Bombay High Court
Ms. Naomi Banda vs Union Of India on 12 October, 2015
Bench: A.M. Thipsay
Tilak 1/37 APEAL-306-10(J)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.306 OF 2010
Ms.Naomi Banda
Zambian National,
Aged about 35 yrs,
Kabwe, Lusaka, Zambia
P.P.No.ZM-033477 .. APPELLANT
Versus
1) Union of India
2) State of Maharashtra ig .. RESPONDENT
---
Mr.Ayaz Khan, Advocate for the appellant.
Mr.N.Natrajan, Advocate for respondent no.1.
Mr. Deepak Thakre, APP for the Respondent State.
---
CORAM : ABHAY M. THIPSAY, J.
RESERVED ON : 6th AUGUST 2015
PRONOUNCED ON : 12th OCTOBER 2015
---
JUDGMENT :
1 On the basis of a complaint filed by Shri V.K. Menon,
Intelligence Officer attached to Air Intelligence Unit, Customs, the
appellant was prosecuted on the allegation of having committed
offences punishable under Section 21(c) of the NDPS Act read
with section 8(c) thereof, and section 23(c) of the NDPS Act read
with sections 8(c), 21(c) and 28 thereof.
Tilak 2/37 APEAL-306-10(J)
2 The Special Judge, who held the trial, convicted her of
the aforesaid offences, and sentenced her to suffer Rigorous
Imprisonment for 10(ten) years, and to pay a fine of Rs.1,00,000/-
on each of the said two counts. Being aggrieved thereby, the
appellant - a Zambian National - has approached this Court by
filing the present Appeal.
2 The prosecution case, as put forth in the complaint,
may, in brief, be stated thus :-
That, during the night intervening 24th and 25th
February 2007, the complainant V.K. Menon, and other Officers of
the Air Intelligence Unit (AIU) of Customs attached to its "A"
Batch, were on duty in the Departure Hall of Module 2-C of
Chhatrapati Shivaji International (CSI) Airport, Mumbai. When
the checking-in of the passengers departing by South-African
Flight No.SA-251/25.02.07 was in progress, the appellant was
noticed by the complainant and other Customs Officers. The said
flight was scheduled to depart for Johannesburg. The appellant
checked-in at the counter of the Airlines. As the appellant had
been suspected, the airlines staff was asked to mark her baggage
for custom examination. A watch was kept on the movements of
Tilak 3/37 APEAL-306-10(J)
the appellant, and she was intercepted while she was proceeding
towards the Transit Lounge after having cleared through the
immigration and the customs. The appellant was holding a
Zambian passport in her own name i.e. Ms.Naomi Banda. The
appellant was taken to the baggage identification area. On
reaching there, the Customs Officer called for two panchas. That,
in the presence of the panchas, the appellant was asked to produce
her travel documents which were accordingly, produced by her.
The Officers of the Customs then, in the presence of panchas,
asked the appellant to identify her checked-in baggage. The
appellant identified three checked-in bags as her own. These bags
were having baggage identification tags. The baggage claim tags
affixed on the Airlines ticket of the appellant were compared with
the identification tags on the baggage and they matched.
3 Among the three bags which were the checked-in
baggage of the appellant, there was one green colour stroller
zipper suitcase. A sniffer dog - Maya - along with her handler,
was brought, and on sniffing the said green colour stroller zipper
suitcase, the dog gave positive indication/signal for the presence
of Narcotic drug/Psychotropic substances inside it, by barking. No
such signal was given with respect to the other two bags.
Tilak 4/37 APEAL-306-10(J)
Suspecting the concealment of contraband in the said green colour
stroller zipper suitcase, it was decided by the Officers to examine
the baggage of the appellant. The appellant was brought to the
Office of the Air Intelligence Unit (AIU), and in the presence of the
panchas was asked whether she was carrying any narcotics or
psychotropic substances, to which the appellant replied in
negative. The appellant, however, stated that the said bag had
been given to her by one Mary outside the Module 2-C, and that
the same was to be delivered to the said Mary at Lusaka. The
Officers formed two teams and took the appellant, along with her
baggage, outside the Module 2-C of the Airport to see whether
Mary could be found there, but the appellant did not identify
anyone as 'Mary', and hence, the Officers, the appellant and
panchas came back to the Office.
4 In the said green colour stroller bag, apart from other
belongings, some cosmetics and toiletries kept in plastic containers
were found. 9(Nine) of the said plastic containers were felt hard
when pressed at some places. The said containers were, therefore,
segregated and marked with roman numbers (i) to (ix), serially.
