Mayhail Finn James vs Shri V.S. Bhosale, Assistant ...
2002 Latest Caselaw 713 Bom

JUDGMENT

J.G. Chitre, J.

1. Heard at length in context with the evidence on record and the order of conviction and sentence which has been assailed by this appeal.

2. The appellant is hereby assailing the correctness, propriety and legality of the order of conviction and sentence passed by the Additional Sessions Judge, Greater Mumbai in NDPS Special Case No. 86 of 1994 wherein the learned trial Judge has convicted the appellant for offences punishable under the provisions of Section 21, 28 read with Section 23 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "NDPS Act" for convenience) and Section 135(1)(a) read with Section 135(1)(ii) of Customs Act, 1962 (hereinafter referred to as "Customs Act" for convenience). The appellant has been sentenced to undergo RI for 10 years and to pay fine of Rs. 1,00,000/- for the offences punishable under Section 21 of the NDPS Act, in default, further RI for one year. He has been also sentenced to undergo RI for 10 years and to pay a fine of Rs. 2,00,000/-, in default further RI for two years and he has been also sentenced to undergo RI for three years for the offences punishable under Section 135(1) read with Section 135(1)(ii) of the Customs Act. The substantive sentences are directed to run concurrently.

3. The prosecution case in brief is that on 12.2.1994 the appellant was to fly by Air France flight No. AF-1079 which was to fly at about 3.00 a.m. in the night intervening 12.2.1994 and 13.2.1994. The appellant checked in with zipper bag after completing formalities of checking in, etc., The officers of Narcotic Cell at Airport noticed his suspicious movements and kept a watch on him and allowed him to check in his baggage and complete immigration formalities. Thereafter he was accosted and his passport, air ticket, baggage collection ticket, were seized and some interrogation was made with him. They were not satisfied about his answers and, therefore, panch witnesses were called. In the presence of panch witnesses the bag was identified by the appellant. The tags tallied with his collection tickets. The appellant opened the said zipper bag by his keys and the said bag was found containing a cloth bag which contained some polythene bags which contained heroin wrapped in trouser. All those articles were collected under panchanama. Sample packets each containing 5 gms. of heroin were also collected. Remaining powder was collected in an envelope. The sample packets and remaining packet was transferred to Customs Warehouse and from that it was taken to FSL. In the meanwhile a complaint was made against the appellant. The report was also submitted by PW Suresh Kamble, Gautam, Mahendale, etc. The statement of the appellant was recorded in view of provisions of Section 108 of Customs Act which was signed by the appellant on each page. It was signed by PW Mehendale, Maitra. Investigation progressed and resulted in the trial which the appellant faced before the learned Additional Sessions Judge, Greater Mumbai. The learned Additional Sessions Judge after appreciating the evidence on record in view of the submissions advanced before him passed the order of conviction and sentence which has been assailed by this appeal.

4. Shri Jadhav, counsel appearing for the appellant, submitted that the evidence on record proves that the concerned prosecution witness had gathered the information through their intelligence and, therefore, it cannot be said to be a chance detection case and, therefore, Section 42 of the NDPS Act would come into play and, therefore, the prosecution witnesses should have informed the appellant of his right in view of provisions of Section 50 of NDPS Act and as it has not been done, the conviction and sentence is bad in law. For substantiating his submission, he made reference to evidence on record.

5. Shri Thakur and Shri Saste submitted that from the evidence as it is read even in view of the cross-examination, it is a chance detection case and, therefore, provisions of Section 50 of the NDPS Act were not required to be complied with. They both further submitted that it was not the search of the person of the appellant and on that count also the necessity of complying with the provisions of Section 50 was not at all in existence.

6. In State of Punjab v. Baldev Singh, etc. etc., , the Supreme Court has categorically pointed out that when the search is not taken on previous information, it is not necessary to comply with the provisions of Section 50 of the NDPS Act. The compliance is necessary when it is a search on prior information. It has been further held by the Supreme Court in that case that the compliance with Section 50 of NDPS Act is essential when the person of the suspect or accused is to be searched.

7. In the present case, the evidence of PW Suresh Kamble, Ramesh Mehendale clearly proves that it was not the search effected on prior information, (SIC) but it was the search on account of the suspicion which Ramesh Mehendale, Suresh Kamble were having about the suspicious movements of the appellant. Their evidence shows that initially Mehendale got the suspicion and he asked PW Suresh Kamble and Gautam to keep watch on the activities of the appellant and they allowed the appellant to check in himself and the baggage and to complete immigration formalities. After that, the appellant was accosted and he was interrogated. These activities on the part of the prosecution witnesses Suresh Kamble and Ramesh Mehendale does not make out a case of search and seizure on prior information because after taking into consideration the normal experience of such suspects of disowning the baggage, they might have taken a safe stance of allowing the appellant to check in himself and the baggage, to complete the immigration formalities and thereafter to accost him and interrogate him for the purpose of leaving no aspect in which they have to meet and to get themselves assured of the possibility of any complaint likely to be made against them. It is pertinent to note that all of them decided to call the panch witnesses only after they were dissatisfied with the answers given by the appellant in the interrogation.

