Full Judgment
1. This Appeal impugns the correctness of the judgment and order of conviction and sentence both, of the appellant/accused, by name Essop Casoojee a South African national dated 4th December, 2004 passed by the Special Judge, Greater Mumbai in NDPS Special Case No.78 of 2002.
2. By the impugned judgment and order the appellant has been held guilty and convicted for the offences punishable under section 21 and 29 of the Narcotics and Psychotropic Substances Act, 1985 (for short NDPS Act) and further directed to undergo R.I. for 10 years and to pay fine of Rs.1,00,000/- in default of payment of fine further to suffer R.I. for three months on each count. However, both the substantive sentences to run concurrently.
Facts in brief, are as follows :
3. The accused is a South African national and came to Mumbai and had his stay for a couple of days at Hotel Moghal Palace. His schedule return journey to Jahannesburg was by Flight No./SA 277 on 12th June, 2002. He was suspected by Intelligence Officer Parmeshwaran (PW 1) as per his intelligence for carrying contraband heroin (a narcotic drug prohibited) while on journey to Johannesburg as per schedule flight. He therefore, passed on this information to his higher officials and they had decided to lay a trap.
4. Accordingly, appellant was intercepted at the Chhatrapati Sahar International Airport Mumbai on their intelligence on the night intervening 11th/12th of June, 2002 immediately after checking in formalities was over and boarding pass was issued to him. Enquiry on the spot revealed that he was carrying 5 baggages out of which three had been checked-in by him and in one of the checked-in- baggages, he was carrying contraband heroin weighing about 2.5 kgs, in two polythene packets separately kept concealed in false top and bottom of a black coloured diplomat suit case. Therefore, he along with checked to baggages came to be seized at the office of the A.I.U. at the Airport. After completing required formalities of seizure panchanama and recording of his statement under section s67 of NDPS Act, appellant came to be arrested on or about 13th June, 2002. Since then he is in jail for 9 years during trial and pending hearing of this appeal which both took nearly 6 years for final hearing.
5. Thus, appellant came to be tried for the charges under section 29 read with section 8 (c) & section 21 of NDPS. Act, 1985 for having conspired to commit or abet the offence under NDPS Act 1985 for possession and transport or export narcotics drug namely heroin of 2.5 kgs from his checked-in baggage namely diplomat Suitcase and also under section 28 read with section 23, 8 (c) and 21 of the NDPS Act for his attempt to export the same.
Heard arguments of both sides.
6. The main contention of Mr.Keshwani, the learned counsel for the defence is that the checked in baggage described as a diplomat suit case (Article 3) was never checked-in by the appellant since it did not belong to him. He had only two checked in baggages while on journey and the seizure evidence regarding the diplomat suit case was fabricated by the investigating agency. Therefore, conviction on the basis of such evidence becomes doubtful. Therefore, appellant is entitled to get benefit in the facts and circumstances of the case and in the light of defect in seizure evidence which is the only evidence brought on record.
7. The defence further took exception to the order of conviction which is wholly based on the alleged confessional statement recorded under section 67 of the N.D.P.S. Act not being voluntarily made. It has been pointed out by the defence that the learned trial court did not consider the evidence of retracted statement placed on record immediately after his arrest. As such, evidence under section 67 of NDPS Act cannot be the basis of conviction even to establish the charge of criminal conspiracy or trafficking in narcotic drug.
8. Learned defence counsel took me through the entire evidence in order to disprove the seizure evidence .
9. I have gone through the relevant evidence and statements relied by the prosecution. In all, 9 witnesses have been examined during trial and therefore their testimony have been recalled during hearing of this appeal in the light of the submissions of Mr.S.B.Keshwani, learned counsel for the appellant.
