1 Cri.Appeal 351-2007 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.351 OF 2007 Francis Azabuke Opkara .Appellant Age : 43 years, Nigerian National, residing at 36, Olandene Coker Street, Lagos Nigeria. V/s. 1. Narcotic Central Bureau .Respondents Exchange Building, Ballard Pier, Mumbai. 2. The State of Maharashtra Mrs.Yogini Kadam, Advocate, for the Appellant Mr.Y.M.Nakhawa, APP, for Respondent No.1 - NCB Mrs.P.P.Bhosale, APP, for Respondent No.2 - State CORAM : R.C.CHAVAN, J. RESERVED ON : 15TH JULY, 2011 PRONOUNCED ON : 26TH SEPTEMBER, 2011 JUDGMENT . This Appeal is directed against conviction of the appellant for contravention of Section 8(c), punishable under Sections 21, 28 read with Section 23 and Section 29 of the 2 Cri.Appeal 351-2007 Narcotics Drugs And Psychotropic Substances Act, 1985 (hereinafter referred to as 'NDPS' Act) and sentence of rigorous imprisonment for ten years with a fine of Rs.1,00,000/- or in default for further period of three months on each of the three counts inflicted upon the appellant. 2. Facts which are material for deciding this appeal are as under :- On 9th June, 2002, Shri Keith John Sanchis received information that appellant was scheduled to travel from Mumbai to Cameroon via Nairobi by Kenyan Airways flight No.KQ 201 departing at 3:10 a.m. on 10th June, 2002 and was to carry about 3 Kg of white heroin concealed in some items of his baggage. Shri Sanchis recorded this information and forwarded it to his superior, Zonal Director, NCB. He also placed a copy thereof before his immediate superior, the Assistant Director of NCB, who ordered to go ahead for taking 3 Cri.Appeal 351-2007 action. Accordingly, a team of NCB officers visited the International Airport, collected pre flight manifest of the flight where appellant was shown listed at Sr.No.57 and intercepted the appellant when he was into process of boarding. Two panchas were called. Appellant was informed of his rights, his personal information was gathered from his passport and he was asked to remove his checked in baggage from baggage examination area. He removed two large Black canvas bags of Sony soft luggage make, which were locked and wrapped with security sticker. The appellant opened the bags. Vehicle accessories and 264 mudguard lights packed in 132 cartons were found to have been equally distributed in the two bags. 99 Capsules were found concealed inside bulbs of some of these mudguards lights in 25 cartons from each bag. The Capsules were opened and found to contain white powder. 4 Cri.Appeal 351-2007 3. The powder from each Capsule was tested on field testing kit and was found to be heroin. All the Capsules were emptied in a polythene bag and was found to weigh 3.250 Kg. Two samples of five grams each were drawn up and sealed with NCB Seal No.02. Remaining bulk was also sealed. Cartons and lights from which Capsules were recovered were also packed and sealed. Passports, Air tickets and Boarding Card of appellant were seized and an elaborate panchnama was drawn up after searching his hand baggage too. Immigration authorities and Airlines were asked to cancel the boarding of appellant and to return the uplifted coupon from appellant's air ticket. A search and seizure report was sent to Zonal Director. Appellant was brought with property to NCB office. Statement of appellant was recorded and he was arrested. 4. On 11th June, 2002, property was deposited with Superintendent-in charge of 5 Cri.Appeal 351-2007 godown and on the same day, sample packets were deposited with Chemical examiner, who reported that samples were of heroin. On 12th June, 2002 one sample packet was sent with a Havaldar to Forensic Science Laboratory which too reported that the substance was heroin and also gave percentage of active ingredient. On completion of investigation, a complaint was filed with the Special Court. 5. The learned Special Judge charged the appellant of offences under Section 8(c) punishable under Sections 21 read with Section 29, Section 21 read with Section 8(c) and Section 28 read with Section 23 and Section 8(c) of the NDPS Act. Since the appellant pleaded not guilty, he was put on trial at which the prosecution examined in all five witnesses to bring home guilt of the appellant. After considering the prosecution evidence in the light of defence of false implication, the learned trial Judge convicted 6 Cri.Appeal 351-2007 and sentenced the appellant as aforementioned. Aggrieved thereby, the appellant has preferred this Appeal. 