1 Cri-Appeal-701-07.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMNAL APPEAL NO. 701 OF 2007 Christan Odiwake Aneadum ) presently lodged at Kolhapur ) Central Prison, C/4235,Kolhapur. ).. Appellant (Orig. accused) Vs. Alu Customs State of Maharashtra ) Respondent Mr. Atul Sarpande, Advocate, for the appellant. Mrs. A.A.Mane, Spl. P.P. for the Union of India. CORAM: J.H.BHATIA,J. DATE : 19th September, 2011. JUDGMENT: 1. The accused has preferred this Appeal against the order of conviction for the offence under Section 21 read with Section 8(c) and under Section 28 read with Section 23 of NDPS Act and sentence to undergo R.I. for ten years and to pay fine of Rs.1 lakh on each count in NDPS Special Case No. 35 of 2003 passed by the Special Judge, Greater Bombay. 2. Prosecution case, in brief is that on 8.12.2002, the officers of Air Intelligence Unit from Customs Department were keeping vigilance on the flights 2 Cri-Appeal-701-07.odt to the sensitive areas, particularly African countries. On that day, they had chosen Kenyan Airways Flight No. KG-201 scheduled to depart at 3.10 a.m. on 8.12.2002. While keeping surveillance, the officers noticed a passenger of African Nationality checking-in his baggage at the Airline Counter. His movements appeared to be suspicious. The accused was that passenger. He was having one piece of baggage having security strap, indicating it to be his checked- in baggage. He was also having a trolley bag as his hand baggage. As the accused appeared to be nervous and uneasy, the officers of AIU made enquiries with him and he disclosed his name. The officers asked him if he was carrying any contraband, including narcotic drug, which he denied. However being not satisfied with the replies and his suspicious behaviour, the officers took him to the make-up area, where he identified one zipper suit case having baggage tag KQ-041368 as his baggage. The check-in baggage tag tallied with the claim tag attached to his Air ticket. The officers told him that they wanted to take his personal search and also informed him that if he wished to give his search in presence of a Gazetted Officer or a Magistrate. However, the accused opted to give his search in presence of the Gazetted Officer. After that the black zipper suitcase was opened with the goods in possession of the accused in presence of the officers and panchas. The bag contained, besides other things, seven cylinders which appeared to have freshly painted and tampered with. The said 7 cylinder 3 Cri-Appeal-701-07.odt livers were opened. A packet of transparent think plastic bag containing brown powder was found in the specially made cavity in each of the 7 cylinders. The said plastic bags were marked 1 to 7. Some powder was taken and tested. It tested positively for heroin. Thereafter the hand baggage of the accused was examined, but only personal effects were found. No incriminating article was found in the said bag. The total weight of the brown powder found in those 7 packets in the said 7 cylinders was 2965 grams. Three representative samples were taken, which were put in plastic sachets and were duly closed and sealed with Customs Seal No.131. The balance bulk quantity was also duly sealed. It was put in a carton which was wrapped with Cello tape and sealed with Seal No. 131. About the said procedure, a panchnama was drawn. Thereafter statement of accused was recorded, wherein he admitted that he had purchased the said heroin for 3000 Dollars from one Hasan, an Afghan National in Delhi, who was operating through Kashmir Pakistan border. He was carrying the said heroin to Nairobi. After recording statement, he was arrested. Reports of seizure and arrest, etc. were submitted to the superior officers and the bulk property was deposited in the warehouse. Samples were sent to the C.A. C.A. Report confirmed that the samples were heroin. After investigation, complaint was filed by PW-1 Jaspal Sharma, Superintendent of Customs, on the basis of which Special Case No.35/2003 was registered. 4 Cri-Appeal-701-07.odt 3. Accused was charged under Sections 21, 28 and 29 of NDPS Act and he was convicted and sentenced for the offences punishable under Sections 21 and 28. 4. The learned Counsel for the accused/appellant vehemently contended that the prosecution has not led any reliable evidence and the mandatory provisions of law have not been complied and, therefore, the conviction is liable to be set aside. On the other hand, the learned PP fully supported the impugned order of conviction and sentence. 5. With the help of the learned Counsel for both sides, I have minutely gone through the record and proceedings of the trial Court. Complainant PW-1 Jaspal Sharma gave the evidence and deposed according to prosecution case noted above. Some other witnesses were examined to provide corroboration to his testimony. PW-1 Sharma claims to be an eye-witness since beginning till preparation of the panchnama. PW-2 Satish Deshpande, who was also working as Superintendent of Customs, deposed about recording of statement of the accused under Section 67 as per Exhibit 13. PW-4 Sudip Mondal, who was Intelligence Officer, deposed about handing over of the sample packet to the Deputy Chief 5 Cri-Appeal-701-07.odt Chemist with test memo Ex.17. PW-5 Ashok Gangurde, another Intelligence officer, only deposited the property in the warehouse. PW-6 Jeetendra Dingoria is panch witness, who supported the prosecution. Other witnesses are of formal nature who were examined to prove different aspects of the matter. Though that evidence was necessary to make the prosecution case foolproof, it is not necessary to deal with each of them to decide this Appeal. 