Ogbu Awah vs The Narcotics Control Bureau
2011 Latest Caselaw 194 Bom

    sat                                 1
                                                                    cri.appeal 1101-2005


              IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                            
                  CRIMINAL APPELLATE JURISDICTION




                                                    
                   CRIMINAL APPEAL NO. 1101 OF 2005

          Ogbu Awah                           )
          Age : 37 years,                     )




                                                   
          Nigerian National, Antonio Mario,   )
          10-6, Malaga, SPAIN.                )
          At present lodged at Kolhapur       )
          Central prison, Kolhapur            )      ....Appellant




                                           
                                                  (Orig.Accused)
                      vs.   
          1. The Narcotics Control Bureau,    )
             Mumbai Zonal Unit,               )
                           
             Mumbai.                          )

          2. The State of Maharashtra         )     ...Respondents
                                               (Orig.Complainant)
            
         



          Mr.Murtuza M. Nazmi, Advocate appointed for the Appellant.
          Mr.P.S. Hingorani, APP for the State.





                             CORAM : M.L. TAHALIYANI, J.

DATED : DECEMBER 9, 2011

JUDGMENT :-

1 The appellant is aggrieved by the judgment and

order dated 31st August, 2005 passed by the Special Judge

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appointed under the NDPS Act. The appellant has been

convicted of the offences punishable u/ss. 21(C) r/w. 29 and

23(C) r/w. 28 of the NDPS Act. For both the conviction he has

been sentenced to suffer RI for 10 years each and to pay a fine

of Rs.10 lakhs each and in default, to undergo RI for 3 months

each.

The appellant is a Nigerian national. He had come

to Mumbai on 30th June, 2002 and was staying at Hotel Colaba

Causeway. The officers of Narcotics Control Bureau, Mumbai,

has intercepted him at Sahar International Airport on the basis

of certain information that he would be carrying Heroin by

Swiss International Airlines Flight No.LX 155 ETD. His

checked-in baggage and cabin baggage was subjected to search.

He was given opportunity of being searched in presence of a

Gazetted Officer or the Magistrate as provided by the law. He

refused to avail the said opportunity. Nothing incriminating was

found during the course of search of his checked-in baggage.

However, Heroin weighing 1.200 kgs. was recovered from his

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cabin baggage which was concealed in a false bottom of his VIP

skybag. The same was seized. Two samples were drawn. The

samples were named as Awah-I and Awah-II, respectively. The

bulk quantity was packed in cartoon and sealed. Panchnama

was prepared. The documents found during personal search of

the appellant and his travel documents were seized under the

panchnama. His statement u/s. 67 of the NDPS Act was

recorded.

3 During the course of recording of statement of

appellant, it was revealed that he was staying at Spain since

1998. He came to Mumbai on 30th June, 2002. He had a

Nigerian friend by name Peter who stays in Amsterdam. The

appellant was offered 2000 US Dollars by the said Peter for

carrying drugs from India. The appellant was assured that there

would not be any chance of appellant being apprehended. The

appellant, therefore, accepted the proposal and undertook to

carry out the job. His arrangements for journey from Spain to

India were made by Peter. After reaching India, the appellant

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had received Rs.2,70,000/- from Mr.Peter through Western

Union Money Transfer. One African National had visited hotel

room of the appellant on 11th July, 2002. The appellant had paid

Rs.2 lakhs to the said African national as directed by the Peter

and in exchange received suitcase from the said African

national.

It is the case of the prosecution that it is the same

suitcase in which there was a concealed bottom and Heroin was

kept in the concealed bottom. The said suitcase was carried by

the appellant and, as already stated, the appellant was

intercepted at the Airport. The suitcase was found to be cabin

baggage of the appellant.

