:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE CRIMINAL APPELLATE SIDE CRIMINAL APPELLATE SIDE CRIMINAL APPEAL NO.148 OF 2007 CRIMINAL APPEAL NO.148 OF 2007 CRIMINAL APPEAL NO.148 OF 2007 IN IN IN N.D.P.S. SPECIAL CASE NO.85 OF 2002 N.D.P.S. SPECIAL CASE NO.85 OF 2002 N.D.P.S. SPECIAL CASE NO.85 OF 2002 Otabor Elvis ...Appellant. Christian, aged 45 years Holding Nigerian P.P.No.123256 R/o.176, Oja Road, Off Owo Street, Logos, Nigeria (At present in Kolhapur Central Prison, Kolhapur) v. 1. A.I.U. Customs (Air Intelligence Unit, Mumbai) 2. The State of Maharashtra ...Respondents. Mr.Atul Sarpande and Ms. Rupali Shinde , advs. for the Appellant. Mr.Mandar Goswami , adv. for the Respondent No.1. Mr.Y.M.Nakhawa, APP for the State. CORAM: CORAM: CORAM: R.V.More,J. R.V.More,J. R.V.More,J. DATE: 17th February, 2009. DATE: 17th February, 2009. DATE: 17th February, 2009. ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. The appellant was convicted for the offences punishable under Sections 21 read with Section 8(c) and sentenced to suffer R.I. for ten years and to pay fine of Rs.1 lakh and in default to suffer further R.I. for three months. He was further convicted for the offences punishable under Section 28 r/w read with Section 8(c) and sentenced to suffer R.I. for ten years and to pay a fine of Rs.1 lakh and in default to suffer R.I. for :2: three months. Substantive sentences however ordered to run concurrently. 2. Prosecution story in brief is as under: . On 10th May, 2002, officers of Air Intelligence Unit (A.I.U.) decided to keep vigilance on the flights going to the African countries as this route found sensitive for narcotic drugs. The Kenya Airways Flight No.KQ-201 also operates between Mumbai-Lagos and as such was under direct surveillance. Schedule departure of the flight KQ-201 was at 3.10 hours on 11.5.2002. At about 11.00 p.m., on 10.5.2002 P.W.3 suspected the appellant, who was standing in queue at check-in counter for checking him and his baggage. P.W.3 informed the said fact to other officers and accordingly, they kept watch on the appellant and saw him clearing immigration and Customs counter. The appellant thereafter was immediately intercepted, his travel documents were asked for, and the three bags were retrieved and kept in the baggage examination area by the officers. Three baggage claim tags were found affixed on the air ticket. Thereafter panchas were called and in their presence the appellant was asked about the baggage to which the appellant replied that two bags of blue and black colour belongs to him, whereas the green colour bag is given to him by his friend Diopka and he is not aware about the contents of the said bag. The appellant also denied any :3: knowledge of concealment of drug in the said bag and further submitted that as per the instruction of his friend it was to be handed over to his friend’s wife residing at Nairobi. The appellant thereafter was taken to baggage examination area where he identified three bags belonging to him. The identification tags appearing on the bags, allegedly tallied with claim tag affixed on the air-ticket. 3. The appellant thereafter alongwith panchas and the baggage was taken to A.I.U. office and upon instruction the sniffar dog sniffed the bag and gave positive indication for presence of drug in the green bag by barking. The green bag was opened and found to contain new sarees and bedsheets. Officer ripped open the bottom of said bag and found one plastic polythene packet containing light brown powder, concealed between two cardboard papers. The said powder was taken out and weighed and found to be 976 gms. Thereafter small quantity was taken to Ionscan machine by P.W.1 Bhusari and P.W.5 Mr.Vaidya, panch witness and the appellant. Report was positive for presence of Heroin and thereafter they returned to A.I.U. office. 4. Three samples of 5 gms. each were drawn and kept in polythene packets and those packets were marked as A, B, C. Thereafter they were kept separately in :4: three brown paper envelope and sealed with seal no.PO-133. Remaining contraband was also packed and sealed in carton. Similarly, the other articles found in the bag, alongwith the bag was kept in another carton and sealed with same seal. All the articles and travel documents were seized under the panchanama and taken charge off. 5. Samples allegedly drawn from the contraband were sent to Deputy Chief Analyser (For short ’Dy.C.C.’) and Forensic Science Laboratory (In short ’F.S.L.’) on 14.5.2002 and 13.5.2002 respectively and both the C.A. confirmed the presence of heroine in the given samples. After completion of investigation, complaint was filed on 31.10.2002 before the learned Special Judge. 6. The learned Special Judge framed the charge against the appellant/accused under Section 8(c) read with 21(c) and Section 28 read with Section 23 of the N.D.P.S. Act, vide Exhibit 2 on 21.2.2005. Charge was explained to the accused to which he pleaded not guilty and claimed to be tried. 