Bombay High Court
Mgeni Abdullah Aboud vs The State Of Maharashtra on 5 May, 2021
Bench: Prakash Deu Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1012 OF 2017
WITH
CRIMINAL APPLICATION NO.864 OF 2019
Mgeni Abdullah Aboud
Age - 37 years, Occu : Nil,
Add - S/o. Mr.Aboud Mgeni,
100, Kinondoni, Dare Es Salam
Tanzania
(Presently at Arthur Road Jail) .. Appellant
Versus
1) State of Maharashtra;
2) Air Intelligence Unit,
CS International Airport,
Sahar, Mumbai. .. Respondent
......
Mr.Dilip Mishra i/b. Mr.Ayaz Khan, Advocate for the Appellant
/Applicant.
Ms.A.A. Takalkar, APP for Respondent-State.
Mr.N. Natrajan, Spl. PP for Respondent No.2-State.
......
CORAM : PRAKASH D. NAIK, J.
JUDGMENT RESERVED ON : DECEMBER 07, 2020.
JUDGMENT PRONOUNCED ON : MAY 05, 2021
JUDGMENT :
This Appeal under Section 374 of Cr.P.C. is preferred
against the judgment and order dated 18th November, 2017,
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rendered by N.D.P.S. Special Judge, Greater Mumbai, in N.D.P.S.
Special Case No.177 of 2014. The appellant is convicted for the
offence under Section 8(C) read with Section 22 (c) of the
Narcotic Drugs and Psychotropic Substance Act, 1985 ("N.D.P.S.
Act", for short), and sentenced to suffer rigorous imprisonment
for 12 years and to pay fne of Rs.1,00,000/-, in default to suffer
further rigorous imprisonment for six months. The appellant is
also convicted for the offences under Section 9(A) read with
Section 25(A) of NDPS Act, and, sentenced to suffer rigorous
imprisonment for 5 years and fne of Rs.50,000/-, in default,
further rigorous imprisonment for three months. The appellant
was acquitted of the offence punishable under Section 23 read
with 29 of NDPS Act.
2 The essential facts of the case, which are necessary
for deciding this Appeal are as under:
(a) Complainant had suspicion about accused while he was on
duty and instructed Kenya Airlines check-in counter staff to
keep aside the check in baggage of the accused, who had
checked in at Kenya Airline Counter No.E-08 for fight no.
KQ 203 departing to Nairobi.
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(b) On instructions of complainant, the superintendent of
Customs Mr.Girish Tilve, dog handler Mr.S.S. Mahadeshwar
accompanied with sniffer dog intercepted accused in
presence of panch witnesses. On being asked, the accused
identifed himself as (Mgeni Abdullah Aboud) holding
Tanzanian passport bearing No.AB246937 and stated that
he was departing to Johannesburg via Nairobi by fight
No.KQ-203 on 2nd July, 2014. The accused identifed one
checked-in black coloured hard top zipper strolley suitcase
of American Tourister make bearing baggage tag No.0706
KQ 249805 and claimed that it belonged to him. He was
also found in possession of one E-Ticket
No.706542864837C1 and Kenya Airways confrmation
no.8LHBVZ issued in his name for sector Nairobi to
Johannesburg by Kenya Airways fight No.KQ 203 and
another E-ticket no.7065424864837C2 and Kenya Airways
confrmation No.8LHBVZ, issued in his name for Sector
Nairobi to Johannesburg by Kenya Airways fight No.KQ
762 dated 2nd July, 2014. He was also found in possession of
boarding pass of above fight dated 2nd July, 2014, and,
baggage claim tag bearing No.0706 KQ249805 of Kenya
Airways fight KQ 762 and KQ 203.