6. I have heard the learned Counsel for the appellant and the learned APP for the Narcotics Control Bureau. With the help of both the learned Counsel I have gone through the evidence on record. PW-1 Shri M.S.Khan was working as Intelligence Officer with the Narcotics Control Bureau. He stated that he had been given a copy of information by Mr.Sanches, Superintendent with the note of the Assistant Director to organize a team and to take necessary action. Accordingly, he claims to have visited the Airport with his colleagues Mr.Mule and Mr. Sanches. They had carried field testing kit and other articles along with seal testing No.03. At the Airport they took help of two Assistant Sub Inspectors of Customs on duty to find out the suspect. Shri Khan collected a copy of pre-flight 7 Cri.Appeal 351-2007 manifest of flight No.KQ-201 in which the name of the suspect i. e. the appellant was at Serial Number 57. They kept a watch at the check-in counter of Kenyan Airways and found the appellant presenting passports and Air tickets at about 1:45 a.m.. The Airline had already been instructed to mark the checked in baggage of the appellant. The staff was also told to give him a signal. The Airline staff accordingly gave him a signal. The appellant completed customs and immigration formalities and when he was about to proceed for boarding, he was intercepted in baggage examination area where two panchas were called. The appellant was told about his rights in respect of his personal search in presence of the Gazetted officer or Magistrate. The appellant declined and expressed his willingness to be searched by the officers present. The appellant removed his checked in baggages which comprised of two large sized black coloured canvass bags of Sony soft luggage make. They 8 Cri.Appeal 351-2007 had been wrapped with security sticker. The appellant opened the locks of the bags with the keys in his possession. The witness then stated about recovery of 99 capsules in 99 light bulbs containing white colour powder. 7. PW-1 Shri Khan significantly stated that 99 tests were carried out on the field testing kit. The contents of the capsules were emptied in a polythene bag and weighed. The same weighed 3.250 Kgs. Two samples were taken from the composite mixtures and the samples were sealed with NCB seal No.03. Remaining powder was also sealed, as also the remaining property. Search of the personal baggage of the appellant was also taken and the articles found were enlisted. Panchanama of the proceedings was drawn up and was concluded at 6:00 a.m.. Shri Khan deposited 400 US dollars which were found with the appellant in the Reserve Bank of India and deposited the entire property in the godown. 9 Cri.Appeal 351-2007 He identified the property before the Court. He also identified the documents like preflight manifest, Embarkation card, uplifted coupon, PNR information and post flight manifest etc. He states having filed search and seizure report with his superior. 8. On 11 and 12th June, 2002, PW-1 Shri Khan deposited samples with the Chemical Analyzer and caused another sample to be sent through Hawaldar Panigrahi to Forensic Science Laboratory. The witness stated in his cross examination that tests were carried out with the field testing kit for about one hour. He stated that he used to take out a small quantity of powder from each capsule individually and added some chemical reagent in it and then used to get the required colour. The witness had first stated that he had used NCB seal No.3 but then corrected himself to state that seal No.02 was in his possession and which had been used by him. He 10 Cri.Appeal 351-2007 had also recorded statement of the appellant under Section 67 of the NDPS Act. This statement was retracted by the appellant Exhibit 26 on 10th June, 2002 itself when the appellant was produced before the Chief Metropolitan Magistrate. 9. From the documents proved by this witness, it appears that the samples analyzed by the Laboratory were found to be of heroin and the percentage of active ingredient was 42.43%. 10. PW-2 Felix D'souza stated having recorded further statement of the appellant on 12th June, 2002. This statement at Exhibit 28 is not inculpating. PW-3 Keith John Sanchis was Superintendent at Narcotics Control Bureau, who had received information, recorded it and forwarded it to the superiors. He also seems to have been present at the time of interception of the appellant and seizure of 11 Cri.Appeal 351-2007 3.5 Kg of heroin from the baggage. He received search and seizure report from PW-1 Shri Khan. He states that he was custodian of the godown on the relevant date, had received the property and made necessary entry in the godown register. 