1 apeal 432 of 2006 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.432 OF 2006 Mr. Bah Thierno Souleymane Republique De Guinea National presently lodged at Kolhapur Central prison, Kolhapur .. Appellant Original accused -versus Intelligence Officer, NCB, Mumbai and anr .. Respondents. Ms. Aparna Shinde, for the appellant. Mr. Mandar Goswami, for Respondent No.1. Mrs. P. P. Bhosale, APP for the Respondent State. CORAM: R.C. CHAVAN, J. CLOSED FOR ORDER : 9th August,2011 PRONOUNCED ON:10th October, 2011 JUDGMENT 1. This appeal is directed against appellant’s conviction by the learned Special Judge, Mumbai, for the offence punishable under Sections 21, 28, 29 read with section 8(c) of the the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short called as, “N. D. P. S. Act”) and sentence of R.I. for 10 years with fine of Rs.1,00,000/- or in default R.I. 2 apeal 432 of 2006 for further period of 2 years inflicted upon the appellant for the said charges. 2. The facts which led to the prosecution of the appellant are as under:- Shri. K. J. Sanchis, the Superintendent, Narcotic Control Bureau, Mumbai, received information on 3rd December, 2002, that Republique De Guinee National Bah Thierno Souleymane, the present appellant, was to travel out of Mumbai to Conakry by Air France Flight No. AF 135 expected to depart at 2.40 hrs on 4th December, 2002 and was to carry about 6 Kgs heroin concealed in his baggage. Accordingly Sanchis reduced the information into writing and handed it over to his superior and asked the Intelligence Officer Bhushan Mule to rush to the Air Port and to organize interception of the passenger. Shri. Sanchis himself accompanied the team. Shri. Mule obtained preflight manifest and found name of the appellant at Sr. No. 2. He called two panchas, informed them of the proceedings and waited for the appellant to check in. Appellant checked in at about 2.00 a.m. The Officer ascertained his identity from his boarding pass and passport and found that the appellant had three checked in baggages as per baggage claim tags on the ticket. In the baggage examination hall, the appellant was asked to identify his checked in baggage, after informing him about the 3 apeal 432 of 2006 information received. After appellant identified his items of three baggages, the officers tallied the numbers on the bags with baggage claim tags. There were three baggages, one was large Samsonite suit case, one small Samsonite suit cases and a carry all bag. The appellant also had excess baggage coupon. The appellant was to proceed from Mumbai to Paris and from Paris to Conkary. 3. The appellant and his baggages were taken to the investigation room in Customs Counter Area. Both the suit cases were opened by the appellant which were found to contain some personal effects and three portfolio files. The bags were emptied and empty bags were found unusually heavy. Since the appellant could not explain why they were heavy, the trolley of the suit cases were unscrewed and found containing scotch taped bags concealed under polythene sheets containing a powder. Small quantity of powder from the bags, was tested on field testing kit and tested positive for heroin. The entire quantity of powder was emptied in a large polythene bag and found weighing 4.8 Kgs. Two samples of 5 grams each were drawn up in polythene bags and they were heat sealed and sealed in envelopes marked as Bah-I, Bah-II. The bulk quantity was also sealed in another polythene bag. All the bags were sealed with N.C.B seal No.03. 4 apeal 432 of 2006 4. The portfolios in suit cases were also unusually heavy and six scotch tape bags were recovered from the portfolios, two scotch tape bags from portfolio which was black marked as BL I, and BL- II and scotch tape bags found in the two brown portfolios were numbered as Brown-III, Brown-IV, Brown -V, Brown -VI. Small quantity of powder was tested from each of these bags on the field test kit and tested positive for heroin. The bags were opened and the powder was collected in one big polythene bag and found to weigh 1.400 Kgs. Two samples of 5 grams each were taken out in polythene bags, heat sealed and kept in envelopes and were marked as Bah-3, Bah-4. All these samples were sealed with N.C.B Seal No.03. A detailed panchnama was drawn up. 5. The Immigration Authorities were informed to cancel Immigration. Preflight manifest, uplifted coupon, baggage coupon, travel details, post flight manifest etc were secured. A search and seizure report was prepared and submitted to the superior. Statement of appellant was recorded and he was arrested. Intelligence Officer Shri. Mule, prepared a test memo went to the office of Dy C.C. personally and handed over a set of samples to that laboratory. The other set of samples was forwarded with Hawaldar Panigrahi to the Forensic Science Laboratory at Kalina. Report from the Chemical Examiner revealed that the samples were of heroin. 