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(c) The officers of AIU asked accused whether he was carrying
any narcotic drugs in the checked-in baggage or on his
person, the accused replied in the negative. The officers of
AIU were not satisfed with his reply and asked ASI
Mr.Mahadeshwar to instruct his dog to sniff the checked-in
bag. Accordingly, in presence of panch witnesses, the dog
sniffed the said suitcase and gave positive indication
regarding presence of narcotic drug in the baggage by
barking and psychotropic substances in his baggage to
which he again replied in the negative. The checked-in bag
bearing tag No.0706 KQ 249805 was found locked with
inbuilt number lock. The accused was asked to unlock the
bag. When the bag was opened by the accused, the officers
examined the contents of bag. It was found containing
seven sets of cotton bed-sheets. Those bed-sheets were
examined by the Customs officers and in each set of bed-
sheet, one white coloured transparent polythene pack was
found. When the said polythene pack was cut and opened,
it was found containing some white coloured crystalline
powder. The accused was confronted with the said
contents, and, he stated that those were some chemicals
used as medicine.
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(d) AIU officers decided to carry detailed examination of
checked-in bag of the accused in presence of panch
witnesses. Since the place of departure area was not found
suitable for such detailed examination, the officers of AIU
had decided to conduct the same in AIU office situated
behind Gate No.67, Level 6, Terminal-2, CSI Airport. The
Kenyan Airways checked-in staff were told to ofoad the
accused.
(e) Examination of checked-in bag of the accused was carried
out in the presence of panch witnesses. It was found
containing seven bed-sheet sets and one transparent
polythene packet in which some drugs were concealed. The
entire white coloured crystalline powder was emptied in
one large transparent polythene bag. Small quantity of
white crystalline powder was tested with testing kit and it
was found with white crystalline powder "Methaqualone".
The total quantity of white crystalline powder was weighed
and it was found weighing 12.9 kilograms worth
Rs.6,40,00,000/-, as per prevailing rate of illicit drug
market.
(f) The accused was informed about his right to search under
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Section 50 of NDPS Act in presence of Gazetted Officer of
Government or Magistrate. The accused replied that he
would like to be searched in presence of Gazetted Officer.
The accused was told that Mr.Girish Tilve, Superintendent
of Customs was Gazetted officer and present at the spot.
(g) Personal search of the accused was carried out in the
adjacent room of AIU office in the presence of panch
witnesses. Nothing incriminating was found.
Representative samples of 10 grams each were taken from
the mixed white crystalline powder. It was put in a small
transparent pouch with zip press seal and marked as S-1,
S-2 and S-3. Small pouches were also head sealed after
labelling and packing of the said samples. The officers of
AIU and accused put their signatures on the envelope.
Remaining white coloured powder weighing 12.770 grams
was also kept in large transparent polythene bag and it was
duly sealed with heat seal and yellow tag was affixed on it.
Officers packed all the above mentioned exhibits inside the
black coloured hard top zipper strolley suitcase of
American Tourister make and the said suitcase was tied
with the help of jute string from all sides and yellow
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coloured paper was affixed on the jute string and sealed
with AIU Seal No.133. The AIU officers and the accused put
their signatures on the label. Sealing and labelling of other
seized articles was completed.
(h) During the investigation, statement of accused was
recorded under Section 67 of NDPS Act, 1985. Statements
of other witnesses were recorded. Samples were sent to
Dy.CC, New Customs House, Mumbai, for examination. The
lab authority had informed that they were not having
common standard reference samples of Methaqualone and
Mescaline. Second sample S-2 was sent to CFSL,
Hyderabad for examination. The CSFL Hyderabad
submitted its report stating that Methaqualone could not be
detected in Exhibit S-2. Ephedrine Phenmetrazine,
Amygdalonitrile and Dimethysulfone have been detected in
Exhibit-S-2.
(I) The complaint was fled before the Special Court. The
accused was arrested on 2nd July, 2014.
3 Charge was framed by order dated 29th June, 2016,
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for offence under Section 22(c), 9(A) punishable under Section
25(A) of NDPS Act, 1985, and Section 8(c) punishable under
Section 23 read with Section 29 of NDPS Act.
4 The prosecution examined eight witnesses. P.W.1
Mr.Sameer Chandrakant Surve was examined as complainant.