11. PW-4 Bhushan Shriram Mule was another Intelligence officer of Narcotics Control Bureau, who had participated in the proceeding culminating in seizure of heroin from the appellant. He states that the Capsules which were recovered had white coloured powder in it. He states about the part he took in the seizure, preparation of panchanama and drawing of samples etc. He had produced the goods for preparation of inventory before the Special Metropolitan Magistrate, panchanama whereof is at Exhibit 35. Certificate of the learned Special Metropolitan Magistrate is at Exhibit 37. 12 Cri.Appeal 351-2007 12. PW-5 Madhukar Kashinath Malve, Deputy Director of Forensic Science Laboratory stated about the analysis of the samples and proved his report at Exhibit 40 along with Data sheet at Exhibit 39. 13. The learned Counsel for the appellant submitted that in the information received by PW-3 Sanchis which is at Exhibit 31, the appellant was supposed to have been carrying 3 Kg of white heroin. The note at Exhibit 73 shows that 3.250 Kg whitish powder purported to be heroin was seized. Letter issued to the Senior Inspector, immigration at Exhibit 14 also refers to seizure of white powder. Panchanama at Exhibit 13 shows that the Capsules were found to contain whitish powder. Search and seizure report at Exhibit 15 refers to seizure of whitish powder. The arrest memo at Exhibit 17 and report of arrest at Exhibit 18 also refer to whitish powder. Exhibit 19 whereby the property was deposited with the 13 Cri.Appeal 351-2007 Superintendent shows that what was seized was white powder. The test report at Exhibit 20 by the Chemical examiner shows that the sample was of light brown coarse powder. Requisition to the Forensic Science Laboratory at Exhibit 21 also refers to whitish powder but the report from the Laboratory at Exhibit 22 shows that it was brownish powder. Therefore, the learned Counsel for the appellant wondered as to whether what was analyzed by the Laboratory was the same thing which was seized. There can be no doubt that the prosecution has to prove beyond reasonable doubt the events starting from seizure of the contraband till handing over the samples to the laboratory as held by the Supreme Court in STATE OF RAJASTHAN Versus DAULAT RAM, reported at (1980)3Supreme Court Cases 303 on which the learned Counsel for the appellant placed reliance. The learned counsel for the appellant relied on Judgment of this Court in Dinesh Palyekar v. State of Goa, reported at 14 Cri.Appeal 351-2007 2007 CRI.L.J.106 where the Court found upon appreciation of evidence that since seals identified on the envelopes were not the seals affixed by the PSI at the spot, sample was not sealed at the spot. Now this is on appreciation of evidence in that case and there cannot be any legal principle emanating from this Judgment. In Hasan Imam Inamdar Versus State of Maharashtra, reported at 2004(Supp.)Bom.C.R.344. The Court found that there was no evidence to show that the seals of an officer of the police station where property was produced had been impressed upon the samples along with the seals of the officer in-charge of the raiding party. The articles which had been produced before the Court were out of shape and the nature of the substance had changed and some of the substances were unidentifiable. In this context, the Court relied on Judgment of the Supreme Court in State of Punjab Vs. Balbir Singh, (1994)3 Supreme Court Cases 299 15 Cri.Appeal 351-2007 regarding safeguards provided in Section 50 and proceeded to acquit the accused. In Hatibu Mungis Khamishi Versus Narcotic Cell & another, reported at 2004(Supp.)Bom.C.R.822, this Court acquitted the accused because the officer, who had received the information and sent it to superior was not examined as also the officer in whose charge the property was kept was not examined. In the case at hand, PW-3 Keith John Sanchis stated that he was custodian of the godown on the relevant date and had received the property. Therefore, the Judgment in Hatibu has no application to the facts of the present case. 14. The learned APP submitted that the discrepancy about the colour is not so material and it is not that officers of the Narcotics Control Bureau found the powder to be pure white or that scientist found to be pure brown. The officers found it to be whitish whereas the Laboratory found it to be 16 Cri.Appeal 351-2007 brownish. Therefore, according to the learned APP, it may be a matter of perception of the persons concerned, and, since they do not state that the same substance had colours at the two ends of the spectrum, this discrepancy in itself should not result in conclusion that the material seized was not the same analyzed by the Laboratory. 