5 apeal 432 of 2006 6. After completion of investigation Intelligence Officer Shri. Mule filed complaint before the Special Court. Learned Special Judge charged the appellant of offences punishable under Sections 29, 21 and 28 read with section 8(c) of the N.D.P.S. Act. Since the appellant pleaded not guilty, he was put on trial at which the prosecution examined in all 14 witnesses in its attempt to bring home guilt of the appellant. 7. After considering prosecution evidence in the light of defence of false implication, the learned Special Judge convicted and sentenced the appellant as aforementioned. Aggrieved thereby the appellant has approached this Court. 8. With the help of both learned counsel, I have gone through the entire evidence on record. P.W.1 Intelligence Officer Bhushan Mule stated about raid itself and seizure of the contraband in tune with the prosecution story. P.W. 2, Assistant Chemical Examiner Pradipkumar Bhatnagar, proved test reports in respect of two samples received by him and stated that the samples were in sealed condition and were found to be of heroin. He proved test reports and other test papers. They were marked as Exhibit 41 and 41A. P.W.-3, Shri. Keith John Sanchis, had received information, noted it down and had participated in the seizure. He had received 6 apeal 432 of 2006 report of search and seizure, placed it before the Zonal Director Mrs. Alka Tyagi. He stated that he was the custodian of the warehouse and he received the property in sealed condition. P.W.4 Vipin Nair, stated having recorded further statement of the appellant on 6th December, 2002. This statement has been retracted by the appellant. P.W.5 Narayan Panigrahi, stated having carried samples to the Forensic Science Laboratory. P.W.6 Mrs. Michele Pinto, was working in Air France at Sahar Airport at the incidental night and stated about the baggage checked in by the appellant. She stated that the appellant had extra baggage for which payment of Rs.31,332/- was made by the appellant. 9. P.W.7 Madhukar Malve, was the Assistant Chemical Analyser at the Forensic Science Laboratory, Kalina. He stated having received samples in this case vide Memo at Exhibit 24 in a sealed condition and having analysed them on 24th February, 2003. He produced the results of both his analyses at Exhibit 51 which show that two samples were brownish off white powder which tested positive of heroin i.e. diacetyl morphin. He proved his report at Exhibit 27. He was cross examined at length about the procedures carried by him. But it does not appear that there is any deficiency in the tests carried out by Shri. Malve. 7 apeal 432 of 2006 10. P.W.8, Ram Bihari Vijay Yadav was the panch who had been called alongwith the other panch Rajan Pyrelal Singh. He stated that he was informed by the Officers about the passenger, who was to carry with him brown sugar. He states that the baggage of the appellant was taken from conveyor belt. Baggage identification tags were tallied. The bags were opened and emptied. They were found to be unusually heavy and the false bottoms were found to contain the contraband powder. He stated about drawing of samples and sealing them. He also tells about the seizure of two plastic bags each from three files. He stated that the quantity of brown sugar seized from the first two bags was 4.800 Kgs and that from the three files was 1.400 Kgs. He could not recollect if any marking was put on the samples drawn or bulk quantity on the powder. He stated that panchnama was in English and was typed on a computer and since he did not know English, the contents were explained to him by the other panch, who knew English. He then signed panchnama. He identified the articles which had been produced before the Court. In cross examination he stated that he was not in a position to tell whether the envelopes were closed by the Officers, after samples were drawn or how many seals were put on each of the envelopes and that he had not seen seal prior to the time of sealing. 8 apeal 432 of 2006 11. P.W.