Snyman Lourens Abraham vs Y.M.Patil
2012 Latest Caselaw 524 Bom

    Anand

                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      CRIMINAL APPELLATE JURISDICTION

                     CRIMINAL APPEAL NO.728 OF 2009




                                                                             
                    Snyman Lourens Abraham     .Appellant
                    South African National,
                    R/o. 3 De Street, 93-Boxburg,




                                                     
                    Johannesburg,
                    South Africa.

                          V/s.




                                                    
            1.      Y.M.Patil,                 .Respondents
                    Intelligence Officer,
                    Air Intelligent Unit of Customs
                    C.S.International Airport,




                                             
            2.      State of Maharashtra
                           
            Mr.Arfan Sait, Advocate, Appointed for the
            Appellant
                          
            Mrs.A.A.Mane, Special Public Prosecutor, for
            Union of India
            Mrs.G.P.Mulyekar, APP, for Respondent No.2 -
            State
              

                             CORAM        :        R.C.CHAVAN, J.

                             DATE         :        20TH DECEMBER, 2012

            ORAL JUDGMENT





            .       This         appeal       is    directed              against

conviction of the appellant for the offences

punishable under Sections 8(c) read with

Sections 21(c) and Section 29 of the Narcotic

Drugs And Psychotropic Substances Act, 1985

(Hereinafter referred to as 'NDPS' Act), as

also under Section 8(c) read with Sections 23,

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28 and 29 of the NDPS Act and the sentence of

rigorous imprisonment for ten years with a

fine of Rs.1,00,000/- or in default of payment

of fine further rigorous imprisonment for two

years imposed upon the appellant by the

learned Special Judge for trial of cases under

the NDPS Act on conclusion of trial of Special

Case No.13 of 2006 before him.

2. Facts which are material for deciding

this appeal are as under :-

             The      appellant,             a        South            African

     National,       had    reported             at        International
      

Airport at Mumbai at 2:00 a.m. on 16th July,

2005. PW-17 Kundansingh Mohansingh Bisht, an

officer of CISF was frisking the appellant.

He found that there was something suspicious

and therefore, called his superior. Ninety

eight capsules containing some suspicious

drugs were found in a jacket which the

appellant was wearing. The officers of Air

Intelligence Unit were informed by the CISF

Commander Balbir Singh. Panchas were called

and suspicious capsules and travel documents

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of the appellant were seized. On enquiry, the

appellant gave admission about recovery of 98

capsules from him. All 98 capsules were

weighed and their weight was found to be 958

grams. Contents of the capsules were tested

on field testing kit and the capsules were

found to contain heroin. One capsule wrapped

in Silver foil and cello tape was found in

pocket of Pyjama kept in checked in bag of the

appellant. During the course of seizure, the

appellant stated that he had to go to toilet.

He went to toilet escorted by the

Investigating officer Karketta, panch Mukesh

Sharma and one sepoy. The appellant

ejaculated six capsules which were washed and

cleaned. Those six capsules were cut open and

were found to contain off white powder. The

net weight of contents of 105 capsules which

were cut open and collected in a separate

polythene bag was 835 grams. Three samples of

5 grams each were taken from this and sealed

and the bulk was also separately packed,

labelled and sealed. A panchanama was drawn

up. Statement of the appellant was also

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recorded under Section 67 of the NDPS Act.

The appellant was then admitted to

J.J.Hospital since he claimed to have more

capsules inside his body, where necessary

tests were done and eventually under medical

supervision some more capsules were ejected

which were found to contain 143.75 grams of

contraband from which three samples of 3.75

grams each were taken and sealed. The bulk

was also sealed separately. The samples taken

were sent to the Forensic Science Laboratory

which reported that the samples were of

heroin. On completion of investigation, a

complaint was filed by the officer of Air

Intelligence Unit with the Special Court at

Mumbai.

