2003 at about 11.15 hours gathered an intelligence to the effect that a substantial quantity of heroine was being smuggled through CSI - 3 - Airport, Mumbai concealed in refrigerators to be taken as passenger baggage on Ethiopian Airlines Flight No. ET-661 which was to depart at 20.45 hours on the same day. The intelligence was reduced into writing a note to that effect duly signed by PW 1 and PW2 and submitted to the Superintendent Mr. A.P. Patil who directed to form a team by writing on intelligence note itself. Note was also signed by Mr.Patil. The note was also further put up to Mr. Sanchis for approval, who also signed it. In pursuance of above intelligence the NCB Officer, reached to the airport and kept surveillance at the X-ray counter and other points to identify whether any passenger was carrying refrigerators. Appellant accused approached X-ray counter and put two large cartons on X- ray machine. X-ray of these two large cartons indicated that they were contained small refrigerators and the door sections of both these refrigerators appeared to have concealed something within the doors. In view of the suspicious indication given by X-ray machine coupled with the intelligence, the said passenger was intercepted. The said passenger disclosed his name as Adesina Atanda i.e. Appellant, Nigerian national. Immediately thereafter, two panch witnesses were called, intelligence was disclosed to the panch - 4 - witnesses. The appellant accused was introduced to the panch witnesses, then the officers opened the cartons and each carton contained small ash gray refrigerator. Doors of the refrigerators were found tampered with and glued back. The officers put back both the refrigerators in their respective cartons and took the same to the office of AIU along-with panch witnesses, accused. On demand appellant produced passport issued to him on 24.03.2003 and Ethiopian Airline ticket for Flight No. 661 on 25.10.2003. The officer disclosed the intelligence received by them, about their intention to examine appellant's baggage along-with two cartons containing two refrigerators. The appellant apprised about his right to search in presence of Magistrate or Gazetted officer. The appellant declined the search and agreed for search by the officers. On examination of cartons, there were two refrigerators. On close examination of both the refrigerators, its inner part of the door was tampered with. On opening single plastic component affixed to the door of each refrigerator, within the cavity of the door and plastic component affixed to the door of each refrigerator, one large brown scotch taped packet was found. On getting open both the packets it was found contained brown powder. Small quantity of the said - 5 - powder from both the packets tested with field drug identification kit. The tests answered positive for the presence of heroin. The officer thereafter, removed the brown powder from both the refrigerators and kept in another large polythene bag. The entire powder was found to be of 7 kgs. 700 gms. This powder was thoroughly mixed to give uniform composite mixture from which the officers drew two representative samples of 5 gms. each, which were put separately in two empty polythene sachets. These sachets were closed by heat sealing and further put in two separate envelopes which were closed and thereafter, same was sealed with the help of NCB seal No.3. The envelopes were marked as Adesina-I and Adesina-II. The complainant, panchas and the appellant thereafter put their signatures on both the sample envelopes. 3 The balance bulk quantity, of heroin, weighing 7.690 Kgs. was put in polythene bag and same was closed and was heat sealed and kept in a cardboard carton. The packing material and refrigerators were also packed and sealed. Nothing incriminating was found in personal search of the appellant. The panchanama of - 6 - events were drawn got signed by the panchas and complainant. The copy of the same was given to the appellant and his acknowledgment was obtained. The statement of appellant was recorded under section 67 of the NDPS Act and placed before immediate superior officer. In a statement under section 67 of the NDPS Act, the appellant admitted recovery of 7.700 Kgs. of heroin and thereafter, accused was placed under arrest. 