P.W.2 Mr.Nripesh Kumar Pathak is officer of AIU at CSI Airport,
Mumbai, who recorded statements of accused and panch
witnesses. P.W.3 Mr.Ajit Anandrao Harane was employee of
Khambata Airways and fight handler for Kenya Airways. He
acted as panch witness. P.W.4 Mr.Girish Tilwe is the Gazetted
officer, P.W.5 Mrs.Margarat Samel was Superintendent of
Customs posted as Sahar Airport. She recorded statement of
Rajesh Chapadi in AIU office. P.W.6 Mr.Yatin Narvekar was
examined as carrier of seized contraband to CSFL, Hyderabad.
P.W.7 Mr.S.N. Kasture was custodian of DS-1, P.W.8 Mr.Tessio
Ferreira was second panch witness.
5 Statement of the accused was recorded under Section
313 of Cr.P.C. The accused/appellant denied the charge and
claimed that he has been falsely implicated in this case.
6 Trial Court held that the prosecution has proved that
on 2nd July, 2014, the accused was found in possession of 12.800
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kilograms white crystalline powder proved to be Ephedrine, a
controlled substance and Phenmetrazine, a psychotropic
substance at CSI Airport Mumbai. Prosecution has not proved
that on 2nd July, 2014, accused was found to have hatched
conspiracy with Naganil Yaqub Macho for committing the
offences under NDPS Act.
7 Learned advocate for the appellant urged following
submissions:
(i) Section 42 of the NDPS Act has been violated. P.W.1 has not
recorded the reasons of belief contemplated under Section
42 of the said Act.
(ii) Bulk quantity which was seized from the baggage of the
accused was not shown to panch witnesses.
(iii) Both the panch witnesses did not support the case of the
prosecution. However, they were not declared hostile.
Prosecution had relied upon their evidence. Reliance is
placed on the decision in the case of Leen Martin Vs.
Union of India delivered n Criminal Appeal No.379 of
2007, and the judgment of the Supreme Court confrming
the said decision reported in AIR 2018 (SC) 991.
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(iv) Panch witnesses have not identifed the bulk quantity of
drug recovered in the present case. P.W.3 and P.W.8
identifed their signatures appearing on the article and not
contents. Learned counsel relied upon the judgment of the
Division Bench of this Court in the case of Milan
Sarcaskin Vs. State1.
(v) The officers who are party to panchanama did not speak
anything on the said panchanama nor identifed the
accused;
(vi) Section 50 of the NDPS Act is violated. P.W.4 was party to
the panchanama. On his instructions, P.W.2 conducted
personal search of the accused. Evidence of P.W.2, nowhere
refects that he conducted the personal search of the
accused. Accused was told that P.W.4 is a Gazetted officer
present there. Such introduction of P.W.4 while appraisal of
Section 50 is in violation of Section 50 of the Act. Reliance
is placed on the decision of Supreme Court in the case of
State of Rajasthan Vs. Prmanand and Anr.2
(vii) Panch witnesses are silent about appraisal to Section 50 of
NDPS Act. In the case of Shiv Kumar Ashok Mishra Vs.
1 1996(4) Crimes 491
2 2014(2) SCC (Cri.)563
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State3, it was held that in the absence of independent
evidence of compliance of Section 50, no conviction can be
imposed.
(viii) P.W.1 is silent regarding the word "right" during appraisal
made under Section 50 of NDPS Act. Evidence of P.W.5
refect that she has recorded statement of Rajesh Chapadi
under Section 108 of the Customs Act. Mr.Chapadi is the
person who has checked-in the person of the appellant on
the date of seizure and issued documents. The evidence of
P.W.5 is hearsay. Rajesh Chapadi, Assistant Supervisor,
Cambata Aviation, Mumbai, is examined by the
prosecution. His statement recorded under Section 108 of
the Customs Act, cannot be considered for the prosecution
under NDPS Act. Learned counsel relied upon the decision
of the Supreme Court in the case of Noor Aga Versus
State of Punjab and Another4. P.W.2 recorded statement
of the appellant and panch witnesses P.W.3 and P.W.8 under
Section 67 of the NDPS Act. P.W.3 and P.W.8 has not
referred to recording of such statement in their evidence
before Court. It is submitted that the Apex Court in the
3 1996 Cr.L.J.1454
4 2010(3) SCC (Cri) 748.