3. The learned Judge charged the appellant

for the offences punishable under Section 8(c)

read with Section 21(c), Section 8(c) read

with Section 23(c), Section 8(c) read with

Section 21(c) and 23(c) read with Section 28

of the NDPS Act for possession of 1032.205

grams of heroin. Since the laboratory

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confirmed that both the samples contained

Diacetyl Morphine without giving percentage,

fresh samples were extracted from the material

and sent to the Forensic Science Laboratory

which reported that the samples contained

36.12% heroin (diacetyl morphine) and 43.95%

Monoacetyl Morphine in one sample, and 2.71%

heroin and 59.41% Monoacetyl Morphine in the

other sample. Since the appellant pleaded not

guilty he had been put on trial at which the

prosecution examined as many as 30 witnesses

in its attempt to bring home guilt of the

appellant. After considering their evidence

in the light of defence of false implication,

the learned Judge convicted and sentenced the

appellant as aforementioned. It may be noted

here that the appellant retracted his

statement made under Section 67 of the NDPS

Act on 17th October, 2007 i. e. almost two

years after the statement was made.

4. I have heard the learned counsel for

the appellant and the learned Special Public

Prosecutor for the respondent - Union of

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India. With the help of both the learned

counsel I have gone through the evidence on

record and the impugned Judgment.

5. PW-1 Yashanand Madhusudan Patil is an

Intelligence officer, who stated about seizure

of 98 capsules from the jacket worn by the

appellant and one capsule from pyjama in bag

of appellant. He also states about seizure of

six capsules which the appellant had

voluntarily ejected at the Airport. He proved

panchanama at Exhibit 13 and seizure report at

Exhibit 30. PW-15 Krishnamurthy Vasudev

Hebbar, Superintendent of customs was also

present at the Airport at the time of raid and

so also PW-16 Ram Hotchand Ochani,

Intelligence officer. They corroborated

version of PW-1 Yashanand Patil. PW-21 Mukesh

Anandilal Sharma was panch at seizure effected

at the Airport. PW-27 Vishnu Bahadur Ram

Bahadur is another panch, who was examined to

prove seizure but his evidence is vacillating

and unworthy of belief.

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6. PW-17 Kundansingh Bisht was the officer

of CISF, who had frisked the appellant and

first noticed that there was something amis

that the appellant was shivering with

nervousness. He states he called his superior

Balbir Singh. It appears from statement of

Kundansingh Bisht at Exhibit 86 that one of

the capsules was opened and found to contain

some white coloured powder. The learned

counsel for the appellant submitted first,

that since Bisht had reported the matter to

Balbir Singh and Balbir Singh had, in fact,

contacted the officers of Air Intelligence

Unit, the prosecution ought to have examined

Balbir Singh as a witness. He further

submitted that while PW-17 Kundansingh Bisht

stated that one capsule was broken and found

to contain some white coloured powder, PW-21

Mukesh Anandilal Sharma states that all the

capsules were intact. The learned counsel for

the appellant, therefore submits that the

learned trial Judge was in error in relying on

such discrepant evidence and hold that the

appellant was found in possession of 105

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capsules at the Airport. He submitted that

non-examination of Balbir Singh was very

serious and it ought to have resulted in

rejection of evidence of other witnesses.

7. The learned Special Public Prosecutor,

on the the other hand submitted that here the

officer of Air Intelligence Unit would have

had no reason to falsely implicate the

appellant, since it was a chance recovery upon

PW-17

Kundansingh Bisht finding something

suspicious on the person of the appellant.

She, therefore, submitted, and rightly in my

view, the natural evidence of these witnesses

about recovery effected at the Airport was

rightly accepted by the learned trial Judge.

8. PW-3 Rajesh Gopal Nair, Intelligence

officer, PW-6 Sanjaykumar Vishwanath Tiwari

Intelligence officer, PW-7 Atul Anant Ranade

Preventive officer, PW-8 Vijay Joseph Kerketta

Intelligence officer, PW-9 Sachin Gorakhnath

Pagar Intelligence Officer and PW-10 Santosh

Raghu Shetty all state about ejection of

capsules when the appellant was in

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J.J.hospital. PW-18 Dr. Girish Devendra

Bakshi and PW-19 Dr. Prithvipal Rajaram Chavan

are the Medical officers, who were present in

J.J.Hospital. PW-23 Chandrakant Kisan Hande

is a panch about the incidents in

J.J.Hospital. PW-25 Ramesh Vishwanath Kamble

and PW-28 Kashinath Shankar Turi are Ward boys

at the J.J.Hospital, who state about purging

of capsules at J.J.Hospital. The recoveries

made at the J.J.Hospital have not been

accepted by the learned trial Judge, since he

found that the provisions of Section 50 of the

NDPS Act had not been complied with and he,

therefore, excluded from consideration seizure

of 143.75 grams heroin from capsules ejected

at J.J.Hospital.

