Siyaka Marong Abdoulaya vs Mr. J.L. Pandey, Inspector Of ...
2003 Latest Caselaw 123 Bom

JUDGMENT

J.G. Chitre, J.

1. The appellant who is the only surviving person from the row of culprits who happened to be concerned with the allegation of the prosecution of conspiracy for committing the offence punishable under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act for convenience), is hereby assailing the correctness, propriety and legality of the judgment and order convicting the sentencing him passed by Special Judge in N.D.P.S. SPL. Case No. 334 of 1996 whereby he has been convicted of offence punishable under Section 29 of the NDPS Act and has been sentenced to undergo R.I. for 12 years and to pay fine of Rs. 2 lacs, in default to undergo RI for one year.

2. Some facts need to be stated for the purpose of unfolding the prosecution case. The officers of N.C.B. received certain information and in context with the said information they intercepted Ms. Beatrice Rhoda and Camara Mamadi (both now deceased) on 27.4.96 at 6.35 a.m. at Sahara Airport, Mumbai. They found 4 kilograms of heroin concealed in 11 plastic bottles of hair conditioners which were recovered from Magnum Suitcase, checked-in baggage of Ms. Beatrice. 5 documents were recovered from her purse. Camara Mamadi who had followed Beatrice was also searched. 7 documents were recovered form his hand baggage. Samples of 5 grams each were drawn and collected separately from contraband recovered from Beatrice, which was packed and sealed separately in presence of panchas, after drawing panchanama in that context. 11 plastic bottles, polythene bags were packed in a separate carton. Said Magnum Suitcase, samples, packing material and documents were seized under panchanama at the Sahar Airport. A complaint was lodged and investigation progressed which revealed that Beatrice was engaged by one Ibrahim Diakite for carrying drugs for monetary consideration and in that deal, Camara Mamadi was her accomplice.

3. It is the prosecution case that Ms. Beatrice stated name of present appellant in her statement recorded by the said officers which was recorded in view of provisions of Section 67 of the NDPS Act. It surfaced in her statement that Camara Mamadi and herself stayed at Delhi at Hotel Sahar International Deluxe and on 25.4.96 Camara Mamadi has told her to go to Mumbai as narcotic drug was secured in Mumbai. She further stated in her statement the name of the present appellant as a person who was staying at Hotel Kelson having telephone No. 7522646. She was not certain whether appellant was a Gambian or citizen of Senegal. However, she had given description of one Abdulla who, prosecution claims, is the present appellant. She also named one Ibrahim Diakite, a resident of Nairobi as the person who had accompanied herself and Camara Mamadi to Mumbai for collecting the drugs. She identified Camara Mamadi who was produced before her at the time of recording her statement. She stated in her statement that on 27.4.96 Camara was to accompany Ibrahim to meet Abdulla for concluding the drug deal.

4. On 27.4.96, statement of Camara Mamadi was recorded in view of Section 67 of the Act which was similar on material particulars in comparison with the statement of Ms. Beatrice in respect of their stay at Mumbai and Delhi. As per prosecution case, Camara Mamadi disclosed that he had collected those 11 bottles of hair conditioners from Abdulla staying at Hotel Kelson, New Delhi in the evening of 24.4.96 and had handed over the bottles containing heroin to Ms. Beatrice for exporting them. He named Ibrahim Diakite as a family friend of Ms. Beatrice who introduced Abdulla to him for the purpose of drug trafficking. According to Camara Mamadi, the payment which was to be given to present appellant was settled by said Ibrahim Diakite. Though Camara Mamadi was knowing Ibrahim well, he was not knowing about even the nationality of he present appellant Abdulla.

5. After the statements of both Ms. Beatrice and Camara Mamadi were recorded, the investigating agency arrested the appellant from room No. 105, Hotel Kelson, Chuna Mandi, Paharganj, New Delhi. A diary was recovered from the room which was occupied by the present appellant. It is the prosecution case that something was written on that diary in a script which was secret and obscure. However, figures and word dollars were written in English.

6. The prosecution case discloses that Ms. Beatrice and Camara Mamadi stayed at Hotel Fition, Juhu Mumbai, Hotel Happy Home, Colaba, Mumbai, in addition to those hotels mentioned above. Ms. Beatrice was possessing air line ticket of Ethiopian Airline as well as a boarding pass. She was possessing a passport and vaccination certificate.