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recent decision in the case of Tofan Singh Versus State
of Tamil Nadu delivered in Criminal Appeal No.152 of
2013, has held that the statement under Section 67 of
NDPS Act are inadmissible and hit by Section 25 of the
Evidence Act.
(ix) The report received from CSFL Hyderabad was marked as
Exhibit-38. It was admitted by the advocate for the
accused. The report refers to opinion regarding existence
of drug Ephedrine, phenmetrazine. In the report there is
no data sheet indicating what chemicals were used, what
was the quantity and on which date tests were performed
to identify the identity of sample. Ephedrine is controlled
substance and phenmetrazine psychotropic drug. Hence,
data sheet is necessary to fnd out the manner in which
samples were examined. Reliance is placed on decision of
this Court in the case of Mirza Qumer Hyder Versus A.K.
Thakker, passed in Criminal Appeal No.554 of 2006.
(x) The evidence of P.W.6 mentions that he carried sample S-2
from DS-I warehouse on 2nd July, 2014, and, deposited the
same in CSFL Hyderabad on 3rd July, 2014. He identifed
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Exhibit-42, as an authority letter issued by Assistant
Commissioner of Customs for withdrawal of sample S-2.
In the cross-examination, he stated that he does not
remember the name of the person from DS-1 warehouse
from whom he received the sample. He did not identify
DS-1 register. Exhibit-42 was signed by Assistant
Commissioner of Customs. He has not been examined to
prove the contents of Exhibit-42. The sample packet S-2
was not shown to P.W.6 for the purpose of identifcation that
sample S-2 was the same which he carried to the office of
CFSL, Hyderabad.
(xi) P.W.7 was examined as DS-1 in charge. On 2 nd July, 2014,
he was posted at DS-1 as Custodian and he had received
sealed packages of seized articles. The package were
brought to him by AIU Intelligence officer alongwith
forwarding memo dated 2nd July, 2014 and Exhibit-45.
His evidence does not show that he had handed over
sample S-2 to P.W.6 on 2nd July, 2014. In cross-examination,
he stated that he is not aware that Article S-2 was given to
investigating officer for sending it to CFSL Hydrabad. P.W.7
did not state about existence of Exhibit-42 regarding
withdrawal of sample packet S-2.
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(xii) The samples in the present case are tampered. They were
not received in the condition in which it was packed.
Panchanama shows that the samples were head-sealed. The
report of the expert refects that the polythene punch was
auto pressed.
(xiii) Search and seizure report under Section 57 of the NDPS
Act is not exhibited in evidence.
(xiv) Two cases were registered at the same time with the same
panchas. On 2nd July, 2014, the appellant and another
person Nganila Yakub Macho had checked-in, in the
presence of AIU officers. The other person was
apprehended at checked-in counter and panchanama was
recorded between 1:45 a.m. to 3:00 a.m. The case of the
prosecution is that they were known to each other.
Prosecution chose to register two separate cases with the
help of two panchs i.e. P.W.3 and P.W.8. The case of the
appellant and other accused which was separately
registered were tried in the same Court. In the statement
of appellant, name of Mr.Macho was refected and similarly
in the statement of Mr.Macho, the name of the appellant
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was referred. The appellant was not tried with the other
person. However, on the basis of similar evidence,
Mr.Macho was acquitted by the trial Court subsequently
vide judgment dated 17th May, 2018.
(xv) There are discrepancies in the evidence which creates
doubt about the prosecution case. The accused is entitled
for beneft of doubt.
8 Learned advocate for the appellant also relied upon the
following decisions:
(1) Union of India Versus Jarooparam5; and
(2) Premsingh Hijarilal Jaiswal Versus State of
Maharashtra, dated 29th September, 2017, delivered by
this Court in Criminal Appeal No.708 of 2010.