7. Prosecution in order to prove the guilt of the accused examined twelve witnesses. They are as follows: 1. PW-1 Mr.D.A.Bhusari Panchanama Officer & I.O. :5: 2. PW-2 Mr.M.A.Masand who tried to record the statement of the appellant. 3. PW-3 Mr.S.T.Salvi Dog handler (Suspected the appellant) 4. PW-4 Mr.N.V.Sawardekar Who was carrier of samples to DS-I godown and Dy.C.C. 5. PW-5 Mr.Prashant Vaidya Panch Witness 6. PW-6 Mr.S.V.Thali Tried to record statement of the appellant. 7. PW-7 Mr.S.K.Joshi Deposited one sample to DS-I on 14.5.2002. 8. PW-8 Mr.Bhatnagar C.A.-Dy.C.C. 9. PW-9 Mr.M.K.Malve C.A.-FSL 10. PW-10 Mr.S.V.Parlekar Dy. Commissioner 11. PW-11 Mr.V.Gaikwad Panch to the Statement 12. PW-12 Mr.H.Harshekar Panch Witness 8. Mr.Sarpande, learned counsel for the appellant took me through the evidence and submitted that the prosecution story that the appellant was intercepted and apprehended at the Customs counter is not proved beyond reasonable doubt. He further submitted that the prosecution story that the appellant checked-in after screening of his bags is doubtful. He submitted that the prosecution is silent about security straps or security stickers affixed on the bags and, therefore, it :6: is not proved that bags were cleared through X ray machine. He submitted that flight coupon for Sector Bombay-Nairobi found with the appellant and, therefore, it is not possible to arrive at conclusion that the appellant completed check-in formalities. He also submitted that excess baggage coupon was not found with the appellant, Mr.Sarpande learned counsel for the appellant submitted that the appellant never completed check-in formalities as alleged by the prosecution and, therefore, the baggage allegedly seized at check-in counter can not be connected with him. 9. Regarding knowledge about the contents of the contraband allegedly found in a green bag, Mr.Sarpande submitted that the prosecution story itself reveals that the appellant claimed ownership of black and blue colour bags and so far as the third bag of green colour is concerned, the appellant pointed out that the said bag was given to him by his friend Diopka staying at Bandra to deliver the same to his wife residing at Nairobi. Thus, the prosecution story itself does not prove any knowledge on the part of appellant about the contraband concealed in the green bag. He submitted that in order to prove knowledge of the appellant about concealment of contraband in bag, prosecution has not adduced any evidence and as such, the appellant can not be held guilty for the charges framed against him. :7: 10. Mr.Sarpande further submitted that the pancha P.W.5 has not supported the prosecution story and, therefore, P.W.12 another panch is examined, however, this pancha failed to identify the appellant. He stated that P.W.12 admitted that he acted as panch in several matters and, therefore, he being a regular pancha can not be relied upon. Mr.Sarpande lastly contended that the prosecution failed to adduce link evidence to establish that the sample packets which were allegedly drawn from the contraband contained in the green bag were ultimately sent to the C.A. He submitted that there is discrepancy in the evidence of the prosecution regarding the samples and, therefore, benefit of doubt deserves to be given to the appellant. 11. Mr.Goswami, learned counsel appearing for the respondent no.1 on the contrary supported the impugned judgment and order. He submitted that the appellant was intercepted at the Customs counter and thereafter, his bags were retrieved from baggage examination area. He submitted that baggage claim tags were found affixed on the tickets, which tallied with baggage identification tags affixed on the bags. He also submitted that one of the bags namely, green colour bag was opened and officers found that the bag contained new sarees and bedsheets. He submitted that the contraband heroine was concealed in the bottom of said bag. Small quantity of the contraband was tested positive for heroin. :8: Thereafter, three samples were drawn, which ultimately sent to the Dy.C.C. and F.S.L. and both the C.A. confirmed the presence of heroin. Thus, the prosecution has adduced sufficient evidence to prove complicity of the accused in an alleged offence and, therefore, no interference is called for. 12. The procedure at airport for check-in is brought on record, through evidence of P.W.1 which is as follows: In order to get entry in airport, the passenger has to show his air-ticket and his passport at the entry gate. Once the passenger gets entry in the airport, and he is having baggage, the same is required to be screened. Then he has to go to X ray machine and put his baggage on the conveyor belt of the machine. When the