7. The present appellant when examined in view of provisions of Section 313 of Criminal Procedure Code, 1973 (hereinafter referred to as "the Code" for convenience) claiming to be innocent, stated that he was not known as "Abdoulaye" but was known as "Siyaka Marong Gambian". He admitted that on 27.4.96 PW-4 Shahid Hasan and Mr. Shailender Sharma had disclosed their intention to search Room No. 105 of Hotel Kelson, New Delhi where he stayed on that date. He retracted his statement by stating that he did not give such statement to the officers of NCB. He stated that the officers of NCB mentioned "Camara Mamadi" on the said Diary Exhibit-43. He stated tat he was forced to sign the statement which has been claimed by the prosecution as his statement Exhibit-49.

8. Shri Saldanha, counsel appearing for the appellant, read out the statements of Ms. Beatrice, Camara Mamadi and the present appellant and submitted that those statements are contradictory with each other and by itself exhibit that they are unnatural. He pointed out unnaturalness in the prosecution case connecting each other. He submitted that those statements cannot be equated with the statement which can be recorded by a customs officer in view of provisions of Section 108 and 135 of Customs Act, 1962 (hereinafter referred to as Customs Act for convenience). Though Shri Thakur and Shri Saste contended that they are equivalent to such statements, they further contended that even the statement of the accused recorded in view of the provisions of Section 67 of the Act can be alone the basis of conviction in a case tried for commission of an offence under the provisions of the Act.

9. The statement recorded in view of provisions of Section 108 of the Customs Act and a statement recorded in view of provisions of Section 67 of the Act cannot be equated for any purpose. Both of them are totally different in structure, meaning and the purpose. Section 108 of the Customs Act speaks of "evidence" and a statement which is to be recorded in view of provisions of Section 67 of the Act speaks of "collection of information". Section 108 empowers a custom officer to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any enquiry which such officer is making in connection with smuggling of any goods. All persons so summoned are bound to attend either in person or by an authorized agent, as such officer may direct, and failure to do so would invite a prosecution for offences indicated by Sections 193 and Section 228 of Indian Penal Code (45 of 1860). They are entitled to get the benefit of exemption under Section 132 of the Code of Civil Procedure 1908 (5 of 1908). such important things are absent so far as provision of Section 67 of the Act are concerned, which empower the indicated officers "calling for information" from any person for the purpose of satisfying themselves whether there has been any contravention of provisions of the Act or any rule or order made thereunder. Such officers or officer may require any person to produce or deliver a document or thing useful or relevant to the inquiry. They or he is empowered to examine any person acquainted with the facts and circumstances of the case and nothing more. The purpose of empowering them or him so, is to find out the clue for progress of investigation or getting a thread for going ahead with the investigation or enquiry. There is no punishment provided for a default in attending such officer for such enquiry or failure to produce the document or give the information, as plain reading of that section indicates.

10. Therefore, though the officer may be from Customs Department, but when he is dealing with a case for commission of an offence punishable under the provisions of the Act, he, acts in view of provisions of the Act and is clothed with the powers which are indicated by the provisions of the NDPS Act. Therefore, the statement recorded in view of Section 67 of the Act cannot be treated to be a substantive evidence or "occult evidence" which can be used for lending corroboration to the substantive evidence or the occult evidence given through the mouth of the witness examined by the prosecution but it cannot solely be the basis of conviction. It alone cannot warrant conviction, as confession can be used for basing the conviction or confession can warrant a conviction if it is above board and satisfies all the tests necessary for acting on it as the law and legal principles indicate.

11. Even for using as a corroborative piece, the Court has to satisfy itself whether a statement purported to be a statement in view of the Act has been properly and legally recorded. It means that it should not be the outcome of torture, unlawful compulsion, the result of deceitful means and should not be outcome of unlawful allurement given and unlawful coercion exercised. But there has to be a substantive evidence which has to pass the test of truth if tested on avail of human experience and test of reasonable prudence.

12. In the present case, even the prosecutors guarding the interest of prosecution with utmost zeal and vehemence found themselves inefficient to counter the submissions and attack made through the submissions of Shri Saidanha, counsel for the appellant.

