:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.4323 OF 2004 IN CRIMINAL APPEAL NO.1194 OF 2004 Captain Zarius Dishaw Dastur ...Applicant Vs Union of India & Anr. ...Respondents Mr. V.R. Manohar, Sr. Counsel with Mr. Amit Desai with Ms. R.B. Amrolia & Ms. Y.N. Katpitia for the applicant. Mr. B.A. Desai, Addl. Solicitor General with Mr. H.V. Mehta for the respondent No.1. Mr. D.P. Adsule, APP for the State. CORAM: V.M.KANADE,J. DATE: 3rd November, 2004 ORAL ORDER: 1. Heard the learned Counsel appearing on behalf of the Applicant and the learned Additional Solicitor General of India appearing on behalf of Union of India. 2. Applicant is the Original Accused No.1. He is convicted by the Trial Court for having committed an offence under Sections 8(c), 21, 23 and 29 of the N.D.P.S. Act, 1985 and sentenced to suffer R.I. for ten years on each count. The Trial Court also directed that he should pay fine of Rs. 1 lac and in :2: default to suffer R.I. for two years on each count. Applicant was on bail during trial from 9th October 1997 to 29th July 1998. 3. Prosecution’s case is that Applicant was working with Air India as a Senior Pilot and was scheduled to operate flight No. AI-101; which was scheduled to go to London from Bombay on 9/10/1997 at about 6.25 a.m. Applicant reached Sahar Airport at 5.10 a.m.and his suitcase was placed on the X-ray machine for security check. Security staff - PW-22 - Mr. Ranshevre and Mr. Kamble noticed some suspicious images on the screen. On inquiry being made by PW-22 as to who had brought the suitcase in question, the Applicant replied that he had brought the suitcase and he was carrying it for some other person. Applicant was, thereafter, asked about the suspicious images which appeared on the screen. Applicant informed PW-22 that it may be electric tooth brush inside the suitcase. However, Security staff said that it was not an electric tooth brush. Applicant, thereafter, asked the Security staff to check suitcase thoroughly as he was carrying it on behalf of some third party. He was, thereafter, asked to open the suitcase. Some articles belonging to the Applicant were found in the suitcase alongwith three sweaters. The contents were :3: removed. Thereafter, empty suitcase was again put in a Hi-scan X-ray Machine and again square golden orange colour patches were appeared. Customs Officials were summoned. They tore open the cream coloured inner cloth lining of the suitcase and also decorated laminated sheet and behind the said laminated sheet a square shaped polythene pouches containing white coloured powder were found. Polythene bags were weighed and they contained 1080 gms of white powder which tested positive for heroin. Personal search of the Applicant was taken but nothing incriminating was found. The Statement of the Applicant was recorded under Section 108 of the Customs Act read with Section 67 of the N.D.P.S. Act by PW-2 - Mr. Varadkar, in which he stated that this bag was given to him by Mr. Dinshaw Pastakia (Accused No.2) and at no time Applicant was informed about the concealment of the drugs in the suitcase. On the same day, the house of the Applicant was searched. However, nothing incriminating was found. Three sweaters were found in the house which were seized. The house of Dinshaw Pastakia (Accused No.2) was also searched on the same evening. However, nothing incriminating was found in the said search. Accused No.2 was brought to the Office and his statement under Section 108 of the Customs Act was recorded which is exhibited at :4: Exhibit-51. Accused No.2 admitted that the suitcase was given by him to the Applicant and that the Applicant was unaware of the concealment of the drugs therein. He further stated that the Accused No.3 - Mr. Bhawarlal Somani and Mr. Bawne Rego (Accused No.4) were involved in the acquisition and packing and transporting of the said suitcase to the Applicant. Statements of Accused No.3 and 4 were also recorded. It is an admitted position that the Accused Nos. 2, 3 and 4 did not attribute any role to the Applicant in this application. The confessional statement of Mr. Dinshaw Pastakia (Accused No.2) was recorded by the Magistrate under Section 164 of Cr.P.C. on 2/7/1998, in which he reiterated his earlier statement that the Applicant was unaware about the concealment of the drugs in the suitcase. Prosecution has examined 47 witnesses and the Applicant, in his defence, examined 9 defence witnesses. He also gave his own evidence on Oath alongwith his wife. According to the Applicant, he had purchased a plot of land at Boisar sometime in 1990 in Pangrapada Village, Taluka Palghar, District - Thane from one Mr. Adil Daruwalla (DW-2) and Cyrus Irani (DW-6) who were jointly developing about 40 plots of land. Wife of Accused No.2 - Mrs. Dinshaw Pastakia had purchased similar plot; before the Plot which was purchased by the Applicant. Sometime in May :5: 1996, Applicant and his wife - Manreez Dastur who is examined as PW-31 started construction of a farm house on their plot of land and they used to stay in the house of Adil Daruwalla (DW-2). Applicant’s case in his evidence is that he came in contact with Mr. Dinshaw Pastakia (Accused No.2) who also used to stay in the house of Mr. Adil Daruwalla (DW-2). According to the Applicant, he found that the Accused No.2 was extremely popular with everybody because he went out of his way to run errands and oversee construction of other plot owners and apart from being an extremely religious man. He had learnt that Accused No.2 was working as Personnel in Air India and was involved in gold smuggling case. However, he was informed that he was falsely implicated in the said case. 4. According to the Applicant, three weeks prior to the incident, Mr. Dinshaw Pastakia (Accused No.2) informed him that his son in U.S.A. had been operated and his daughter has gone there to look after him. However, since she had gone there in a hurry, she has taken a small suitcase with her and he, therefore, requested the Applicant to take a bag for his daughter as she required the same for bringing her belongings back to India. Applicant agreed to take the bag. Suitcase accordingly was delivered at his house. :6: Applicant and his wife checked the suitcase. They noticed that there were six sweaters inside the suitcase. Applicant removed three sweaters out of six which were found in the bag and, thereafter, on the date of the incident, packed his own small bag and a few articles in the suitcase and put his identification tag on the suitcase. 5. The Trial Court, on perusal of the evidence adduced by the Prosecution and the Applicant, disbelieved the case of the Applicant and held that he had not rebutted the presumption under Section 35 of the N.D.P.S. Act beyond the reasonable doubt and thus had not proved that the Applicant was unaware of the concealment of the drugs in the suitcase. Appeal is admitted and the separate application for bail has been preferred by the Applicant. 6. Shri V.R. Manohar, the learned Senior Counsel appearing on behalf of the Applicant has submitted that there was no evidence adduced by the Prosecution to prove that the possession of the contraband was with the Applicant and that it was a conscious possession and that he was aware of the concealment of the drugs in the suitcase. He submitted that it is an admitted position that the Applicant did not know Mr. :7: Dinshaw Pastakia (Accused No.2) prior to 1996. He further submitted that it is further an admitted position that Accused No.3 and 4 had never met the Applicant and that there was no evidence to prove that there was a conspiracy or that the possession of the contraband was a conscious possession. Shri Manohar, the learned Senior Counsel appearing on behalf of the Applicant thereafter submitted that the prosecution had brought on record the statements of the Applicant and Accused No.2 which were recorded under Section 67 of the N.D.P.S. Act and Section 108 of the Customs Act and they were exhibited at Exhibit-17 and Exhibit-51. He submitted that the statement of the Applicant was inculpatory and he has stated in the said statement that he was not aware that the drugs were concealed in the bag and the bag did not belong to him; but belonged to Dinshaw Pastakia (Accused No.2). In the statement of Mr. Dinshaw Pastakia (Accused No.2), which was recorded under Section 108 of the Customs Act, the said Accused had admitted that he had concealed the drugs in the bag. However, he has stated that Applicant had no knowledge of the concealment of the drugs. The learned Counsel submitted that the prosecution having adduced the said evidence, it was not open for the prosecution or the Court to ignore the said evidence and the Applicant :8: was entitled to be given a benefit of the said evidence which was son record and was in his favour. In support of the said submissions, the Learned Counsel relied upon the Judgments reported in the cases of Imperatrix vs. Pithamber Jina Imperatrix vs. Pithamber Jina Imperatrix vs. Pithamber Jina reported in 1877 1877 1877 ILR(2) Bom.62 ILR(2) Bom.62 ILR(2) Bom.62, Ebrahim vs. Emperor Ebrahim vs. Emperor Ebrahim vs. Emperor reported in 1911 1911 1911 (12) Cr.L.J., 79 (12) Cr.L.J., 79 (12) Cr.L.J., 79, Abinashchandra Sarkar vs. Abinashchandra Sarkar vs. Abinashchandra Sarkar vs. Emperor Emperor Emperor reported in 1935 ILR (63) Cal., 18 1935 ILR (63) Cal., 18 1935 ILR (63) Cal., 18, Sukhram Sukhram Sukhram s/o. s/o. s/o. Ramratan vs. State of M.P. Ramratan vs. State of M.P. Ramratan vs. State of M.P. reported in 1989 1989 1989 Supp.