1 Appeal 874-2007 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.874 OF 2007 Ms. Hawa Nantongo .Appellant Ugandian National, Age : 35 years Residing at  William Street, Nsambya Uganda V/s. 1. Union of India .Respondents (Through Air Intelligence Unit, Customs Sahar, Airport, Mumbai.) 2. The State of Maharashtra Mr.Atul Sarpande, Advocate, for the Appellant Mrs.A.A.Mane, APP, for Respondent No.1  Union of India Mrs.P.P.Bhosale, APP, for Respondent No.2  State CORAM : R.C.CHAVAN, J. RESERVED ON : 10TH AUGUST, 2011 PRONOUNCED ON : 05TH OCTOBER, 2011 JUDGMENT . This Appeal is directed against appellant's conviction for contravening the provisions of Section 8(c) of the Narcotic Drugs And Psychotropic Substances Act, 1985 2 Appeal 874-2007 (hereinafter referred to as 'NDPS' Act) and thereby committing offences punishable under Sections 28 and 21(c) thereof and sentence of rigorous imprisonment for ten years with a fine of Rs.1,00,000/- or in default for further rigorous imprisonment for six months inflicted upon the appellant on each of the two counts. The learned Special Judge had acquitted the appellant of the offence punishable under Section 29 of the NDPS Act. 2. Facts which are material for deciding this Appeal are as under :- On 9th November, 2002 when intelligence officers attached to Air Intelligence Unit (for short 'AIU') were on duty at Sahar Airport with sniffer dog and keeping a watch on the departure of passengers departing by Kenya Airways, the sniffer dog gave positive indication about concealment of Narcotic drug in one of the bags. On the basis of baggage and identification tag, the 3 Appeal 874-2007 passenger was identified to be the appellant. She was stopped after completing Customs check and asked whether she was carrying any Narcotic drug in her baggage or on her person. She replied in the negative. Since the officers were not satisfied, they called panchas, informed them of circumstances of apprehending the appellant and their suspicion. Appellant's baggage was off loaded for the purpose of examination. She had two baggages claim tags indicating her having checked in two baggages, along with shoulder slim bag and blue trolley as her hand baggage. The appellant identified one black zipper bag and black trolley bag as her checked in baggages. The number of the baggage tag were tallied with those stapled to her ticket. She was told of her right to be searched in the presence of a Magistrate or Gazetted officer. She opted to be searched in the presence of a Gazetted officer. Three Superintendents of Customs, who were Gazetted officers were 4 Appeal 874-2007 present. 3. In their presence appellant's baggage was checked. The baggage contained some hot cases, which were found to be abnormally heavy. On minute examination, the officers found them to be tampered. They were broken up and in the cavities of each of these hot cases, three polythene bags were found concealed, containing brown powder. The three polythene bags were marked as 'A', 'B' and 'C'. With the help of field testing kit a small part of contents of each of the polythene bags was tested and tested positive of heroin. The total weight of the powder was found to be 3961 grams. The samples as well as bulk were sealed with PO Seal No.132. An elaborate panchanama was drawn up. Immigration of the appellant was cancelled. Her statement was recorded. She was arrested and sent to the jail. The samples were sent to the Deputy Chief Chemist's laboratory where 5 Appeal 874-2007 Assistant Chemical Examiner Pradipkumar Bhatnagar certified the sample to be of Diacytel Morphine. On completion of investigation, a complaint was filed before the learned Special Judge. 4. The learned Special Judge charged the appellant for the offences punishable under Sections 8(c), 21 and 28 of the NDPS Act. Since the appellant pleaded not guilty, she was put on trial at which the prosecution examined in all 12 witnesses in order to bring home guilt of the appellant. A set of samples was also sent during the pendency of trial to the Forensic Science Laboratory where Chemical Analyser found the samples to be of Monoacytel Morphine. After considering the prosecution evidence in the light of defence of total denial, the learned Judge convicted and sentenced the appellant as aforementioned. Aggrieved thereby, the appellant is before this Court. 