- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APEAL No. 136 of 2007 Mr. Rico Fluor, Aged 41 years, ) Swiss National, presently lodged ) in Central Prison, Yerwada, ) Appellant Pune 411 006 ... (Original accused) Vs. 1. Mr. M. K. Mishra, ) Superintendent of Customs, ) Respondents A.I.U., C.S.I. Airport, ) (Original ) complaints) 2. The State of Maharashtra ) *** Mr. Ayaz Khan with Ms. Deepa Bajaj & Ms. Nilofar Sayed, for the appellant. Mrs. U. V. Kejariwal with Mr. H. V. Mehta, for the respondent No.1. Mr. Y. M. Nakhwa, APP for the respondent No.2. CORAM : R. V. MORE, J. Reserved for Judgment on : 3rd April, 2009 Judgment Pronounced on : 17th June, 2009 JUDGMENT 1. The appellant was convicted for the offences punishable under section 20(b)(ii)(c) read with section 8(c) of the NDPS Act and sentenced to suffer rigorous imprisonment for ten years and to pay fine of Rs.one lakh, in default to suffer simple imprisonment for six months. The appellant was further convicted for the offence punishable under section 23 read with section 28 of the NDPS Act and sentenced to suffer rigorous imprisonment for ten years and to pay fine of Rs. one lakh, in default to suffer simple imprisonment for six months. The substantive sentences were directed to run concurrently. 2. The prosecution case in brief is as follows– On 10th /11th June 2004 the officers of AIR Intelligence Unit kept discreet surveillance on departing passengers and their checked in baggages. PW 3 Mr. M. K. Mishra, Superintendent of Customs, AIR Intelligence Unit along with other officers and dog handler kept surveillance on the passengers and their baggage in the departure area of Module I. In the baggage examination area, the baggages which were found suspicious, were removed from the conveyor belt and kept separately. One black zipper suitcase was noticed to have thicker than normal bottom. Hence, the said bag was kept before the sniffer dog. The dog started barking which indicated concealment of some drug in the said suite-case. The said bag was having identification tag No. LX 720231 with name of the passenger as Mr. R. Fluor. It was booked for Swiss Air Flight on LX 155 for Zurich. Two panchas were 2 called by the officers. Since the passenger had already cleared immigration check. On request by the officers, the Airline staff went to the transit lounge, located the said passenger and brought him to the baggage examination area. On inquiry he disclosed his name as Rico Flour i.e. the present appellant and produced his passport, Swiss Air boarding pass for sector Mumbai-Zurich by LX 155 flight and Swiss Air passenger receipt having one baggage tag No. LX 720231 which tallied with baggage claim indication tag attached to black zipper suitcase. 3. On the request of the officers, the appellant identified the checked-in baggage namely said black zipper suitcase. The appellant was asked whether he was carrying any narcotic drugs in the baggage, but he replied in the negative. Thereafter the officers made sniffer dog to sniff the bag in presence of panchas and accused. On sniffing, the dog started barking, thereby indicating concealment of the drug. The appellant was asked to open bag. After opening the bag, the personal effects contained in the suitcase were removed and the bottom of the suitcase was found to be very thick. On making hole at the corner of the bottom of the said bag, some pungent smell came from the bottom. The appellant thereafter admitted concealment of hashish inside the false bottom of the said suitcase. Thereafter the officers decided to carry out detailed search of the said bag at AIU office and therefore, the Immigration stamp on passport of accused was canceled. The uplifted flight coupon was also retrieved from the Airlines and the appellant along with his baggage was brought to the AIU office. In the office, the bottom of the suitcase was opened by removing the 3 cardboard flap and 3 white polythene packets were found. On opening of the packets it found to contain 3 rectangular sheets containing 4 packets each, wrapped with brown cello tape. The transparent polythene of all 12 packets were removed and sticky material was found. It was weighed and found to be 6 Kgs. 400 gms. Small quantity of sticky material tested with the help of drug testing kit and it answered positive for the presence of hashish. Three samples of 15 grams each were drawn from hashish and the same were kept in 3 plastic sachets which were then kept in three envelopes. The envelopes were closed and sealed with AIR seal No. 134. The panchas and accused put their signatures on sample envelopes. The bulk quantity, weighing 6 Kgs 355 grams of hashish was packed in a cardboard carton and sealed with AIU seal No. 134. The panchas and appellant put their signatures on a label affixed to the carton. The panchanama of above fact was drawn at exhibit 8. The statement of appellant was recorded under section 67 of the NDPS Act. The appellant was thereafter placed under arrest. 