4 The sample marked Adesina-I was forwarded to Deputy Chief Chemist along-with test memo on 26.10.2003. The Assistant Chemical Analyser in his report confirmed the presence of heroin in the sample. The second sample was forwarded to Chemical Analysis, FSL, Kalina. The report in respect of this sample was given on 16.12.2003 to the effect that sample has tested positively for heroin. The statement of hotel staff members and taxi driver were recorded under section 67 of the NDPS Act. After completion of investigation the complaint came to be filed. 5 The learned special Judge framed the charge against the appellant for offences punishable under section 23 read with section - 7 - 28, 21, 8 ( c) of NDPS Act. Charge was explained to appellant for which he pleaded not guilty and claimed to be tried. The defence of the appellant was of total denial. 6 The prosecution in order to bring home the guilt of the appellant examined ten witnesses namely, PW1 Mohd. Shafi Ahemad Khan, Intelligence Officer and the complainant, PW2 Henry, Intelligence Officer who was present at the time of seizure panchanama. PW3 Ashok Ramshanker who recorded statement of taxi driver under section 67 of the NDPS Act, PW4 Sidharth Chinchkar, hotel staff member, PW5 Shreejith, hotel staff member, PW7 Nandeshwar Suresh Swamy, hotel staff member, PW8 Rajab Khan is the taxi driver, PW9 Pravin Kashinath Kanse, Air India Security Officer and PW10 Ajit Patil the Superintendent who was present at the time of search and seizure. The prosecution also relied upon documentary evidence namely Exh.8 i.e. Intelligence, Exh.9 Panchanama, Exh.10 Statement of PW9, Exh.11 the report to the Superintendent, Exh.12 search and seizure report, Exh.13 letter and forwarding memo, Exh.14 test memo, Exh.15 Flight Manifest copy of Flight No. ET 661 of 25th October, 2003, Exh.16 test memo - 8 - forwarding sample (Adesina-II) to FSL, Kalina, Exh.17 the statement of appellant under section 67 of the NDPS Act, Exh.18 arrest memo, Exh.20 C.A. Report from Deputy Chief Chemist, Exh. 29 and 30 C.A. Report. The prosecution also relied upon Articles I Air ticket, Article II Passport of the appellant accused, Article III and IV two refrigerators. Article V carton containing bulk contraband, Article VII the Sealed envelope received from Deputy Chief Chemist containing remnant sample and Article VIII large plastic bag containing packing material. 7 The learned special Judge having appreciated the evidence in the laid by the prosecution and after hearing the learned counsel for the respective parties found appellant guilty for the charge levelled against him and accordingly convicted him as stated above. 8 Mr. Sarpande, learned counsel for the appellant took me through the deposition of the witnesses and relevant documents and submitted that, the evidence of PW9 Pravin Kashinath Kanse, Security Officer with Air India does not inspire any confidence. He - 9 - relied upon the statement of PW9, Search and seizure report at Exh. 12, panchanama at Exh.9 to substantiate his submission that presence of PW9 at the time of the drawing a panchanama Exh.9 is doubtful. He further submitted that evidence of PW1, 2 and 10, the officials of NCB is not sufficient to prove beyond any reasonable doubt guilt of the appellant in the absence of any corroboration from independent witnesses, specially when prosecution failed to examine either of the panch witnesses. Regarding intelligence gathered by the PW1 at Exh.8, he submitted said document is created to suit prosecution case, in as much as there is no reference of the same in the evidence of PW9 Mr.Kanse. Mr. Sarpande doubted recovery of air ticket Article I and passport Article II from Appellant. He also submitted that pre-flight manifest at Exh.15 cannot be relied upon as same is not in proper form. He submitted that PNR number as scribed on the air ticket does not tally with PNR number given in letter at Exh.27 by Ethiopian Airlines. He further submitted that seizure of refrigerators under seizure panchanama Exh.9 from which contraband heroin was recovered cannot be attributed to appellant as he was not found in possession of sufficient money to pay the excess baggage payment. - 10 - Mr.Sarpande lastly submitted that Exh.12 search and seizure report under section 57 of the NDPS Act does not mention drawing of sample and therefore, it is doubtful, whether samples were drawn on the spot. 9 Mr. Salvi learned counsel appearing for the respondent No.1 on the contrary submitted that the appellant is correctly convicted. He submitted that there is ample evidence on record which proved complicity of the appellant beyond any reasonable doubt. He submitted that the evidence of PW1, PW2 and PW10 the officials of the NCB is trustworthy