1 apeal 835 and 469 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.835 OF 2006 Mukhaila Bolaji Suberu (Adioti femi Tunde) Michael Abdul Hakim Suberu, age: 35 years, Occn. Garment Business, at: 117, Osodi Road, Lagos, Nigeria at present in Kalamba Central Prison Kolhapur .. Appellant. Ori. Accused No.2 -versus 1. Mr. S.A. Khan (I.O.) Narcotic Control Bureau 3rd floor, Exchange Building, Ballard Peer, Mumbai. 2. State of Maharashtra .. Respondents. CRIMINAL APPEAL NO.469 OF 2007 Vinod Shankar Chauhan, residing : 1/71, PrakashNagar, Nagda, Ujjain, Madhya Pradesh At present lodged at Kolhapur Central Prison. .. Appellant. Original accused No.1 versus 1. Intelligence Officer, Narcotic Control Bureau, Mumbai. 2. The State of Maharashtra .. Respondents. 2 apeal 835 and 469 Mr. Atul Sarpande, Advocate for the Appellant in Appeal No. 835 of 2006 Mr. B. S. Chabra, Advocate for the Appellant in Appeal No.469 of 2007. Mr. Y. M. Nakhawa, Special Public Prosecutor, for the Respondent NCB. CORAM: R.C. CHAVAN, J. DATED: 17th August, 2011 Judgment 1. By two appeals accused in Special Case No.99 of 2004, before learned Special Judge under Narcotic Drugs Psychotropic Act,1985 (for short called as “NDPS Act”), for Mumbai, question their conviction by the learned Judge, for offences punishable under Sections 21 and 29 read with section 8(c) of the NDPS Act and sentence of R.I. for 10 years with fine of Rs.1 lac or in default further R.I. for thee months upon them on each of the two counts. 2. The facts which are material for deciding these appeals are as under:- On 13th February, 2004, Intelligence Officers Mr. J.S. Dubey and P.S. Namboodri of the Narcotic Control Bureau, Mumbai gathered intelligence that appellant Vinod was to visit Mumbai on 13th February, 2004 with substantial quantity of heroin to be delivered to a Nigerian national by name Victor (who is absconding). Intelligence gathered was reduced into writing and signed by Intelligence Officers Mr. Dube and Mr. Namboodri, who took it to their 3 apeal 835 and 469 superior Assistant Director Mr. Sanchis. Mr. Sanchis endorsed intelligence note and directed the Officers to work out intelligence. A team of Officers was, therefore, formed to search flat No.210, B-6 Citizen Violent Citizen Complex, Naigaon (East), where the absconder Victor was supposed to be receiving the contraband articles. A team of officers went to the campus and called two panchas. They informed the panchas of the information received and then proceeded to Flat No.210. When the Officers knocked the door, Flat was opened by appellant Mukhaila Bolaji Suberu @ Michael Abdul Hakim Suberu, a Nigerian national. Appellant Vinod Chavan was also present in the flat. The Officers informed the duo of the purpose of their visit and recovered in course of search a brown colour plastic polythene bag from the corner of bed room. The two accused persons, upon being questioned, informed that bag contained 3 Kg of heroin. Officers opened packet and found it to contain a brown coloured powder. A small quantity was tested on the field testing kit which confirmed that the powder was heroin. The contents of packet were emptied in a clean polythene bag, weighed and were found to be 3 Kg. Three samples of 5 grams each were drawn from this quantity and the samples, as well as balance of quantity were sealed with NCB seal. The empty brown plastic packet was kept in another cardboard carton which was also sealed. Further search of the premises was taken and some 4 apeal 835 and 469 other incriminating articles were also seized. Personal search of both the accused was taken, after following mandatory provisions which revealed cash of Rs.721 and 330/- with the two accused persons which was returned to them. An elaborate panchnam was drawn up and the officers returned with the property and the accused persons to the NCB office. Accused persons and the seized quantity were given in the custody of Intelligence Office Shri. Khan. A report about search and seizure was submitted to the superior. Statements of both the appellants were recorded in which they admitted their guilt. The sample packets were referred to the laboratory which confirmed that the substance was heroin. In course of investigation, statement of other witnesses were recorded, it was found that flat No.210 was taken on rent by appellant Mukhaila Bolaji Suberu. 3. On 25th May, 2004, the complainant also learnt that the accused Mukhaila who was in fact Michael Abdul Hakim Suberu, impersonated himself Mukhaila by using forged passport. Enquiry revealed that the passport No. A.1753016 pertained to a bonafide Nigerian national whose statement was also recorded. After completion of investigation, a complaint was filed in the Special Court. 