15. She submitted that discrepancy about seal no. was duly explained by PW-1 Shri Khan. He had himself deposited the sample packet with Chemical Analyzer and forwarded other sample to Forensic Science Laboratory with Havaldar Panigrahi, who was not examined. PW-3 Sanchis had stated that he was the custodian of godown and had received the property, inventory whereof was duly prepared by PW-4 Mule and certified by the Special Metropolitan Magistrate. Thus, there is no discrepancy about seizure of property, sealing samples and forwarding them to laboratory. 17 Cri.Appeal 351-2007 16. The learned Counsel for the appellant submitted that PW-5 Shri Madhukar Malve, who analyzed the samples had stated in cross examination that sample which was received in polythene packet was in open condition. However, the learned APP pointed out that the witness had clearly stated in examination-in- chief that the in the Forensic Science Laboratory samples are accepted, only if they are in sealed condition and had also stated that he had received the sample in sealed condition. Therefore, the statement in cross examination may be a stray admission which could be ignored. In my view, there is no reason to disbelieve PW-1's evidence on this count. 17. The learned Counsel for the appellant submitted that since PW-1 Shri Khan claimed to have tested powder from each of the 99 capsules on field testing kit, the panchanama could not at all have been completed by the 18 Cri.Appeal 351-2007 time mentioned. She submitted that each test takes about 10 minutes and so at least 15 hours would have been required to complete 99 tests. As rightly submitted by the learned APP, this contention is based on the assumption the second test commenced only after the first was over. Second, third or even tenth test could commence before first test was over, since time taken is for the reagents to react. After starting first test, the officer could start second-third or even tenth test by which results of first test could be seen. Therefore, prosecution evidence cannot be rejected because the officer completed 99 tests swiftly. 18. The learned Counsel for the appellant submitted that in this case, panchas were not at all examined and therefore, non-examination of panchas should result in rejection of the prosecution case. For this purpose, the learned Counsel relied on Judgment of this 19 Cri.Appeal 351-2007 Court. The learned Counsel for the appellant also relied on Judgment of Division Bench of this Court in Mr.Milan Sarcanski Vs. The State through its Special P.P. Adv. Bhobe, reported at 1997 ALL MR (Cri) 496. In that case, a panch witness was examined. Panch had stated that the substance shown to him did not look to be similar one recovered from the bag carried by the accused. The Court held that in view of the failure on the part of the prosecution to establish link between the accused and the goods allegedly recovered, the recovery was not proved. Similar view was taken in Shiv Kumar Ashok Mishra v. Special Judge of N.D.P.S.Court, Mapusa-Goa, reported at 1996 CRI.L.J.1454 where this Court was considering the question of the non- examination of one of the panch witnesses. The Court held :- It is not always possible to contend that the evidence of the police needs corroboration by an independent witness. But in a narcotic case where the search and seizure are the pivotal portions of the investigation, the statement of the official witness should have 20 Cri.Appeal 351-2007 been corroborated at least by one independent witness. 19. In Shaikh Nazre Alam Zahoor & Anr. vs. The State of Maharashtra, reported at 2001(II)LJ47 this Court was considering the effect of non-examination of a panch witness. The Court held:- 23. It is important to note that the prosecution has omitted to examine two panchas who were independent witnesses, viz., Dattatraya Pramod Kashelar and Mahesh Dhirajilal Udhwadia, who were said to have been present when the pre-trap panchanama was prepared and during the entire trap and when the post-trap panchanama was prepared where the crucial fact, relates to possession of contraband goods such as heroin. I consider it a serious lapes on the part of the prosecution in failing to examine the panch witnesses who were in the first place, chosen by them. It appears that the prosecution has failed to do so and withheld independent evidence from the Court which, in my view, affect the veracity of the prosecution case. 20. The following observations of the Supreme Court in para 40 of Judgment in Noor Aga Versus State of Punjab and another, reported at 2008(3)RCR (Criminal) 643 on the question of examination of independent witnesses, would also be relevant. 21 Cri.Appeal 351-2007 Although examination of independent witnesses in all situations may not be imperative, if they were material, in terms of Section 114(e) of the Evidence Act, an adverse inference could be drawn. 