-9, Shridhar Belchada states that the appellant had not stayed in his hotel. P.W.10- Satendrakumar, was the Intelligence Officer, working with N.C.B. Delhi, had checked up the registers of hotels at Delhi about stay of the appellant. He states that he had gone to Astoria Hotel in Carol Baug and Hotel Golden Deluxe and obtained the requisite copies of Hotel registers showing the stay of the appellant therein at this hotel. P.W.11- Kashmirilal is the Receptionist of hotel Astoria who states about the stay of the appellant in that hotel. P.W. 12-Dinesh Idoria is the Manager of Hotel Golden Deluxe who proved the stay of the appellant in his hotel. P.W.13 -Rajkumar Wakale, stated that he was working as Immigration Officer at the relevant time at Airport and stated that the appellant was cleared for immigration on 4th December, 2002. He had been requested by N.C.B. Officers to cancel Immigration and he did the needful. P.W.14 Rajeshkumar Sethi is the Director of Brooks Air Services through whom the appellant booked his airline tickets. 12. Learned counsel for the appellant submitted first that the learned trial Judge had not considered the contradictions in the evidence. She relied on judgment in Mrs Airat @ Aishat Adeoti Ibrahim -vs- Shri S.V. Pai, Inspector of Customs, and anr (unreported), in Criminal Appeal No.437 of 2001, decided on 6th May, 2005. In that case 9 apeal 432 of 2006 a learned Single Judge of this Court, considered the evidence tendered at the trial and came to the conclusion that the evidence regarding search and seizure of the contraband at the air port, including procedure adopted in sealing the contraband was to be discarded and the possibility of seals being tampered with was not ruled out. He, therefore, held that the appellant was entitled to benefit of doubt. This observation came on the appreciation of evidence in that case, and it cannot be said on the basis of this judgment that there could be any fixed formula for accepting or rejecting the evidence in this behalf. However, the evidence as recounted above, does not seem to contain any material contradiction to warrant disbelief in any of the witnesses examined by the prosecution. 13. In M.D. Kale -vs- Hasan Kalolo and anr (unreported), Criminal Appeal No.700 of 1997, decided on 17th October, 2001 on which the learned counsel for the appellant placed reliance, a Division bench of this Court, was considering the appeal against acquittal of the accused recorded by the Special Judge, Mumbai. The Bench had considered evidence tendered and found that the view taken by the learned Judge was not improbable or erroneous and therefore had left the acquittal undisturbed. The standard of scrutiny of evidence while hearing appeals against acquittal 10 apeal 432 of 2006 and appeals against conviction cannot be the same. While considering appeals against acquittal, if the view taken is not found to be improbable, the appeal would have to be dismissed. On the other hand while considering appeal against conviction, Court would have to scrutinize the evidence carefully and find out whether the conviction is well founded. With this view, the evidence in this case has to be examined. 14. Learned counsel for the appellant submitted that P.W.8 Ram Bihari was a mere Loader at Sahar Airport and a pliable witness. She placed reliance on judgment of Division Bench of this Court in Mohd. Hussain Babamiyan Ramzan -vs- State of Maharashtra, reported in 1994 Cri. L.J. 1020, where the Court held that if the Investigation Officer knowingly took pliable witnesses as panchas, evidence about raid becomes suspicious and evidence of police officers themselves would not be sufficient for handing down conviction. The court also held that the samples remained with the police officer for three days, without any notings in the records before being sent to the Chemical Analyser and therefore Court found that tampering of the samples could not be ruled out. As to the first part of this judgment, it has to be noted that pliability of a person does not depend on his position in life. It is not the case that P.W.8 Ram Bihari had any reason to be under the 11 apeal 432 of 2006 control of N. C. B. Officers, who themselves do not control the activities at Airport. Therefore, his evidence would have to be examined without being prejudiced by his position in life. 15. P.W.8 Ram Bihari the panch had substantially corroborated P.W.1 Shri. Mule’s evidence about the interception, search and seizure of contraband from the appellant. His inability in cross examination to tell whether the officers had closed envelopes after they were kept aside or how many seals were put on each envelope would only add a ring of truth to the testimony of witness since it would not be unnatural for a person to forget such details when he was deposing about the incident which had taken place over 2½ years before he entered into witness box. Therefore, the evidence about interception, search and seizure from the appellant is unimpeachable. 