1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.769 OF 2005 Mr. Zeigler (Geb Schweikert) Rolf German Najtional, Age - 42 R/o 141 Stadt Heidelberg Germany. .....Appellant. V/s 1. Union of India At the instance of Shri R.N. Pathak, Assistant Commissioner of Customs (P), Airport Prosecution Cell of Customs Mumbai 400 099 2. The State of Maharashtra ..... Respondents. ---- Ms. Nilofer Sayed i/b Ayaz Khan for the appellant. Mr. D.N. Salvi i/b Mrs. Hina P. Shah for respondent No.1 Mr. D.P. Adsule, APP for the State. ----- CORAM: V.M. KANADE, J. DATE : 15th December, 2008 ORAL JUDGMENT: 2 1. Appellant is challenging the judgment and order passed by the Special Judge whereby the appellant-accused is convicted under section 235(1) of Cr.P.C. for contravention of section 8(c) of NDPS Act for the offences punishable under section 20(b)(C) of the said Act and is sentenced to suffer rigorous imprisonment for 10 years and to pay fine of Rs 1 lac and in default of payment of fine to suffer further rigorous imprisonment for one month. He is also convicted for contravention of section 8(c) of NDPS Act for the offence punishable under section 23 read with section 28 of the said Act and is sentenced to suffer rigorous imprisonment for 10 years and to pay fine of Rs 1 lac and, in default of payment of fine, to suffer further rigorous imprisonment for one month. He is also convicted for contravention of section 8(c) of NDPS Act for the offence punishable under section 29 of the said Act and is sentenced to suffer rigorous imprisonment for 10 years and to pay fine of Rs 1 lac and in default of payment of fine to suffer further rigorous imprisonment for one month. All the sentences were directed to run concurrently. 2. Prosecution case is that the appellant who is a 3 German National was proceeding to go to Bangkok on 29/08/2000 by Air India Flight No.AI-302 and was apprehended at the Airport as he was trying to export Charas out of India. 3. Prosecution case is that the information was received by P.W.1 Amle, Superintendent of Customs, Mumbai that a foreign national had concealed narcotic drugs in his baggage. This information was given by P.W. 9 Milind Sapte, Air India Security Officer. Accordingly, a written report was forwarded by P.W.9 to P.W.1. After the said information was received, P.W.1 informed his Superior Officer on telephone, who directed him to take necessary steps with the help of Officers of Air Intelligence Unit of Customs who were on duty at the Airport. Prosecution case is that, accordingly, a discreet watch was kept on the accused and, after the accused had checked-in his baggage at the Air India Counter, Officers removed the zipper cloth bag from the conveyor belt and kept it behind the Air India checking- in-counter and intercepted the accused after he has cleared his immigration and customs formalities. Inquiry was made by the Officer about the contents of the baggage and, thereafter, two panchas were called and they were introduced to the accused. 4 He has, thereafter, produced his passport and his Air India Ticket on which the Baggage Claim Tag was pasted. The zipper cloth bag also contained Identification Tag bearing No.AI- 123639 having the name of the accused mentioned thereon alongwith Air India Security Strap and it was locked with small lock and one "Airlog" made brief case bearing Air India hand baggage Tag bearing the name of the accused, Flight No.AI-302 and the date of its departure. Appellant claimed ownership of the zipper bag and brief case. He was informed about his right to be searched in the presence of Magistrate or Gazetted Officer. Appellant, however, stated that he had no objection if he was searched in the presence of Gazetted Officer who was present on the spot. After the said bag was opened, it was found to contain four slabs in the false bottom and top portion of the brief case. The Officer also directed the accused to remove his shoes which were on his person and from the insole of each of the said jogger pair shoes, small cylindrical shaped packets, each wrapped with cellophone papers and self adhesive tapes were recovered. Thereafter, sample substance from each of the 8 rectangular shaped slabs and two cylindrical shaped packets was taken and it was tested on the drug identification kit and it tested positive for 5 Hashish/Charas. Thereafter, his personal search was taken. The quantity recovered was weighed and found weighing 4 kilo and 500 gms. The Officers, in the presence of panchas, drew 20 representative samples of 25 gms. each from the 8 rectangular shaped slabs and 2 cylindrical shaped pieces each in small polythene bag and after closing it put it inside the paper envelope and sealed it with customs seal no.133. Signature of both panchas and accused was obtained on these sample packets. The two sets of sample packets containing 10 samples were marked for identification as 'I' and 'II' and the remaining quantity weighing 4000 gms. was separately sealed in a card board carton on which signature of both the panchas and accused