9 Learned advocate for the respondent submitted that
there is cogent evidence on record to prove offence against the
appellant. Trial Court has appreciated the evidence on record and
by assigning reasons convicted the appellant. The appellant was
found in possession of the contraband worth Rs.6,40,00,000/-,
procedural safeguards were complied. The offence was proved
5 2018(4) SCC 334
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beyond all reasonable doubt. Section 42 of the Act is not
applicable in this case. Although Section 50 is not attracted,
there is compliance of the said provisions. The discrepancies, if
any, are minor in nature. Evidence of panch witnesses cannot be
discarded in entirety. By not declaring them as hostile witnesses,
no adverse inference can be drawn against the prosecution. The
decisions relied upon by the learned counsel for the appellant are
not applicable in the present case. The recovery of contraband
was from public place and hence Section 43 of the Act would
apply and not Section 42 of N.D.P.S. Act. There is sufficient
evidence to show the involvement of the appellant in the offence.
The CA report was admitted by accused. It is admissible in
accordance with Section 293 of Cr.P.C. Section 54 of the NDPS
Act can be invoked in the present case. It relates to the
presumption from possession of illicit articles. Section 66 of the
Act is relevant in this case. It relates to presumption as to the
documents. Section 35 of the Act refers to presumption of
culpable mental state. In any prosecution, for any offence under
this Act which requires a culpable mental state of the accused,
the Court shall presume the existence of such mental state unless
it is proved contrary. It is submitted that the evidence of the
witnesses supports prosecution case. There is sufficient evidence
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to establish that the baggage from which the drug was recovered
belonged to the appellant. The baggage tags tallied with the bag.
It is established that the contraband was concealed in the bag.
The panch witnesses had admitted their signatures on the
panchanama. There is cogent evidence on record in the form of
ocular and documentary which proved the offence. The Appeal be
dismissed by confrming the conviction.
10 I have scrutinized the evidence on record. P.W.1
Sameer Chandrakant Surve, was posted at CSI Airport Mumbai
as Air Intelligence Officer of Air Intelligence Unit of Customs.
According to him, he was on duty on 2 nd July, 2014 at departure
hall of CSI Airport. The officers found one person with black
coloured trolley bag. His movements were suspicious. He was in
a queue at Kenya Airways counter. The officers approached Kenya
Airways officers counter and informed them about the person in
the que and instructed them to keep HIS bag aside after check-in.
The suspect went to the counter. He gave his passport and E-
ticket and got his bag checked-in and took boarding passes. On
enquiry, the staff of Kenya Airways officers informed that the
suspect was travelling from Mumbai to Nairobi by Kenya Airways
fight No.AQ 203. The passenger was further travelling to
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Johannesburg from Nairobi by fight No.AQ 762. The Airlines
issued boarding passes, baggage tags for the checked in bag to
passengers. Two boarding passes were issued to suspect for
Mumbai to Nairobi and for Nairobi to Johannesburg. One
baggage tag was issued to him. Both fight numbers were
mentioned on the baggage tag. On questioning, he stated that he
owned the bag and stated that it contains clothes and bed sheets.
He denied that he was carrying any narcotic drug.
Mr.Mahadeshwar gave instructions to his sniffer dog to sniff the
bag of passenger. After sniffing the bag, the dog gave positive
indication of presence of narcotic drugs. However, the suspect
denied about it. He was requested to open the bag, which was
locked with inbuilt number. The suspect opened the bag. On
examination they found bed-sheets. The dog again gave positive
indication of presence of narcotic drug. On examining bed sheets
in the bag, it was found that there was transparent plastic
polythene packet containing white crystalline powder concealed
inside the bed-sheet. P.W.1 identifed the accused, who was
present in the Court as same person who was apprehended at the
Airport. He further stated that the team along with the accused
went to AIU. They conducted detailed examination of baggage.