10. The prosecution case begins with the evidence of Parmeshwaram Shankaran (IO) PW1. He decided to lay a trap at the Chhatrapati Shivaji Sahar Airport on the basis of the information/intelligence received by him. The said information was passed on by him to Mr.Pandurang Madkaiker (PW 7). Both submitted a note to the Deputy Director Mr.Sanjay Gahalot. Said Deputy Director himself and Madhavan another Senior I.O. with his other colleagues and two panch witness on request, agreed to act as witnesses to the seizure panchanama at the airport in need. They kept surveillance since 11 p.m. Around 11.45 p.m. the appellant got identified at the checking in counter. Appellant was found with five baggages carrying with him, two hand baggages and three check in baggages bearing Air India security traps on each. The checked-in baggages were also bearing marks of airlines staff.
11. According to the prosecution, Appellant was seen going to the Immigration counter, along with his baggages. By then, he had cleared his immigration formalities and was holding boarding pass/ticket and other travel documents. At that juncture, he was intercepted and further detained by I.O. (PW 1) for interrogation.
12. It is the case of the prosecution that during interrogation the the appellant admitted to have three checked-in baggages and in one of them he was carrying heroin . Therefore, he was offloaded with his checked-in baggages which were identified by him and brought to A.I.U. Office for further enquiry and investigation by I.O. PW 1. A diplomat suit case when opened was found to have contained two polythene packets containing powder substance weighing 1.280 and 1.220 each, total 2.5 kg of heroin.
13. According to the complainant, (PW 1) they followed the usual procedure for taking out the six sample packets for further investigation. They were accordingly marked and secured properly by heat seal method. It is also seen from the evidence of the complainant that one Elias had given two packets of heroin to the accused. However, despite efforts made by them they could not get the whereabouts of Elias. Name of Elias was disclosed to the complainant by the appellant with other details during information recorded as per statement under section 67 of NDPS Act.
14. Even according to the prosecution, Elias borne his travel and hotel expenses during his stay in Mumbai and handed over said diplomat suit case containing heroin.
15. According to the appellant, he was not carrying the checked-in- baggage called a diplomat bag, containing heroin while on his schedule journey and he was carrying only two checked-in baggages and not three. However, in collusion with the air line staff the complainant (IO) PW 1 fabricated the evidence by over writing and changing the figures 2/20 to 3/30 on the coupon. Admittedly, the accused had not paid the excess charges for carrying 3/30 checked-in baggages with him and he was not allowed to do so for he was passenger of economy class. Therefore, he was only allowed to carry 2/20 kg. The appellant was also not apprised of his right under section under section 50 of NDPS Act before effecting search and seizure of the baggages at the airport.
16. The most important document is Exhibit 48 panchanama dated 11th/12th June, 2002 and name of the panchas are (1) Sunil Athilat and (2) Kushal Mer. PW 3 Sunil Athilat was cross-examined on the point of check in procedure. According to him, the appellant as a passenger was allowed baggages weighing 20 kgs as per passenger coupon and he was having two baggages total weighing 20 kgs and he admitted that there is over writing of 30 kgs in place of 20 kgs and the appellant did not pay any extra charges as per Exhibit 16. The accused had only two checked in baggages. However, there are baggage claim tags which are at Exhibit 12,13 and 14 but they did not bear his signature or signatures of panch witnesses. On the material point of number of checked- in in baggages, the said panch was allowed to be re-examined by the trial Court, who deposed as under :
When the passenger came to the counter with his baggage he gave ticket and the passport at the counter, checking staff checked them. He had two pieces of baggage on his ticket and before giving him boarding pass and his ticket to that passenger checking staff found that passenger was having two hand baggage and one plastic bag. Checking staff asked passenger to check one of the hand baggage since South African Airway does not permit to carry two pieces of hand bag. The passenger reported his additional bag. Checking staff removed baggage tag of the baggages. Checking staff wrote down 30 kgs and 3 pieces on the ticket which was up-lifted. But the boarding card was not removed. If he would have taken fresh boarding card it would have shown accused having 3 pieces of baggages. The traffic assistant made correction only on the uplifted coupon and did not make correction on the passenger coupon. Exhibits 9,10 and 11 are put on the baggages. They are called baggage taps. These exhibits bears my signatures and signatures of another panch.