5 The field test of the alleged Heroin tested positive

for the Heroin. Sample Awah-I was sent to Deputy Chief

Chemist by Narcotics Bureau. The Deputy Chief Chemist

reported that the sample is in the form of white powder and it

answers the tests for diacetyl Morphine (Heroin). The sample

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Awah-II was sent to Forensic Science Laboratory on 16th July,

2002. The Assistant Chemical Analyser of the Laboratory had

reported that the sample contained Heroin (Diacetyl Morphire)

Hydrochloride along with other opium and that alkaloids is

detected in the Exhibit. It is stated by the Chemical Analyser

that Exhibit fell u/s. 2(xvi)d of the MDPS Act, 1985. The bulk

of Heroin which was sealed in the carton was opened by the

Special Magistrate for drawing a sample as per Section 52-A of

the NDPS Act. The Special Magistrate prepared panchnama

after drawing the sample. The carton was repacked and resealed

after the panchnama was drawn by the Special Magistrate. After

completion of investigation, complaint was filed in the Court of

Special Judge, Mumbai.

6 Charge for the offences stated in para one of this

judgment was framed against the appellant and it was explained

to him. He pleaded not guilty to the said charge and claimed to

be tried.

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7 During the course of trial, the prosecution had

examined six witnesses who are as under:-

PW -1 - Mr.Vipin Nair, Intelligence Officer,

PW 2 - Mrs.Shabana Sayyed, Office Manager in Hotel Samrat.

PW 3 - Mr.Ijaaz Ahmed Ansari working at respective counter in Hotel Causeway.

PW 4 - Mr.Madhukar Malve, Asstt.Chemical Analyser working

in Forensic Science Laboratory, Kalina, Mumbai.

PW 5 - Mr.Bhushan Muley, Intelligence Officer attached to

office of Narcotics Control Bureau,

PW 6 - Mr.Nitin Amrathe working with Khambatta Aviation on the relevant date.

8 PW 1 has more or less has adhered to the

prosecution story in his examination-in-chief. He had stated that

information was received by him and it was placed before the

Superior Officers. Watch was kept in the examination hall of

International Airport on the night of 11th and 12th on the basis of

the secret information received by the Narcotics Control

Bureau. This witness has also stated that the appellant was

intercepted after he had checked in. There was no recovery of

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any incriminating articles from his checked-in baggage.

However, according to this witness, 1.200 kgs. Heroin was

recovered from the false bottom of the cabin baggage of the

appellant which was in his personal custody at the time of

interception. This witness has also given evidence regarding

opening of the false bottom, seizure of the contraband and

drawing of two samples. The witness had further given

evidence that one of the samples was sent to Deputy Chief

Chemist on the same date and other sample was sent to Forensic

Science Laboratory, Kalina, Mumbai. The report given by the

Deputy Chief Chemist and Chemical Analyser of Forensic

Science Laboratory have already been reproduced by me

hereinabove. It is, therefore, not necessary to repeat the same

here.

9 PW 2 is the lady who was working as Office

Manager in hotel Samrat. She had produced hotel register to

show that the appellant was staying in the said hotel from 30th

June, 2002 to 1st July, 2002.

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10 PW 3 Ijaaz has stated that he was working in Hotel

Causeway and according to his record, the appellant Mr.Ogbu

Awah had stayed in the said hotel from 1.7.2002 to 5.7.2002

onwards. He had produced xerox copy of the concerned register

of the hotel.

PW 6 is the panch witness in whose presence

panchnama was prepared by PW no.1. He has more or less

supported the evidence given by PW no.1.

12 PW 5 was one of the officers of Narcotics Control

Bureau who was associated with the investigation of the present

case. He had also given evidence more or less similar to the

evidence given by PW 1 and PW 6.

13 PW 4 was working as Assistant Chemical Analyser

attached to Forensic Science Laboratory, Kalina, Mumbai. It is

stated by him that on 16th July, 2002, sample in respect of file

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no.NCB/BZU/CR-09/2002 was received in the laboratory. Seals

were found intact. The sample was assigned the independent

Laboratory serial number being ML Case No.M-303/2002. The

sample was off-white powder contained in a polythene bag.

