IN IN IN THE HIGH COURT OF BOMBAY AT GOA, PANAJI THE HIGH COURT OF BOMBAY AT GOA, PANAJI THE HIGH COURT OF BOMBAY AT GOA, PANAJI CRIMINAL CRIMINAL CRIMINAL APPEAL NOS.9 AND 10 OF 2001 APPEAL NOS.9 AND 10 OF 2001 APPEAL NOS.9 AND 10 OF 2001 CRIMINAL APPEAL NO.9 OF 2001 CRIMINAL APPEAL NO.9 OF 2001 CRIMINAL APPEAL NO.9 OF 2001 Marie Claire Mc Ardle, presently lodged at Central Jail, Aguada, Sinquerim, Bardez, Goa. versus Union of India, as represented by Shri A. J. Fernandes, Superintendent of Customs, New Customs House, Mormugao, Goa. Mr. Lalit Chari, Senior Advocate with Mr. J. P. D’Souza and Ms. C. Colaco, Advocates for the Appellant. Mr. M. S. Joshi, Central Government Standing Counsel for the Respondent. CRIMINAL APPEAL NO. 10 OF 2001 CRIMINAL APPEAL NO. 10 OF 2001 CRIMINAL APPEAL NO. 10 OF 2001 Lawrence W. Farrington, presently lodged at Central Jail, Aguada, Sinquerim, Bardez, Goa. versus Union of India, as represented by Shri A. J. Fernandes, Superintendent of Customs, New Custom House, Mormugao, Goa. Mr. Lalit Chari, Senior Advocate with Mr. J. P. D’Souza and Ms. C. Colaco, Advocates for the Appellant. Mr. M. S. Joshi, Central Government Standing Counsel for the Respondent. CORAM: P. V. HARDAS, J. DATED: 8TH MARCH, 2002. ORAL JUDGMENT ORAL JUDGMENT ORAL JUDGMENT The Appellants stand convicted for an offence - 2 - punishable under Section 20(b)(ii) of the N.D.P.S. Act,1985, and are sentenced to undergo Rigorous Imprisonment for 10 years and to pay fine of Rs.1,00,000/- each in default to undergo Simple Imprisonment for one month, by the Special Judge, N.D.P.S. Court, Mapusa, Goa, in Special Criminal Case No.7/99 by Judgment dated 22nd December, 1998. The aforesaid conviction and sentence is challenged by the Appellants in the present Appeals. 2. The facts necessary for the decision of the Appeals are set out as under:- P.W.5, Murli Nair, who in the month of December, 1998, was working in the Customs Department and was posted at Dabolim Airport sent a sepoy to call P.W.4, Shri A. J. Fernandes, who then at the relevant time was working as Superintendent of Customs and was also having the charge at the Dabolim Airport. On 12th December, 1998, P.W.5, Murli Nair, was near the screening machine in the departure lounge and at about 8.05 a.m., two passengers placed three suitcases on the conveyor belt of the screening machine. During the screening of the baggages, P.W.5, Murli Nair, noticed some unusual and similar pattern on the screening machine. P.W.5, Murli Nair, then checked their passports. He then sent a sepoy to call his immediate superior P.W.4, Shri A. J. Fernandes. P.W.4, Shri A. - 3 - J. Fernandes and another Officer advised P.W.5, Murli Nair, to allow both the persons to do their checking formalities. After the said two persons had checked in their baggage, they went towards the Immigration counter. After completing the formalities at the Immigration counter, the two persons approached the Customs counter. At the Customs counter, P.W.5, Murli Nair, accosted them and identified himself. Both the persons were then taken to the make up area and were asked to identify their baggages in the presence of the two panchas. The said two persons identified their baggages and they were checked with the counterfoil of the baggage tag in the possession of the said two persons. A superior Officer of P.W.5, Murli Nair, asked both these persons whether they were carrying any contraband but they replied in the negative. The said two persons were told to carry their suitcases to the Customs Office. Since the bags were heavy, the sepoy was asked to bring the said suitcases to the Office. The said two persons, subsequently shown as Accused Nos.1 and 2 opened their baggages. Original Accused No.2, Appellant in Criminal Appeal No.9/2001 and Original Accused No.1, Appellant in Criminal Appeal No.10/2001 opened the suitcase by adjusting the number of the combination lock and by producing key from his trouser pocket respectively. From each of the suitcases of the Accused, 9 packages were found. - 4 - Nothing incriminating was found in the zipper bag. The sepoys were directed to carry the suitcases to the Airlines counter and in the presence of the Accused and the panchas, all the 18 packages were weighed on the weighing machine. Before taking the packages for weighing, P.W.5, Murli Nair, had opened one of the packages and found that the package contained cylindrical as well as circular disk like substance which was dark brown in colour. The total weight of the 18 packages came to 25.60 kgs. Thereafter, all the 18 packages were placed in the suitcases and the suitcases were brought in the