6 Appeal 874-2007 5. I have heard the learned Counsel for the appellant and the learned APP for the respondent. With the help of both the learned Counsel I have gone through the entire evidence. PW-1 Harisingh Durgaprasad Mina was Intelligence officer working at Air Intelligence Unit. He stated about the manner in which he came to suspect that the appellant was carrying contraband and then how he searched her baggage and seized the contraband articles. PW-2 Miss Chandan Shantaram Ghogse was the Intelligence officer in Air Intelligence Unit at Sahar Airport. She stated that she took personal search of the appellant and that nothing incriminating was recovered from the personal search. She stated having scribed a statement of the appellant recorded by PW-3 Vasant Anantrao Vichare, Superintendent and Gazetted officer, who was present at the raid. PW-4 Rajendra Shankarrao Potdar, another Superintendent, who was present at the raid stated having received 7 Appeal 874-2007 the report from PW-1 Harisingh Mina. He had also stated that he wrote to the immigration authorities to cancel immigration. PW-5 Pradip Fakirrao Jadhav, the Intelligence officer at Air Intelligence Unit, states that on 21st November, 2002 he was authorized by Mr.Rajendra Singh, Deputy Commissioner to withdraw a sample from the warehouse and to deposit it in Deputy Chief Chemist's Laboratory on the same date, which he did. PW-6 Subhash Ramdas Chandra was Superintendent of Customs, who was custodian of the warehouse on 9th November, 2002. He claims to have received two baggages and three sample envelopes from Air Intelligence Unit in sealed condition. He states having made necessary entries in DS-1 register. He proved necessary documents about receipt of the property and also brought the original register for perusal of the Court. PW-7 Miss Smita Amrutlal Naik was working with Kenya Airways and stated having written a letter at 8 Appeal 874-2007 Exhibit 28 to the Air Intelligence Unit authorities. She was a hesitant witness but stated that the appellant was accepted as passenger with no record , since the appellant's ticket showed that it was OK, but since the passenger had not reconfirmed the departure in advance, she was not mentioned in preflight manifest and therefore, accepted as no record passenger. PW-8 Prashant Babubhai Vaidya was one of the panchas, who proved panchanama at Exhibit 7 and also identified the articles produced before the Court. PW-9 Rajiv Sharma, Superintendent of Customs stated having sought to record statement of the appellant after the appellant was lodged in jail. He stated that the appellant refused to give any statement. PW-10 ASI, Shrikrishna Tukaram Salvi was dog handler at Air Intelligence Unit at Sahar Airport and stated that on the incidental night he was on duty with a female dog Pinky. He stated that dog sniffed the baggage and 9 Appeal 874-2007 started barking after sniffing black colour zipper bag which was kept aside. 6. PW-11 Assistant Chemical Examiner, Pradipkumar Bhagwatidayal Bhatnagar states that he received the sample on 29th November, 2002. On 11th December, 2002 he took the sample for analysis and found that it contained Diacytel Morphine. He proved his noting and report at Exhibits 35 and 35A. He stated in his cross examination that the tests which he conducted were suggestive in nature and were not conclusive. PW-12 Sandeep Oudumbar Chetti, Chemical Analyser at Forensic Science Laboratory, Kalina stated that a sample was received from the City Civil And Sessions Court, Mumbai on 22nd August, 2006. He started analyzing the sample on 23rd August, 2006 and found that the sample was of Monoacytel Morphine (degradation product of heroin). He stated that due to the environmental effect of de-acytelation of 10 Appeal 874-2007 heroin takes place and Diacytel Morphine gets converted to Monoacytel Morphine. 7. The learned Counsel for the appellant first submitted that the substance found was Monoacytel Morphine with traces of Diacytel Morphine and therefore, possession thereof was not punishable under the provisions of the NDPS Act. This contention has to be rejected out right, since PW-12 Sandeep Chetti had explained that with passage of time de- acytelation take place and Diacytel Morphine gets reduced to Monoacytel Morphine. It has to be noted that the test was carried out by the laboratory on 23rd August, 2006 in respect of sample collected on 29th November, 2002. Therefore, on the basis of this test, it could not be stated that when the appellant was found in possession of the contraband, it was Monoacytel Morphine. The evidence of PW-12 would rather support the findings of PW-11 that the contraband was Diacytel Morphine as 11 Appeal 874-2007 per the analysis carried out by PW-11 Pradipkumar Bhatnagar on 11th December, 2002, that is about a month after the seizure. 