and therefore, sufficient to prove the guilt of the appellant, though the panch witnesses are not examined. He submitted that the evidence of PW1, PW2 and PW10 is consistent and further corroborated by evidence of PW9 the independent witness. He lastly submitted that the documents recovered from the appellant namely, air ticket, passport and pre- flight manifest are sufficient to prove that accused was to travel by Ethiopian Flight No.ET 661 on 25.10.2003. The Prosecution established beyond any reasonable doubt that the appellant found in possession of two refrigerators from which contraband heroin was - 11 - recovered. He submitted that the report of the Chemical Analyser at Exh.20 and Exh.29 along-with evidence of PW6 Chemical Analyser do prove presence of heroin in sample Adesina-I and II. Lastly, he relied upon the statement of appellant recorded under section 67 of the NDPS Act. 10 In the light of the submissions of learned counsel for the respective parties, let us, consider the evidence on record. PW1 in his evidence testified about the intelligence which he and PW2 gathered at about 11.15 on 25.10.2003. The intelligence was recorded at Exh.8 and put before PW10 Superintendent Mr. Patil and Mr. Sanchis Assistant Director. Both of them signed the same. The team of officer was formed accordingly and they proceeded to CSI Airport and reached at 18.45 hours. At about 19.10 hours a black person approached X-ray counter with two large cartons. The said person put two cartons on the X-ray machine. The X-ray machine indicated that the said cartons containing the refrigerators. The door of refrigerators was indicating some concealment as they appeared darkish or patchy. In view of the patchy substance and as per intelligence said passenger was intercepted and inquiry was - 12 - made about his name and whereabouts. PW1 identified that appellant as the same person. Thereafter, two panch witnesses were called and in their presence cartons were opened. There were two refrigerators and doors of both the refrigerators were tampered with. In presence of panch witnesses, passport and air ticket of appellant was taken. The appellant was taken to the AIU at Airport along- with the officers and panchas. The appellant was apprised about his right to search in presence of Magistrate or Gazetted Officer but he declined the offer and agreed for search of his person by the officers. On opening door of refrigerators, a scotch tape packet was found in between shelf of door. Both the packets were taken out. They were cut opened, brown powder was found in the packets. It was tested on field testing kit and it tested positive for heroin. Thereafter, powder was emptied in another bag and mixed together to form a composite mixture. Two Samples of 5 gram powder each were taken out in a small sachets and were heat sealed. Total weight of heroin was of 7.700 kg. Refrigerators were packed, labelled and sealed. The packing material was also packed, labelled and sealed. On personal search of appellant nothing incriminating was found except some Indian currency which was return back to - 13 - the appellant. The seizure panchanama at Exh.9 was prepared. Same was explained to panch witnesses in Hindi by Kanse. The statement of PW9 was recorded at Exh.10. Information in writing was given by PW1 to his immediate superior by letter at Exh.11. Search and seizure report at Exh.12 was prepared and placed before PW10 Superintendent Patil. PW1 thereafter, deposited muddemal along-with letter Exh.13. He prepared test memo addressed to the Deputy Chief Chemist at Exh.14. PW1 produced air ticket and passport i.e. Article I and Article II respectively. He collected pre- flight manifest at Exh.15 in which name of the appellant was shown. The statement of appellant under section 67 of the NDPS Act was recorded at Exh.17 in which he admitted involvement in possessing transporting and exporting the contraband heroin. 11 The evidence of PW1 is corroborated by PW2 Mr.Henry who was present at the time of gathering intelligence at Exh.8. PW2 has signed intelligence note and thereafter he was present at airport. He has stated about patchy substance on x-ray machine. He has corroborated the evidence of PW1 about 7.700 kg. heroin recovered from the refrigerators of the appellant. He also stated about - 14 - procedure of search, seizure and about the drawing panchanama. He deposed about events from placing cartons to x-ray till the seizure of heroin. 