4. The seized contraband and other articles were deposited in warehouse. One sample was sent to the Dy. Chief Chemist, Mumbai. It was analysed and found to contain hashish. After completion of usual investigation, complaint came to be filed against the appellant. 5. The charge (Exhibit 2) was framed against the appellant for the offences, mentioned above. The charge was explained to the appellant to which he pleaded not guilty and 4 claimed to be tried. The defence of the appellant was of total denial and false implication. 6. The prosecution in order to prove guilt of the appellant, examined 8 witnesses, namely, PW 1 Mr. Sunil Kshetramade, investigating officer who drew panchanama, deposited sample and bulk, and withdrew the sample and sent for analysis to Dy. Chemical Analyser; PW 2 Mrs. Meena Karmarkar, Superintendent of Customs, who issued summons to the appellant and recorded his statement under section 67 of the NDPS Act; PW 3 Mahendrakumar Mishra who supervised the drawing of panchanama and filed complaint; PW 4 Atul Ranade, who served memo of arrest on appellant and put up report of arrest; PW 5 Subhashchandra Surana, Assistant Chemical Examiner, who analysed the sample; PW 6 Mrs. Subramaniam Visalathchi, who canceled immigration of the appellant; PW 7 Mr. Gopal Lala, a godown keeper; and PW 8 Mr. Richard Fernandes, a panch witness. 7. The learned Special Judge after appreciating the evidence on record and hearing the learned counsel for the respective party, convicted the accused/appellant for the offences mentioned above. 8. Mr. Khan, learned counsel for the appellant submitted that prosecution could not establish the samples which allegedly drawn from the bulk quantity of contraband hashish under panchanama (exhibit 8) was sent to the Chemical Analyser for 5 analysis. He also submitted that the samples allegedly drawn are not before the Court. The prosecution in order to rule out tampering of the samples ought to have examined the person in charge of he strong-room of the warehouse where samples were transferred after deposit of the same in warehouse on 11-6-2004. He also submitted that there is no independent evidence on drawing of samples from contraband hashish which was recovered under panchanama (Exhibit 8). Regarding bulk and zipper suite- case, he submitted that what was allegedly seized is not before the Court. He lastly submitted that statement of appellant under Section 67 cannot be relied upon, as the same is not voluntary. 9. During the course of argument, the learned counsel for the appellant invited my attention to the muddemal sample packets and submitted that the sample packet which was sent to chemical analyser is different from other 2 sample packets which remained in the warehouse or strong-room. He further submitted that if the 3 sample packets claimed to have been drawn at the same time, then there should not be any difference and thus, tampering of samples is proved. He submitted that these submissions can be considered at the appeal stage, as the facts are already on record. In this regard, he relied upon following decisions– 1) Kashmir Singh Vs. State of Punjab [2005 Drug Cases 517]; 2) State of Orissa Vs. Sianshu Sekhar Kanungo [Jt. 2002(8) SC 292]; 3) K. Razak Vs. State of Kerala [2000 SCC(Cri.)829]; 6 4) Avtar Singh Vs. State of Punjab [2002(4)R.C.R. (Criminal) 180]. 10. Mrs. U. V. Kejariwal, learned counsel for the respondent No.1, on the contrary supported the impugned judgment. She submitted that the prosecution by adducing evidence of PW 1 Sunil Kshetramade, PW 3 Mahendra Kumar Mishra, PW 4 Atul Ranade and PW 8 Richard Fernandes has proved beyond reasonable doubt the recovery of contraband hashish from the appellant. She further submitted that prosecution also established that the sample which was drawn from contraband hashish was sent to the chemical analyser, in view of the link evidence of PW 1 and PW 7. She further submitted prosecution proved beyond reasonable doubt that the sample Article 3 found to have contained hashish, in view of evidence of PW 5 chemical analyser Mr. Surana. Regarding inculpatory statement under section 67 of the Act, of the appellant, Mrs. Kejariwal, learned APP submitted that the same can be relied upon though the same was retracted at later stage. 