9. The learned counsel for the appellant

submitted that the learned trial Judge had

refused to accept seizure effected in

J.J.Hospital on account of ejection of

capsules by the appellant due to non-

compliance of provisions of Section 50 of the

NDPS Act. He submitted that the learned Judge

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should also have refused to accept seizure of

6 capsules ejected at the Airport for the same

reason. As rightly pointed out by the learned

Special Public Prosecutor for Union of India,

seizure of these capsules at the Airport has

to be distinguished from seizure of capsules

in the J.J.Hospital, since these capsules were

ejected by the appellant voluntarily, whereas

capsules which were ejected in J.J.Hospital

were as a result of medical intervention.

Therefore,

according to the learned counsel

for Special Public Prosecutor, the learned

trial Judge had rightly held that 105 capsules

weighing 835 grams were in possession of the

appellant.

10. The learned counsel for the appellant

sought to rely on recent Judgment of the

Supreme Court in Suresh & Ors. Vs. State of

Madhya Pradesh in Criminal Appeal No.300 of

2009 dated 22.11.2012 in support of his

contention that non-compliance of Section 50

of the NDPS Act should result in acquittal of

the appellant. I have carefully gone through

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the Judgment made available for my perusal by

the learned counsel for the appellant. There

seems to be some confusion and may be the copy

shown to me is not accurate. In para 2(c) of

the Judgment, the Hon'ble Supreme Court has

referred to seizure of three packets of Opium

seized from the person of the appellant.

These three packets contained 825, 820 and 800

grams of Opium. The mudguard of the vehicle

was then searched and inside the front

mudguard 6 polythene bags containing 615, 690,

800, 810, 820 and 820 grams of Opium were

found. Thus, Opium found on the person in

that case was 825 + 820 + 800 = 2445 grams

whereas Opium in the mudguard was 615 + 690 +

800 + 810 + 820 + 820 = 4555 grams i. e. more

than 4 and 1/2 Kg. The Hon'ble Supreme Court

referred to breach of provisions of Section 50

of the NDPS Act, in relation to seizure from

personal search of the appellant. The Court

then observed in para 13 of the Judgment as

under :-

"13. Though a portion of the contraband (opium) was recovered from the vehicle for which Section 50 is not

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applicable, if we exclude the quantity recovered from the vehicle, the remaining would not come within the mischief of 'commercial quantity' for imposition of such conviction

and sentence. Taking note of length of period in prison and continuing as on date and in

view of non-compliance of sub-

section (1) of Section 50 in respect of recovery of contraband from the

appellants, we set aside the conviction and sentence imposed on them by the trial Court and confirmed by the

High Court."

In my humble opinion, if the contraband seized

from the personal search has to be executed

because of non-compliance of Section 50 of the

NDPS Act, and if Section 50 is not applicable

to contraband recovered from the vehicle, it

is not clear as to why the Court should be

saying that the quantity recovered from the

vehicle has to be excluded and then go on to

observe that the remaining quantity would not

come within the mischief of commercial

quantity. As already pointed out, the

quantity found on the person of the appellant

was less than commercial quantity i. e. 2445

grams, commercial quantity being 2.5

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kilograms, whereas quantity in the mudguard

was 4.5 kilograms and obviously commercial

quantity. Then the Hon'ble Court is shown to

have held that taking note of length of period

in prison and continuing as on date and in

view of non-compliance of sub-section (1) of

Section 50 of the NDPS Act, conviction and

sentence is set aside. First, it is doubtful,

if after noting that 4.5 kilograms of

contraband was seized from vehicle, to which

provisions of Section 50 did not apply, the

Court could observe that quantity seized was

not commercial quantity. It is equally

doubtful whether on finding that the

appellants were in possession of less than

commercial quantity, only because they were in

jail the conviction itself would be set aside

by the Hon'ble Supreme Court. Ordinarily, the

conviction could have been altered to that

for less than commercial quantity. In any

case, in the case at hand, as far as seizure

effected at the Airport is concerned, there

was no question of compliance of Section 50 of

the NDPS Act, since the seizure was a chance

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seizure upon CISF personnels stumbling upon

contraband being carried by the appellant.

