1 Apeal 154-07 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.154 OF 2007 Emmanuel Togo .Appellant Aged about 36 years Residing at Bamako Mali, Malienn National, at present lodged at Yerwada Central Prison, Pune. V/s. 1. Superintendent of Customs .Respondents (Air Intelligence Unit), Mumbai. 2. The State of Maharashtra Mr.Atul Sarpande, Advocate, for the Appellant Mrs.A.A.Mane, APP, for the Respondent - State CORAM : R.C.CHAVAN, J. RESERVED ON : 15TH JULY, 2011 PRONOUNCED ON : 9TH SEPTEMBER, 2011 JUDGMENT . This Appeal is directed against appellant's conviction by the learned Special Judge at Mumbai for the offences punishable under Sections 21 read with Section 8(c) and Section 28 read with Section 23 read with 2 Apeal 154-07 Section 8(c) of the Narcotic 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 imposed upon the appellant on each of the two counts. 2. Facts which are material for deciding this Appeal are as under :- On the night of 30 th June, 2002, the officers of Air Intelligence Unit at Airport were keeping a vigil on flights to sensitive countries particularly, the Kenyan Airway Flight No.KQ-200 to Nairobi and Ethiopian Airline Flight ET-611 to Addis Ababa. The officers noticed the appellant checked in his baggage then at Airlines Counter. He was slightly nervous. Therefore, suspecting that there may be something amiss, the Air Intelligence Unit Officer asked the Airlines to put a 'X' (Cross) - tag on the baggage 3 Apeal 154-07 checked in by the appellant. After appellant checked in his bag, he went to the immigration counter, cleared immigration and Customs and proceeded towards transit lounge, when the Air Intelligence Unit Officers stopped the appellant and took the personal particulars of the appellant. The appellant denied carrying any contraband or drugs on his person or in his baggage. Since the officers were not satisfied and so panchas were called. Again in presence of panchas the appellant repeated that he was not carrying any contraband. The appellant had checked in one Blue coloured zipper suitcase having baggage tag No.ET-618407. The bag was sniffed by sniffer dog, who gave indication about concealment of drug in the bag. The officers, therefore, decided to carry detailed examination of the baggage and asked the appellant if he desired to be searched in presence of a Magistrate or a Gazetted officer. The appellant consented for being searched in presence of a Gazetted 4 Apeal 154-07 officer. The search revealed that Blue coloured zipper suitcase contained 18 bottles of Genteel detergent. Out of them, seven bottles were found to contain some solid substance concealed in them. Bottles were broken up and were found to contain plastic bags containing brown coloured powder. The powder recovered from these seven bottles was weighed and found to weigh 1991 grams. A small quantity of the powder was tested on field testing kit. Three representative samples of three grams each were drawn from the seven packets and were sealed. In the other articles which the appellant carried, there was no contraband. A detailed panchanama was drawn up and 21 samples taken from seven bottles were sealed and labelled with labels signed by the panchas. Other articles like broken detergent bottles etc. were packed in a cardboard carton and carton was also sealed with label bearing signatures of panchas. Personal effects of the 5 Apeal 154-07 appellant, which had nothing to do with contraband, were returned to the appellant. The appellant's statement was recorded under Section 108 of the Customs Act, 1962. The appellant was arrested and produced before the Additional Chief Metropolitan Magistrate where the appellant retracted his confessional statement. 3. Samples were sent to the laboratories which confirmed presence of heroin in the samples ranging from 43.25 to 62.5 percent. After completion of investigation, complaint was filed by officers of Air Intelligence Unit before the Special Court. The learned Special Judge charged the appellant of the offences punishable under Section 21 read with Section 8(c) and Section 28 read with Section 23 read with Section 8(c) of the Narcotic Drugs And Psychotropic Substances Act, 1985. Since the appellant pleaded not guilty, he was put on trial at which the prosecution examined in all 6 Apeal 154-07 11 witnesses in its attempt to bring home guilt of the appellant. After considering the evidence of the prosecution witnesses in the light of defence of false implication, the learned Special Judge held the appellant guilty of two offences under Sections 8(c) read with Section 21 and Section 28 read with Section 23 of the Narcotic Drugs And Psychotropic Substances Act, 1985. Aggrieved thereby, the appellant has preferred the appeal. 