departure hall. All the packages except the earlier packets were opened and were found to contain similar dark brown substance. The outer wrapping consisting of transparent cellophene paper was removed and thereafter for some inexplicable reason all the pieces were mixed together. Two samples of 25 grams each was drawn and were placed in polethene bags and heat sealed. The polethene bags were thereafter put in green colour envelope which were packed and sealed with the seal having insciption "Goa Preventive Department Seal No.5. The first sample was labelled as Sample ’A’ and the second sample was labelled as Sample ’B’. The said envelopes were then signed by P.W.5, Murli Nair, the two panchas and the Accused. The two suitcases marked as Exhs.E and F were also seized. The remaining quantity of the substance - 5 - was sealed in two different cartons labelled as C1 and C2. The outer wrappings were packed in another carton and were sealed as Exh.D. The Boarding Cards and the tickets along with the baggage tag were placed in cardboard box labelled as C1/C2. P.W.5, Murli Nair, then made a report to his superior P.W.4, Shri A. J. Fernandes and the report is at Exh.P.W.5/A. 3. A panchanama at Exh.P.W.3/A was drawn in the presence of P.W.3, James Braganza and one Domnic Costa. The panchanama is signed by the two panchas, the Accused and one Arun Pandye. The panchanama was concluded at 3.00 p.m.. P.W.4, Shri A. J. Fernandes, states that one Menino D’Souza from the Customs Department in the presence of the panchas had intercepted the two Accused and the said Menino D’Souza had informed P.W.4, Shri A. J. Fernandes that he would scribe the panchanama and so P.W.4, Shri A. J. Fernandes, had withdrawn from that place and had gone to the Arrival hall to do other duties. P.W.4, Shri A. J. Fernandes, further asserts that the panchanama was recorded by the said Menino D’Souza and P.W.4, Shri A. J. Fernandes, was not present when the panchanama was drawn. The said Shri Menino D’Souza who was the Seizing Officer, for reasons best known to the prosecution has not been examined as a witness. - 6 - 4. On the same day, P.W.4, Shri A. J. Fernandes, issued summons to both the Accused vide Exh.PW4/A and PW4/C colly and recorded their statements which are at Exhs.PW4/B and PW4/D colly. After the seizure of the articles from the suitcases of the Accused, P.W.4, Shri A. J. Fernandes, by letter at Exh.PW2/A had handed over the drugs and other exhibits to the warehouse Officer. 5. P.W.2, Fatima Noronha, who at the relevant time was working as warehouse keeper on receipt of the letter Exh.PW2/A opened the warehouse to facilitate the deposit of the seized goods. On receiving the packages, P.W.2, Fatima Noronha, issued a receipt at Exh.PW2/C. The said packages were kept in a cupboard. The warehouse was then sealed. Necessary entries were effected in a register. The Sample ’A’ was subsequently handed over by P.W.2, Fatima Noronha, to an Officer of the Customs Department for onward transmission to the Directorate of Food and Drugs Administration. The letter by which she was asked to deliver Sample ’A’ is at Exh.PW2/D. The corresponding entries were also made in the register. On 14th December,1998, P.W.1, Mahesh Kaissare, received Sample ’A’ from the Office of the Preventive Officer Customs Office of the Assistant Commissioner of Customs. On tallying the seals, she found the seals were intact and - 7 - tallied with the specimen seal impression. On weighing, he found that Sample ’A’ weighed 24.66 grams with the individual weight of the four pieces being 4.33, 8.48, 6.38 and 5.47 grams. The four pieces comprising of Sample ’A’ were analysed and on analysis it was found to contain hashish. The report of P.W.1, Mahesh Kaissare, is at Exh.PW1/C. Thereafter, on 21st October, 1999, P.W.1, Mahesh Kaissare, received three packets containing the remaining quantity of the substance seized and the Sample ’B’. The said packages had been sent by the Court for analysis. On analysis, it was found to contain hashish. The reports and the covering letter are at Exhs.PW1/D colly. 