(1) Supp.(1) Supp.(1) S.C.C., 214 S.C.C., 214 S.C.C., 214 and in the case of Bhagatram & Bhagatram & Bhagatram & Ors. Ors. Ors. vs. State of M.P. vs. State of M.P. vs. State of M.P. reported in 1990 Cr.L.J., 1990 Cr.L.J., 1990 Cr.L.J., 2407. 2407. 2407. 7. Shri Manohar, the learned Counsel appearing on behalf of the Applicant further submitted that there was no direct evidence to show that the Applicant was aware about the concealment of the drugs in the suitcase. The Trial Court had convicted the Applicant/Accused on the basis of circumstantial evidence. He submitted that the Trial Court had relied on twelve circumstances for the purpose of coming to the conclusion the Applicant was aware about the concealment of the drugs and he had knowledge. He submitted that out of these twelve circumstances only one circumstance was put to the applicant while recording his statement under Section 313 of the :9: Criminal Procedure Code. He submitted that the only incriminating circumstance which was put to the accused was : whether the applicant was aware of the background of the Accused No.2 - Mr. Dinshaw Pastakia?. The other eleven circumstances were not put to the Applicant while recording his statement under Section 313 of the Criminal Procedure Code. He submitted that the Apex Court had consistently taken a view that the incriminating circumstances which were not put to the accused while recording his statements under section 313 of the Criminal Procedure Code could not be relied upon for the purpose of coming to the conclusion that the accused had committed the Offence. In support of the said submission, he relied upon the judgement of the Supreme Court in the case of Sharad Sharad Sharad Birdhichand Birdhichand Birdhichand Sarda vs. State of Maharashtra Sarda vs. State of Maharashtra Sarda vs. State of Maharashtra reported in A.I.R. 1984 SC, 1622. A.I.R. 1984 SC, 1622. A.I.R. 1984 SC, 1622. 8. Shri Manohar, learned Counsel appearing on behalf of the Applicant further submitted that the possession of the Applicant was not a conscious possession. He submitted that the presumption under Section 35 of the N.D.P.S. Act was not attracted to all sections of N.D.P.S. Act. He submitted that said Section would be applicable only to such offences under the Act which require culpable mental state of the Accused and :10: not to all the sections of the Act. He submitted that the Applicant was charged under Section 8(c), 23 and 29 of the said Act and that none of these sections requires culpable mental state. He therefore submitted that the Trial Court had clearly erred in holding that the Applicant had not rebutted the presumption under section 35 of the N.D.P.S. Act. 9. Shri Manohar, learned Counsel appearing on behalf of the Applicant further submitted that the presumption under Section 54 of the N.D.P.S. Act could be attracted only after the prosecution had proved the conscious possession on the part of the Accused and only thereafter the presumption regarding possession as envisaged under section 54 would be attracted. He submitted that the Trial Court had therefore erred in holding that the presumption under Section 54 had not been rebutted by the Accused. In support of the said submission, he relied on the judgement in the case of Rubyana vs. State of Rubyana vs. State of Rubyana vs. State of Maharashtra Maharashtra Maharashtra reported in 1996 Cr.L.J., 148 1996 Cr.L.J., 148 1996 Cr.L.J., 148 and in the case of Natibabu Khadka vs. State of Goa Natibabu Khadka vs. State of Goa Natibabu Khadka vs. State of Goa reported in 1996 1996 1996 (5) BCR, 76 (5) BCR, 76 (5) BCR, 76 and in the case of Patel Jethabhai Patel Jethabhai Patel Jethabhai Chatur Chatur Chatur vs. State of Gujarat vs. State of Gujarat vs. State of Gujarat reported in A.I.R. 1977 A.I.R. 1977 A.I.R. 1977 SC, SC, SC, 294. 294. 294. He further submitted that statements which were recorded by the prosecution under section 108 of :11: the Customs Act and 67 of the N.D.P.S. Act clearly showed that even the accused had admitted that the Applicant was not aware of the possession or concealment of the drugs in the suitcase. He submitted that the benefit of this statement should be given to the Applicant and the said evidence therefore was available and could be used in favour of the applicant. He further submitted that reliance placed by the Trial Court on Section 30 of the Indian Evidence Act was clearly unwarranted. 