4. I have heard the learned Counsel for the appellant and the learned Additional Public Prosecutor for the Air Intelligence Unit. With the help of both the learned Counsel I have gone through the entire evidence on record. PW-1 Deepak Dinkar Gangurde was working as Intelligence officer at the Air Intelligence Unit and was on night duty on the incidental night. He had suspicion about the appellant, who was 7 Apeal 154-07 checking in at the Ethiopian Airways for Flight ET-611. He claims to have discussed with his colleagues and then asked the Airlines to put a cross tag on appellant's luggage. He then claims to have stopped the appellant for transit lounge and enquired with appellant. The appellant was carrying passport of Republic Do Mali and was having Ethiopian Airways Ticket from Bombay to Addis Ababa with excess baggage receipt, Ethiopian Airlines onward Ticket from Addis Ababa to Bomako along with boarding cards. Since the officer claimed to have been dissatisfied with the explanation, he decided to examine baggage and therefore, called panchas. The appellant identified Blue coloured zipper suit case to be his own. The baggage tag number was tallied with the claim tag on the appellant's boarding card. The sniffer dog sniffed the suit case and indicated that there was some contraband in the suit case. The appellant was informed of his rights and 8 Apeal 154-07 claimed to be searched before a Gazetted officer. Thereafter, the suit case was searched which revealed among other things 7 bottles of Genteel liquid which contained plastic bags hidden inside. These plastic bags contained a powder which was tested on Ionoscan machine. While taking a small sample for test, the appellant locked his suit case and kept the key in his pocket. One panch and some officers guarded the suit case. Other panch, PW-1 Gangurde and the appellant went to the Ionoscan machine. The sample tested positive on the machine and a print out was taken. Again the officer went back with the appellant and the appellant opened his suit case with his keys. The seven detergent bottles were broken and contraband was taken out, weighed on electronic weighing machine, weight was noted, samples were drawn from each of the seven packets and the samples as well as the remaining property was sealed. Other 11 bottles were found to contain detergent 9 Apeal 154-07 without any contraband in it. Personal search of the appellant was also taken and an elaborate panchanama was drawn up which the officer proved to be at Exhibit 8. The print out from Ionoscan machine is at Exhibit 9. The officer identified the property which was produced in the Court. 5. PW-2 Shri Dayanidhi Raghunath Sahu, another Intelligence officer was on duty in the Air Intelligence Unit on the incidental night. He states that after recovery of heroin from the appellant, he issued a letter vide Exhibit 11 to the immigration staff for cancellation of immigration stamp on the appellant's passport. He also states having issued an arrest memo to the appellant vide Exhibit 12. He claims to have sent a report to the Deputy Commissioner, Shri Parelkar vide Exhibit 13 after the seizure was effected. 6. PW-3 Shri Dilip Anand Maskeri, Air 10 Apeal 154-07 Intelligence officer claims to have forwarded the seized articles to one DS-I warehouse where PW-6 Mukesh Hazarilal Agarwal was the custodian. The articles sent included sealed packets each containing seven samples in sealed condition. He produced acknowledgment from Agarwal vide Exhibit 15 about receipt of these articles. PW-6 Agarwal corroborated the version of this witness and proved a copy of the original register at Exhibit 29 by bringing the original before the Court. 7. PW-4 Shri Abhijeet Nareshchandra Gangopadhyay was the Superintendent at Air Intelligence Unit at Sahar Airport, Bombay. He recorded statement of the appellant under Section 108 of the Customs Act, 1962 which he proved to be at Exhibit 18. He also proved a letter written by him to the immigration officer about departure of one Mr. Boubacor Bore as also letters written by him and replies received from Hutchison Max Telecom 11 Apeal 154-07 Pvt. Ltd. about calls made from a mobile number. He States that he endorsed the report of Sahu to his superior after the seizure was effected. The witness wrongly identified one Sayeed Ahmed Hasan as the accused but then corrected and identified the appellant as the accused before the Court. 8. PW-5 Assistant Chemical Examiner, Pradeep Kumar Bhatnagar states having received the samples in a sealed condition and tested the samples on 5 th July, 2002. He proved copies of notes from his register at Exhibit 26 along with the report, as also test memo which is at Exhibit 27. He identified the sample packets before the Court. 9. PW-7 Shri Subodh Bhanupratap Tiwari was serving as intelligence officer at Air Intelligence Unit and claims to have taken packet containing seven sample packets for handing it over to PW-5 Bhatnagar on 2 nd July, 12 Apeal 154-07 2002 as per letter. He also claims to have delivered another packet containing seven samples to the Forensic Science Laboratory. The reports of the Forensic Science Laboratory about analysis of samples and percentage of heroin in the seven samples is at Exhibit 32. PW-8 Madhukar Kashinath Malve was the Deputy Director of the Forensic Science Laboratory, who proved the report at Exhibit 32 and the relevant record at Exhibit 33 in respect of analysis of the samples which he had conducted between 18/07/2002 and 22/07/2003 after having received the samples on 3 rd July, 2002. 