12 PW10 Superintendent Mr. Patil has further corroborated the evidence of PW1. He deposed that intelligence note was put before him and placed the same before his superior Mr. Sanchis the Assistant Director. The direction was given to him and to PW1 for further action. PW10 was present when the appellant placed cartons on x-ray machine. PW10 saw patches appeared on x-ray machine. He corroborated the evidence of PW1 about search, seizure and the procedure followed by him. He deposed about recovery of 7.700 kgs. heroin from the refrigerators of the appellant and drawing of two samples of 5 gram each from the contraband heroin. He deposed that PW1 Khan placed search and seizure report Exh.12 before him. So also deposited muddemal property with him. 13 PW9 Mr. Kanse the independent witness. PW 9 is Security Officer of Air India. At the relevant time, he was working at X-ray machine. He saw appellant putting the cartons on x-ray - 15 - machine. The said cartons contained, two refrigerators. He noticed suspicion patches in the x-ray machine from those two refrigerators. Accordingly, he informed said suspicion to NCB official. He identified appellant in the dock is the said passenger who kept the cartons on the x-ray machine. He also deposed that he was called by the officer in a room, where, the officers and appellant were present. Thereafter, both the refrigerators were taken out from the baggages. Packets were found in the inner side of the door of both the refrigerators. Packets were taken out from the refrigerators and thereafter test was conducted. He deposed that the test was positive for heroin. Thereafter, panchanama was drawn by the officer. PW9 read over and explained the panchanama to the panchas and thereafter, they signed the panchanama in his presence. Thus, PW9 corroborated the evidence of PW1 complainant. 14 Thus, I find evidence of PW1, PW2, PW9 and PW10 are consistent on the point of placing cartons on the x-ray machine by the appellant. Two refrigerators were found in the said cartons on x-ray machine kept by the appellant. 7.700 kgs. heroin was recovered from the door panel of those refrigerators. Air ticket and - 16 - passport was taken from Appellant on the spot. Pre-flight manifest at Exh.15 shows name of the appellant. From the evidence on record it is clear that the appellant brought two refrigerators at Airport and placed same on x-ray machine and 7.700 kgs. heroin was recovered from those refrigerators. This evidence is sufficient to conclude that appellant was found in possession of two refrigerators from which 7.700 kgs. of contraband heroin was recovered. 15 PW6 Ramakritram is the Assistant Chemical Analyser. He received the sample and conducted test. He has produced details of his test at Exh.48. His report is at Exh.20. The evidence of PW6 along-with report Exh.48 and Exh.20 undoubtedly show that sample Adesina-I was found to contain contraband heroin. The report of Chemical Analyser from FSL Kalina is at Exh.29 and Exh.30. These reports also discloses presence of heroin in the sample packet Adesina-II. Thus, the prosecution beyond reasonable doubt established that brown powder recovered from both the refrigerators belonging to the appellant was heroin. - 17 - 16 The statement of appellant under section 67 of the NDPS Act at Exh.17. Under this statement appellant has admitted recovery of 7.700 kgs. heroin from the baggage. The statement was recorded on 26.10.2003 before his arrest. This statement is retracted on 09.02.2004 i.e. after a period of three months. I have perused the statement and I find that same is voluntary and same can be acted upon. The statement corroborates evidence of PW1 and therefore, safely can be relied to prove appellant's complexity in the offence alleged against him. 17 Now let us consider the submissions of Mr. Sarpande learned counsel for the appellant. Mr. Sarpande doubted the presence of PW9 at the time of drawing of seizure panchanama Exh.9. He doubted his presence as there is no reference of the same in Exh.10 and Exh.12 as well as Exh.9 seizure panchanama. The submission is without any merit. Exh.10 is a statement of PW9 recorded under section 67 of the NDPS Act. The statement pertains to the happening of the event at X-ray machine. In this statement he has identified the appellant as an African passenger who had brought two cartons each containing refrigerator along-with - 18 - baggage on 25.10.2003 to X-ray machine and he noticed something suspicion in the cavity of the doors of the refrigerators. In my view, absence of reference of drawing of panchanama