baggage passes through machine, images of the contents can be seen on the screen and if something found doubtful then yellow tag with black cross will be put on the baggage which is an indication to the law enforcing authorities to check the bags. At the other end of the machine, bag will be strapped with the security straps in such a way that without breaking open the strap the bag can not be opened. Security stickers were also put on the lock to rule out any tampering in :9: transit. Passenger thereafter is required to go to the check-in counter and tender his passport and air ticket. After confirming the status of the passenger on the passenger manifest, the check-in counter staff will enquire about the baggage to be checked-in, if the passenger had the baggage, the same is required to be put on the weighing platform connected to the conveyor belt. If the weight is in excess than the permissible weight, then passenger is asked to pay excess baggage charges at State Bank of India counter. Thereafter, the counter staff will uplift the flight coupon for concerned sector from the ticket jacket tendered by the passenger. Similarly, he will take out the excess baggage coupons from ticket jacket and will staple both the coupons together, and will be retained by airline staff at the counter. Thereafter the passenger will be issued boarding pass and the baggage tags. Claim tag is affixed on the ticket and identification tag on the bag. Passenger is required to show this boarding pass at the immigration counter and to fill in disembarkation form which is available at the counter in his own handwriting. Main part will be retained by the immigration authorities (police) and counter foil will be given back to the passenger. Thereafter the immigration :10: counter staff will put the stamp of immigration on the boarding pass and on the passport. Thereafter, the passenger has to report at the custom counter where he is required to declare the goods carried by him, and if required, to pay customs duty at the counter. Then the Custom counter staff will put the stamp on the boarding pass showing clearance from the Custom counter. Thereafter the passenger will go to transit lounge and thereafter he will board the flight. 13. It is the specific case of the prosecution that the appellant completed check-in formalities, thereafter, completed immigration and Customs formalities and ultimately, was intercepted while going to transit lounge and thereafter his bags were retrieved at the Customs counter. P.W.1 testified that he did not find security straps or stickers on the baggage. P.W.2 and 3 are silent regarding the security straps or stickers on the bags, which allegedly were retrieved after interception of the appellant. Panchanama at Exhibit 6 is also silent regarding security straps or stickers on the bags in question. It is not denied by the prosecution that the passenger has to first screen the bags if he intends to check-in the said bag. The fact that security straps or stickers were not found on the bags allegedly retrieved creates doubt about the :11: prosecution story that the appellant was intercepted after completing check-in formalities. 14. P.W.1 admitted that flight coupon of the particular sector is uplifted while other remains in the same jacket at the time of check-in. He has further admitted that the travel documents of the appellant remained with raiding party officers till conclusion of panchanama. Further he ruled out any possibility of flight uplifted coupon for Mumbai-Nairobi sector remaining in air ticket jacket at the time of panchanama or thereafter. P.W.1 specifically denied suggestion that the appellant was not having flight tickets for Mumbai-Nairobi sector in his air ticket jacket. P.W.1 also admitted that neither he made request in writing to airline authority for return of uplifted flight coupon of the appellant nor any statement of staff of airline counter was recorded by him in that regard. Exhibit 8 collectively is the air ticket jacket alongwith flight coupon for sector Mumbai-Nairobi. If the exhibit 8 alongwith the deposition of P.W.1 is considered then it is clear that the flight uplifted coupon was found in possession of the appellant and the same was seized under the seizure panchanama, Exhibit 6. Presence of the flight coupon for sector Bombay-Nairobi clearly ruled out possibility of completion of check-in formalities by the appellant and, therefore, there is no question of the appellant getting boarding pass or :12: baggage claim tags from the airline staff. 15. P.W.1 testified about the procedure and requirement of payment of excess baggage charges at SBI counter. He has admitted that the appellant was carrying weight of 50 kgs. as is mentioned in the air ticket and the permissible weight allowed to be carried is 20 kgs. only. In these facts, the appellant could not have been allowed to complete check-in formalities, unless he made payment of excess baggage charges. Non finding of the excess baggage charges coupons with the appellant also show that the appellant did not complete formalities of check-in. This makes the prosecution case again doubtful. 