10. PW-9 Bhagwan Ramchandra Shinde was a panch at the seizure effected. He was working on a canteen at Sahar Airport. His examination-in-chief shows that he was hesitant witness, who did not remember the events perfectly. He was examined on 2 nd December, 2005 that is after about three years after the incident. He was then confronted 13 Apeal 154-07 with the panchanama which was read over to the witness and translated to him in Marathi. Thereafter, he certified that whatever is recorded in the panchanama had, in fact, occured. He stated that most of the events took place at the customs counter only. 11. PW-10 Sayyed Ibrahim Ahmed produced a guest register from his hotel which does not have any immediate bearing on the facts to be examined in this appeal. PW-11 Sanjay Vasant Paralkar was the Deputy Commissioner of the Air Intelligence Unit. He stated that in the night of 30 th June, 2002 he was informed about detection of a case where the officers had intercepted a passenger and seized heroin. After receiving this information, he went to the Airport and gave the necessary directions for completing the seizure formalities and arresting the passenger. He stated that the officers then submitted a report about seizure and arrest vide Exhibit 13. It was this 14 Apeal 154-07 evidence which the learned Judge found to be adequate for convicting the appellant resulting in filing of the appeal. 12. The learned Counsel for the appellant first submitted that interception of the appellant as well as his being checked in is doubtful, since though PW-2 and PW-4 were also present on the spot at the time of interception, they did not state anything about intercepting the appellant. As rightly submitted by the learned APP, if all the officers were to run after one passenger, it would be difficult for the officers of the Air Intelligence Unit to keep a watch on the movement of hundreds of passengers passing through the Airport. One officer-PW-1- intercepted and the other officers participated in such parts of the seizure and investigation as they could. Therefore, merely because PW-2 to PW-4 do not speak about interception, the incident of interception 15 Apeal 154-07 cannot be said to be doubtful. 13. The learned Counsel for the appellant next submitted that the evidence about checking in of the appellant from Bombay to Addis Ababa and onwards is itself doubtful. He submitted that the passenger manifest of the flight No.ET 611 had not at all be produced. He also pointed out that presence of two flight coupons in the ticket which was identified as article 7/3 itself would rule out the possibility of appellant having been checked in on the flight. The learned Counsel elaborated the procedure at the Airport which has been duly recorded in Judgment of this Court in Criminal Appeal No.148 of 2007 in Otabor Elvis v. A.I.U.Customs & anr., decided on 17 th February, 2009 in para 12. The learned Counsel submitted that no witness from the Airlines was examined to prove that the appellant had been checked in. Article 7/4 would show that flight coupons were on the 16 Apeal 154-07 ticket itself. Had he been checked in the flight coupons would have been uplifted by the Airlines staff and therefore, the evidence about checking in is doubtful. Again on this aspect the learned APP rightly submitted that if the appellant not being checked in, there was no question of his being issued with boarding passes which had been duly proved as Articles 7/2 and 7/3. She submitted that there would also be no question of issuance of an excess baggage ticket if the appellant was not checked in, since according to the procedure on which the learned Counsel for the appellant relies, when a person seeks to check in, his baggage is weighed and he is requested to pay excess baggage charges and then his baggage would be affixed with baggage identification tags, and baggage claim tags would be attached to the boarding card of the passenger. Therefore, it cannot be said that the appellant had not been checked in. The baggage tag has been duly identified as 17 Apeal 154-07 Article 7/6. In view of this, according to the learned APP, the objections to evidence about appellant not having been checked in were rightly rejected by the learned trial Judge. In my view, no exception can be taken to the arguments of the learned APP. 14. The learned Counsel for the appellant submitted that the procedure followed by PW-1 Deepak Gangurde violates mandatory provisions of Section 42 of the NDPS Act. He submitted that after Shri Gangurde had found that there was something suspicious about the appellant and had asked the Airlines Authorities to put an 'X' tag on the baggage of the appellant, it