4. Learned Judge of the Special Court, charged both the appellants of offences punishable under Section 21 (c) and 29 read with section 8(c) of the NDPS Act and also charged 5 apeal 835 and 469 appellant Mukhaila of offence under Section 463 read with Section 468 of the Indian Penal Code, in respect of forgery of the passport. Since the accused pleaded not guilty, they were put on trial. In support of the prosecution case 10 witnesses were examined. After considering their evidence in the light of defence of denial, the learned Judge convicted the appellants and sentenced them as indicated earlier. He acquitted appellant Mukhaila @ Michael Abdul Hakim Suberu, of offence punishable under Section 468 of the Indian Penal Code. Aggrieved thereby, both the appellants have preferred these appeals. 5. Both the learned counsel Mr. Sarpande for the appellant Mukhaila and Mr. Chabra, for the appellant Vinod, submitted that though in the written notes of argument they had raised several points, they did not press those points and restricted themselves to the question of quantum of sentence. They submitted that the quantity of heroin allegedly seized was 3 Kg. According to them, the weighment may not have been accurate since 3 samples of 5 grams each which had been drawn were in fact found by the Assistant Chemical Examiner of the new Customs House Laboratory, to be less than 5 grams. The test memo at Exhibit 28 shows that the sample which was supposed to be 5 grams was found by S. Bahadur, A. C. E to be of 3.61 grams. P.W.10 Shailendra Bahadur proved the report. Therefore, according to learned 6 apeal 835 and 469 counsel the weight recorded by the officers of the NCB need not be taken to be accurate. 6. Learned counsel next submitted that as per report at Exh.20, the percentage of Diacety morphine the active ingredient of heroin was 8.402%. Therefore, according to them, actual quantity of heroin which appellants could be held to have possessed would be 252.06 grams, if the weight of the substance seized is taken to be 3 Kg. Since contraband was weighed with a plastic bag, which could weigh 10 to 15 grams, after deducting this, the actual weight of contraband found would come to less than 250 grams, which would be non commercial quantity. Therefore, according to them, the punishment of R. I. for 10 years was not warranted for this possession. They relied on judgment of Supreme Court in E. Micheal Raj -vs- Intelligence Officer, Narcotic Control Bureau, reported in AIR 2008, Supreme Court, 1720. 7. The learned Additional Special Prosecutor, submitted first, that the weight of the packet could not be 10 to 15 grams. Secondly he submitted that because in samples of small quantity taken, there was some difference in the weight, it would not follow that there would be a difference on the same scale in respect of bulk of 3 Kg. He submitted that accuracy of scales in respect of minuscule quantities would be less and but in respect of bulk the scales would not fluctuate much. He further submitted that in any case even if what the 7 apeal 835 and 469 appellants state is accepted for its face value, the quantity of heroin seized would be about 250.79970 grams, after deducting weight of the polythene bag as 15 grams. He submitted that even if some margin of error is left still the quantity seized would not come to much below the limit of commercial quantity of 250 grams and would almost be near the limit of 250 grams. Therefore, according to learned Special Public Prosecutor, first, since the corrected quantity is 0.79 grams more than the commercial quantity, there is no question of reducing the sentence to a term lesser than the minimum prescribed for possession of commercial quantity. He submitted that even if quantity is taken to be slightly less than the commercial quantity, still considering that the quantity almost reaches commercial quantity, punishment would have to be maximum for possession of non commercial quantity, which would again come to R.I. for 10 years. 8. I have carefully considered the rival submissions. First, because after correction by taking percentage heroin to be 8.402% and deducting 15 grams towards weight of the polythene bag, the quantity of heroin seized comes to 250.79, grams, slightly above the commercial quantity, and secondly even if there is some margin of error in the weighment, the correct weight of pure heroin seized would not come to substantially less than 250 grams, the contention of the learned Special Public Prosecutor has substantial force. 