8. The learned Counsel for the appellant relied on Judgment in Rita Karoline Kummel v. Customs and another, reported at 2000 CRI.L.J. 800 where Delhi High Court ruled that it was bounden duty of prosecution to rule out possibility of tampering of the sample and false implication of the appellant. There can be no doubt about this principle. However, the evidence in this case, clearly shows that the samples were in proper custody and had been received by the laboratories in sealed condition. 9. The learned Counsel for the appellant submitted that sample was sent to the Deputy Chief Chemist's Laboratory on 21st September, 2002 and thus remained with the department from 9th November, 2002 to 21st November, 2002 12 Appeal 874-2007 for 12 days. Though ideally, the samples ought to have been promptly deposited with the Deputy Chief Chemist's Laboratory, merely because the sample remained in DS-1 warehouse at the Airport for 12 days, it could not be said that it was tampered with. PW-1 Shri Harisingh Mina had stated that he deposited the property with DS-1 warehouse on the same day that is 9th November, 2002. 10. PW-5 Intelligence officer Shri Pradip Jadhav state that he was authorized by the Deputy Commissioner Shri Rajendra Singh to withdraw a sample from the warehouse and deposit it with the Deputy Chief Chemist's Laboratory on the same day which he did. Thus, the sample was not in the custody of Shri Mina. Therefore, it cannot be said that the sample was tampered with. PW-6 Subhash Chandra was Superintendent of Customs, who was custodian of the warehouse and states having received the property in sealed 13 Appeal 874-2007 condition. Therefore, the argument that the sample could have been tampered with has to be rejected. 11. The learned Counsel for the appellant submitted that in Otabor Elvis v. A.I.U.Customs & anr. (Criminal Appeal No.148 of 2007 decided on 17th February, 2009) this Court had considered the process of checking in a passenger and his baggage at airport. He submitted that evidence in the case at hand would show that appellant was not at all a passenger booked on the flight or had checked in concerned places of baggage. 12. The learned Counsel submitted that the evidence of PW-7 Miss Smita Naik, the duty officer of Kenya Airways would show that the name of the appellant did not appear in the preflight manifest. The learned APP for the Union of India submitted that this contention has to be rejected, since the appellant had 14 Appeal 874-2007 been issued with boarding pass and her baggage had been checked in. She submitted that since the passenger had not confirmed her ticket before the date of the flight, her name did not appear in the preflight manifest as has been explained by PW-7 Miss Smita Naik. She stated that the very fact that the appellant's baggage had been cleared and baggage claim tag was put on the ticket and baggage identification tag was put on the baggage would show that the appellant was booked as passenger on the concerned flight. After carefully considering rival contentions, it appears that the appellant was indeed a passenger on the said flight. Otherwise she would have no business to be at the Airport. Particularly, since PW-7 Miss Smita Naik has explained that there could be passenger with no record on the flight merely because preflight manifest does not contain the name of the appellant, it cannot be said that the appellant was not a passenger booked on the 15 Appeal 874-2007 flight. 13. The learned Counsel for the appellant submitted that there were some contradictions in the evidence of PW-1 Shri Mina and PW-8 Prashant Vaidya. PW-8 Prashant Vaidya stated that he was called in the baggage examination area where sniffer dog was barking when the appellant's bag was seen. He stated that there were two hot cases in one bag and one hot case in the other bag. Since the contraband was, in fact, found only in one bag, he was asked as to whether the contents of panchanama were correct and whether the contraband was recovered from both the bags or only one bag. This question was objected to and the objection was allowed by the learned Judge. Therefore, the witness could not correct himself. Though the witness had not stated in the examination-in-chief about moving anywhere from the baggage examination area, in the cross-examination he stated that 16 Appeal 874-2007 heroin was taken to a room next to Air Intelligence Unit room for weighing it. Thus, it may be that the entire proceeding did not take place in the baggage examination area and the Air Intelligence Unit room. There is nothing improper about this. Therefore, the contradictions which the learned Counsel for the appellant seeks to rely on, in fact, do not exist. 