Jotham Wangila Wanyama vs The Asstt. Director Of ...
2002 Latest Caselaw 1154 Bom

JUDGMENT

J.G. Chitre, J.

1. Heard counsel for the parties in detail.

2. The appellant is hereby assailing the propriety, correctness and legality of the judgment and order passed by the Special Judge for Greater Mumbai who passed the said judgment in Special Case No. 118 of 1995 wherein he convicted the present appellant for committing an offence punishable under the provisions of Section 21, 28 read with Section 23 and Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act). The appellant has been sentenced to undergo R.I. for 10 years and to pay a fine of Rs. 1,00,000/-, in default of payment of fine to undergo further R.I. for 1 year for the offence punishable under Section 21 of the NDPS Act. The appellant has been sentenced to undergo R.I. for 10 years and to pay a fine of Rs. 1,00,000/-, in default of payment of fine to undergo further R.I. for 1 year for the offence punishable under Section 28 read with Section 23 of the NDPS Act. He has been further sentenced to undergo R.I. for 10 years and to pay a fine of Rs. 1,00,000/-, in default of payment of fine to undergo further R.I. for 1 year for the offence punishable under Section 29 of the NDPS Act. The substantive sentences have been directed to run concurrently.

3. The prosecution case in brief is that the appellant who happens to be a Kenyan National, a student, entered into a criminal conspiracy with one Usman Rasidi and Handed Rasidi, both Ugandian nationals, for acquiring possession, transportation and export out of India 2.180 kgs. of heroin (diacetyl morphine). In pursuance of the said conspiracy, he entered in Sahar Airport for flying by Gulf Air flight No. GF 1019/19.5.95/ETD 2030. He wanted to fly from Mumbai to Entebee. For that purpose he entered in Sahar Airport at 7.30 p.m. on 19.5.95 and wanted to go towards Module I, NIPT. PW-1 Rishiraj, PW-2 Bhambri and their colleagues had the prior intimation of his departure from Mumbai to Entebee with the American Tourister suitcase having zipper containing heroin kept in a tin of "Tang" brand (hereinafter referred to as "tin" for convenience). After completing the initial formalities when he was to proceed towards Module, he was intercepted by the prosecution witnesses mentioned above and after initial interrogation, he was told that they were to search his luggage for commission of crime under the NDPS Act, 1985. He was taken to baggage room. He identified his baggage, the said suit case, opened it and took out the said in which 2.5 kgs of heroin was found to have been stored. The said heroin powder was analysed by the test kit and it showed that it was heroin, in presence of panch witnesses. A panchanama was drawn. The appellant and the said narcotic drug was taken to the police station. It was stored and samples were sent to FSL. The FSL reported that the said powder was diacetyl morphine - heroin.

4. The prosecution examined Anil Rishiraj, Deepak Krishnalal Bhambari, Prasad Sanat Gharat and Sunil Chandra Rohatgi. The appellant examined himself for his defence. In his defence, the appellant set up the defence that he was not knowing as to what was stored in the said tin which was given to him by Rasidi. He pleaded ignorance of the contents of the said tin. He also challenged the legality of the seizure and the panchanama. By contending that provisions of Section 50 of the Act were not complied with, he claimed to be innocent and prayed for acquittal.

5. Mrs. Suryavanshi, counsel appearing for him, reiterated the said stand. She pointed out that right from the stage of interrogation, the raiding squad did not comply with the provisions of Section 50 by not giving the appellant an option indicated by provisions of Section 50 of the NDPS Act. She pointed out that only it was informed to appellant that he could be examined before a gazetted officer but without giving him an opportunity of saying anything, he was searched by the members of the raiding party. She submitted that there was sufficient time for the members of the raiding party to call the gazetted officer. But that was not done deliberately so as to break the important right of the appellant. She further submitted that the panch witness Gharat happens to be a person working with Gulf Air and his evidence shows that he has acted for some cases also. She submitted that thus the seizure is not before independent witness though many were available. It is her submission that the learned Trial Judge did not notice all these infirmities and, therefore, landed in error of convicting and sentencing the appellant and therefore his judgment of conviction and sentence needs to be set aside and the appellant needs to be acquitted.

6. Shri Thakur and Shri Shringarpure submitted that as the said narcotic drug was found in a tin which was kept in the baggage and it was not on person, the raiding party was not obliged to comply with the provisions of Section 50 of the NDPS Act. They also submitted that the prior information has been reduced in writing and that has been sent to superiors. Therefore, Section 42 has been also complied with. Both of then argued that in view of provisions of Section 35 and 56 of the NDPS Act, the appellant is presumed to be knowing that the said tin was containing the powder which was a narcotic drug and it was for him to rebut the said presumption by adducing sufficient evidence to that effect. But in the present case though appellant has examined himself, his evidence does not brush aside the said presumption and therefore the prosecution evidence which is sufficient enough to establish his guilt beyond reasonable doubt. They submitted that the panch witness Gharat is not under the thumb of the members of the raiding party because his cross-examination does not show that way. It is their submission that though a statement has been made by him that he has acted in some other cases also as panch witness, that does not by itself take out the credibility from his evidence. They submitted that the appeal be dismissed and the order of conviction and sentence be maintained.