10. Shri Manohar, the learned Counsel appearing on behalf of the Applicant further submitted that the Appellate Court had the power to consider the application for bail and suspension of sentence of the Appellant in Appeal and that there was no express bar imposed by the Section 32A which prohibited the High Court from entertaining the application for bail in Appeal. In support of the said submission, he relied on the judgement of the Apex Court in the case of Dadu Dadu Dadu Alias Alias Alias Tulsidas vs. State of Maharashtra Tulsidas vs. State of Maharashtra Tulsidas vs. State of Maharashtra reported in (2000) (2000) (2000) 8 SCC, 437. 8 SCC, 437. 8 SCC, 437. 11. He submitted on the basis of these submissions that no case was made out by the prosecution against the applicant. And that there were more than :12: reasonable grounds for believing that he is not guilty of the offence with which he was charged and he is not likely to commit any offence while on bail. He submitted that the Applicant was released on bail by the Trial Court and was allowed to travel abroad and had worked during remaining part of his tenure as a Senior Pilot in Air India and had travelled abroad during this period and no complaint whatsoever was lodged against him. He submitted that he was on bail throughout the Trial for more than six years and he had been commander on 200 flights of Air India out of which 90% were on International Sectors and Visa was granted to him by U.K. and U.S.A. despite his under trial status and that he had appeared in Court either in person or through his Advocate during the pendency of the Trial and that he had never abused his bail conditions though he was flying on International Sectors. He submitted that the Applicant had never committed any breach of the undertaking which he had given to the Court and had informed about his movements at all times. He further submitted that the applicant had retired from Air India in December, 2003 and was on two year Contract with Air India as Commander. He submitted that the applicant had unblemished record of service with Indian Airlines and Air India during his 37 years of flying service and :13: that at the time of his conviction he was holding the post of Joint General Manager Operations (Training) in addition to being an Instructor/Examiner on the Boeing - 747 - 400 Aircraft. 12. Shri Desai, the learned Additional Solicitor General opposed the submissions made by the learned Counsel appearing on behalf of the applicant. He submitted that the validity of section 32A had been upheld and it had not been struck off from the statute. He submitted that section 32A was read down to the extent that it clarified that section 32A does not take away power of judicial review conferred on the judiciary by the Constitution as part of the basic structure. He submitted that, therefore, the only course available to the accused was to apply to the High Court under Article 226 and 227 of the Constitution of India. In support of this submission, he relied upon the judgment in the case of Maktool Maktool Maktool Singh Singh Singh Vs. State of Punjab Vs. State of Punjab Vs. State of Punjab reported in (1999) 3 SCC (1999) 3 SCC (1999) 3 SCC 321 321 321 and also tried to distinguish the judgment of the Supreme Court in the case of Dadu Alias Tulsidas Vs. Dadu Alias Tulsidas Vs. Dadu Alias Tulsidas Vs. State State State of of of Maharashtra Maharashtra Maharashtra reported in (2000) 8 SCC 437 (2000) 8 SCC 437 (2000) 8 SCC 437. In support of the said submission, he referred to para 23 of the Judgment in the case of Dadu Alias Tulsidas (supra) wherein the Apex Court has observed as under:- :14: "23. ................................ Again in S.S. Bola Vs. B.D. Sardana S.S. Bola Vs. B.D. Sardana S.S. Bola Vs. B.D. Sardana [(1997) (1997) (1997) 8 SCC 522 8 SCC 522 8 SCC 522] it was reiterated that judicial review is the basic feature upon which hinges the checks and balances blended with hind sight in the Constitution as people’s sovereign power for their protection and establishment of egalitarian social order under the rule of law. The judicial review was, therefore, held to be an integral part of the Constitution as its basic structure. Similarly, the filing of an appeal, its adjudication and passing of appropriate interim orders is concededly a part of the legal system prevalent in our country." The learned ASG also referred to para 17 of the said judgment in the case of Dadu Alias Tulsidas (supra) which reads as under:- "17. Not providing atleast