9911796707
TMI Blog2011 (12) TMI 352X X X X Extracts X X X X X X X X Extracts X X X X ..... g. heroin kept in two separate polythene bags, which were concealed in the false bottom of the two suitcases which she had checked-in as her baggage with the Kenya Airways - it is clear that the accused was in possession of commercial quantity of heroin and she was trying to export the same. Therefore, she was rightly convicted of the offences under Section 21(c) and Section 23 r/w. Section 28 of the NDPS Act It is settled position of law that a confessional statement before the officers of NCB or Revenue Intelligence under Section 67 of the NDPS Act is not hit by Sections 25 or 26 of the Evidence Act and is admissible but it is necessary to scrutinize the same strictly though the Court may act upon it if it is satisfied about its absolute truth but at the same time it is held unsafe to rely on the confessional statement without some corroboration - learned Counsel for the appellant contends that the appellant is a woman and in jail since 2002. The learned trial Court has awarded rigorous imprisonment of one year in default to pay fine on each count - Appeal is partly allowed - Criminal Appeal No. 1297 of 2007 with Criminal Application No. 1334 of 2010 with Criminal Application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... found unusually heavy, for which the accused could not give any satisfactory reply. The officers opened the zip of the inner cloth lining of both the suitcases, which exposed the PVC sheets on which two pipes were fitted for the movement of telescopic pulling handles. On pulling the PVC sheet, one black coloured polythene bag was found pressed flat in between the inner and outer PVC sheets in each of the bags. The said polythene bag contained brown powder. It tested positive for the presence of heroin. As both the bags contained the similar material, they were emptied in another transparent polythene bag. On weighing, that brown powder was found to be 5.400 kg. 4. From the composite mixture of the brown powder taken from both the bags, two representative samples of 5 gm each were drawn in separate small polythene sachets which were heat-sealed and kept in separate envelopes. The envelopes were pasted and sealed with "NCB Seal No.03". The said sample sachets were marked "BK-BL-I" and "BK-BL-II" respectively. The remaining bulk of 5.390 kg of brown powder was retained in the large polythene bag which was also heat-sealed and then kept in the carton and sealed with 'NCB Seal No.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts were produced before the Court in the case against Josephine and certified copies of the same were produced in the present case. 8. The accused was charged for the offences under Section 21(c) r/w. Section 8(c), Section 29 r/w. Section 21(c) and Section 28 r/w. Section 23(c) of the NDPS Act. She pleaded not guilty. She also retracted from her statements allegedly recorded on 06.05.2002 and 11.05.2002 by the NCB officers. 9. To prove the offence and to bring home guilt to the accused, in all eight witnesses were examined by the prosecution. A large number of documents were placed on record. The learned Special Judge, after hearing the parties, convicted and sentenced the accused as stated above. 10. Heard the learned Counsel for the accused appellant and the learned Special Public Prosecutor. Perused record and proceedings of the case. 11. The learned Counsel for the appellant, Mr. Khan vehemently contended that the prosecution case suffers from several drawbacks. According to him, the identification tags were not affixed on the suitcases from which the contraband was found. The prosecution story about finding of identification tags affixed on the suitcases is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge or on their person, and would be trying to smuggle the same out of India by Kenya Airways flight No.KQ-201 on 06.05.2002 at 03.30 hours. This note was submitted on 05.05.2002 at 14 hours and P.W.2 Sanchis endorsed and proposed to work-out on the intelligence and submitted the same to his superior Assistant Director Mr. Vijaydharan, who also endorsed and approved the same. Accordingly, a team of NCB officers was constituted. Responsibility of raid and seizure was put on P.W.1 Kanta Tejwani. 14. P.W.1 Kanta Tejwani deposed about the information received by the Intelligence Officer Rosario and some other superior officers and their directions to her and other officers for surveillance. Her evidence shows that two panch witnesses were called and the surveillance was kept at the custom counter at departure module 2A. She collected pre-flight manifest from Kenya Airways vide exhibit 10/1. She has deposed in detail about the identification of the present appellant as well as another African lady Josephine on the basis of the pre-flight manifest. Her evidence about obtaining pre-flight manifest, exhibit-34, is also corroborated by P.W.6 Bharat Seraiya, the Administrative Officer of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ack coloured polythene bag pressed flat between the inner and outer sheets in both the suitcases. The black polythene bags were extricated from both the suitcases. The black polythene bag extricated from blue coloured suitcase was cut opened and found to contain the brown coloured powder. A small quantity of powder was tested with the help of Field Testing Kit and the result was positive for heroin. This polythene bag was marked "BL" with the help of scotch tape. Then the black polythene bag extricated from black coloured suitcase was also cut opened and was found to contain brown powder in it. A small quantity of powder from that bag was also tested with the help of Field Testing Kit and the result was positive for heroin. The said black polythene bag was marked as "BK" with the help of scotch tape. As the powder in both the bags appeared to be similar in appearance, the contents of the same were emptied into one large transparent polythene bag. The powder weighed 5.400 kg. Two representative samples of 5 gm each were drawn from the composite mixture of the powder in two small polythene sachets. Both the sachets were then heat-sealed and put into separate paper envelopes. The