6. The crucial evidence in this matter is of PW-1 Jaspal Sharma and PW-6 Jeetendra Dingoria panch witness. PW-1 Jaspal Sharma deposed the prosecution case and according to him, he was associated with this case since the time the accused was noticed with a hand and already checked in one bag for the flight for Nairobi. As he was found to be nervous and his actions were suspicious, he was intercepted and enquired. He disclosed his name. On enquiry, he denied that he was having any contraband or any narcotic drug with him. However, being not satisfied, he was required to identify his checked-in baggage which he did in presence of the panch witnesses. PW-1 Jaspal Sharma deposed that the accused was informed that his baggage was to be examined and he was also informed that his baggage could to be examined in presence of a gazetted officer or a Magistrate he wished. The accused agreed to examine his baggage in presence of a Gazetted Officer. Jaspal Sharma deposed that the Superintendents 6 Cri-Appeal-701-07.odt of Customs Department are also Gazetted Officers and therefore in presence of the Superintendent the said baggage was opened and besides other articles, 7 cylinders were found. On opening the said cylinders, brown powder was found in the polythene bag in each of the said cylinders. A small quantity of powder was tested and it was confirmed that it was heroin. Each packet containing powder was given Sr. Nos. 1 to 7. The total weight was 2965 grams and the powder in all the seven packets was taken in another larger bag and was mixed. Three samples of 5 grams each were taken from the said powder. Each of the sample was taken in a separate plastic sachet, which was duly closed and sealed and a description of the same was given on the same. Panchas put their signatures on the said packets. Seal No.131 was used for sealing each of the said sample packets. The remaining bulk quantity was also duly sealed and put in a carton which was cello taped. It was also sealed with Seal No.131 and labelled with signatures of panchas. PW-6 Jeetendra Dingoria panch witness supported the prosecution. 7. It is material to note that according to PW-1, Jaspal Sharma, about whole of the proceeding a panchnama was drawn and signed by another Intelligence Officer A.R.Rajapure. The said panchnama Ex.7 was proved by Jaspal Sharma. Jaspal Sharma had neither drawn the panchnama nor he had 7 Cri-Appeal-701-07.odt signed it. The prosecution did not examine the Intelligence Officer A.R.Rajapure, who had drawn the panchnama and signed it. Though presence of Jaspal Sharma is shown along with other officers in the opening para of the panchnama and though the complaint was lodged by Jaspal Sharma, fact remains that the panchnama was not prepared and signed by him and therefore the prosecution was expected to examine the officer who had drawn and signed the panchnama. By not examining the Intelligence Officer A.R.Rajapure as prosecution witness, the prosecution has kept back the most important prosecution witness. As the said panchnama was not signed by Jaspal Sharma, it cannot be said with certainty that he was associated with the interception, search and seizure till completion of the panchnama and everything was done in his presence. 8. The learned Counsel for the accused/appellant contended that the provisions of Section 50 of NDPS Act, which are mandatory have not been followed. In the present case, the heroin was not seized from the person of the accused, but was allegedly seized from the checked-in baggage and in view of the settled position of law, Sec. 50 of NDPS Act will have no application to the matter. 9. It appears that the report under Section 57 about the said search and 8 Cri-Appeal-701-07.odt seizure was also submitted by PW-1 Jaspal Sharma and not by the Intelligence Officer Rajapure. In view of the fact that Rajapure was not examined, there is also no evidence on record as to how he disposed of the said property as required under Section 52 nor there is any evidence to show that he had deposited the said property before officer in charge of the property in the office of Air Intelligence Unit and therefore there is no evidence in what condition the said property, particularly the samples were produced or handed over by him to any other officer. PW-5 Ashok Gangurde deposed that he had escorted the team for taking the seized articles from A.I.U. Office to warehouse and he deposited same as per the forwarding letter Exhibit 23 which is in the handwriting of PW-5 Ashok Gangurde and not of Rajapure. He also does not state from whom he had taken custody of the said articles and particularly what was the condition of the seized articles. 10. PW-7 Machhindranath Nikam, who was Detention Superintendent and in charge of the warehouse, deposed that PW-5 Ashok Gangurde had deposited six articles i.e. packets in the warehouse along with the forwarding memo Ex.23. He took entry of the same in the register. According to him, it is necessary that the copy of the panchnama should also be produced while depositing the articles. It appears that this requirement was just to see that the 9 Cri-Appeal-701-07.odt articles which are deposited in the warehouse are identical and in same condition in which they were seized under a panchnama. However, PW-7 Nikam admitted that he had received the said articles only wth a formal memo and without copy of the panchnama. PW-4 Sudip Mondal, who was also Intelligence Officer deposed that he had prepared test memo Ex.17 and submitted the same with one sealed packet to the Deputy Chief Chemist. The said test memo Ex.17 was written and signed by himself. He also does not depose who had handed over the sealed sample packet to him for depositing the same with the Deputy Chief Chemist. 11. In view of the above state of evidence, it appears that by not examining Rajapure who had conducted the search and seizure, the prosecution has failed to prove several important aspects in the matter. It has failed to establish that the property, particularly the sample packets were deposited by Rajapure with the warehouse in charge as required under Sec. 55. There is no evidence to show that the sample packets reached the office of the Chemical Analyser in the same condition, in which they were at the time of the preparation of the panchnama because there are several missing links as noted above. The prosecution did not give any reason as to why Rajapure was not examined or could not be examined as a witness. PW-1 Jaspal Sharma might be a member of the team, but he cannot be a substitute for the most important prosecution witness, 10 Cri-Appeal-701-07.odt who had himself conducted the search and seizure and had prepared the panchnama and who was expected to comply with the provisions of Sections 52, 55 and 57 of NDPS Act. By not examining him the prosecution has failed to prove that these important provisions of law were in fact complied . It has also failed to establish that the sample packets reached the C.A. The learned trial Court failed to consider this vital aspect of the matter before passing the impugned order of conviction and sentence. 12. Therefore, the Appeal is allowed. The impugned order of conviction and sentence is hereby set aside. The accused be set at liberty forthwith if not required in any other case. (J.H.BHATIA,J.)