16. So far as the clearing of the immigration and Customs by the appellant is concerned, the same is also doubtful in-as-much as P.W.1 admitted that immigration and Customs can not be cleared unless the appellant completed check-in formalities. Since I find that the prosecution failed to prove beyond reasonable doubt that the appellant completed check-in formalities, doubt is also created regarding the prosecution case about appellant’s clearing immigration and Customs In the facts and circumstances mentioned above, the evidence of the prosecution witnesses does not inspire any confidence as the same is not free from doubt. The prosecution case that the appellant was intercepted :13: while going transit lounge, can not be accepted as the appellant never completed check-in formalities as alleged by the prosecution. The appellant also can not be connected with the bags in question, which were retrieved from baggage examination area. 17. In order to prove the appellant’s possession with the baggages in question, the prosecution relied upon the baggage claim tags found affixed on the air tickets, Exhibit 8 which tallied with the baggage identification tags affixed on the baggages in question. Prosecution also in this regard relied upon the panchanama at Exhibit 6 and the deposition of the P.W.1, 2 and 3. First piece of evidence namely, claims and identification tags are concerned, in my view, same is not useful to the prosecution in view of the admitted position that claim and identification tags would not be given unless check-in formalities are completed by tendering flight coupon for concern sector. I have already found that the flight coupon was never given by the appellant to the airline staff attending check-in counter and, therefore, the existence of baggage claim tags on tickets and the identification claim tags on bags becomes extremely doubtful. In order to prove panchanama at Exhibit 6, prosecution examined P.W.5 and P.W.12 both the panchas. P.W.5 has not only failed to identify the accused but he has not at all supported the prosecution story and ultimately, was declared hostile :14: and cross-examined by the prosecution. Evidence of P.W.5 is, therefore, not helpful to the prosecution to prove panchanama at Exhibit 6. Evidence of P.W.12 also can not be relied upon to conclude that the contraband seized was from the appellant since he failed to identify the appellant in the Court. This witness categorically admitted that he acted as pancha in 3-4 cases and all those cases were registered by the A.I.U. office. In that view of the matter, P.W.12 becomes habitual pancha and, therefore, his testimony required to be carefully scrutinised. So far as the version of P.W.1, 2 and 3 are concerned, same is not worth of credence. Their version that the appellant was intercepted at the Customs counter after completing check-in formalities is not found to be truthful. Had appellant intercepted at the Customs counter, surely there would have been security straps/stickers on the baggages allegedly claimed to have checked-in by the appellant. Existence of flight coupon for sector Bombay-Nairobi in air ticket jacket also specifically rules out the appellant’s possibility of completing check-in formalities. Evidence of P.W.1 and P.W.3, thus, runs contradictory to established facts and, therefore, in my view, it is unsafe to rely upon the same. 18. Now let us consider next submission of Mr.Sarpande that the prosecution failed to prove that :15: the appellant had knowledge about the concealment of contraband in green bag. In this regard, prosecution story itself reveals that after the appellant was intercepted, three bags were retrieved and the appellant claimed ownership of black and blue colour bag and so far as the green bag is concerned, the appellant told that the same belongs to his friend Diopka residing at Bandra and was given to him for handing over the same to wife of Diopka residing at Nairobi. Prosecution neither made any enquiry about the appellant’s knowledge about the concealed contraband in green bag nor adduced any evidence about his knowledge. Considering these facts, it can not be said that the appellant has carried green bag in question with full knowledge of the concealment of drug and, therefore, conscious possession can not be attributed to the appellant. Thus, the appellant is entitled to benefit of doubt. 