21. In Ritesh Chakarvarti Versus State of Madhya Pradesh in Criminal Appeal No.1016 of 2006 decided on 29th September, 2006 by the Supreme Court, the Court held that no independent witnesses were examined and two panch were a panshop owner and Auto Rickshaw driver. The Court observed that in a busy place the officers would expectedly ask those to be witnesses to the seizure who were present at the time in the place of occurrence. This was not done. Conviction was set aside. 22. The learned APP submitted that it is not that the department had not made any attempt to serve the panchas. She pointed out that the attempts to serve the panchas had been made on three occasions as could be seen from Exhibit 42. Reports about inability to 22 Cri.Appeal 351-2007 serve panchas had also been placed on record. Therefore, according to the learned APP, since panchas could not be found, they were not examined and therefore, it cannot be said that the prosecution had withheld panchas deliberately. Therefore, it cannot be said that non-examination of panchas would automatically result in rejection of the prosecution case. 23. In TAHIR Versus STATE (DELHI), reported at (1996) 3 Supreme Court Cases 338 on which the learned Additional Public Prosecutor relied for this purpose the Supreme Court was considering the question of effect of non-examination of independent witnesss. The Court held :- 6. Mr.D.D. Thakur, the learned Senior Counsel appearing for the appellant, submitted that PW 4 to PW 7 or whose evidence the conviction has been recorded were all police officials and in the absence of any independent witness to corroborate them, it was not safety to rely upon their testimony to sustain the conviction of the appellant. We cannot agree. In our opinion no infirmity attaches to the testimony of police officials, merely because they 23 Cri.Appeal 351-2007 belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The Rule of Prudence, however, only requires a more careful scrutiny of their evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form the basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case. 24. In ANIL ALIAS ANDYA SADASHIV NANDOSKAR Versus STATE OF MAHARASHTRA, reported at (1996) 2 Supreme Court Cases 589, which was cited by the learned Additional Public Prosecutor, the Court was considering effect of absence of independent witnesses and held as under :- 5. Indeed all the 5 prosecution witnesses who have been examined in support of search and seizure were members of raiding party. They are all police officials. There is, however, no rule of law that the evidence of police officials has to be discarded or that it suffers from some inherent infirmity. Prudence, however, requires that the evidence of the police officials, who are interested in the outcome of the result of the case, needs to be carefully scrutinized and independently 24 Cri.Appeal 351-2007 appreciated. The police officials do not suffer from any disability to give evidence and the mere fact that they are police officials does not by itself give rise to any doubt about their creditworthiness..... The explanation given by the prosecution, for the non-examination of the two panch witnesses, which is supported by the report Ext.24 filed by PW 4 PI Gaikwad is satisfactory. The evidence on the record shows that the raiding party made sincere efforts to join with them two independent panchas at the time of search and seizure and they were so joined. They were also cited as prosecution witnesses and summoned to give evidence. However, despite diligent efforts made by the prosecuting agency to serve them, they could not be located or traced and therefore they could not be examined at the trial. In the face of the facts stated in report Ext. 24, the correctness of which has remained virtually unchallenged during the cross-examination of PW 4, the non-examination of the two panchas cannot be said to be on account of any oblique reason. Their non-production at the trial thus has not created any dent in the prosecution case. The prosecution cannot be accused of withholding these witnesses since it made every effort to trace and produce them at the trial but failed on account of the fact that they had left the addresses furnished by them at the time of search and their whereabouts could not be traced despite diligent efforts made in that behalf. We, therefore, do not find any reason to doubt the correctness of the prosecution version relating to the apprehension of the appellant, the search and seizure by the raiding party and the recovery from the appellant of the country-made revolver and cartridges for which he could produce no licence or