8. The appellant identified his baggage from check in area in presence of panch witnesses, namely, Arvin Fernandes PW6 and Greg Prasgrave who were working at Airport Building itself. Arvin Fernandes was Traffic Assistant working with Air France. They are independent witnesses and their presence was natural in the premises. In the presence of those panch witnesses the baggage tags were tallied from the air tickets of the appellant, so also it was tallied with bag collection tickets. After that, the said zipper bag was opened by the appellant and it was found containing a cloth bag which was containing polythene bags which were containing heroin wrapped in a trouser. It is true that Shri Jadhav pointed out that the key (SIC) by which the said bag was opened by the appellant has not been seized by the prosecution witnesses, members of the raiding party and panch witnesses. Even there is no mention of that in the panchanama prepared in that context. Normally, it would have weighed heavily against the prosecution. In the present case there is no such possibility because a statement of the appellant has been recorded in view of provisions of Section 108 of the Customs Act and in that statement the appellant has admitted that he was the owner and the possessor of the said bag and he had checked in himself and the said baggage and the said baggage happened identified by him from check in area after he was accosted and interrogated. He admitted that he identified the said bag in his possession in presence of panch witnesses.

9. In the matter of Gulam Hussain Shaikh Chougule v. S. Reynods, Supdt. of Customs, Marmgoa, reported in 2002 Supreme Court Cases (cri) 116, the Supreme Court held that the inculpatory statement made by any person under Section 108 is to non-police personnel and hence it has nothing of inadmissibility in evidence if it was made when the person concerned was not then in police custody. Nonetheless the caution contained in law is that such a statement should be scrutinized by the court in the same manner as confession made by an accused person to any non-police personnel. In the present case the said statement was made in response to a summons issued by PW Mehendale asking the appellant to give the statement in respect of the said powder which was kept in the said zipper bag. Section 108 of Customs Act enables any gazetted officer of Customs to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making in connection with the smuggling of any goods. Sub-section (1) of Section 108 uses the word "evidence" which is quite different from the word "information" which has been used in Section 67 of NDPS Act. The person who has been asked to give a statement to such a custom officer has to give such statement keeping in view that it is a judicial proceeding as provided by Sub-section (4) of Section 108. By virtue of Sub-section (3) of the same section, they are bound to tell the truth. Shri Jadhav has made a criticism in this context that the statement of the appellant has been written by Maitra, the Officer of Customs and, therefore, it suffers infirmity. Normally, this submission would have been considered in its proper perspective but in the present case the hand writing of the appellant appears to be shabby and undecipherable as his signatures show. PW Mehendale has stated in his evidence that the appellant requested them that as his hand writing is not legible, his statement be recorded by some other person. That seems to be the reason as to why the said statement has been written in the hand writing of Shri Maitra and not by the appellant. In many cases, the person may be having a bad hand writing and, therefore, may not be willing to write the entire statement. He may also avoid it on account of his routine habits or may avoid to write the statement in his hand writing for the purpose of allowing him to take a defence in his favour later on at the time of trial. These possibilities cannot be ruled out in the present case and they deserve to be ruled out when evidence on this point adduced by the prosecution is well corroborated by other independent evidence and when the evidence of prosecution witnesses is in a systematic way consistent with each other. Thus, the glaring mistake committed by the investigating agency of not mentioning the fact that the appellant opened the said zipper bag by his own key in panchanama and non-seizure of the said key gets washed out or corrected by this statement recorded under Section 108 of the Customs Act and the act of appellant admitting some portion of the prosecution case while giving the answers in his examination under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the "Code" for convenience).

10. Thus, keeping in view the discussion in the above paragraphs, the prosecution has proved owning and possession of the said zipper bag in which the heroin was stored in polythene bags kept in the cloth bag which was wrapped up in a trouser. It is pertinent to note at this juncture that the said trouser was produced in Court along with the sample packets and remnants and other belongings of the appellant was handed over to him at the time of drawing the said panchanama. The appellant has also not denied that he was handed over his belongings which were stored in the said bag. This aspect of the case also washes out the infirmity which was created by the error committed by the investigating agency of not seizing the said key and by not making a mention of that in the panchanama.

11. In the present case, the prosecution has examined the witnesses on the point of seizure of the narcotic drug from the bag which was identified by the appellant. Thereafter handing over the sample packets and the remaining packet to the incharge of Customs Warehouse. Thereafter sending the sample packet to FSL for chemical analysis and thereafter examining it Jayant Purshottam Kulkarni, a Chemical Analyzer, who deposed to in respect of the result of the chemical analysis and receipt of the sample packet with seals intact. The prosecution has adduced the evidence on all necessary connected links. Therefore, in this case, the prosecution has proved it reasonable doubt that the appellant was attempting to export the said narcotic drug from India to Rome where he was to go by the said flight of Air France. In that context recording of the statement of the appellant under Section 108 of the Customs Act is cogent, relevant and admissible and free from any doubt. It does not sound to be a couched confession by giving go by to relevant provisions of law.

12. In view of the observations made by the Supreme Court in Baldev Singh's case (supra), it is for the trial Court to come to a conclusion whether drug has been seized from the possession of the accused and to see whether all necessary important provisions of law concerned have been complied with or not. In the present case, the trial Judge has after appreciating the evidence on record in a lawful manner has recorded a conclusion against the appellant and in favour of the prosecution. This Court after carefully scrutinizing the evidence on record finds that the said finding of fact recorded by the trial Judge in correct, proper and consistent with the evidence on record.

13. Thus, the prosecution has proved that the appellant was carrying a zipper bag which was containing heroin in contravention of provisions of Section 21, 23, 28 of the NDPS Act. Therefore, the learned Judge was right in coming to the conclusion that he had committed those offences. The learned Judge has also rightly concluded that the appellant has committed the offence punishable under Section 135 of the Customs Act. This Court does not find that the order of conviction and sentence in any way incorrect, improper or illegal. Thus, the appeal stands dismissed. The sentence which has been inflicted upon the appellant is also consistent with the provisions of law. No interference in respect of the order passed by the trial Court in context of disposal of the property. The appellant to undergo the sentence inflicted on him in appropriate prison.

14. Parties to act on an ordinary copy of this judgment duly authenticated by the Private Secretary of this Court.