19. This takes me to consider the submissions of the learned counsel for the appellant about discrepancy of the evidence regarding the samples. Panchanama at Exhibit 6 reveals that three samples weighing 5 gms each were drawn on 11.5.2002. P.W.4 Sawardekar deposed that he deposited seized articles including sample packets in DS-I godown vide Exhibit 21. Exhibit 21 as well as deposition of P.W.4 shows that in all seven articles were deposited in godown and out of this, 7 articles, 3 articles were samples drawn under seizure panchanama. :16: The entry in godown register at Exhibit 47, thus, tallies with the document at Exhibit 21, i.e., forwarding memo prepared by P.W.4. It is surprising to note that P.W.7 Joshi also deposited one sample packet on 14.5.2002 with DS-I godown. This statement of fact is corroborated by document at Exhibit 36, which is forwarding memo prepared by P.W.7 and Exhibit 48 entry in godown register. If only three packets were drawn under the seizure panchanama, wherefrom P.W.7 came in possession of four sample packets is not explained by the prosecution. 20. Exhibit 47 is the entry dated 11/5/2002 made in register of DS-I godown. This entry is at page no.317 of the paper-book. At page 317A, there is authority letter written by P.W.10 Deputy Commissioner Parlekar to Intelligence Officer, Mr.K.M.D’Souza whereunder the authority was given to Mr.K.M.D’Souza, I.O. to receive sample package for forwarding the same to chemical laboratories at Bombay. On this page, there is endorsement of K.M.D’Souza made on 13.5.2002. Endorsement shows that two sealed envelopes said to contain 5 gms. of brown sugar powder purported to be heroin taken for testing to Dy.C.C. and Forensic laboratory. This endorsement shows that two sealed envelopes of sample were given to Mr.K.M.D’Souza on 13.5.2002. Endorsement made in the middle of the page shows that one packet was transferred in the strong room :17: on 13.5.2002. Yet there is another endorsement dated 19.5.2002 signed by somebody from DS-I Godown on the top of the page. This endorsement reveals that two sealed envelopes samples of brown powder purported to be heroin were handed over. The person to whom these samples were handed over is not named. The endorsement only mentions that two samples were handed over. 21. Things do not stop there. The prosecution examined P.W.7 Shri S.K.Joshi, then working as Intelligence Officer in Air Intelligence Unit. He has deposed that on 14.5.2002, he has deposited one sample packet in DS-I warehouse alongwith one forwarding Memo at Exhibit 36. The above statement of P.W.7 is corroborated by the document at Exhibit 36, which is at page no.262 of the paper-book. Now most crucial question falls for consideration is that when the prosecution case, supported by the panchanama, is that only three samples were drawn at the time of seizure of the contraband then, firstly, how come this fourth sample was deposited by P.W.7 on 14.5.2002 and secondly, in whose possession was this sample since 11th to 14th May, 2002. The prosecution has not given any explanation regarding this 4th sample, which create reasonable doubt as to whether this sample was drawn from the contraband allegedly seized from the appellant on 11.5.2002 under the seizure panchanama at Exhibit 6. :18: I have already observed that P.W.10 Parlekar, Dy.C.C. gave authority letter to I.O. Shri K.M.D’Souza and that letter is annexed at page no.317-A of the paper-book. This letter is dated 13th of May, 2007. From the endorsement at the bottom of the said page by K.M.D’Souza made on 13.5.2002 reveals that two samples sets containing 5 grams of brown sugar powder purported to be heroin was taken by him for testing to Dy.C.C. and F.S.L. In spite of the fact that two sample packets were given to D’Souza on 13th, one more packet was given to P.W.4 Sawardekar to deliver the same to Dy.C.C. 22. P.W.4 Sawardekar deposed that on 14.5.2002, he withdrew one sample packet from the godown as per the authorisation of the Deputy Commissioner, Shri Parlekar and he then handed over the same to the Dy.C.C. I fail to understand when already one packet was handed over to D’Souza to forward it to Dy.C.C. on 13.5.2002 what was the necessity to give another sample to Sawardekar P.W.4 for the same purpose on 14.5.2002. I have already observed that out of three packets initially deposited by Sawardekar P.W.4 in DS-I godown on 11.5.2002, two packets were already given to D’Souza on 13.5.2002 and one packet was already transferred to strong room. In these facts, question remains which was the sample packet delivered to P.W.4 on 14.5.2002 in order to hand it over same to Dy.C.C. :19: 23. One more document which creates doubt about the sample is at Exhibit 48. Exhibit 48 is the copy of the page 167 of DS-I godown register. Second page of Exhibit 48, i.e., running page 320 of the paper-book shows one endorsement made on 13.5.2002. The endorsement shows that one packet was withdrawn from DS-I vide file no.29/02 dated 11.5.2002 and redeposited on 13.5.2002. Prosecution case is absolutely silent