one right of appeal would negate the due process of law in the matter of dispensation of criminal justice. There is no doubt that the right of appeal is the creature of a :15: statute and when conferred, a substantive right. Providing a right of appeal but totally disarming the court from granting interim relief in the form of suspension of sentence would be unjust, unfair and violative of Article 21 of the Constitution particularly when no mechanism is provided for early disposal of the appeal. The pendency of criminal litigation and the experience in dealing with pending matters indicate no possibility of early hearing of the appeal and its disposal on merits atleast in many High Courts. As the present is not the occasion to dilate on the causes for such delay, we restrain ourselves from that exercise. In this view of the matter, the appellate powers of the court cannot be denuded by executive or judicial process." 13. The learned ASG submitted that so far as section 35 of the N.D.P.S. Act is concerned, it does not refer to conscious possession. He submitted that, in fact, the words "conscious possession" are not to be found in the said section at all. He submitted that section 35 :16: raises presumption which had to be rebutted by the applicant. He submitted that the words "culpable mental state" includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact. He further relied on sub-clause (2) of section 35 and submitted that the fact was said to be proved only when the Court believes it to exist beyond the reasonable doubt and not merely when its existence is established by a preponderance of probability. He submitted that, therefore, this burden which was cast on the applicant had not been proved beyond reasonable doubt by the accused. He submitted that the applicant had categorically stated that the bag belonged to him till the point of time when he was asked by the P.W.22 who is the Security Officer at the X-ray machine and, at that point of time, he disowned the ownership of the bag. The learned ASG took me through the Judgement and Order of the Trial Court and submitted that the Trial Court had considered the various circumstances from which it had rightly drawn an inference that the applicant obviously had the knowledge. He referred to the evidence adduced by the applicant and also the evidence of his wife and submitted that from the said evidence it was difficult to believe that the applicant was not aware of the concealment of the drugs in the suitcase. He submitted that it was difficult to :17: believe that having known the fact that Dinshaw Pastakia (accused No.2) was previously suspended on account of case of gold smuggling being filed against him, the applicant would accept the bag which was to be sent to his son in United States. He referred to the evidence of wife of the applicant in which she admitted in the cross-examination that the bag in question was manufactured in USA and was readily available there. He submitted that on the basis of the said statement in the cross-examination that there was no necessity for the applicant to take this bag to the United States particularly when his Flight was to terminate at London. He further submitted that there was no question of sending the bag on humanitarian ground as there was no emergency or urgency for sending the bag. He submitted that there was no question of sending any medicine or other articles which were not available in USA. He submitted that, therefore, this theory of concealment being not known to the applicant could not be believed by any stretch of imagination. He further submitted that the bag in question had arrived at the house of the applicant about three weeks prior to the incident and accused No.2 - Dinshaw Pastakia had informed his wife that it had to be delivered to one Dinesh and the phone number of the said person was given. It is submitted that the accused had neither :18: inquired about the address of Pastakia’s son or his daughter nor had inquired about their telephone number. He submitted that neither Pastakia’s son nor his daughter was going to collect the said bag. He submitted that these circumstances clearly indicated that theory of transporting the bag for the sake of Pastakia’s son was a story which was made to protect himself. 14. The learned ASG, therefore, submitted that the prosecution has clearly established the conscious possession on the part of the applicant and further the presumption under sections 35 and 54 had not been rebutted. He submitted that it was not necessary that the applicant should have met accused Nos. 3 and 4 as they were all part of a larger