On the same being cut open, nine polythene pouches - one in each
container - were found inside. These nine pouches were again
Tilak 5/37 APEAL-306-10(J)
numbered as (i) to (ix) according to the container from which they
had been recovered. Polythene pouches bearing markings (i) to
(iv) & (vi) to (ix) were containing off-white colour powder and the
remaining polythene pouch bearing marking (v), was containing
light brown colour powder. The powder from all the pouches was
tested on Drug Identification Kit, which answered positive for
morphine. The contents of the polythene pouches marked (i) to
(iv) and (vi) to (ix) (i.e. the off-white powder) were emptied into
a small polythene bag which was marked as "A". The net weight of
the off-white powder was found to be 1427.6 grams. The contents
of the remaining polythene pouch were emptied into a small
polythene pouch which was marked as 'B". The net weight of the
said powder, was found to be 189.8 gms. That, three samples of 5
gms each, from the contents of the polythene bag marked "A",
were drawn. They were marked AS-I, AS-II and AS-III, and were
sealed. From the polythene bag marked "B", also three samples of
5 gms each, were drawn, then packed and sealed (marked BS-I,
BS-II and BS-III). A panchnama (Exhibit-11) was drawn.
5 An attempt was made to record the statement of the
appellant, but the appellant declined to make any statement. This
fact was recorded under a panchnama (Exhibit-14).
Tilak 6/37 APEAL-306-10(J)
6 The seized articles were deposited in the Customs
Warehouse. The appellant was formally arrested. On the next day
i.e. 26/2/2007, two representative samples were withdrawn from
the Customs Warehouse DS-I, and were sent to the Office of the
Dy.C.C, Mumbai for Chemical Analysis. A report was received,
indicating that the sample marked "AS-I" (of the white crystalline)
powder) answered positive for heroine, but that the sample
marked "BS-I" (of the light brown powder) did not answer to the
test for any Narcotic Drug or Psychotropic substance. Thereafter,
on 23/05/2007, two sealed representative samples marked as "AS-
II" and "BS-II" were forwarded to the Central Forensic Laboratory
at Hyderabad. A report to the effect that the sample marked 'AS-II'
gave positive report for the presence of heroine and caffeine, and
that the sample marked 'BS-II' gave positive result for the presence
of Acetaminophen (paracetamol) (which is not a Narcotic drug or
Psychotropic substance) was received. Further inquiries into the
matter were carried out, and on completion thereof, the complaint
came to be filed.
7 The prosecution examined 20 witnesses during the
trial. The learned Special Judge, upon considering the evidence
before him, held the appellant guilty of the aforesaid offences.
Tilak 7/37 APEAL-306-10(J)
8 I have heard Mr.Ayaz Khan, the learned counsel for
the appellant. I have heard Mr.N. Natrajan, learned counsel for
the respondent no.1. I have heard Mr.Deepak Thakre, learned APP
for the State. With their assistance, I have carefully gone through
the evidence - oral and documentary - that was adduced during
the trial. I have also carefully gone through the impugned
judgment.
9 According to Mr.Khan, the learned counsel for the
appellant, the order of conviction, as recorded by the learned
Special Judge, is not in accordance with law. He submitted that
the evidence indicated that fabrication of documents was done by
the Investigating Agency. He also submitted that the bulk articles
that were produced in the Court, were not in accordance with the
case of the prosecution. He also contended that the samples which
had reached the Chemical Analyzer and the remnant samples
produced before the Court, did not match with the description
given in the panchnama. He also contended that there was a
doubt as to in which Warehouse the seized articles, including the
contraband drugs were kept, and that, there existed a possibility of
the samples having been tampered with. He also submitted that
Tilak 8/37 APEAL-306-10(J)
since all the investigation was carried out by the complainant V.K.
Menon (PW 1) himself, it was hazardous to place reliance on his
evidence.
10 Mr.Natrajan, learned counsel for the respondent no.1,
on the other hand, contended that the impugned judgment is
proper and legal. According to him, the learned Special Judge has
dealt with all the contentions raised by the appellant, and has
come to a correct conclusion. He submitted that the appellant had
never disputed the recovery of the contraband articles from her
baggage, and that the bag in which the contraband articles were
found, belonged to the appellant, was beyond dispute. He
submitted that the variations or discrepancies, as were being
pointed out by Mr.Khan, did not go to the root of the matter.
According to him, there is no merit in the Appeal.
11 The first point needing determination is whether the
bag in which the contraband is said to have been found, was a part
of the appellant's baggage. In that regard, the evidence of V.K.
Menon (PW1), the evidence of Dipti Amin (PW16) and the
evidence of Jivan Jatkar (PW2) an Officer of Customer Services in
the Air India, needs to be examined.
Tilak 9/37 APEAL-306-10(J)
12 Menon (PW1) has, in his evidence, stated facts
consistently with the version in the complaint. According to him,
while he was keeping a watch on the passenger in the departure
hall, he and his colleagues noticed the appellant. As they
suspected her, they asked the Airlines staff to mark her baggage in
order to keep the same separate. That the appellant, after
completing the check-in procedure, went to immigration counter,
and after completing the immigration check, she went to the
Customs counter. From there, she was proceeding towards the
security area when she was intercepted. Menon (PW1)
categorically stated that the appellant identified her baggage in
the presence of panchas. The appellant also produced her travel
documents which included two excess baggage tickets. Menon
categorically stated that the baggage tags and the claim tags
affixed to the Air ticket of the appellant were checked, and on
checking, the numbers tallied.
