R.C. Chopra, J.
1. The appeal is directed against an order of conviction dated 24.7,1996 and sentence dated 25.7.1996 passed by learned Special Judge by which the appellant was-convicted under Sections 21 and 23 read with Section 28 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as 'the Act' only) and was sentenced to undergo RI for 15 years and a fine of Rs. 1 lac under Section 21 of the Act and RI for 15 years and a fine of Rs. 1 lac under Section 23 of the Act. In default of payment of fine, he was ordered to undergo further RI for one year. The substantive sentence were ordered to run concurrently. Benefit of Section 428 of the Cr.P.C. was given to the appellant.
2. I have heard learned counsel for the appellant and learned counsel for the respondent. Learned counsel for the appellant has not pressed this appeal on merits and has prayed for indulgence in the matter of sentence on the ground that the appellant has been in custody for the last about nine years and is a foreigner who is not likely to visit India again.
3. The prosecution case, briefly stated, is that on the intervening night of 30th and 31st March, 1994, the appellant, a Nigerian Shopkeeper, had come to IGI Airport for taking a flight to Lagos on Air France flight which was to take off at 1.10 a.m. The Officers of Narcotics Control Bureau were present at the Airport for routine checking of suspected passengers. At about 11.45 p.m. of the intervening night of 30th and 31 st March, 1994, the appellant came to the Customs counter for customs clearance and got his baggage booked. Anil Rawal, an Officer of Narcotics Control Bureau, asked the appellant as to whether he was carrying any narcotics or not but the appellant replied in negative. However, ASI R.L. Yadav, In-charge of the Dog Squad brought the checked-in baggage of the accused for checking. In the presence of public witnesses Sukhdev Singh and Kishan Pal, the appellant identified his two bags which had been booked by him. The tags attached to these bags tallied with the corresponding stubs issued on the air ticket of the appellant. When these bags were opened, it was found that these bags were containing some plastic containers of vegetable oil and Johnson Baby Powder, Shri P.G. Shenoy, Intelligence Officer NCB inserted a stick inside a container and some brown powder was found sticking to the stick. The entire baggage of appellant was shifted to the nearby customs room and on opening of the vegetable oil containers and Johnson Baby Powder boxes, heroin was recovered which had been concealed in polythene packets. 15 packets of this powder were recovered the total weight of which was 27 kgs. Samples were drawn from each of the 15 recovered polythene bags and were put into 30 separate envelops which were seated with the Seal No. 08. The travel documents of the appellant, his bags, tags with two excess-baggage tickets and air tickets were taken into possession. In due course, the samples were sent to CRCL and as per report Exhibit PX, ail the 15 samples were found to be of Diacetyl Morphine. According to prosecution, the appellant made a confessional statement Exhibit PW-5/B confessing that he was in conspiracy with some other persons in regard to the export of the aforesaid contraband and for doing this job, he had been paid US $ 10,000.
4. In support of its case, the prosecution examined 9 PWs. PW-1 is Shri P.G. Shenoy. Inspector of Customs, Narcotics Cell who was working as Intelligence Officer in Delhi Zone Unit of Narcotic Control Bureau in the year 1994. He deposed about the interception, checking and thereafter recovery of the contraband from the appellant. PW-2 is Shri Sushmai Das, Intelligence Officer. PW-3 Shri Anil Khan-an Is Superintendent. Air Customs. He was a witness to the statement made by the appellant which is Exhibit PW-3/B. PW-4 Shri Anil Rawal was posted as ACO, Preventive, at the IGI Airport. He deposed as to how the appellant was intercepted after customs clearance and how from his possession the contraband was recovered from the two bags which the appellant had already booked for Lagos. PW-5 Shri Dilip Kumar, Inspector, Central Excise was posted as Intelligence Officer with Narcotics Control Bureau. He had interrogated the appellant after his arrest and the appellant had made a statement Exhibit PW-3/B. Another statement of the appellant is Exhibit PW-3/B. PW-6 Shri K. Bhattacharjee, Inspector, Central Excise had deposited the samples with CRCL PW-7 Shri Sukhdev Slngh, a Safal Karamchari at the Airport, was produced as a public witness to support the prosecution case but he did not support the prosecution case and as such, was cross-examined by learned prosecutor with the permission of the court. In his cross-examination, he admitted his signatures on various papers. PW-8 Shri B.N. Mishra, S.P. CBI stated that the case property was deposited with him by Shri P.G. Shenoy on 31.3.1994 Along with the seal with which the case property was sealed. PW-9 Shri Sanjay Gupta was the Manager of a Travel Agency. He deposed that on the request of pne Mr. Godson, he had booked a ticket for the appellant for Lagos. The payment had been made by Mr. Godson. In the cross-examination of these PWs nothing material could be brought out to show that they were deposing falsely.