6. After completion of the investigation, a complaint through P.W.4, Shri A. J. Fernandes, came to be filed before the Special Judge, N.D.P.S. Court, Mapusa, Goa and the complaint was registered as Special Criminal Case No.70/79. The learned Special Judge, N.D.P.S. Court, Mapusa, vide Exh.5 framed a charge against both the Accused for offences punishable under Section 20(b)(ii) of the N.D.P.S. Act, 1985 alleging that the blue colour bag "Delsey Club", belonging to Accused No.1 Lawrence Farrington contained 14.1 kg. of hashish and the black colour bag "Carlton" belonging to Accused No.2 Marie Claire Mc Ardle contained 11.5 kgs. of hashish. Both the Accused abjured their guilt and - 8 - claimed to be tried. The prosecution in support of its allegation examined 6 witnesses. P.W.1, Mahesh Kaissare, is the Analyst who examined the samples and the remaining quantity of substance. P.W.2, Fatima Noronha, is a warehouse keeper. P.W.3, James Braganza, is the panch witness in whose presence panchanama at Exh.P.W.3/A was scribed. P.W.4, Shri A. J. Fernandes and P.W.5, Murli Nair, are the Custom Officers. P.W.6, Nazim Pradan, is an employee of the Indian Airlines who had checked in the baggages of the two Accused. 7. Mr. Lalit Chari, the learned Senior Advocate appearing with Mr. J. P. D’Souza, Advocate for the Appellants in both the Appeals has urged before me that (i) the quantity of substance which was found in the suitcases belonging to the Appellants was mixed together and samples of 25 grams each were drawn from the said "hotchpotch". The identity of substance that was recovered from the possession of each of the Accused cannot be established. (ii) The prosecution has not been able to establish that the balance quantity of the substance was kept in safe custody and could not have been tampered with. (iii) Menino D’Souza, who was the Seizing Officer and who had drawn the panchanama has not been examined. (iv) After noticing the substance in the bags of the Appellants, the said substance was not immediately seized but was - 9 - taken out of the room in which the bags were kept and there is no evidence to show that the substance which was ultimately seized was the same substance which was found in the bags of the Appellants and (v) the confessional statements of the two Accused, which were retracted by them cannot be made the sole basis for conviction in the absence of any reliable and cogent evidence against the Appellants. 8. Mr. M. S. Joshi, the learned Central Government Standing Counsel appearing for the Respondents/Union of India, in reply has urged (i) that despite the fact that the drugs recovered from the two Appellants separately were mixed, the entire quantity of drugs so recovered has been analysed by the Analyser who has opined the said drugs to be hashish. (ii) the evidence of P.W.2, Fatima Noronha, clearly indicates that the remaining quantity of drugs was kept in safe custody in the warehouse. (iii). The evidence of P.W.4, Shri A. J.Fernandes, and the evidence of P.W.5, Murli Nair, is corroborated by the evidence of P.W.3, James Braganza. (iv). The confessional statements, though retracted corroborated by other evidence can form the basis of conviction. 9. P.W.5, Murli Nair, in his evidence states that on 12th December, 1998, he was working in the - 10 - Department of Customs and was posted at the Dabolim Airport. He was present in the departure lounge near the screening machine along with one sepoy. At about 8.05 a.m., two passengers placed their three suitcases on the conveyor belt of the screening machine. The said passengers have been identified before the Court as Accused Nos.1 and 2. On observing the screening machine, he noticed unusual similar patterns in two suitcases. He, thnerefore, checked their passports on suspicion. Thereafter, he called a sepoy to call his immediate superior. P.W.4, Shri A. J. Fernandes, and another Officer who were in the arrival hall came towards him and they advised him to allow both the Accused to do their checking formalities. The Accused checked in their baggages and went to the Immigration counter and from there to the Customs counter. The Superintendent of Customs and P.W.5, Murli Nair, stopped the Accused and P.W.5, Murli Nair, identified himself to both the Accused and thereafter took both the Accused to the make up area along with the panchas. At the make up area, the Accused were to identify their baggages and after the Accused identified their baggages counterfoil of the suitcases, the baggage tags were attached to the ticket of the Accused. One Customs Officer questioned the Accused whether they were carrying any contraband and both the Accused replied in the negative. P.W.5, Murli Nair, therefore - 11 - asked the Accused to carry their suitcases to the Office of the Customs Department but since the bags were heavy the Accused could not carry their bags. A sepoy was therefore asked to carry the suitcases to the Office. The Accused No.1 removed a key from his trouser pocket and opened the blue "Delsey" make suitcase. The other black colour bag was opened by Accused No.2 by adjusting the combination lock. In the bag of Accused No.1, beneath the clothes, P.W.5, Murli Nair, found 9 packages