16. Learned counsel for the appellant next submitted that raid was conducted without complying with the provisions of section 42 of the N. D.P.S. Act, since no directions had been obtained from the superiors before conducting this raid. P.W.3 Shri. Sanchis had stated as to how he received information, informed his superior, then met the informer, took down information in writing, made a verbatim copy, sealed it in an envelop and handed it over the Zonal Director. He had also 12 apeal 432 of 2006 showed her the copy of information at Exhibit 9. Merely because P.W.3 does not state that the Zonal Director directed him to go ahead, it would be wrong to expect that the Director, could have asked him not to proceed further. Shri. Sanchis was himself a Superintendent and had asked his subordinates to join him in the interception. The search and seizure report prepared by P.W.1 Shri.Muley on the same day i.e. 4.12.2002, Exhibit 17 was placed before the Zonal Director on the same day. Therefore, there is no contravention of provisions of Section 42 of the Act. 17. The panchnama at Exh.11 itself records that the appellant had been given an opportunity of being searched before the Magistrate or Gazetted Officer and he had waived his right and agreed to be searched by the Officers. In any case, since contraband was received from bags and not from personal search, this is immaterial. The Panchnama mentions that the two samples of 5 grams each were drawn from the composite mixture and the same were put into two small polythene sachets, heat sealed and put in separate envelopes and sealed with NCB Seal No.03. They were marked as BAH-1, BAH-2. Then P.W.1 Mule stated that he had sealed sample pockets. P.W.8 Ram Bihari had stated that the samples were put in plastic pouches, which were then put in envelope. He has omitted to state about sealing the pouches. This does not 13 apeal 432 of 2006 amount to serious discrepancy. 18. The crime Numbers were written on the envelopes, obviously not at the time of panchnama, but after the raiding party had come to the office. P.W.1, Mule had explained that crime number was written when the articles were deposited with custodian. He stated that since Forensic Science Laboratory does not accept samples without crime number, the crime numbers were written in the NCB office. This itself does not show that there was any tampering of the samples. 19. Learned counsel for the appellant submitted that P.W.1 Mule, could not state that there was any record about taking drug testing kit to the airport at the time of seizure. However, he had himself stated that he carried drug testing kit to the airport. He could not state about re-agents in the kit or how many drops from each re-agents had been taken for testing. But this does not really the matter, since field testing kit is just to enable the officer to proceed further in the matter and not burdening laboratories with cases of some innocuous material. Reference to the evidence of P.W.6 Mrs. Michele Eugene Pinto about testing the drug is inconsequential since she was not a panch. She merely states that she saw drug under a padding of zip file inside the soles of ladies slippers and behind the handle of the baggage. She states that the 14 apeal 432 of 2006 officers looked at the powder, they smelt it and stated that it was drug. She states that she did not know what the officers did afterwards. Since she was mere curious on-looker it was not expected that she would know every detail carefully or be able to state in the Court about the said details. Likewise failure of P.W.8 panch to state how the powder was tested on the field testing kit is immaterial since he was merely panch and not an expert in testing powder. 20. In Aishat Olabisi Ibrahim -vs- State of Maharashtra reported in 2004 (I) JD 507, decided on 21st November, 2003, on which the learned counsel for the appellant relied, this Court had considered the fact that the samples were not sent immediately to the laboratory and also about the confession made under Section 67 of the NDPS Act which was retracted on the first available opportunity. The Court held that the sample was sent three days after it was taken, though the Laboratory and the office of prosecuting agency was in the same building. This created a serious doubt and the possibility of tampering could not be ruled out. Such are not the facts of case in hand. 21. P.W.1 Shri. Mule had stated that the samples were in his custody from 4th December, 2002 onwards. One set of sample was deposited in the Laboratory on 4th December, 15 apeal 432 of 2006 2002 itself i.e. on the same day and second set of sample was deposited through Hawaldar Mr.Panigrahi on 