Fifteen tests were carried out on the same. After analysis it was

opined by this witness that the sample was containing Diacetyl

morphine. He had produced data sheet of the various tests

carried out by him at Exhibit 27/3. The report of analysis dated

17th September, 2002 is at Exhibit 27/2. Exhibit 27/1 was the

report regarding percentage of active ingredients.

14 The case of the appellant before the trial court was

that he was falsely implicated in this case and that Heroin as

alleged was not recovered from his cabin baggage. It is the case

of the appellant before the trial court that Heroin was recovered

from some other passenger and the same had been foisted upon

him to create a false case against the appellant. As can be seen

from the cross-examination of the witnesses and judgment of

the learned trial court, the case of the prosecution was assailed

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by the defence on the following grounds amongst others :-

1)There is discrepancy in the evidence of PW 1 and the panch

witness PW 6 Mr. Amrathe.

2)The sample Awah-II was retained by PW no.1 with him for

three days and therefore, there was possibility of tampering

with the evidence.

3)The sample collected from the Heroin seized from the another

passenger - Nigerian national travelling by the same flight, viz.

Fransis Azubike Okpara was dishonestly shown as a sample of

the substance seized from the appellant.

15 It was submitted that the PW 1 has not stated in

evidence that the samples were first collected in polythene bag.

Wherein PW 6 has stated in his evidence that samples were

collected in polythene bag. As far as this discrepancy in the

evidence of PW 1 and 6 is concerned, it was brought to the

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notice of the learned trial court as well as this Court that the

panch witness Mr.Amrathe has stated that two samples of 5

grams each were drawn in polythene pouches and that

polythene pouches were put in the packets and thereafter,

packets were sealed. Whereas PW 1 has stated that the samples

were put in polythene sachets and sachets were heat sealed. It

was submitted that PW 6, the independent witness, has not

stated that the pouches/sachets were heat sealed. In brief, it is

contended that therefore, there was possibility of tampering

with the evidence. This apprehension of the appellant, it is

submitted, is fortified by the fact that the PW no.1 had retained

the sample with him for three days. The sample Awah-II was

forwarded to the Analyser on 16th July, 2002. It was submitted

that these two infirmities in the prosecution case coupled with

the name of other passenger in the forwarding letter addressed

to the Forensic Science Laboratory clearly indicates that the

sample drawn from the substance collected from some other

passenger had been shown as sample drawn from the substance

seized from the appellant. My attention was drawn to the

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Exhibit 26, copy of the letter addressed to Forensic Science

Laboratory by Narcotics Control Bureau. PW 1 in his cross-

examination has admitted that person by name Fransis Azubike

Okpara was arrested by Narcotics Control Bureau and Heroin

was seized from him also. He has stated that the name of the

Fransis Azubike Okpara in Exhibit 26 is a typing mistake.

The learned trial court has dealt with all the three

points in detail. As far as use of polythene bag and heat sealing

is concerned, I am of the view that omission of this nature in the

evidence of one of the witnesses does not create a doubt that the

sample was not properly sealed. It is just impossible to have

two witnesses giving verbatim same evidence. On the contrary,

witnesses giving stereotype evidence are normally tutored

witnesses. Few contradictions, omissions and discrepancies not

of material nature are bound to occur in the evidence of

witnesses when there are more than one witnesses to the same

incident. The duty of the Court is to examine whether the

particular omission or discrepancy creates a doubt about the

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genuineness of the fact which is sought to be proved by the said

evidence. In the present case, the learned trial court has rightly

rejected the contention of the appellant that the sealing was not

properly done with a view to have a chance to tamper with the

evidence later on.

17 The learned trial court has also criticized the PW 1

for retaining the sample with him for three days. However, at

the same time, the learned trial court has expressed a view that

the retention of the sample by PW no.1 by itself does not lead

the court to conclude that PW 1 might have tampered with the

sealed packet. The learned trial court has stated in its judgment

that two following days were holidays and therefore, obviously,

the PW 1 could not have submitted the sample to Forensic

Science Laboratory on the same day or the next day. The fact

regarding holidays has not come in the evidence of PW no.1.