13 In her evidence, Dipti Amin (PW 16), an employee of
South African Airways, who acted as a panch, says that since last
five years, she has been working as Ground Staff with the said
Airlines at the CSI Airport at Bombay. According to her, Air India
Tilak 10/37 APEAL-306-10(J)
is the handling agent of many other Airlines and South African
Airways, being one of them, the check-in counters of South African
Airways are manned by the staff of Air India. That, on 25/2/2007,
when she and one Mr.Mukesh Sharma were on duty at the Airport,
at about 1.15 a.m, they were called by the Officers of the Air
Intelligence Unit at Circle Area situate behind the check-in
counters. That, the bags which are required to be off-loaded are
taken out from the conveyor belt in this area. Three bags were
kept aside, and the passenger was called. According to her, this
passenger is the appellant. That, on these three bags, there were
security straps and baggage tags. After the passenger was brought
to that area on the basis of the claim tags, it was ascertained that
the three bags belonged to the same passenger. The appellant also
admitted the bags to be belonging to her. That, the appellant was
a passenger of South African Airways Flight No.SA-0251
proceeding to Johannesburg and Lusaka from Mumbai. That, the
appellant was also having a boarding card and Air ticket to which
three claim tags, were affixed. According to her, the appellant
was also having an excess baggage ticket.
14 Dipti (PW 16) then gives the details of the happenings
thereafter i.e. that the Officers, she herself, the other panch,
Tilak 11/37 APEAL-306-10(J)
appellant, all went to the AIU Office along with the baggage of the
appellant. According to her, after reaching the AIU office,
enquiries were made with the appellant, and at that time, the
appellant replied that the green colour bag was given to her by a
lady by name 'Mary' outside the Terminal 2C. That, the appellant
was then taken out by the AIU Officer outside the Terminal 2C to
find out Mary, but Mary was not found. Dipti (PW 16) further says
that a green colour stroller bag from out of the baggage of the
appellant, was opened in her presence and speaks, inter alia, about
9 containers being opened by the AIU Officer and one plastic
pouch being found in each container. She also speaks about 8
pouches, containing white powder, and the remaining one
containing brown powder. She then speaks about taking of the
samples, their being marked, etc.
15 The evidence of Jivan Jatkar (PW 2) shows that he
had been working as Officer Customer Service in Air India since
1996. It was his duty to check the passport and Air ticket of the
passenger who would come for checking-in at the check-in counter
of the departure. He has explained that if the passenger has any
baggage, the same would be kept on the belt and weighed, and a
tag would be affixed to the bag. A claim tag is affixed to the Air-
Tilak 12/37 APEAL-306-10(J)
ticket of the passenger. That, he used to take out flight coupon
from the Air-ticket of the passenger, and then issue boarding pass
to the passenger. He also states that before coming to the check-in
counter, the passenger would be required to go to the Security
Check. During his examination-in-chief, he was shown the excess
baggage ticket (Exhibit-19), boarding card (Exhibit-20), flight
coupon (Exhibit 21), Air-ticket of the appellant to which three
claim tags and flight coupon were affixed (Exhibit-22), three
baggage tags (Exhibit-23) collectively, and counter foil of the
boarding pass (Exhibit-24). On observing these documents, Jatkar
said that he had checked-in the passenger to whom those
documents belonged. He stated that the said passenger had
showed her passport and Air-ticket to him, and that she was
having three pieces of baggage, weighing 41 kgs. That, there were
Security straps on the baggage, indicating that the passenger had
cleared Security check. He also stated that the passenger was
charged for excess baggage which was rounded to 10 kgs.
According to him, the passenger had produced receipt in respect of
the payment of excess baggage charges, that he had issued
boarding pass to her, and then returned her passport and Air-
ticket. The flight coupon and the excess baggage coupon were
retained by him. He also states that when the passenger had gone
Tilak 13/37 APEAL-306-10(J)
to pay excess baggage charges, the Officer of AIU had directed him
to put cross tags on her baggage. He did not identify the appellant
as the same passenger. However, from the documents that were
shown to him, there can be no doubt that the passenger regarding
whom he was speaking was none else, but the appellant. As a
matter of fact, that the appellant was present in the Airport, and
was scheduled to depart by the said Flight, is not in dispute at all.
I have carefully gone through the cross-examination
of these three witnesses. I am of the opinion that the evidence of
these witnesses, has not been shattered, in any manner, by their
cross-examination. The evidence clearly indicates that the
appellant had checked-in with three pieces of baggage, that one of
them was a green colour stroller bag, that the appellant had also
paid excess baggage charges, and that, identification tags were
attached to her baggage, which on examination tallied with the
baggage claim tags affixed to her Air-ticket. Thus, that the bag in
which, according to the prosecution, the contraband articles were
found, was in the possession of the appellant, and formed part of
her baggage which was checked-in, cannot be doubted at all.
Tilak 14/37 APEAL-306-10(J)
17 I have carefully seen the reasoning of the learned
Special Judge in that regard, as is reflected from paragraph no.58
of the impugned judgment. I do not find any infirmity in the
reasoning of the learned Special Judge. In my opinion, that the
green colour stroller bag was part of the baggage of the appellant,
cannot be doubted at all.