6th December, 2002. Since first set of sample had already been sent on 4th December, 2002 itself by the officer personally and in respect of the other sample, P.W.5 Shri. Panigrahi has already given evidence, it cannot be said that there was any delay or that samples did not reach the Laboratory in sealed condition. Likewise only because Mr. Mule had kept second set of sample in his cupboard, it need not imply that samples were tampered. The samples were in envelopes with signatures of panchas and therefore could not have been tampered. P.W.7 Malve stated that the samples had been received by him in the sealed condition. The contention of the learned counsel for the appellant that NCB seal continued to remain with Shri. Mule, even after raid is not supported by any evidence, though it would have been ideal for the officers to produce register showing movement of seal, which could have set at rest, hesitant doubts raised by the learned counsel for the appellant. 22. The learned counsel for the appellant relied on 3 judgments on evidenciary value of retracted confessions. In Siyaka Marong Abdoulaya -vs- J. I. Pandey and anr reported in 2003 Bom. C.R.(Cri) 1826, a question of statement recorded under section 67 of the N.D.P. S. Act was 16 apeal 432 of 2006 dealt with. Learned Single Judge of this Court held that the statement recorded under Section 67 of NDPS Act, cannot be treated to substantial evidence or “occult evidence”. It can be used for corroboration to the substantive evidence or the occult evidence given through the mouth of the witness examined by the prosecution but it cannot solely be the basis for conviction. There can be no doubt about the proposition that statement under Section 67 of the NDPS Act, given by the accused needs corroboration in order to be acted upon, only to lend an assurance to the court about truthfulness about the other evidence tendered. 23. In Essop Casoojee -vs- The Intelligence Officer, Director of Revenue Intelligence and anr (unreported) in Criminal Appeal No.1243 of 2005, decided on 25th March,2011 the learned Single Judge of this Court, referred to the provisions of section 67 of the NDPS Act and noted that in case before him the appellant had retracted the statement alleging that it was not voluntary. The learned Judge held that the evidence of seizure must be complete in itself and statement recorded under Section 67 cannot be a substitute for the evidence of seizure which alone can prove charge of possession, and that the statement could be used only for the purpose of corroboration. 17 apeal 432 of 2006 24. In Raju Premji -vs- Customs NER Shillong Unit reported in 2009 (16) SCC 496, the Supreme Court had considered the question of confession by the accused. After noting various judgments, Court concluded that the confession in the said case could not be said to have been made by the appellant voluntarily and therefore allowed the appeal. 25. As far as retraction of confession is concerned, since the conviction in this case is not based solely on the confession, even if confession is ignored, it would not be possible to say that the appellant was not found in possession of 4.8 Kgs and 1.4 Kgs of brown sugar containing diacetyl morphine. 26. As far as failure of the Investigating machinery to track out Jackson whose name figures in statement of appellant, it does not lead to inference that the appellant was not found to be in possession of the contraband, though Jackson may be the supplier of drug to the accused. 27. The implication of this could at worst be that the learned Judge could not have held the appellant guilty of offence punishable under Section 29 of the Act. Since appellant was found in possession of contraband and evidence does not point to his having possessed the contraband as a 18 apeal 432 of 2006 part of conspiracy with Jackson, the recourse by the learned Judge to definition of “abetment” in Section 107 Indian Penal Code and holding the appellant guilty of offence punishable under Section 29 as an abettor was uncalled for. The causation in this behalf in paras 77 and 78 of the judgment is convoluted. Therefore conviction for offence punishable under Section 29 of the Act would have to be set aside. 28. Appeal is, therefore, partly allowed. The conviction of the appellant for the offences punishable under Sections 21 and 28 read with section 8 (c) of the N. D. P. S. Act and the sentence imposed is maintained. The conviction of appellant for the offence punishable under Section 29 of the N.D.P. S. Act is set aside. However, as no separate sentence has been inflicted for this offence, there is no question of altering sentence. (R. C. CHAVAN,