5. In his statement under Section 313 of the Cr.P.C., the appellant denied the prosecution case in toto and stated that nothing was recovered from his possession. He also stated that his statements were recorded by torturing and beating him and he had retracted his confession by making a statement Exhibit D-A before the ACMM. He denied that the bags from which the contraband was recovered belonged to him or had been booked by him for Lagos. In his defense, he examined Dr. Subodh Seth, Medical Officer, Jail No. 1. who deposed that he brought with him the records from the Jail and stated that no injury was found on the person of the appellant.
6. Vide impugned judgment dated 24.7.1996, the learned Special Judge after considering the evidence on record, came to the conclusion the the prosecution had succeeded in proving that the two bags from which the contraband was recovered, had been checked in by the appellant and none else. It was held that the statements Exhibit PW-3/B and the statement Exhibit PW-5/B were made by the appellant and as such, the prosecution had succeeded in bringing home the charges under Section 21 and under Section 23 read with Section 28 of the Act against the appellant for being in possession of 27 kgs. of heroin and for attempting to smuggle out the said heroin. Vide orders dated 25.7.1996, the appellant was sentenced to undergo 15 years Rl and separate fine as stated above for both the offence.
7. Learned counsel for the appellant has not pressed this appeal on merits. This Court has, however, gone through the evidence on record carefully and finds that the prosecution had succeeded in proving on record beyond any reasonable doubt that the two bags from which 27 Kgs. of heroin was recovered belonged to the appellant and the same had been booked by him. The tags on the bags and the stubs issued on the ticket of the appellant tallied. The statements of the appellant Exhibit PW-3/B and Exhibit PW5/B were voluntary and fully support the case of the prosecution. The witnesses of the prosecution had no ill will or enmity against the appellant to implicate him falsely in such a serious case. Not only that the possession of the contraband from the appellant had been established but the attempt on the part of the appellant to take the contraband out of India was also proved on record. The appellant was arrested at the Airport with an air ticket in his name for Lagos on the flight of Air France. The appellant had already booked the contraband for taking it out of India and as such, the charge under Section 23 of the Act is also fully proved.
8. After considering the evidence on record statement of the accused under Section 313, Cr.P.C. and the defense evidence, this Court has no hesitation in concluding that the allegations against the appellant stood established beyond any shadow of doubt. thereforee, there are no grounds on record for taking a different view and interfering with the order of conviction passed by the learned Special Judge. The conviction of the appellant, thereforee, under Sections 21 and 23 read with Section 28 of the Act is upheld.
9. Coming to the question of sentence, it is found that under Section 21 of the Act, the minimum sentence is 10 years and a fine of Rs. 1 lac but the sentence may extend to 20 years with a fine of Rs. 2 lacs. Under Section 23 also, the sentence provided is similar. The appellant is a foreigner and according to prosecution's own case, he was merely a carrier who had been engaged by some gang to take the contraband out of India on payment. The appellant, thereforee, was not the person who was going to get himself enriched on account of the smuggling of the narcotic. He has been in custody since the date of his arrest which was 31.3.1994 and as such, he has spent almost 9 years in prison. Learned counsel for the appellant has submitted that after suffering this sentence, the appellant will not dare to visit India again and indulge in any nefarious activity. Considering the facts and circumstances of the case, this Court is of the considered view that some indulgence can be shown in the matter of sentence. The appellant can be imposed minimum punishment as prescribed under the Act. Accordingly, the sentence of imprisonment awarded to the appellant under Section 21 as well as Section 23 of the Act is reduced to Rl for 10 years. The sentence of fine is maintained.
10. The appellant stands disposed of accordingly.