wrapped in brown colour tape. In the bag belonging to Accused No.2, he also found 9 packages beneath the clothes. Nothing incriminating was found in the hand bag. The material so found in the bags was then replaced in the said bags and the sepoys were asked to take the suitcases at the Airlines counter where a weighing machine was available. The panchas, Accused and the Customs Officers along with the sepoys carrying the bags went to the Airlines counter. All the 18 packages were jointly weighed on the weighing machine and the total weight of the 18 packets was 25.6 kgs. Prior to the weighing, all the 18 packets, the 9 packages from the bag of Accused No.1, was found to weigh 14.1 kgs. and the 9 packets from the bag of Accused No.2, was found to weigh 11.5 kgs. Thereafter, all the packages were brought to the Customs counter in the Departure Hall in a suitcase. P.W.5, Murli Nair, thereafter removed the brown - 12 - adhesive tapes of all the remaining packages and it was found that all the packages contained cylindrical objects of dark brown colour. Each piece was found to be wrapped in a cellophene paper. The outer cover of the cellophene paper was removed and all the pieces were mixed together and two samples of 25 grams each was drawn. Thereafter, P.W.5, Murli Nair, along with others went to the Customs Office at the Arrival Hall where the two samples were weighed. The two samples were then put in a polythene bag and heat sealed. The polythene bag was then put in a green colour envelope, packed and sealed with the seal having the instruction "Goa Preventive Department Seal No.5". One sample was labelled as Sample ’A’ and the other sample was labelled as Sample ’B’. The envelopes were then signed by the two panchas and the Accused. The remaining quantity of hashish was then put in cartons and sealed and the outer covering was signed by the panchas and the Accused. The outer wrapping of the cylindrical shape objects were also wrapped in another carton, packed and sealed. The boarding card tickets were also sealed. The panchanama Exh.PW3/A was drawn and all the proceedings concluded at about 3.00 p.m.. Thereafter, P.W.5, Murli Nair, sent a report Exh.PW5/A to his superior Shri A. J. Fernandes. In the cross-examination, P.W.5, Murli Nair, admitted that he has not signed the panchanama and he does not recollect - 13 - whether any part of the panchanama reflects whether the seizure was done on the ground floor in the Arrival Hall or near the Customs Office near the Arrival Hall. He also admits that the panchanama was not done under his instructions. He admits that the panchanama was drawn under his supervision. He also states that he had read the panchanama after it was scribed and found that the panchanama was correctly recorded. He also admitted that it was correctly recorded at page 8 of the panchanama that one photographer had come during the course of the panchanama and had taken some photographs. He has also stated that he does not recollect that his name appears in the panchanama as Seizing Officer and could not say anything that his name does not appear in the panchanama as the Seizing Officer. He admitted that it was wrongly recorded in the panchanama that the boarding card and tickets were of both the Accused. He admitted that it did not strike him at the time of scribing the panchanama that it was wrongly recorded. On being confronted with the boarding card and the tickets, he admitted that these do not bear his signature or the signature of the Accused. On perusal of the panchanama, he admitted that there is no reference in respect of seizure in the Arrival Hall and it appears that everything was done in the Departure Hall on the first floor. He admitted that after screening of the bags at the machine, the - 14 - security people put a self adhesive seal on the bags. He also admitted that the purpose of putting the security seal was to ensure that a bag cannot be opened without breaking the seal. He admitted that there was no mention in the panchanama that there was any security seal on the bag. He also admitted that it was not mentioned in the panchanama that the security seals had to be broken and opened. He also admitted that after the baggage passes through the screening machine it will continue to remain open to the passengers till it is checked in. He also admitted that in the report Exh.PW5/A, there is no mention about the security seal on the bags. He also admits that after the panchanama was concluded, P.W.4, Shri A. J. Fernandes, and other Custom Officers arrived at that place. He also admitted that in Exh.P.W.5/A there was no mention that they had gone to the ground floor for weighing the samples. Similarly, he also admitted that there was no mention that the sealing was done behind on the first floor. He also admitted that he was knowing the names of the panchas as he had seen the panchas once or twice at the Airport previously. 