There is also no reason to doubt that the off-white
powder and light brown colour powder were found in the plastic
containers which were in the said green colour stroller bag. The
evidence in that regard has been believed by the Learned Special
Judge. On going through the same, I also find no basis for
disbelieving the evidence to that effect.
19 The only other point that needs determination is
whether the powder / powders found in the bag of the appellant
was / were containing a narcotic drug or psychotropic substance.
In this regard, the case of the prosecution is that the off-white
powder that had been concealed in the baggage of the appellant
was containing heroin (diacetyl morphine) - a substance covered
under the NDPS Act, 1985. The case is that the samples of the two
Tilak 15/37 APEAL-306-10(J)
types of powders found with the appellant were taken and
forwarded to the Dy.C.C. A second set of the samples were
forwarded to the CFSL at Hyderabad. The reports of the
examination of the substance, as done by the Dy.C.C. and by the
CFSL at Hyderabad, have been placed on record (Exhibits 34 and
39 respectively). There is no challenge to these reports. The only
question is whether the reports related to the samples of the
powders found with the appellant.
20 The contentions raised by Mr.Khan about the
shortcomings in the prosecution case, are based basically on the
difference between what was actually observed and what was
mentioned in the panchnama/record. They may be examined one
by one.
21 During his evidence, the complainant Menon (PW 1)
produced three sealed envelopes which were marked as Article 9,
10 and 11. The envelope marked "Article 9" was containing the
passport of the appellant (Exhibit-18). The envelope marked
"Article 10" contained excess baggage ticket (Exhibit-19), boarding
pass (Exhibit-20), flight coupon (Exhibit-21), Air ticket of the
appellant with three claim tags (Exhibit-22), further flight coupon
Tilak 16/37 APEAL-306-10(J)
for Johannesburg to Lusaka with three baggage tags (Exhibit-23),
counterfoil of boarding pass (Exhibit-24) etc, all bearing
signatures of panchas. The envelope "Article 11" contained 3 cross
tags (Exhibit 28 colly) and transfer tags (Exhibit-29 colly). Now,
the contention of Mr.Khan is that the panchnama (Exhibit-11)
does not indicate that these articles were put in envelopes, and
that the envelopes were signed by the panchas. Indeed, the
panchnama does not indicate either the passport, or the other
articles being put in an envelope or envelopes, or the envelopes
being signed by the panchas.
22 It is not specifically suggested by Mr.Khan as to what
inference can be drawn from the same having not been mentioned
in the panchnama. It is a fact that such envelopes were produced
before the Court, and that they did contain the signatures of
panchas. In the cross-examination, it was put to Menon (PW 1)
that it was not mentioned in the panchnama (Exhibit 11) that the
said documents were put in envelope, and that the envelopes
being signed by the panchas, and he did admit it. It was also put
to him that, that the cross-tags and transfer tags (Exhibit-28 and
29) were found on the bags of the accused; and that it was also
not mentioned in the panchnama that the said tags were sealed in
Tilak 17/37 APEAL-306-10(J)
a separate envelope. Menon admitted it to be so. Menon also
admitted that it was not mentioned in the panchnama that all the
travel documents of the appellant were put in a separate envelope,
and it was also not mentioned in the panchnama that the passport
of the appellant was kept in any separate envelope. No further
explanation as to how these documents came out from the different
sealed envelopes was sought for, from the witness during the cross-
examination. What can be gathered from this is that the
panchnama does not reflect the facts accurately, and that the
record made in the form of panchnama, is not an accurate record
of the happenings. It, at the most, indicates that certain things
were done by the Investigating Agency subsequently, and without
making any record thereof in the panchnama. In my opinion, this
however, would not mean that the evidence of the seizure of the
documents, as stated by Menon (PW 1) and Dipti Amin (PW 16),
supported by the evidence of Jivan Jatkar (PW 2) which is
supported by the existence of the said documents, needs to be
discarded only on that ground. That, the record of panchnama
does not appear to be an accurate one, would indeed require the
evidence of these witnesses to be scrutinized more carefully, but
the same cannot result in an automatic rejection of their
testimonies, as unreliable. The entire evidence has to be viewed
Tilak 18/37 APEAL-306-10(J)
together, and a conclusion about the facts has to be arrived at.
That, the documents were coming out from sealed envelopes,
though the panchnama does not say they being put in such
envelopes, is a matter indicating the record not to be authentic. It
cannot be taken as an indication of the documents such as
boarding pass, excess baggage receipt, the baggage identification
tags etc, all being false and fabricated documents. As aforesaid,
really speaking, there is no dispute - and cannot be sensibly raised
- about the appellant having been in the Airport and intending to
travel by the said South African Airlines along with baggage. The
only dispute that is raised is whether the green colour stroller bag
in which contraband articles were allegedly found, was a part of
the appellant's baggage. As already observed, the same is clearly
established from the evidence which is consistent, convincing,
reliable and corroborated by the existence of the relevant
documents and certain other circumstances which are either not
in dispute, or are satisfactorily proved. Therefore, based on the
inaccuracy of the record, the conclusion that the bag from which
the said powders were recovered, did not belong to the appellant,
or was not the part of her checked-in baggage, cannot logically or
rationally be drawn.