in presence of two panch witnesses and other details in this statement will not lead to the conclusion that PW9 was not present at the time of drawing of panchanama in view of the specific evidence of PW9 and endorsement of PW9 below panchanama at Exh.9 that he explained the contents of panchanama to the panchas in vernacular. Exh.12 is search and seizure report. This report does not disclosed details about drawing of seizure panchanama Exh.9. However, same does not weaken the prosecution case. I have perused search report at Exh.12 and I find there is reference to Exh.A, B, C and D. Exh. A and B are two refrigerators, Exh.C is packing material and Exh.D is Air Tickets. Above Exhibits to refrigerators, packing materials and Air tickets are given while recording seizure panchanama and therefore, I don’t find substance in the argument of Mr.Sarpande. I have also perused panchanama at Exh.9 and I find the endorsement of the PW9 below this panchanama to the effect that he was present at the time of drawing the panchanama and has read over and explained contents of the said panchanama to the panch witnesses. - 19 - Thus there is nothing to doubt about the presence of PW9 at the time of drawing of seizure panchanama at Exh.9. 18 The second submission of Mr. Sarpande is that Exh.8, the intelligence gathered by PW1 is got up document is also devoid of merit. This submission of Mr. Sarpande appearing, is made as PW9 does not speak about intelligence at Exh.8. PW9 in terms deposed that he saw the appellant putting two cartons on x-ray machine. He noticed suspicion patches in the x-ray machine and therefore, informed the said suspicion to NCB officials and thereafter, appellant with his baggage and panch witnesses were called to the Air Intelligence Unit. His deposition shows that the officials of NCB were present at the time when two cartons brought by the appellant. There is no reason for NCB officers to kept surveillance at the x-ray machine but for the intelligence gathered in the morning of that day by PW1 and PW2. Besides this PW1, PW2 and PW10 are consistent about the recording of intelligence gathered by PW1 at Exh.8. Exh.8 was also put before Mr.Sanchis, Assistant Director who signed the same. In these circumstances, there is nothing to doubt about the authenticity of intelligence at Exh.8. - 20 - 19 The third submission of Mr. Sarpande that recovery of passport and air ticket from the appellant is not proved and the pre- flight manifest at Exh.15 is not in proper format. This submission was made by Mr. Sarpande on the basis of discrepancy in ticket number and passport number recovered from him and mentioned in panchanama and letter dated 18th November, 2003 by Ethiopian Airlines at Exh.27. The passport number given in seizure panchanama is A1651401. However, the correct passport number is A 1857401. It appears typographical mistake is committed in writing number of passport in seizure panchanama. This mistake of typographical is not material and does not go to root of the matter, in view of the fact that correct number of passport is given in pre- flight manifest at Exh.15. Similar is the case to that of ticket number. In a letter dated 18th November, 2003 at Exh.27 the air ticket number is given as 07144022586207 i.e. 13 digit number. The correct number of ticket is 0714402586207 i.e. 12 digit number. The mistake appears to be typographical one and same does not go to the root of the matter so as to demolish prosecution case especially in the light of the evidence of PW1, PW2 and PW10. - 21 - 20 Fourth submission of Mr.Sarpande that the appellant was admittedly carrying two refrigerators. The weight of each of the refrigerator must be more than 60 Kgs. and the same cannot be transported without payment for excess baggage. He submitted that since there was no provision with the appellant for payment for excess baggage, he cannot be connected with the refrigerators under the seizure panchanama. I do not find any substance in his submission. Seizure panchanama at Exh.9 mentions that some Indian currency was found with the appellant however, same was returned to him. Therefore, it cannot be said that there was no provisions with the appellant for payment of excess baggage. Apart from this there is no evidence on record about the exact weight of the refrigerators and rate of payment of excess baggage. 21 The last submission of Mr. Sarpande learned counsel for the appellant that, there is suspicion, whether sample Adesina-I and Adesina II were drawn on the