enve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the present appellant as well as Josephine. She also submitted a note dated 06.05.2002 to the Superintendent P.W.2 Sanchis about offloading of the accused as well as Josephine because of the seizure of contraband material from them. According to her, she recorded statement of the accused under Section 67, wherein she gave all the personal details as well as the circumstances in which she had entered into the business of narcotic drugs. That statement was signed by the accused and proved to be exhibit-25. She also recorded the statement of Josephine. In view of their statements as well the manner in which they had concealed and were trying to export heroin, it appeared that they were not working together and they were independently involved in the illicit business. Therefore, there could not be a common intention nor there could be a common case against them. Therefore, P.W.1 Kanta Tejwani bifurcated their cases. 18. As per her evidence, P.W.1 Kanta Tejwani deposited the muddemal except the samples with the custodian of NCB along with her letter at exhibit-27. P.W.2 Sanchis, being the Superintendent, was the custodian and he received the said two suitcases and the carton con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... marked "BK BL II". The result of the analysis was that heroin (diacetyl-morphine) was detected in the exhibit along with the other opium alkaloids. Director of Forensic Science Laboratory also reported that the sample contained 44% of heroin. P.W.4 Murlidhar Sevalkar, who was the Assistant Chemical Analyser at Forensic Science Laboratory, Kalina, Mumbai during the relevant time, deposed about the receipt of the sample with intact seals and also about the analysis of the sample. He has also given the data of the analysis in his evidence before the Court and deposed that the sample contained 44% heroin (diacetyl-morphine) along with paracetamol and caffeine. The data sheet exhibit-57 and the report exhibit-33 were proved by him. 22. The learned Counsel for the appellant contended that the Intelligence Officer Rosario was not examined by the prosecution, and therefore, it has failed to prove the receipt of the intelligence. It is also contended that as no register is maintained about the intelligence received and it is on the loose sheet exhibit-45, much importance cannot be given to it. P.W.2 Sanchis has deposed that Rosario was in service of Union of India and working with NCB d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unny bags containing charas were found. In that case, it was found that the information received was neither noted down nor it was submitted to the Senior Officer as per the provisions of Section 42(1). Section 42 is applicable where the entry, search or seizure is to be made from any building, conveyance or enclosed place. In Mansoori's case, the search of auto-rickshaw, which is a conveyance, was to be taken, and therefore, provisions of Section 42 were found applicable. The Karnail Singh's case (supra) was decided by the Constitution Bench of the Supreme Court consisting of five Judges because of the conflicting opinions in Mansoori's case (supra) and Sajan Abraham vs. State of Kerala, 2001 Drugs Cases (Narcotics) 457. In fact, Constitution Bench of the Supreme Court found that the facts of the two cases were different. In Sajan's case, the accused was allegedly found selling the narcotic drugs at the public place, and therefore, the Supreme Court had held that the provisions of Section 42 were not mandatory. While in Mansoori's case, it was held that Section 42 was mandatory because it was a case of search and seizure from the conveyance. The Supreme Court also dealt with as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely because the butter papers were found stuck with the identification tags, it could not be said that the identification tags were not actually affixed on the said suitcases. In fact P.W.1 Kanta Tejwani and P.W.5 Nasir Rashid both have deposed that identification tags were on both the suitcases and they were removed. Therefore, I do not find much substance in this argument of the learned Counsel. 25. The learned Counsel contended that the weight of the two suitcases which were seized by the NCB was 57 kg. As per the evidence on record, the passenger of economy class is allowed to take baggage with weight of only 20 kg free of charges. For excess baggage, one has to pay. Exhibit 23 shows that the excess weight charges for 17 kg was paid. According to him, in view of this, the weight of the baggage should have been 37 kg but in fact it is 57 kg, and therefore, it is doubtful that the two suitcases, which were seized by NCB really belonged to the present accused. It is true that there is discrepancy in this respect and it is difficult to say why the excess weight charge for 17 kg only was collected by the officers of Kenya Airways while the excess weight was 37 kg. taking into co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se the word 'between' is not used in recording his evidence, it cannot be said that there is any conflict in the evidence of two witnesses about the condition in which the said polythene bags containing contraband were found. The learned Counsel also contended that P.W.5 Nasir Rashid admitted that he did not see the pipes in the bags which were shown to him at the time of evidence. On the basis of this, the learned Counsel contended that the bags produced before the Court may not be the same, which were allegedly seized. I have called the muddemal property and carefully seen both the bags. Merely by opening the bags, the pipes cannot be seen because the pipes are fixed on the PVC sheets from inside, and therefore, the pipes are not visible from the outside. As stated earlier, there was also inner cloth lining covering the bottom of the suitcases, therefore, unless the zip of the inner cloth lining is opened, the real bottom of the suitcase could not be seen, and therefore, pipes fitted on the PVC sheet of the bottom also could not be seen. On careful perusal of the bags, I find that such pipes are in fact found fixed with the PVC sheets with provision for movement of telescopic