13. The prosecution case is topsy turvy and is proceeding ahead by turnings at different points. The prosecution could not explain as to why Ibrahim Diakite and Camara Mamadi were not roped as accused and as to why investigation was not done for the purpose of bringing them to book and to the prosecution. So far as the present case is concerned, the prosecution did not have any incriminating allegation against the present appellant except one which has been indicated by the statement of Ms. Beatrice which shows that she named one "Abdulla" but she was not knowing anything more about him except the description which was given by her to concerned officers. Again, prosecution has another allegation against the present appellant that the said Ibrahim Diakite introduced said Abdulla to Ms. Beatrice. There is no statement of Ibrahim Diakite on record corroborating this aspect. The evidence which has been brought forth is not fixing the identity of the present appellant as Abdulla. Here, it is pertinent to note that the prosecution has itself described the appellant as "Siyaka Marong Gambian Abdoulaye". There is no explanation put forward by the prosecution as to why the present appellant has not been shown as "Abdulla", when statements are indicating "Abdulla" and not "Abdoulaye" why he has not been shown in the charge sheet in the same fashion in which he was described by Ms. Beatrice and Camara Mamadi. A note will have to be taken of that statement made by the present appellant in his examination in view of Section 313 of the Code where he stated that his name is "Siyaka Marong" and not "Abdulla" or "Abdoulaye".

14. Both the statements of Ms. Beatrice and Camara Mamadi are inherently defective because none of them were knowing said Abdulla prior to said hotel meeting as indicated by Camara Mamadi. If it is presumed that Ibrahim Diakite was at Nairobi then question arises as to now he could come to India, contact the appellant and procure heroin on transport it from India. Question also arises as to who introduced Camara Mamadi and said Abdulla. Prosecution is very much silent on this important aspect. These transactions are generally done in a cautious way, in a secret way. Somebody has to identify the "giver" and "taker" and somebody has to arrange the meeting safely of "giver" and "taker". Unless such a security has been granted, created, "giver" and "taker" would never meet each other and there would not be a "deal" finished. How a person, stranger to exporter would pass such dangerous drug and that too without payment? When the prosecution is praying for a conviction on circumstantial evidence, such circumstances have to be proved, explained to the point of satisfaction. It is well settled that in the case of circumstantial evidence, prosecution is obliged to prove every circumstance beyond reasonable doubt and prosecution is further obliged to prove the links of circumstance beyond reasonable doubt and further, prosecution is obliged to prove a chain of circumstances so strong which would exclude any hypothesis pointing towards innocence of the accused. There is no exception to this cardinal principle of law even in cases which are revolving around provisions of special enactments which are studded with the provisions of some "legal presumptions". But even then, those presumptions are "rebuttable presumptions". So far as our legal system stands, the accused is not required to prove his innocence in a criminal trial. What at the most he has to do in respect of such legal presumptions is to rebut it by taking the advantage of the loopholes, infirmities, flaw in the prosecution evidence itself or by adducing the evidence in his defence. In any case, prosecution has to stand by its feet, by legal evidence and in the event of failure has to fall. "Humpty Dumpty" circumstances cannot raise a platform to the prosecution for getting the conviction.

15. In the present case, the learned trial Judge did not appreciate the defence of the appellant put through answers given in his examination recorded in view of Section 313 of the Code. So far as the evidence of prosecution witnesses examined in this case is concerned, it materially does not touch by this appellant who had no concern, as he claims, with either Ms. Beatrice or Camara Mamadi. The prosecution does not have substantive evidence to implicate present appellant in the charge, except the statements of Ms. Beatrice and Camara Mamadi recorded in view of provisions of Section 67 of the Act The learned trial Judge should have discarded those statements of Ms. Beatrice and Camara Mamadi. In the absence of my substantive evidence put forth against the present appellant who survived for trial, when Camara Mamadi expired before the charge was framed and Beatrice expired after three witnesses were examined. Both of them could not be examined in view of Section 313 of the Code. The learned Trial Judge failed to note that in these circumstances as mentioned above prosecution could not take advantage of provisions of Section 32 of the Indian Evidence Act in context with the dead persons who could not be brought before the Court for recording the statement.

16. Thus, the appeal will have to be allowed by setting aside the order of conviction and sentence passed against this appellant. He will have to be acquitted by setting aside his conviction and sentence. He is entitled to be free if not required for any enquiry, investigation, proceeding or trial. He be also not released from Jail if he happens to be convicted for any other offence.