1 cr-appa-355-10 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI.APPLN. NO. 355 OF 2010 IN CRI. APPEAL NO. 1057 OF 2008 A.Nasar Cherukara ..Applicant Vs. R.G.Gokhale & ors. ..Respondents .... Mr. Ayaz Khan Adv. for applicant Ms. P.H.Kantharia with Mr. Kiran Kandpile Advs. for respondent-Union of India Smt. U.V.Kejariwal APP for the State .... CORAM : SMT.V.K.TAHILRAMANI, J. DATE : OCTOBER 21, 2010 P.C.: 1 Heard the learned advocate for the applicant-original accused no.1 and the learned counsel for the N.C.B. 2 The applicant has been convicted under Sections 21(c) and 23(c) of the N.D.P.S. Act. He has been sentenced to R.I. for ten years. The appeal preferred by the applicant is admitted, now the applicant is seeking bail. 2 cr-appa-355-10 3 The prosecution case briefly stated is that on 9.12.2004 PW 1 Mr. Nair received specific information from Mr. Dev Superintendent of the Trivandrum Regional Unit that one person by name Nasar along with one person by name Abdul Razzak were coming to Bombay and Nasar is carrying substantial quantity of heroin and he would be leaving to Damam by Gulf Air by flight GS057 on 10.12.2004. The heroin is concealed in his bag. On receiving the information, PW 1 Mr. Nair reduced it into writing, signed on it and then placed it before his superiors for further orders. Thereafter, PW 2 Ravi Gokhale along with other officers of Intelligence Unit went to the airport. They saw one person going towards the customers counter after completing immigration formalities. On asking him, he showed his travel documents and informed his name as "Nasar". They found baggage tag attached to his air ticket, hence PW 2, the accused and other officers went towards baggage examination hall where the accused identified his baggage. The baggage tag number which was on the said suit-case tallied with the baggage tag which was affixed on the air ticket of the applicant. On opening the bag, they found two large polythene bags which were found containing light colour brown powder. The powder from both the packets was emptied in one large polythene bag. It was 3 cr-appa-355-10 weighed and found to be 5 kgs. Thereafter, two samples of 5 mgs. each of the composite mixture of powder were taken. These samples were sent to C.A. and they were found to contain diacetyl morphine i.e. heroin. 4 The learned advocate for the applicant submitted that in the present case mandatory provisions of Section 42(2) of the N.D.P.S. Act have not been complied with. He placed reliance on the decision in the case of State of Punjab Vs. Balbir Singh; 1994(3) SCC 299 wherein it is held that provisions of Section 42(2) of the Act are mandatory and non- compliance thereof would vitiate the trial. He submitted that the evidence of PW 1 Mr. Nair clearly shows that he received specific information from Mr. Dev Superintendent of the Trivandrum Regional Unit informing that one person by name Nasar along with one person by name Abdul Razzak were coming to Bombay and Nasar is carrying substantial quantity of heroin concealed in his bag and he would be leaving for Damam by Gulf Air by flight GS057 on 10.12.2004. On receiving the information, PW 1 Mr. Nair reduced it into writing signed on it and then placed it before his superiors for further orders. Thereafter, PW 2 Ravi Gokhale along with other officers of Intelligence Unit went to the airport, conducted the raid, during which the heroin came to be 4 cr-appa-355-10 seized and the accused came to be apprehended. Mr. Khan submitted that information was received first in point of time by Mr. Dev, Superintendent Trivandrum Regional Unit, and there is no evidence to show that Mr. Dev had reduced this information in writing and conveyed it to his immediate official superior as required under Section 42(2). He submitted that thus there was no compliance of Section 42 of the Act. In reply Ms. Kantharia submitted that the information pertained to the seizure which was to take place in Mumbai and PW 1 Mr. Nair was the N.C.B. Officer attached to Mumbai Unit. PW 1 has received the information from Mr. Dev and the evidence of PW 1 shows that he had complied with the provisions of Section 42(2) of the Act. In reply, Mr. Ayaz Khan relied upon the decision in Directorate of Revenue and Another Vs. Mohd. Nisar Holia; (2008) 1 SCC (Cri.) 415. In that case, an information was received in the office of the Directorate of Revenue on 23.1.1997 that one person in hotel Kalpana was in possession of a fax copy of the consignment note under which the mandrax tablets were being transported from Delhi to Mumbai. The