8 apeal 835 and 469 9. Though both learned counsel for the appellant had pressed the appeal only on the question of quantum of sentence, I have gone through the entire evidence and the judgment in the light of notes of arguments filed. It had been mentioned in the notes of argument that there was non compliance of the provisions of section 41 of the NDPS Act, since no authorisation or search warrant was taken from the superiors. This contention has no force since the superiors, particularly Director Mr. K.G. Sanchis was shown the intelligence note and he had endorsed on the note that the officers may work out the intelligence. Further since raid was conducted during day time, there was no question of obtaining any warrant. It was also contended that connection of the appellant Mukhaila with the flat in question was not proved. Mukhaila had in fact taken adjacent Flat No.209. The question as to which flat Mukhaila had taken on rent is thoroughly irrelevant. When the raiding party knocked the door of Flat No. 210, the door was opened by one of the appellants and only the two appellants were in the flat. Further the intelligence note was specifically mentioned the name of appellant Vinod who was to bring heroin at Flat No.210. Therefore, there is no substance in the contention that the appellants could not be said to be in conscious possession of the contraband material. The absence of any incriminating material in the flat No.209 of Mukhaila is irrelevant and cannot prove absence of his 9 apeal 835 and 469 complicity in possession of contraband in flat No.210. 10. Since the judgment is not based on the disclosures by the two appellants but on the evidence tendered, it cannot be assailed saying that the disclosure were not corroborated by independent, cogent and concrete evidence. 11. The sample was sent to the Chemical Analyser after four days. However, it is not that the raiding officers could have tampered with sample in the mean time as it was deposited with P.W.6 Sanchis. It cannot be said that because the Chemical Analyser found sample to be 3.6 grams against 5 grams mentioned in the panchnama, sample was tampered with. When such a small quantity is weighed, there could be an error unless weighment is done on the chemical balance. 12. In view of this, the evidence tendered, namely that of P.W.1, Jeetendra Dubey, who had received intelligence and worked it out; P.W.2 Intelligence Officer Mohd. Shafi Ahmed Khan, who conducted raid, took out samples, sealed them and sent them to the laboratory; P.W.3, Intelligence Officer, Gokhale, who participated in the raid, recorded statement of appellant Muhaila, prepared arrest memo, and reported the arrest of Mukhaila to the superiors; P.W.4, Annama John, who states that Flat No.209 was in the name of one Robert Richard Quardras, who was paying maintenance charges of said flat; P.W.5 – Fawasitn Carvalho, who was caretaker of flat No.210, which had been let out to absconder Victor; P.W.6, Assistant 10 apeal 835 and 469 Commissioner, Sanchis, who had received intelligence note, ordered raid and received seized packets after the raid and also received intelligence note about appellant Mukhaila’s name; P.W.7, Sagar Singh who states about absconder Victor hiring the flat; P.W.8, Dipen Patel who acted as panch at the raid; P.W.9- Narayan Panigrahi, who carried sample to the Forensic Science Laboratory, Kalina and handed over sealed sample packet alongwith letter; P.W.10 the Assistant Chemical Examiner, Shailendra Bahadur Shrivastava, being reliable was rightly accepted by the learned trial Judge. The appellants, therefore, did not question the evidence about seizure of contraband from flat No.210, where they were found. 13. As to the quantity seized as the foregoing discussion, would show it was slightly above the limit for non commercial quantity and therefore, attracts the punishment of R.I. for 10 years which is the minimum prescribed for possession of commercial quantity. In any case even if it was to be held that it was slightly below the commercial quantity, since it verged on the limit of non commercial quantity, there will be no warrant to reduce the sentence below 10 years sentence i.e. the maximum that can be imposed for possession of non commercial quantity. 14. There is, however, no evidence about any conspiracy hatched between November, 2003 and February, 11 apeal 835 and 469 2004 to commit offences under NDPS Act. If factum of being found in possession of the contraband itself was to be taken to be evidence of such conspiracy, since single act constituted two offences, two separate sentenced were not warranted. Hence, to that extent the appeals are allowed. Conviction of the appellants, for offences punishable under Section 21 read with 8(c) and Section 29 read with section 8(c) of the NDPS Act, is maintained but instead of separate sentences for the two offences, the appellants are sentenced to R.I. for 10 years and fine of Rs.1 lac or in default R.I. for further period of 3 months for both the offences together. (R. C. CHAVAN, J.)