was obtained. The zipper bag, brief case and pair of shoes and other articles were sealed together and put in a carton on which the signature of panchas and accused was obtained. Similarly, Air India Ticket, Baggage Claim Tag, Boarding Pass, Baggage Identification Tag, Hand Baggage Tag alongwith documents alongwith other personal belongings of the accused were sealed in an envelope on which signature of two panchas and accused was obtained 6 4. Statement of the accused was recorded under section 108 of the Customs Act by P.W.3 in which he admitted that one one Mr Yoga Keval had told him that if he wanted to make quick money, he should smuggle in narcotic drugs from India and, accordingly, his ticket was booked by Mr Keval from Bangkok/Delhi/Bombay/Bangkok and, after arriving at Delhi, he travelled to Bombay by Rajdhani Express in which he met Mr. Keval, who gave him the contraband drugs alongwith brief case and the pair of shoes. After the accused was arrested, sample packets were deposited in Customs Godown. On 06/09/2000, one of the Officers withdrew 20 sealed packets, containing samples from the Godown under the authority letter issued by the Assistant Collector of Customs, AIU, Bombay and these samples were deposited with Deputy Chief Chemist, Ballard Pier, Bombay alongwith test memos and another 10 sealed packets were delivered to the Forensic Science Laboratory, Kalina, Mumbai alongwith forwarding letter. The report of the Chemical Analyser was received in which it was stated that samples which were forwarded for analysis clearly indicated that the sample was Charas. 7 5. After the investigation was over, complaint was filed. Charge was framed against the accused. Prosecution examined in all 16 witnesses in support of its case. Trial Court convicted the appellant for the aforesaid offence with which he was charged. 6. The learned Counsel appearing on behalf of the appellant submitted, firstly, that what was allegedly seized by the prosecution was not before the court. It is submitted that the possibility of tampering contraband which was seized could not be ruled out because panch witness P.W.10 and P.W.4 both have stated that on the samples which were prepared, signature of the Officer, panch and the accused was taken. However, the articles which were produced in the court did not contain the signature of the accused. It is submitted that Article 13 colly. and Article 14 colly. and bulk kept in Article 9 and the brief case and shoes kept in Article 5 colly. did not contain the signature of the accused. Secondly, it is submitted that P.W.10 had stated that only one wax seal was put on each sample packet. However, when this sample packet was shown to him, he admitted that there were more than one wax seals on the sample 8 packets. In support of the said submission, Counsel for the appellant relied on the judgments in IOSI Mirzahi vs. State of Goa in Criminal Appeal No.16 of 1999 and in Murata Chiharu vs. State of Goa, reported in 1998 ALL M.R. (Cri) 889 7. It is thirdly submitted by the learned Counsel appearing on behalf of the appellant that bulk and the samples were deposited in the warehouse on 29/8/2000 vide Exhibit 22 which indicated that the articles were deposited with the Godown keeper. It is submitted that on 06/09/2000, the sample packets Articles 13 and 14 collectively were withdrawn vide Exhibit-23. It is submitted that the document at Exhibit-23 was addressed by the Assistant Commissioner of Customs S.B. Ghag to the Assistant Commissioner of Customs (Disposal). It is further submitted that P.W.5 in his deposition has stated that Assistant Commissioner of Customs is not Godown in-charge. It is, therefore, submitted that the person who had deposited articles in the Godown and the person who had withdrawn them were different and, therefore, link of the articles which were deposited and those which were withdrawn was not completed. It is further submitted that muddemal register also was not 9 exhibited. Fourthly, it is submitted that P.W. 10 was the habitual panch and, therefore, no reliance could be placed on his testimony. In support of the said submission, Counsel for the appellant relied upon the judgments in Rajesh Jagdamba Awasthi reported in 2006 SCC (1) 150, Hira Lal vs. State of Haryana, reported in AIR 1971 SC 356, Usman H. Khan vs. State of Maharashtra, reported in 1991 CRLJ 232, Vijay Ramling Vs. State of Maharashtra, reported in 1991 CRLR (MAH) 362 and in Babamiyan Ramzan vs. State of Maharashtra reported in II (1994) CCR 1223. It is then submitted by the learned Counsel appearing on behalf of the appellant that there was a discrepancy and contradiction in respect of the bag which was seized. It is lastly submitted that the C.A. report at Exhibit 25 could not be relied upon and that there was violation of provisions of section 50 of the NDPS Act. 8. Mr. Salvi, the learned Counsel appearing on behalf of respondent No.1, on the other hand, took me through the judgment and order of the Trial Court and pointed out that the Trial Court had