14. On the question of conscious possession of the contraband found in bag, the learned Counsel for the appellant relied on the Judgment of Himachal Pradesh High Court in Bhagwan Dass, etc., v. State of Himachal Pradesh, reported at 2003 CRI.L.J.536 and the Judgment of Rajasthan High Court in Ashok Kumar and another etc., v. Union of India, reported at 2002 CRI.L.J.355. In this case, there is enough evidence discussed above to show that the bag in question in which contraband was found had been checked in by 17 Appeal 874-2007 the appellant. Therefore, the Judgments relied on are of no help to the appellant. 15. The learned Counsel for the appellant also submitted that provisions of Section 50 of the NDPS Act were not complied with. First, three Gazetted officers were present at the time of search. Therefore, there is no question of search not having taken place in accordance with the provisions of Section 50 and in any case, since the contraband was in the bag and not on the person of the appellant, there is no question of provisions of Section 50 being attracted to the case. Therefore, reliance on the Judgments of the Superme Court in Mohinder Kumar v. The State, Panaji, Goa, reported at AIR 1995 SUPREME COURT 1157, State of Punjab v. Balbir Singh, reported at 1994 CRI.L.J.3702, State of Orissa v. Laxman Jena, reported at JT 2002(5) SC 1 and NILKANTH MAHADEO CHANDEKAR vs. STATE OF MAHARASHTRA, reported at 2000(1)Mh.L.J.64 is 18 Appeal 874-2007 misplaced. 16. The learned Counsel for the appellant also placed reliance on the Judgment of the Supreme Court in State of Rajasthan v. Rehman, reported at AIR 1960 Supreme Court 210. In that case the Court had considered the provisions of search under Section 165 of the old Code of Criminal Procedure, 1898. The Court observed that the police officer himself having reasonable ground for believing that any thing necessary for the purposes of an investigation of an offence cannot be obtained, otherwise than by making a search without undue delay, then he should record in writing the grounds of his belief and specify in such writing as far as possible the things for which the search is to be made. Then he must conduct the search, if practicable, himself and if it is not practicable to make the search himself, he must record in writing the reasons for not himself making the search 19 Appeal 874-2007 and then shall authorize a subordinate officer to make the search. Now all these safeguards, which had been indicated by the Supreme Court in the celebrated Judgment, have been incorporated in the NDPS Act itself. In this case, PW-1 Harisingh Mina came to suspect that the appellant was carrying any contraband and therefore, had proceeded to search the appellant. It is not a case of search on receipt of any information. The contention of the learned Counsel that from the moment the officer had reason to suspect, he obliged to follow the provisions of Section 42 is thoroughly misplaced in the context of facts of this case. 17. The learned Counsel for the appellant next submitted that provisions of Section 52A of the NDPS Act have not been complied with in as much as no inventory of the contraband seized was drawn up. Therefore, according to him, the possibility of the substitution of 20 Appeal 874-2007 substance could not be ruled out and for this purpose placed reliance on the Judgment in Samir Ghosh versus State of West Bengal, reported at 2001(1)Crimes 505 and Munna Nai v. The State, reported at 1997 CRI.L.J.4553. In the case at hand, though inventory was not drawn up, PW-1 Shri Harisingh Mina as well as the other witnesss have identified the entire property which was produced before the Court. Merely because the contraband was not again weighed before the Court, it may not be possible to contend that the contraband seized was not as stated in the panchanama. Therefore, the objections on the ground of non-compliance of Section 52A of the NDPS Act have to be rejected. 18. Reliance on the Judgment of Supreme Court in The State of U.P. and another v. Jaggo alias Jagdish and others, reported at 1971 CRI.L.J.1173 is unhelpful, since witnesses whose evidence was necessary for 21 Appeal 874-2007 unfolding discussion have been examined. 19. In the result, the Appeal is dismissed. (R.C.CHAVAN, J.)