11. In reply to Mr. Khan’s argument, about tampering of samples, learned APP submitted that evidence of PW 7 indicates that 5 packets including 3 were received by DSK-1 in sealed condition under AIR seal No. 134. She also submitted that evidence of PW 5 chemical analyser Surana discloses one sealed envelope with AIU seal No. 134, was received by him for analysis and therefore, question of tampering of the sample packet which was sent to CA, does not arise. Regarding difference between 3 7 samples, she submitted that there is no such suggestion put to the witness (PW 7) in the cross-examination to that effect by the defence. Neither the defence argued the same point before the learned trial Court nor the said ground was taken in the memo of appeal before this Court, and therefore, now it is not permissible to argue on the point of difference in the sample packets. To substantiate her submission, she relied upon decisions in – 1) Ajmer Singh Vs. State of Punjab [1993 Supreme Court Cases (Cri) 1113]; 2) State of U.P. Vs. Anil Singh [AIR 1988 Supreme Court 1998]; 3) K. C. Mathew & Ors. Vs. State of Travancore-Cochin [A.I.R. 1956 S.C.241]. 12. In order to establish the offences alleged against the appellant, the prosecution must prove that contraband hashish which was recovered under panchanama (exhibit-8) from false bottom of back colour zipper suit-case, was possessed and belonged to the appellant/accused. The prosecution further obliged to prove that the samples which were drawn from the contraband hashish under panchanama (exhibit-8), was sent to the chemical analyser and the said sample was found to contain hashish. In order to prove connection of the appellant with black colour zipper suit- case, the prosecution led evidence of PW 1, PW 3, PW 4, PW 6 and PW 8. PW 1 Mr. Kshetramade deposed in terms of prosecution case. He deposed that while keeping surveillance on departing passengers in the night between 10th and 11th of June 2004, he suspected black colour zipper suit-case and therefore the same was 8 made to sniff by the sniffer-dog; on sniffing, the said dog started barking, indicating some concealment of the drug in the said suit- case. He further deposed that identification tag on the said bag indicated name of passenger as R. Flour i.e. the appellant. He thereafter called for 2 panchas and the appellant was brought to the baggage examination area. Swiss Airline staff was asked to locate the passenger by name Rico Flour, whose name was on the identification tag, attached to the suit-case. After some time, the airline staff brought the passenger at the spot and on inquiry, he disclosed his name as Rico Flour i.e. the appellant and produced his passport. The name was tallied with the package identification tag. The appellant claimed his ownership over the black colour zipper bag. The appellant was thereafter asked whether he was carrying drugs in the said bag, however, he replied in the negative. Thereafter the bag was again kept before the sniffer dog in presence of the appellant and panchas. Dog again gave indication about concealment of some drugs. The appellant was thereafter asked to open the bag and accordingly he opened it. After removal of personal effects from the suit-case, false bottom covered by black rexene found. It was very thick, hence a whole was made at the corner by knife and brown colour sticky material was found on the knife. That time the appellant has admitted that he has concealed hashish in the suit-case. The back colour Rexene card board was thereafter removed and 3 rectangular sheets wrapped with polythene, each containing 4 packets covered with brown colour cello tape were found. A small quantity of that material was tasted and it answered positive for hashish. It was weighing 6 Kgs. 9 400 gms. PW 1 thereafter deposed about drawing of the samples, seizure of bulk quantity and the transport document passport. PW 1 thereafter prepared panchanama (exhibit 8) in presence of panchas. 13. PW 8 R. Fernandez is a panch to the seizure panchanama (exhibit 8). He supported the prosecution case on all counts. He deposed that he was on duty at International airport Sahar on 10-6-2004. He testified that he was called by AIR officers, prior to departure of flight LX 155 in baggage identification area and one black colour zipper bag was shown to him. He deposed that there was baggage tagged with passenger’s name R. Flour on flight No. LX 155. He thereafter deposed that passenger was located and brought to the baggage identification area. The said passenger identified the bag, as belonging to him. On inquiry, he disclosed his name as Rico Flour i.e. the present appellant. PW 8 identified the appellant before the Court. PW 8 further testified that the said suit-case was opened and found to contain in its false bottom few packets wrapped in polythene. After removal of polythene a dark reddish brown colour sticky substance was found. The said substance was weighed and found to be 6.5 Kgs. He thereafter deposed about drawing of sample, seizure of bulk quantity along with black colour zipper suit-case and other articles. PW 8 identified black colour zipper bag (Art.4), Card- board cartoon containing bulk (Art.5) and the sample packets (Arts. 1 to 3). 