11. Apart from this, as rightly pointed out

by the learned Special Public Prosecutor, the

appellant's statement was recorded by PW-4

Anil Hari Velingkar, Superintendent vide

Exhibit 48. This statement was followed up by

another statement made by Superintendent of

Customs A.K.Sahu ig vide Exhibit 70. The

statements were retracted only on 17th

October, 2007. Therefore, this belated

retraction would indicate vacillation in the

mind of the appellant about his complicity in

the attempt to carry contraband.

12. The other witnesses examined namely PW-

5 Arvind Trimbak Yelne, PW-13 Vinayak Gajanan

Bhate, PW-14 Dayanidhi Raghunath Sahu and PW-

26 Sarang Sudhakar Gore state about custody of

the articles. There is no infirmity in their

evidence. PW-20 Subhashchandra Shantilal

Surana and PW-22 Vinod Kumar Balbir Singh are

Assistant Chemical Examiners, who state about

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analysis carried out by them. PW-29 Anson

Parthil Thomas is intelligence officer, who

took samples from the Court and PW-30 Mrs.

Sharmila Ajay Shinde analysed samples sent

from the Court and found that percentage of

Diacetyl Morphine in the samples taken and

seized at the Airport was 36.12%.

13. The learned Special Judge applied the

principles laid down in E. Micheal Raj V/s.

Intelligence Officer, NCB, reported in AIR

2008 SC 1720 and found that since percentage

of Diacetyal Morphine was 36.12% in the heroin

seized, the appellant was found to be in

possession of 1032.205 grams, which is more

than commercial quantity. No fault can be

found with the conclusion drawn by the learned

Judge.

14. In the matter of sentence too, the

learned Judge observed that he agreed with the

learned counsel for the appellant that minimum

sentence for both the offences would meet the

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ends of justice and had, therefore, imposed

minimum sentence of rigorous imprisonment for

ten years with a fine of Rs.1,00,000/- on both

counts.

15. Even so the learned counsel for the

appellant submits that since the offending act

was one being found 835 grams of contraband

material, though two penal provisions may be

attracted, two sentences need not be imposed.

The learned counsel for the appellant invoked

principles of Section 71 of the Indian Penal

Code. The learned Special Public Prosecutor

submits that the principles in the Indian

Penal Code would not be applicable to the

special enactment under the NDPS Act. In my

view, when the offence of attempting to export

could not have been committed without the

person being possession of the contraband a

separate punishment for possession was not

warranted. In any case, the learned Judge

has, in fact, directed that the sentences

should run concurrently, except sentences of

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fine. Therefore, as far as two sentences for

the two offences are concerned, they are not

warranted and the sentences would have to be

altered to one sentence of rigorous

imprisonment for ten years with a fine of

Rs.1,00,000/-.

16. The learned counsel for the appellant

drew my attention to another disturbing

feature of this case.

ig He pointed out that the

appellant was apprehended at the Airport on

the early hours of 16th July, 2005. He was

actually shown as arrested by PW-2

Intelligence officer on 21st July, 2005. He

states that the officer who confined in

J.J.Hospital and in spite of this the

authority had not taken care to show that the

appellant was arrested on 16th July, 2005

itself. In fact, this conduct came for

criticism from the learned trial Judge and the

learned Judge recommended to the Commissioner

of Customs to take note of this and take

appropriate action against the officer

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concerned. The learned Special Public

Prosecutor upon instructions from the

Superintendent states that no action has been

taken so far but the department would initiate

appropriate action. The learned counsel for

the appellant submits that the appellant's

detention from 16th July, 2005 till 21st July,

2005 amounts to wrongful confinement and

illegal detention. In my view, reduction in

sentence ofig rigorous imprisonment for two

years in default of payment of fine to

rigorous imprisonment for one year should be

sufficient compensation for this deviation

from the procedure laid down by the

authority.

17. In view of this, appeal is partly

allowed. Conviction of the appellant for the

offences punishable under Sections 8(c), 21(c)

read with Section 29 as also Sections 8(c),

23, 28 and 29 of the NDPS Act is maintained.

However, he is sentenced to suffer rigorous

imprisonment for ten years and to pay a fine

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of Rs.1,00,000/- or in default suffer rigorous

imprisonment for one year. Registry may send

a copy of the order to the appellant in jail.

(R.C.CHAVAN, J.)

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