dealt with the said objections which were raised by the appellant-accused and had given cogent reasons for not 10 accepting the said submissions made by the Counsel for the accused. He submitted that the appellant was caught red-handed at the Airport while he was trying to export more than 4 kilos of Hashish. He submitted that statement of the appellant was recorded under section 108 of the Customs Act which has been corroborated by the actual seizure of Hashish from the person of the appellant. There has been compliance of section 50 of the NDPS Act and the appellant had declined to be examined by the independent Magistrate and had agreed to be examined by the gazetted officer who was present in the raiding party. He submitted that except for the fact that the signature of the accused was not found on the samples which were seized, all other objections which were raised had been properly dealt with by the Trial Court. He submitted that so far as the panch witness is concerned, he was working at the Airport and since it is not possible to call for the persons outside the Airport to act as panchas in the departure launch on account of security reasons, persons who were working at the Airport invariably have to be called to act as panch witness. He, therefore, submitted that merely because this person has also acted as panch in few other cases, that alone would not result in discarding the panchanama. 11 9. In the present case, the appellant is in jail since 30/08/2000 and he is behind bars for about 8 years out of 10 years of the sentence awarded by the Trial Court. In the present case, admittedly, there is a discrepancy in respect of the samples which were taken from the total contraband which was found in the brief case of the appellant and his shoes. P.W. 10 in his evidence has clearly stated that the signature of the Officer, panch and the accused was taken on the samples. Perusal of the panchanama also indicates that in the panchanama itself it has been mentioned that Articles 13 collectively, 14 collectively, Article 5 and Article 9 were signed by the Officer, Panch and the accused. However, the articles which were produced before the Court did not contain the signature of the accused and when P.W.10 was confronted with this fact, he admitted that none of the Articles bears signature of the accused. This, therefore, clearly creates a doubt about the sample which was taken by the prosecution and the sample which was produced in the Court. This also creates a doubt that there could be tampering of the sample at the hands of the prosecution. 12 10. The second aspect on which there is no explanation on the part of the prosecution is that P.W. 10 in his evidence stated that there was only one wax seal on each sample packet. However, when he was confronted with the said Articles, he categorically and in terms admitted that there was more than one wax seal on the sample packets. The third crucial aspect is pertaining to the bulk and the samples being deposited in the warehouse on 29/08/2000. P.W. 5 in his evidence has stated that these Articles were deposited with Godown keeper vide Exhibit- 22. However, the sample packets at Articles 13 and 14 collectively were withdrawn on 06/09/2000 vide Exhibit-23 which is addressed by the Assistant Commissioner of Customs S.B. Ghag to the Assistant Commissioner of Customs (Disposal). In his evidence, P.W. 5 has stated that the Assistant Commissioner of Customs was not a Godown in-charge and that the endorsement given on Exhibit-23 of delivery of 20 packets and the acknowledgment given on Exhibit-22 are by two different persons. There is, therefore, much substance in the submission made by the learned Counsel appearing on behalf of the appellant that the link of the articles which were deposited and those which were withdrawn had not bee conclusively 13 established. To add to this lacuna, prosecution did not bring muddemal register on record. These discrepancies, therefore, create serious doubt about the contraband drug which was actually seized and which was sent for chemical analysis and which was produced before the Court. The discrepancies which are mentioned hereinabove create serious doubt about the truthfulness of the prosecution case and, therefore, under these circumstances the judgment and order of the Trial Court will have to be set aside and the appellant will be entitled to get the benefit of doubt. Appellant, in this case, has already undergone 8 years of sentence out of 10 years which is awarded by the Trial Court. He has, therefore, practically undergone the entire sentence which was imposed by the Trial Court. In these peculiar facts and circumstances of the case, therefore, in my view, it will be appropriate if the appellant is given benefit of doubt and released from jail. 11. Accordingly, the following order is passed:- O R D E R In the result, appeal is allowed. The judgment and order of the Trial Court is set aside. Appellant be released forthwith, unless he is required in any other case. 14 (V.M. KANADE, J.)