It was explained that the checked-in staff removed the baggage by overwriting it as 3/30 kgs. If he would have taken a fresh boarding card, it would have shown that the accused was having three baggages. He was further cross-examined and he stated that the South African National Airways follow directions that a passenger departing from Mumbai to South Africa shall have only 20 kg of checked in baggages. He also agreed that the boarding card is the documentary evidence carrying the number of baggage. He also deposed that in these days of security, the boarding pass showing the number of pieces of baggage carried by the passenger is also a very important fact.
17. The said evidence has been relied mostly to show discrepency of actual baggages checked-in by the appellant on his scheduled flight.
18. The said witness further deposed that baggages containing two packets of heroin powder, but there is no inventory about the personal belongings of the appellant and the appellant has disowned the baggage as his checked-in-baggage. In the cross- examination, it revealed that there is nothing to indicate that belongings of the the accused person were found in checked-in baggage containing the contraband and further that he was liable to pay charges for excess baggage for 10 kgs.
19. Thus, the entire evidence of seizure of Article No.3 a diplomat bag becomes doubtful as the checked-in baggage of the appellant and therefore, the appellant was justified in claiming benefit of doubt.
20. Now, coming to the evidence of PW4 Derek Picardo, Intelligence Officer who recorded statement under section 67 of the NDPS Act. Section 67 of the NDPS Act reads as under : Power to call for information, etc; Any officer referred to in section 42 who is authorised in this behalf by the Central Government or a State Government may, during the course of any enquiry in connection with the contravention of any provision of this Act-
(a) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder;
(b) require any person to produce or deliver any document or thing useful or relevant to the enquiry;
(c) examine any person acquainted with the facts and circumstances of the case.
21. It is not disputed that the accused complained to the court that the alleged statement was not voluntary and his retracted statement has been filed. It was filed by the accused before the Additional Chief Metropolitan Magistrate, Esplanade, Mumbai on 13th June, 2002. The observations made by the trial Court appears quite disturbing. To quote:
Once it is held that he had given statement vide Exh.42 and Exh.30 voluntarily then on the basis of this statement alone recorded u/s 67 of NDPS Act, the accused can be convicted for the offences charged in view of other evidence brought on record by the prosecution irrespective of the fact that there are certain shortcomings and lacunae in the prosecution evidence.
The learned trial Judge also relied on authority namely M.Prabhulal vs.Assistant Director, Directorate of Revenue Intelligence reported in (2003 8 Supreme Court cases 449) wherein the Hon ble Supreme Court clearly laid down that confessional statement under NDPS Act if voluntary in nature could be a basis of conviction.
22. There is nothing on record to show that statement recorded by I.O.Parmeshwaran PW 1 was a voluntary and true statement and cannot be accepted as in the peculiar facts of the case especially when there is no trace of the evidence of whereabouts of Elias as per information recorded under section 67 of the NDPS Act and therefore,such statement cannot improve the texture of seizure evidence.
23. The evidence of seizure must be complete in itself. Other evidence or information recorded under section 67 of the NDPS Act cannot be substituted for seizure evidence which is the basis of charge of possession. It can be considered only for corroboration provided evidence of search and seizure is free from doubt. In the present case, it is held as above that the seizure evidence of checked-in baggages is not free from doubt and therefore, accused would be entitled to benefit of doubt.
24. The trial court heavily placed reliance on the statement recorded under section 67 of the NDPS Act irrespective of the fact that there are certain shortcomings and lacunae in the prosecution evidence and therefore, conviction of the appellant cannot sustain in law and Appeal deserves to be allowed.
Hence, following order is passed:
25. The impugned judgment and order of conviction and sentence both passed on 4th December, 2004 under section 21 and 29 of the NDPS Act against appellant (accused) by the Special Judge, Greater Mumbai in NDPS Special Case NO.78 of 2002 is hereby quashed and set aside.
The appellant shall be set at liberty forthwith if not required in any other case. The accused shall be entitled to receive back his travel documents,passport etc seized in this case.
Appeal is allowed accordingly.