10. P.W.5, Murli Nair, has also admitted during the cross-examination that when he went to the ground floor for weighing the samples, all the 18 packets were already opened and at no stage of the ground floor were - 15 - all the 18 packets in their original wrappings. He also admitted that he was present when the photographs were taken. He admitted that the photographs of the seizure had appeared in the local newspaper but denied the suggestion that in the photographs the articles appeared that the outer wrapping was intact. He denied the suggestions that the suitcases were not opened by the Accused. 11. P.W.4, Shri A. J. Fernandes, in his evidence states that on 12th December, 1998, he was working as a Superintendent of Customs and was present at the Dabolim Airport. At about 8.10 a.m., when he was present at the Arrival Hall, one sepoy came and informed him that he was called by P.W.5, Murli Nair. He went to the first floor where P.W.5, Murli Nair was at the screening machine and P.W.5, Murli Nair, informed him that he had noticed something in the baggage of the Accused. P.W.4, Shri A. J. Fernandes, then informed P.W.5, Murli Nair, to allow the baggages and the passengers to be checked in. P.W.4, Shri A. J. Fernandes, then states that he came on the ground floor and informed one Pandye to go to the first floor and keep a watch. He further states that he informed P.W.5, Murli Nair, to keep a watch on the Accused. He further states that he informed one Menino D’Souza, Superintendent attached to the Departure Hall to keep - 16 - the panchas present as there was likely to be a seizure. After the Accused had checked in, the Accused went to the Immigration counter and from there to the Customs counter. P.W.4, Shri A. J. Fernandes, says that he intercepted along with Menino D’Souza and the two panchas and after verification of their passport, ticket, boarding card etc. handed over both the Accused to Menino D’Souza. Thereafter, Menino D’Souza took both the Accused for identification of the baggage and Menino D’Souza informed P.W.4, Shri A. J. Fernandes, that he would draw the panchanama. P.W.4, Shri A. J. Fernandes, thereafter withdrew from that place and went to the Arrival Hall to attend to his other duties. He states that the panchanama was recorded by Menino D’Souza and he was not present when the panchanama was drawn. He states that thereafter, he had issued summons Exh.P.W.4 to Accused No.1 and recorded his statement which is at Exh.PW4/B. he also states that he had issued summons Exh.P.W.4 colly to Accused No.2 and had recorded the statement of Accused No.2 which is at Exh.PW4/D colly. He further states that he had handed over the drugs and other exhibits to the warehouse Officer by letter Exh.PW2/A. He also admits in the examination-in-chief that he had seen the drugs placed on the table in the Arrival Hall when the photographs were taken at about 12.30 to 1.00 p.m.. - 17 - 12. In the cross-examination, he admits that he was not present at the time of seizure and has no personal knowledge of the seizure of the drugs. He admits that the drugs were displayed on the table in the Arrival Hall on the ground floor of the Airport. He also admits that he cannot exactly say where the panchas were when the seizure took place. He states that the two panchas were about 20 metres away from the table where the drugs were kept and the photographs were taken. He admits that the table on which the drugs were kept at the time of taking the photographs was 20 metres away from the Customs Office. He further states that he was called by the Commissioner at 12.30 p.m. at the place where the photographs were taken. When he arrived, the table was empty and thereafter, the drugs were brought and placed on the table but he does not know who brought the items on the table. He admits that different persons had brought the items at the table. He further admits that when the drugs were brought and placed on the table, Menino D’Souza was with the Accused in the adjacent Office. He admits that the photographs could be available in the Customs Office. He also admits that he has not stated anything about the photographs in the complaint. He then makes a very damaging admission and the said admission is reproduced below. "The two panchas for the attachment of the property are James Braganza and Domnic Mustaka - 18 - for last many years".