14. PW 3 Mahendra Kumar Misra, PW 4 Atul Ranade and PW 6 Mrs. Subramaniam Visalathchi in their evidence have 10 corroborated the evidence of PW 1 Sunil Kshetramade, in all respects. Thus, evidence of PW 1, PW 3, PW 4, PW 6 and PW 8 read with panchanama (exhibit 8) conclusively in my view proved that the black colour zipper bag from which contraband hashish was recovered under panchanama, exhibit 8, possessed and belonged to the appellant. The learned Special Judge has recorded similar finding and I do not find any error, as far as this finding is concerned. 15. In order to establish link between contraband seizure under Exhibit 8 and the sample sent to chemical analyser, the prosecution in this regard relied upon evidence of PW 1, PW 8, PW 5, and PW 7. Evidence of PW 1 and PW 8 discloses that 3 sample packets of 15 gms. each were drawn from the contraband, purported to be hashish. These 3 samples were marked Article 1, 2 and 3 respectively in the Court. PW 1 deposed that muddemal articles along with 3 samples were deposited in DSL-1 godown vide exhibit 9 on 11-6-2004. He further deposed that one sample was withdrawn from DSL-1 godown vide exhibit 11 on 29-6-2004 for being forwarded to DYCC. If exhibit 11 is perused, it clearly shows that the samples to be withdrawn was deposited in customs warehouse, vide reference No. DS1/M1/55/04, dated 11-6-2004, pertaining to file No.SD/INT/AIU/23/2004 AP- ’D’. 16. Now, let us consider whether prosecution proved beyond reasonable doubt that the contraband seized from black colour zipper bag was containing hashish, and whether prosecution in this regard adduced satisfactory link evidence. The prosecution 11 in this regard relied upon evidence of PW 1, PW 8, and PW 5, PW 7. The evidence if P W 1 and PW 8 as well as panchanama (Exhibit 8) disclose that the samples were drawn in 3 packets; and the said sample packets were deposited in DS-1 godown Exhibit 9 on 11-6-2004. It is further deposed by him that one simple was withdrawn from DS-I godown vide authority letter (exhibit 11) on 29-6-2004 for being forwarded the same to DYCC. 17. Perusal of Exhibit 11 reveals that the sample which withdrawn on 29-6-2004 was deposited in Customs Waherehous vide Reference No. DS-1/M-1/55/04, dated 11-6-2004, pertaining to file No. SD/INT/ AIU /23/2004 AP ‘D’. As per the prosecution case, Article 3 before the Court was the sample, sent for analysis to Dy. Chief Chemist and Articles 1 and 2 before the Court are the other two samples remained in the warehouse. I have perused sample packet Article 3. The said Article bear signature of panchas, PW 1, 3 and the appellant, along with the description written on it. File number is also written on the top portion of this envelope. I have also perused the sample packets Arts. 1 & 2. These articles also bear signature of panchas, appellant and officers PW 1 and 3 in blue ink, file number as well as number DS 1 i.e. DS 1 godown on the top with black sketch pen i.e. DS1/M1/55/04, written on the right side top of the envelope. After perusal of all the 3 sample packets ( Arts. 1, 2 and 3), I find following differences- (1)The signatures of officers PW 1, 3, panch and appellant are in blue ink, on sample packet, Arts. 1 and 2 which remained in warehouse. So far as sample packet Art.3 is concerned, the signature of officers PW 1 and 3 and panchas are in blue 12 ink. However, the dated signature of the appellant is in black ink. The signature of the appellant on this sample packet, Art.3 is different than his signature on sample packets (Arts. 1 and 2). (2)File No.SD/INT/AIU/23/2004/AP‘D’ is written on the top of envelope with black sketch pen on sample packets Arts. 1 and 2. So far as sample packet Article 3 is concerned, file No. SD/ INT /AIU/23/2004 AP ‘D’ is written on the top of envelope with blue ink pen. (3)On the right side top of the envelope containing sample packet Arts. 1 and 2 number of DSI is written as DS1/M1/55/ 04. So far as Art. 3 is concerned, no such details of DS-1 is written on this envelope. (4)Sample packets Arts. 1 & 2 are silent on illicit market value of the Hashish. However, in envelope Art.3, the words “Rs.32 lakhs”, illicit market value is added in different ink. . Since it is the prosecution case that all the three samples namely Arts. 1, 2 and 3 were drawn at the same time i.e. During the alleged seizure panchanama (Exhibit 8) and also were deposited on the same date, all the three samples should have been identical and there should not be any difference. However, in the light of discrepancy mentioned above, following conclusions can be drawn- (1)Sample packets which were deposited in DS-1 under panchanama (Exhibit 9) and withdrawn vide Authority 13 Letter (Exhibit 11) was not sent for analysis to Chemical Analyser; (2)A fresh sample packet was prepared and since the signature of the appellant could not be obtained as he was in judicial custody on 29-6-2004 (the date on which sample was allegedly forwarded to Dy. CC) the same was fabricated. (3)That no sample packet was withdrawn from DS-I on 29-6-2004. . In the facts and circumstances mentioned above, in my considered view the prosecution failed to prove beyond reasonable doubt that the sample which was drawn at the time of seizure panchanama on 11-6-2004, was actually sent to Chemical Analyser (PW 5) for examination. Though the prosecution by examining PW 5 stated that the hashish was found in sample packet Art.3, however, since it is doubtful whether this sample packet Art.3 was drawn at the time of drawing of panchanama (Exh.8), benefit of doubt deserves to be given to the appellant. 18. Mrs. U. V. Kejariwal, learned APP for the respondent No.1, however, submitted that the discrepancy in sample Arts. 1, 2 and 3 cannot be considered at appellate stage, in the absence of any suggestion to prosecution witness (PW 7) in the cross-examination that only two sample packets were received by him and on which packets number of DS1 was written by him, while accepting the said packets. She submitted that said point was neither argued before the trial Court, nor any such ground is raised in the memo of appeal before the High Court. Per contra, it was submitted by Mr. 14 Khan, learned counsel appearing for the appellant that since the facts regarding discrepancies are on record, the same are open for consideration, even before the High Court as well as before the Supreme Court. Both the learned counsel relied upon the ratio laid down by the Apex Court in various judgments to substantiate their contentions. 19. Regarding submission of learned counsel for respondent No.1 that there is no suggestion to PW 7 in the cross- examination, I find no merits inasmuch as PW 7 was given suggestion in his cross-examination that on 11-6-2004 three samples were not deposited with him by PW 1 Kshetramade. Thus, the defence put up its case to PW 7 and it cannot be now agitated that the case is made out for the first time before the High Court. . In the case of Ajmer Singh Vs. State of Punjab (supra) the Apex Court, was considering the delay in sending the pistol for obtaining expert opinion for finding as to whether it was in working condition, in the absence of cross-examination of the prosecution witness on the question of delay, or any suggestion made that the pistol was substituted. Apex Court held that it was necessary on the part of the appellant to obtain this vital information, so that prosecution witnesses could have explained the reasons for the delay. . In the case of State of U.P. Vs. Anil Singh (supra), the Apex Court held that the Court cannot presume something adverse to the witness unless his attention is specifically drawn to. 15 . In the case of K.C. Mathew & Ors. Vs. State of Travancore-Cochin (supra), the Apex Court held that “omission to take objection in the grounds of appeal is not necessarily fatal; everything must depend on the facts of the case”. 20. I have already observed that defence had put its case to PW 7 by giving suggestion in cross- examination that three samples were not deposited with him on 11-6-2004, which suggestion is denied by PW 7. Now, therefore, the prosecution cannot contend that the case of discrepancy in the sample packets is being made for the first time. In these facts and circumstances, in my view the ratio laid down in the above decisions of the Apex Court, is not applicable to the present facts and circumstances of the case. 21. Be that as it may. In the case of Kashmir Singh Vs. State of Punjab (supra), a case under NDPS Act, the Appellate Court found certain infirmities in the prosecution case, which had been lost sight by the High Court and ultimately considered the same. 22. In the case of State of Orissa Vs. Sitansu Sekhar Kanungo (supra), a case under NDPS Act, the question involved was about validity of seizure