pul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entered in the godown register vide entry No.07/2002. Facsimile of the seal was also affixed on the said forwarding letter or memo. The letter also shows that besides the above carton, both the suitcases marked 'F' and 'G' were also received by the godown keeper. The evidence of P.W.1 Kanta Tejwani shows that both the sealed samples remained with her. On the next day, that is, 07.05.2002, she personally handed over one sample marked "BK BL I" with intact seals in the office of the Deputy Chief Chemist at Mumbai with test memo exhibit-30 and another sample marked "BK BL II" was forwarded to Forensic Science Laboratory on 08.05.2002 through P.W.7 Hawaldar Panigrahi. The evidence of P.W.7 Hawaldar Panigrahi goes to show that on the same day, he produced the same sample in the office of the Forensic Science Laboratory with intact seals and this is also proved by the report exhibit-33 as well as the evidence of P.W.4 Murlidhar Sevalkar. When P.W.1 Kanta Tejwani specifically deposed on oath that both the samples were in her custody till one sample was deposited with Deputy Chief Chemist on 07.05.2002 and second sample was forwarded to the Forensic Science Laboratory on 08.05.2002, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anchis, who in turn returned the same to the Zonal Officer. The test memo was prepared by P.W.1 Kanta Tejwani for forwarding sample "BK BL I" to the Deputy Chief Chemist on 07.05.2002, while according to her the covering letter forwarding the sample to Forensic Science Laboratory was prepared on 08.05.2002. On the said test memo and the forwarding letter sent to the Forensic Science Laboratory, facsimile of the NCB Seal No.03 was affixed to show that the said seals were used for the purpose of sealing the samples. The learned Counsel contended that it indicates that the seals were available to her on 07.05.2002 as well as 08.05.2002. In fact the evidence on record shows that the seal could be made available to the officers on oral request but that does not mean that the officers misused the same. In the present case, the bulk remnant of the contraband was put in the carton, which was duly sealed and that carton was deposited with the godown keeper on 06.05.2002 itself. Only the sealed samples were in custody of P.W.1 Kanta Tejwani. The sachets containing the samples were put in the envelopes, and thus, envelopes were duly sealed with NCB Seal No.03 and also had the dated signatures ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he report submitted by him, the sample packet was received with seals intact. The said packet not only had the seal of the NCB but also had the signatures of the panch witnesses, P.W.1 Kanta Tejwani as well as accused and that provided additional security. 32. The learned Counsel also contended that the panchnama does not reflect that more than one seal was affixed on the sample, while P.W.5 Nasir Rashid deposed that three or four seals were affixed on each sample. As per the evidence of P.W.1 Kanta Tejwani, three samples were put on each sample but in the panchnama, it is simply mentioned that the samples were sealed. It was not necessary to mention the number of seals which were put. She has explained how the seals were actually affixed to protect and secure the contents. I do not find any inconsistency in their evidence merely because P.W.5 Nasir Rashid stated that three or four seals were affixed on each sample. As stated earlier, the packets were found stuck with each other. The original envelope containing the sample had got stuck with the envelope in which the remnant sample was returned by the Forensic Science Laboratory. The record also reveals that they were tried to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record. 34. The learned Counsel contended that the accused was not in conscious possession of heroin, and for this purpose, he relied upon her retracted statement under Section 67 wherein, she stated that she was given assignment of taking a consignment containing sensitive drugs. The learned Counsel contended that the sensitive drugs comes under Schedule 'H' of the Drugs and they are not the narcotic drugs under the NDPS Act. In fact having retracted the statement under Section 67, she could not make the use of the same. It is also material to note that in her statement under Section 313 of the Code of Criminal Procedure, she never explained in what circumstances, the contraband had come in her possession nor she stated that the said contraband packets were given to her and she had received the same believing that the contents were some sensitive drugs and not heroin. She also did not give any evidence in support of this contention. Therefore, I do not find any substance in this contention of the learned Counsel. 35. In view of the evidence on record, I find that prosecution has proved satisfactorily and beyond any reasonable doubt that the accused was in possession of 5.4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... making of such statements should, in our considered opinion, be taken into consideration." 37. In Francis Stanly alias Stalin vs. Intelligence Officer, Narcotic Control Bureau, 2007 Cri. L. J. page 1157, the Supreme Court has held that confessional statements made before the officer of the Department of Revenue Intelligence may not be hit by Section 25 of the Evidence Act, yet such a confession must be subject to closer scrutiny than a confession statement made to private citizens. The Supreme Court also referred to the observations made by the Supreme Court in State (NCT of Delhi) vs. Navjot Sandhu alias Afsan Guru, (2005) 11 SCC page 600 as follows: "A retracted confession may form the legal basis of a conviction if the court is satisfied that it was true and was voluntarily made. But it has been held that a Court shall not base a conviction on such a confession without corroboration. It is not a rule of law, but is only a rule of prudence that under no circumstances can such a conviction be made without corroboration, for a court may, in a particular case, be convinced of the absolute truth of a confession and prepared to act upon it without corroboration; but it may be ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