Tilak 19/37 APEAL-306-10(J)
23 The learned Special Judge has duly considered the
aforesaid contentions, and has dealt with them in paragraph no.74
of the impugned judgment. The learned Special Judge has taken a
view that when Menon (PW 1) and the panch have given evidence
about the seizure and sealing of the articles at the time of
panchnama, the mere omission in panchnama to mention the
same would not be sufficient to disbelieve the entire case of the
prosecution. I am in agreement with the view of the learned
Special Judge in that regard.
24 It is also contended that the bulk articles produced in
Court, were not in accordance with the prosecution case. It is
pointed out that the panchnama (Exhibit-11) indicates that the
bulk was packed in two separate polythene bags. That, off-white
powder was kept in a polythene bag marked "A" and light brown
powder was kept in a polythene bag marked "B", and that both the
bags were kept in a cardboard carton which was sealed. That, a
tag was attached to the carton and the panchas signed on the tag
as well as the carton. It is also pointed out that in his evidence,
Menon (PW 1), stated that both the polythene bags marked as "A"
and "B" were kept in a carton which was closed and sealed with
Tilak 20/37 APEAL-306-10(J)
AIU Seal No.131, and a tag bearing details of the seizure and
signature of the panchas was attached to the carton, but he does
not say about panchas signing the carton. Mr.Khan pointed out
that when the carton was produced in the Court, it was bearing a
yellow tag and when the carton was opened, the polythene bag
containing white powder, having marking "A" was knotted and
adhesive tape bearing signatures of panchas was found on the
knot. Similarly, the other polythene bag having marking "B" was
also knotted, and adhesive tape bearing signatures of panchas was
found on the knot. The contention is that the polythene pouches
were knotted and adhesive tapes bearing signatures of panchas
were affixed on the knot, was not the case of the prosecution. The
admission elicited from Menon (PW 1) that it is not so mentioned
in the panchnama, is also sought to be highlighted. Then, this is
contrasted that the evidence of panch Dipti Amin (PW 16) where
she says that the plastic bag in which the white powder was put,
was kept in an envelope which was sealed and that her signature
was affixed to the envelope. It is also pointed out that, 'that her
evidence in examination-in-chief, that the plastic bag containing
the white powder was kept in an envelope which was sealed and
signed by panchas, was not correct', has been admitted by her. I
am not impressed by this contention for the same reason, that is,
Tilak 21/37 APEAL-306-10(J)
that this would only indicate the inaccuracy of the record or the
inability of the panch to precisely remember the manner of
packing and sealing. When the evidence of the panch and the
other evidence showing recovery of the articles from a bag
belonging to the appellant is reliable, and without infirmities, the
discrepancies in the evidence regarding the manner of packing and
sealing the articles, would not be necessarily fatal. It would
depend on the facts of each case. Such infirmities would be fatal
only if a suspicion of the articles having been tampered with, can
be reasonably entertained on that basis.
25 It is similarly contended that the samples which
reached the Chemical Analyser and the remnant samples
produced before the Court are not as per the panchnama. It is
contended that as per the panchnama, samples were packed in
three green cloth line covers. That the panchas signed the said
three covers, and then the same were sealed. It is contended that
the samples that were actually produced before the Court and
marked, were not as per the description thereof, mentioned in the
panchnama. All the polythene pouches that were marked as
Article '5B', '6B', '7B' and '8B', there were signatures of panchas,
but in the seizure panchnama, 'that such signatures were
Tilak 22/37 APEAL-306-10(J)
obtained', has not been mentioned. It was also contended that the
sample envelopes were shown to the panch when she admitted
that they could not be described as 'cloth line covers'. It is also
pointed out that though the sample envelopes were supposed to be
having only the signatures of panchas, there was one more
signature on the sample markings. It is contended that how these
discrepancies had occurred, was not explained by the prosecution.
I am not impressed by these contentions, if on the basis thereof, a
conclusion rendering the seizure of the powders from the baggage
of the appellant doubtful, is expected to be arrived at. In fact, in
the re-examination, the panch Dipti (PW 16) accepted that there
existed 'cloth lining' inside the envelope (Article 6) qualifying her
previous statement that the envelopes could not be described as
'cloth line covers'.
26 It is also contended that as per the evidence of Menon
(PW 1) he deposited the seized articles in the DS-I Warehouse
with a forwarding memo. However, the evidence shows that
actually the articles were received in the Warehouse DO-II. This
has been established from the evidence of Vijay Ghoradkar (PW8).
Raoji Gaikwad (PW 9) working as a Detention Superintendent-I,
DS-I Warehouse stated that on 26/2/2007, he found that some
Tilak 23/37 APEAL-306-10(J)
articles were wrongly deposited in DO-II, instead of DS-I, and that
he took charge of all the said articles which were so lying wrongly
in DO-II, and brought them to DS-I warehouse, and also made an
appropriate entry in the register maintained in that warehouse.