was incumbent upon the officer to reduce in writing the reasons for his suspicion and to place them before his superior. PW-4 Gangopadhyay was his superior and was available. The learned Counsel submitted that thus, there was a breach of mandatory provisions of Section 42 of the NDPS Act which 18 Apeal 154-07 vitiated search and seizure. For this purpose, the learned Counsel for the appellant relied on a Judgment of the Supreme Court in Monhinder Kumar v. The State, Panaji, Goa, reported at AIR 1995 SUPREME COURT 1157. The Supreme Court noted the facts as under :- 3. In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effected the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panchas and on their arrival drew up the panchanama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panchas, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. The Court then held :- Under Section 42(1) provisio, if the search is carried out between sunset and sunrise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realizing that the accused 19 Apeal 154-07 persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the proviso to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case, it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officer after making arrest or seizure are mandatory in character. In that view of the matter, the learned counsel for the State was not able to show for want of material on record, that the mandatory requirements pointed out above had been adhered to. The accused is, therefore, entitled to be acquitted. 15. The learned APP first submitted that the provisions of Section 42 of the Act have been considered by the Supreme Court in Karnal Singh v. State of Haryana, reported at 2009 CRI.L.J.4299. The Bench was considering a conflict in two decisions of two Three Judge Benches. The Court stated the background in the following words :- 1.In the case of Abdul Rashid Ibrahim Mansuri vs. State of Gujarat, (2000)2 SCC 513, a three-Judge Bench of this Court held that compliance of Section 42 of the Narcotic Drugs 20 Apeal 154-07 and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act ) is mandatory and failure to take down the information in writing and forthwith send a report to his immediate official superior would cause prejudice to the accused. In the case of Sajan Abraham vs. State of Kerala, (2001)6 SCC 692, which was also decided by a three-Judge Bench, it was held that Section 42 was not mandatory and substantial compliance was sufficient. In view of the conflicting opinions regarding the scope and applicability of Section 42 of the Act in the matter of conducting search, seizure and arrest without warrant or authorization, these appeals were placed before the Constitution Bench to resolve the issue. The five Judge bench then held as under :- 15. Under Section 42(2) as it stood prior to amendment such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non- compliance of this provision the same would adversely affect the prosecution case and to that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case. It is to be concluded that the mandatory enforcement of the provisions of Section 42 of the Act non- compliance of which may vitiate a trial has been restricted only to the provision of sending a copy of the information written down by the empowered officer to immediate official superior and not to any other condition of the Section. Abdul Rashid(supra) has been decided on 01.02.2000 but thereafter Section 42 has been amended with effect from 02.10.2001 and the time of sending such report of the required information has been specified to be 21 Apeal 154-07 within 72 hours of writing down the same. The relaxation by the legislature is evidently only to uphold the object of the Act. The question of mandatory application of the provision can be answered in the light of the said amendment. The non-compliance of the said provision may not vitiate the trial if it does not cause any prejudice to the accused. 17.In conclusion, what is to be noted is Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Section 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows: (a) The officer on receiving the information (of the nature referred to in sub- section (1) of section 42) from any person had to record it in writing in the concerned Register and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of section 42(1). (b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior. (c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) 22 Apeal 154-07 in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency. (d) While total non-compliance of requirements of sub-sections (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending a copy of such information to the official superior forthwith, may not be treated as violation of section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of section 42 of the Act. Whether there is adequate or substantial compliance with section 42 or not is a question of fact to be