However, the learned trial court has rightly taken judicial notice

of the calender and has rightly come to the conclusion that no

serious fault could be found with the PW no.1.

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18 As far as appearance of name of Fransis Azubike

Okpara in covering letter addressed to the Forensic Science

Laboratory in respect of forwarding of the sample of substance

seized from the appellant is concerned, it is admitted that in

column no.2 which states in brief the history of case, name of

Fransis Azubike Okpara is stated to be the person from whose

possession 1.200 grams of off-white powder was seized. The

learned trial court has observed that in all probability the

forwarding letter prepared for the case of Fransis Azubike

Okpara must have been copied and pasted and thereafter

necessary changes must have been carried out in the pasted

forwarding letter which was the letter in respect of the present

appellant. The PW 1 has stated that it was typing mistake. In

fact, what the learned court has stated appears to be the correct

position. There is no mistake in the name of the passenger in

first paragraph of the same letter. Appellant's name clearly

appears in the first paragraph. Passport NO.C-584086 also

belongs to the passport of the appellant. The mistake had

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occurred on page no.2 where brief history of the case is

mentioned. Since Fransis was also apprehended on the same

day, samples of the contraband recovered from the possession

of passengers might have been forwarded on the same day and

forwarding letters also must have been prepared by the same

typist. It is not uncommon that such mistakes are committed by

typist and stenographer in other offices including courts. This is

noticed by me in many cases that case number of one case

appears in the heading of another case. It is mainly because the

heading of the case remains the same. The name of the court

remains the same and only case number and names of the

parties are different. Therefore, many a times, the document is

copied and pasted and necessary changes are later on made.

However, some changes are left out. In the result, name of a

party to 'x' proceedings in the court may appear in the papers of

another proceedings. It is the mistake of this nature which had

occurred in the present case. As such, I do not find any

weakness in the prosecution evidence. Though the confession

given by the appellant had been retracted, the learned trial court

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has rightly stated that the evidence of recovery, report of

Chemical Analyser and retracted statement of the appellant are

sufficient to substantiate the charges levelled against the

appellant.

19 After having overall view of the evidence of the

witnesses and the retracted statements of the appellant, I have

come to the conclusion that the appellant was rightly found

guilty for the offences of conspiracy to transport Heroin. The

appellant was also rightly found guilty of the offence of

possessing Heroin in contravention of the provisions of NDPS

Act. The appellant is further found guilty of the offence

punishable u/s.28 i.e. attempt to commit offence under the

NDPS Act. The appellant was found guilty of attempting to

export/transport of Heroin out of India. I have gone through the

final order passed by the learned Special Judge. In my

considered opinion, the final order has not been drafted

properly. The offence punishable u/s. 21(C) is an independent

offence and the offence punishable u/s. 29 (conspiracy) is also

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an independent offence. The offence of conspiracy is an

independent offence irrespective of the fact as to whether the

actual offence is committed or not. Therefore, these two

sections in fact should not have been clubbed together while

imposing punishment. However, the offence punishable u/s.

23(C) of the NDPS Act is rightly clubbed u/s.28 of the NDPS

Act.

20 In fact, the learned trial court could have imposed

three different punishments for the offences punishable u/ss. 21-

C, 29 and 23(C) r/w. 28 of the NDPS Act. Though the

substantive sentences have been directed to run concurrently,

the additional fine of Rs.1 lakh could have been imposed for an

independent offence of conspiracy. However, I am not inclined

to disturb the sentence imposed on the appellant as the NCB or

the State has not filed any appeal against the said judgment and

order. At the same time, it is necessary to be stated here that no

prejudice has been caused to the appellant so far as the defect in

the final order is concerned. On the contrary, the appellant had

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been benefited to some extent.

21 In view of what has been stated by me

hereinabove, the appeal stands dismissed.

(M.L. TAHALIYANI, J.)