7. After hearing the counsel appearing for the parties at length and in view of the evidence on record, this Court does not have any hesitation to come to the conclusion that the order of conviction and sentence passed against the appellant is correct, proper and legal and the appeal needs to be dismissed for the reasons stated hereunder.

8. Mrs. Suryavanshi, Thakur and Shringarpure placed reliance on the judgment of the Supreme court in the matter of State of Punjab v. Baldev Singh, reported in 1999 Supreme Court Cases (Cri) 1080. Mrs. Suryavanshi wants to use the ratio of this judgment in her favour for the acquittal of the appellant. However, Sarvashree Thakur and Shringarpure want to use the ratio for the purpose of canvassing of the submission that the members of the raiding party in this case were not obliged to comply with the provisions of Section 50 of the Act. I find substance in the submissions advanced on behalf of the prosecution on this point because in paragraph 57 of the said judgment, the Supreme Court recorded its final conclusions. Sub paragraph (1) indicates that when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under Sub-section (1) of Section 50 of being taken to the nearest gazetted officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing. Sub paragraph (2) shows that the failure to inform the person concerned about the existence of his right of being searched before a gazetted officer or a Magistrate would cause prejudice to an accused. In the present case, the prosecution witnesses mentioned above connected with NCB Department were not searching the person of the appellant but they were searching his baggage which was kept in a baggage room. It was far away from the appellant. It is pertinent to note that the appellant opened it and from the said suit case he took out a tin of instant drink in which heroin was kept. Thus, the prosecution has proved that the appellant was having a nexus with the said baggage and he was alone capable of opening it. By this, the prosecution proved that he was in exclusive possession of the said or tin kept in it because the evidence of Rishiraj and Bhambri and panch witness cannot be discarded. It is important to note here that the evidence of the panch witness cannot be discarded only on the ground that he has acted as panch witness in some other cases. The defence has to show to the point of at least preponderance of probability that he could be under the influence of the members of the raiding party or the officers of the police station which initiated the said investigation against him. Panch witness Gharat cannot be blamed and his evidence cannot be thrown out only on the ground that he happened to be the staff member of Gulf Air. Cross-examination of panch witness Gharat does not sow that he happens to be a witness under the thumb of the prosecution witnesses Rishiraj and Bhambri.

9. The appellant has examined himself for the purposes of showing that he was an innocent person but instead of doing good for him he has himself damaged his case. He has given the idea as to how he was acting with Rasidi and was hands in gloves with him. His evidence also confirms the prosecution case that he was to carry the said suit case from Mumbai to Entebee by Gulf Airways. Once he has accepted the liability of possession of the said suit case, by all means in law, he would be said to be in possession of the said suit case and everything which was stored in the said suit case. Had the said Rasidi been examined by him and had the said Rasidi claimed ownership, possession of the said suit case and had said that the appellant had no concern whatsoever with the said suit case and the things kept inside it, then that could have been a different case. But said Rasidi has not been examined for the reasons best known to the appellant. It is pertinent to note that in addition to that tin, there were some personal belongings of appellant kept in the said suit case. Who would have kept those personal belongings? None else but the appellant. When the appellant kept those articles in the said suit case and said tin was kept in the said suit case the most irresistible inference turning into conclusion would be that the appellant was the person who kept the said tin in it and furthermore was knowing that the said powder kept in the said tin was nothing but diacetyl morphine - heroin.

10. The prosecution has established a link between the appellant and the said suit case, said tin, said heroin powder, by surrounding evidence and, therefore, there is no loop-hole left for escape of the appellant from the charge for which he faced the trial.

11. By legal presumption his knowledge of heroin kept in that tin would be presumed. The appellant did not rebut it satisfactorily. It's own evidence confirms his dominion over said tin. When prosecution proves the knowledge and dominion of accused in respect of narcotic drug by its evidence and when it stands confirmed by the evidence adduced by accused in defence, the accused would be held to be possessing narcotic drug.

12. The said raid was effected on prior intimation. The said intimation was dispatched to the superior officers. In pursuance of the said information, the appellant was intercepted in the premises of Sahar Airport. His suit case was searched in his presence when he opened it by the keys, in the presence of panch witnesses by drawing a panchanama. The sample was collected out of the said heroin powder. It was analysed by FSL and it was found to be the power diacetyl morphine - heroin. The appellant instead of rebutting the prosecution case added confirmation to it by his evidence when he gave the evidence in his defence when he gave evidence on oath.

13. The learned trial Judge has appreciated the evidence on record properly. The conclusions drawn by him are borne out by evidence on record. This Court does not find any infirmity in it. Mrs. Suryavanshi submitted that the appellant was a student and, therefore, leniency be shown to him and amount of fine be reduced. Sarvashree Thakur and Shringarpure opposed the prayer for reduction of fine by submitting that law does not permit it so to be done. This Court holds that law does not permit it so to be done and the facts and circumstances of the present case show that the appellant has committed a serious offence of acting as agent in a conspiracy to export narcotic drug from India to other country. He has to suffer the punishment for the crime committed by him.

14. The appeal stands dismissed. The judgment and order of conviction and sentence passed by the trial Court stands confirmed. No interference with the order of disposal of the property. The result of this appeal be communicated to the appellant in jail._