Based on this, it is contended that either the evidence of Menon
(PW 1) that he deposited the articles in DS-I is incorrect, or that
Vijay Ghoradkar (PW 8) is a got-up witness who made a false
entry of having received the articles in the warehouse DO-II. It is
also contended that the entry made in the register of warehouse
DS-I showed that the articles were received by Superintendent
Soman Mathew, and that in the absence of examination of Soman
Mathew, the prosecution version was suspicious. These
contentions need careful consideration, so as to see whether there
exists a reasonable possibility of the samples/articles having been
tampered with. I, have, therefore, carefully examined the
evidence in that regard.
27 Indeed, according to Menon (PW 1) the seized articles
were forwarded by him to DS-I warehouse on 25/02/2007 with a
forwarding memo (Exh.30). It also appears that actually the
goods were received by Vijay Ghoradkar (PW 8) in the warehouse
DO-II, on that date. He had entered the same in the register vide
Tilak 24/37 APEAL-306-10(J)
No.APS/MI/74/07. The copies of the relevant entries from the
register have been produced and marked as Exh.69. The evidence
of R.S.Gaikwad (PW 9) shows that on 26/02/2007 he found that
on the previous dates some articles were wrongly deposited in the
warehouse DO-II, instead of DS-I, and that he took charge of all
the seized articles in DS-I warehouse and made an entry in the
register vide No.DSI/MI/24/07 (Ex.71). The entry shows that the
articles which had been wrongly registered with DO-II vide
No.APS/MI/74/07 were received by Superintendent Soman
Mathew in the warehouse DO-II.
28 Now, the contention is that it was incumbent for the
prosecution to have examined Superintendent Soman Mathew,
and that since he was not examined as a witness, the prosecution
case is rendered doubtful. I find no substance in this contention.
29 Evidently, the contention of Mr.Khan that V.K.Menon
(PW1) has given incorrect evidence of having deposited the
articles in DS-I warehouse has to be accepted. The fact seems to
be that the articles were wrongly deposited in the warehouse DO-
II and were entered in the register maintained in that warehouse
by Vijay Ghoradkar (PW8). However, on the next day this mistake
was noticed and the articles were taken in the charge of the
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warehouse DS-I. The relevant entries which have been made by
the customs officers in due discharge of their duties and in official
register maintained as record of the articles received and taken
out, are themselves admissible in evidence.
30 Thus, non-examination of Superintendent Soman
Mathew cannot be said to be fatal, and for such non-examination,
the fact of initially the articles having been received in the
warehouse DO-II and later on the same being transferred to the
warehouse DS-I, cannot be disbelieved.
31 Mr.Khan has also raised a contention based on the
Authority Letter (Exh.31) issued by the Deputy Commissioner of
Customs - Gose Sebastian Fernandes (PW4) authorizing
V.K.Menon (PW1) to receive two samples marked AS-1 and BS-1
from the DS-I/strong room for forwarding to Deputy C.C. for test
purpose. In this Authority Letter the number that has been
mentioned is 'DSI/MI/24/07'. The contention of Mr.Khan is that
'since the articles were deposited under No.APS/MI/74/07, how
could the Deputy Commissioner of Customs know about the
number having been changed to DSI/MI/24/07'. I find no
substance in this contention. Simply because G.S.Fernandes,
Deputy Commissioner of Customs (PW4) was not a party to the
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raid, or the arrest of the appellant, it cannot be said that he would
have no information about the happenings from his subordinates.
Incidentally, G.S.Fernandes (PW4) was not questioned about it, in
the cross-examination. The question as to how he came to know
the number DSI/MI/24/07, when initially the number given was
APS/MI/74/07 was not asked to him.
32 Mr.Khan also raised a contention that the panchnama
(Exh.14) destroys the genuineness of the alleged seizure of the
contraband from the appellant. His arguments is thus :- the drug
seizure panchnama (Ex.11) commenced at 1.15 a.m. and
concluded at 4.30 a.m. on 25/02/2007. That the same set of
panchas were once again called at 5.00 a.m. for drawing a
panchnama in respect of the refusal of the appellant to make a
statement. The panchnama (Exh.14) speaks of panchas 'being
introduced to the customs officers', and 'the customs officers then
introducing the panchas to the appellant', 'the customs officers
telling the panchas that the appellant had been intercepted', and
'powder having been recovered from her checked-in bags', etc.
The contention of Mr.Khan is that 'if the panchas had already acted
as such in respect of the seizure panchnama (Exh.11) and if they
had, as per the recitals in the said panchnama, already been
Tilak 27/37 APEAL-306-10(J)
introduced to the customs officers and to the appellant, and had
witnessed the seizure where was the occasion to re-introduce the
same persons again to them'. It is, therefore, contended, in view
of the recitals of the panchnama at Exh.14 that the panchas had
earlier not witnessed anything and that the seizure panchnama is,
therefore, a bogus and fabricated document. It is not possible to
accept this contention. This would indicate that the recitals in
panchnama at Exh.14 are not correct and things simply could not
have happened that way. It is again a matter of wrong record of
the happenings being made. The panchnama (Ex.14) has been
mechanically drawn without application of mind and in a routine
manner. It fails to take into consideration the fact that they had
already acted as such during the seizure panchnama and had been
acquainted with the appellant and the customs officers; and that,
therefore, there was no question of the panchas again being
introduced to the same persons. This reflects not on the truth of
the fact of the seizure, but on the intelligence of the officer writing
panchnama in such a manner. It is not possible to hold from this
that the recitals in the panchnama (Exh.14) falsify the case of the
prosecution about the seizure of the contraband powder under
panchnama (Exh.11).