said information was passed on to PW 1 Parmar. He reduced the same in writing, he in turn passed it and placed it before Mr. A.D.Patekar 5 cr-appa-355-10 Senior Intelligence Officer (PW 10). In the said case, the High Court in appeal opined that statutory requirements of Section 42 of the N.D..S.Act had not been complied with, hence, the conviction was set aside by holding as under: “As observed earlier though the information seems to have been received by the office of DRI, it was not reduced to writing by the officer who received it but by PW 1 Parmar who was later on conveyed the message by the office. Thus, there was no compliance with Section 42(1) of the Act. “ The said decision was challenged before the Supreme Court. The Supreme Court observed that in the instant case, statutory requirement had not been complied with as the person who had first received the information did not reduce the same in writing. The Supreme Court further observed that an Officer who received such information, was bound to reduce the same in writing and not the person who hears thereabout. 5 In the present case also, the information seems to have been received by the Superintendent, Trivandrum Regional Unit. There is no evidence to show that it was reduced into writing by him but it was 6 cr-appa-355-10 reduced into writing by PW 1 Mr. Nair. Prima facie, it does appear that Section 42 was not complied with. 6 Thereafter, it was submitted that the prosecution case is that baggage of the applicant had already been checked in and the applicant had completed all the immigration formalities. In this connection, Mr. Khan submitted that the prosecution story that the narcotic drug was found in the checked in baggage, is palpably false. To support his contention, he contended that if the baggage had been checked in, the baggage tags would be on the suitcase and if the same are removed, then they would be damaged. In this connection, he has drawn my attention to the evidence of PW 9 Mr. Hamilton who has stated that if the baggage is weighed, the checked in tag is affixed on the baggage. He has stated that baggage tag once affixed to the bag, cannot be removed without damaging the tag. Mr. Khan pointed out that when the baggage tag was produced in the Court, the paper on the reverse side of the tag was still there which could not have been the case if the baggage tag had been pressed together as in order to paste the tag on the baggage, the paper on the reverse side of the baggage tag is required to be removed and the ends pressed together. Whereas Exh. 28 which is the baggage claim tag, the paper on the reverse side of the tag was intact. 7 cr-appa-355-10 Mr. Khan also pointed out the evidence of PW 2 Mr. Gokhale the Seizing Officer, who has stated that the paper on the reverse side of the tag is still there. This circumstance that paper tag was still there on the baggage tag, does create suspicion. 7 It is the specific case of the prosecution that the baggage had been checked in, in which case, there ought to have been security strip on the suitcase or baggage. However, PW 2 states that there was no security strip on the bag of the applicant. This also raises doubt in the mind regarding the prosecution case that the drug was found in the checked in baggage of the applicant. 8 It is also an admitted fact that the applicant has been in jail for more than six and half years i.e. he has been in custody for more than half the period of imprisonment imposed on him. 9 In Ahmed Hussain Ayub Shaikh @ Babloo Vs. Union of India this Court (Coram: R.V.More, J.) by order dated 7.1.2009 in Criminal Application No. 620 of 2008 granted bail to an accused in a case involving commercial quantity under the N.D.P.S. Act on the ground that he has undergone half the period of imprisonment. 8 cr-appa-355-10 10 So also in another case under the N.D.P.S.Act this Court (Coram:Mridula Bhatkar, J.) by order dated 22.7.2009 in Cri. Application No. 1259 of 2008 granted bail to the accused on the ground that he has undergone half the period of imprisonment. 11 In view of the above facts, I am inclined to release the applicant on bail, hence, the following order: ORDER (i) The applicant-A. Nasar Cherukara be released on bail in the sum of Rs.75,000/- (Rs. Seventy five thousand only) with one or more sureties to make up the said amount. The applicant is directed to report to the N.C.B. Mumbai once in a month till the disposal of the appeal. He shall not leave Mumbai without prior permission of the Court. (ii) Application disposed of. [ SMT. V.K.TAHILRAMANI, J.]