Tilak 28/37 APEAL-306-10(J)
33 As regards the articles/covers actually produced being
different from their description as appearing in the panchnama, it
has already been observed that the same cannot go to the root of
the matter in the absence of any infirmity in respect of the
evidence of the contraband articles having been found in the
baggage of the appellant. All that it would mean is that the record
made by the prosecution by way of panchnama, is not an accurate
one. It may also mean that the things have not happened exactly,
as claimed by the prosecution. All these contentions however, relate
to the events that took place after the contraband articles were said
to have been found in the baggage of the appellant. The
shortcomings in the handling of the matter thereafter, and/or in
the record of the happenings maintained, would not go to the root
of the matter unless they render the aspect of seizure itself,
doubtful. These shortcomings do not lead to any doubt about the
seizure of the contraband articles from the baggage of the
appellant which is the essence of the prosecution case. It is clear
that the evidence of Menon (PW 1) about having deposited the
articles in DS-I warehouse, is not correct, and that by mistake, he
had forwarded the same to the warehouse DO-II. He, however,
probably is trying to suppress this fact as ultimately, the articles
were collected by him from the warehouse DS-I for forwarding the
Tilak 29/37 APEAL-306-10(J)
same to the Dy.C.C. This would be material only if there would
appear to be a possibility of the articles which were sent to Chemical
Analysis being different from the samples that were taken from out of
the powders found in the baggage of the appellant.
34 After considering the entire evidence in that regard,
together with the description of the articles, as found in the entry
(Exhibit-69) in the register made by Vijay Ghoradkar (PS 8) which
relates to the warehouse DO-II, and the entry (Exhibit-71) made
by Raoji Gaikwad (PW 9) in the warehouse register of DS-I, as also
the evidence of Vivek Sawant (PW 10) and the entry (Exhibit-74)
in the strong room register, I am unable to hold that there exists
any reasonable possibility of the articles that were sent to the
Dy.C.C. for Chemical Analysis being different from the sample of
the articles said to have taken from out of the powders found in
the baggage of the appellant.
35 Surely, it cannot be said that the discrepancies in the
record made by the Investigating Agency such as panchnama
would not be material, at all. However, these discrepancies would
be material when they would go to the root of the matter. In the
instant case, the facts that are required to be proved, are basically:
Tilak 30/37 APEAL-306-10(J)
(a) that the appellant was having in her
possession a bag which formed part of her
checked-in baggage, and in that bag, two
types of powders, suspected to be narcotic
drug/psychotropic substance, were found.
(b) the samples of the said powders were
obtained, and were sent for Chemical
Analysis.
(c) That on examining the samples in
laboratory, one of them found to be
containing heroine - a narcotic drug.
36 In deciding whether these aspects are proved or not,
the Court has to have a regard to the entire evidence adduced
during the trial. The Court has to see what circumstances are
either undisputed, or are satisfactorily established, and then see
whether the other facts asserted by the prosecution are in
conformity with the same, and whether, all collectively lead to an
inference of an accused being guilty of the offences in question.
The discrepancies/shortcomings, infirmities in the evidence, if any,
should be considered in the light of the entire evidence to examine
whether they throw any doubt on the basic facts asserted by the
Tilak 31/37 APEAL-306-10(J)
prosecution, and/or whether they render the whole story,
doubtful. In the instant case, the shortcomings pointed out by
Mr.Khan would be material only if they would create a doubt either
about the fact that the green colour stroller bag in which the
contraband powders were found, was actually a part of the baggage
of the appellant, or about what was sent to the laboratories for
Chemical Analysis, and what was opined to be containing heroin,
was the same that was collected from the powder found in the said
bag, as and by way of sample. In the light of the entire evidence,
no doubt can be entertained about the fact that the green colour
stroller bag which is said to have contained the contraband
articles, was a part of the checked-in baggage of the appellant.
The shortcomings in the record and non-tallying of the
description of the articles produced before the Court, and the
description thereof, as given in the panchnama, cannot lead to an
inference that after the seizure of the powders from the said bag of
the appellant, and after taking samples therefrom, they were got
changed and something else was sent for Chemical Analysis.
Whether such inference on the basis of the shortcomings in the
record of panchnama can be drawn, would depend on the facts of
each case. These aspects would be decided on the basis of the
entire evidence adduced, and not solely because of the existence of
Tilak 32/37 APEAL-306-10(J)
discrepancies in the record. In appreciating the evidence, the
nature of cross-examination of the witnesses with respect to the
discrepancies assumes significance. That, the defence felt content
only with bringing on record; or pointing out that they exist,
without trying to suggest what inference could be drawn from
such discrepancies, or without challenging the witness to explain
the same, would be significant in appreciating the evidence.
In appreciating the evidence, the accuracy of the
contemporaneous record would be relevant as it would be capable
of creating a doubt about the facts of which it purports to be a
record. Whether it can prove fatal, would depend on the facts of
the case. The appellant was apprehended at the Airport which is a
restricted area. The presence of the appellant at the Airport has
been established by a number of documents. What was the
baggage with the appellant, has also been established on the basis
of the documents generated by agencies other than investigating
agency in the normal course of their business. Therefore, apart
from the claim of the investigating agency and their own record to
support the same, there is available convincing, reliable and
independent record of presence of the appellant, the baggage with
her etc, and the burden of the investigating agency to prove these
Tilak 33/37 APEAL-306-10(J)
aspects by supporting the same from their own record, has been
reduced.
38 Undoubtedly, the investigation in this case done by
the complainant himself who suspected and apprehended the
accused. Mr.Khan by placing reliance on State Vs. Rajangam 1
and Balasundran Vs. State 2, contended that this would be fatal
to the prosecution. Indeed, this is a weakness in the case, but it is
not possible to hold that the samples were under the control of the
complainant, and he could easily tamper with them. In this case,
that the same Officer, who apprehended the appellant, carried out
further investigation and filed a complaint, fails to create a
reasonable doubt about the guilt of the appellant.
39 A perusal of the impugned judgment shows that all
the contentions that are raised before this Court were, more or less
in the same terms, were raised before the learned Special Judge
also. The learned Special Judge has taken the same into
consideration, and has dealt with them properly. His conclusion
that the evidence of Menon (PW 1), Jivan Jatkar (PW 2) and Dipti
Amin (PW 16), together with the other undisputed facts, and the
1 (2010) 15 SCC 369
2 1999 (113) ELT 785 (Mad)
Tilak 34/37 APEAL-306-10(J)
existence of documents such as boarding card, ticket, excess
baggage payment receipt etc, clearly established that the bag in
question was part of the checked-in baggage of the appellant, and
that two types of powders had been concealed in the articles that
were found in the said bag, is proper. On going through the
evidence, this Court also comes to the same conclusion. Once this
is accepted as 'proved', the only question would be whether a
reasonable doubt about any manipulation with the seized articles
being done, and a wrong sample being sent to the Dy.C.C. for
Chemical Analysis, can be entertained in the facts and
circumstances of the case. Though it appears that initially the
seized articles were sent to the warehouse DO-II (and not to DS-I)
as claimed by Menon (PW 1), it also appears that, subsequently,
they were received in the DS-I warehouse, and from there,
samples were forwarded to the Dy.C.C. The entries made by Vijay
Ghoradkar (PW 8) and Raoji Gaikwad (PW 9) in the relevant
registers, show the description of the articles and from the details
given therein, it is not possible to hold that the samples were
tampered with.
40 Though in a criminal trial, an accused is entitled to
the benefit of doubt, it is well settled that such doubt should be a
Tilak 35/37 APEAL-306-10(J)
reasonable one. A reasonable doubt is one for which a sensible
reason can be supplied. Since the evidence of the appellant having
a bag with her in which the contraband powders were found, is
convincing and reliable, doubts can revolve only around the
possibility of the samples having been tampered with. Upon
considering the evidence, no such possibility can be reasonably felt
to exist. Consequently, there does not arise any doubt about the
truth of the prosecution case. The discrepancies in the record
cannot lead to a rational thinking that they are resulting because
of some tampering having been done to the seized articles. The
discrepancies do not appear to be arising out of a deliberate
manipulation - for they do not seek to advance the case of the
prosecution - but due to sheer inadvertence, or a failure to make a
precise record. The doubt about the authenticity or the
correctness of the record, cannot, by itself, lead to a conclusion
about the facts stated by the witnesses - of which the record is
made - are not believable. It would all depend on the facts of
each case, and the nature of shortcomings/discrepancies in the
record. In the instant case, though such discrepancies do exists,
they do not go to the root of the matter, and are not sufficient to
create a reasonable doubt about the guilt of the appellant.
Tilak 36/37 APEAL-306-10(J)
41 The appreciation of evidence, as done by the learned
Special Judge, does not suffer from any infirmity or error. The
conclusion arrived at by him, is proper and legal.
42 However, the appellant is a Foreign National. The
amount of fine is not likely to be realized from her. The default
sentences that have been imposed by the learned Special Judge,
appear to be rather harsh. In the circumstances, I am inclined to
reduce the default sentence, on each count, to Rigorous
Imprisonment for 3(three) months.
43 Subject to the aforesaid modification in the default
sentences, the Appeal is dismissed.
(ABHAY M. THIPSAY, J)
Tilak 37/37 APEAL-306-10(J)
CERTIFICATE
Certified to be true and correct copy of the original signed
Judgment/Order.