There were seven transparent polythene bags containing white
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crystalline powder concealed in the bed-sheets. The accused
stated that it was chemical for medicines. He stated that all the
transparent packets contain same substance. The weight of the
powder was 12 kilogram 900 grams. The test conducted at that
place with the kit indicated that it was "Methaqualone". The test
was conducted in the presence of Superintendent Mr.Girish Tilve
and two panch witnesses, accused and the dog handler. Personal
search of the accused was conducted in presence of panch
witnesses. Accused was informed that his personal search could
be taken before Gazetted officer or Magistrate. Accused
preferred his personal search before the Gazetted officer Girish
Tilwe (P.W.4) and I.O. Mr.Pathak. Nothing incriminating was
found with the accused during his personal search. Three
representative samples of 10 grams each from the white
crystalline powder found in possession of accused were taken.
The samples were put in a plastic pouches and sealed. The plastic
pouches were kept in three separate envelopes. Labels were
affixed bearing signatures of panch witness and accused. The
case details were mentioned on the labels. Lac seal was put up on
the envelopes. The polythene bag containing remaining 12
kilogram 770 grams was tied with tape. It was kept in cartoon
box. The cartoon box was tagged with yellow tag bearing details
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of case, signatures of panch witnesses, accused and P.W.1. He
sealed the tag with AIU brass seal. The seven empty bags and
bed sheets were kept in trolley bag of the accused. They tagged
the bag with yellow tag bearing case details and signatures of
panch witness, accused and P.W.1. There was tag on the bag of
accused. P.W.1 identifed white crystalline powder in plastic
puches in envelopes S-1, S-2 and S-3. They took the tag and
kept it with boarding passes, E-Ticket and other travel
documents. The said travel documents were kept in green
envelope. P.W.1 prepared panchanama of search and seizure of
the accused in the presence of accused , superintendent, panch
witnesses and dog handler. The panch witnesses have put their
signature on each page of panchnama. There are two boarding
passes, one baggage claim tag, baggage identifcation tag, E-
Tickets and fight manifest in envelope. These documents bear
signatures of panch witnesses, accused and P.W.1. Cartoon box
was produced from DSI warehouse. It was tagged with yellow
tag. The seals on the tag and the cartoon box were intact. The
seals were broken in Court. It was containing crystalline powder.
It was the same polythene bag in which the contents of 7 pouches
was emptied. On the yellow tag, there were signatures of panch
witnesses, the accused and P.W.1. One zipper trolley bag was
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shown to P.W.1. Seal was intact. It was broke open in the Court.
There were bed-sheets, polythene bags and cardboard. Bed
sheets, cardboard, seven polythene bags bear signatures of
panch witnesses, accused and P.W.1. The zipper trolley bag and
its contents were found in possession of the accused.
11 In the cross-examination, the evidence of this witness
was not shaken in any manner. He stated that the movements of
the accused were suspicious when he was in the Airport. He was
frequently looking at his bag. Once boarding pass is issued to a
passenger and as the baggage is checked -in, he loose physical
possession over the said baggage. The witness volunteers that
the passenger remained at a short distance from his baggage. He
had witnessed the Airline staff affixing baggage tag to the
baggage of the accused. When he accosted the accused, he was
not having a list of Gazetted officers or Magistrate with him.
P.W.4 was the Gazetted Officer. The accused was made aware
about presence of Gazetted officer Mr.Tilve. Action was taken
against a passenger in respect of suspicion of the quantity of
contraband found in his possession.
12 Thus, from the evidence of P.W.1, it is established that
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the movements of the accused were suspicious. He was boarding
fight to Nairobi. His baggage was checked-in. The sniffer dog
gave positive indication of drug inside the bag. On checking, it
was found that the bag was containing the contraband. The
accused was appraised about the compliance of Section 50 of the
said Act. Samples were prepared. The contraband and other
articles were sealed. The bag in which the contraband was sealed
was seized and sealed. The documents, such as ticket, baggage
tag and the boarding pass connects the appellant with the bag in
which contraband was found. There was recovery of about 12.900
grams of the contraband. The value was around Rs.6,40,00,000/-.
The evidence of this witness inspires confdence. I do not fnd any
discrepancies to doubt the veracity of his evidence.
13 The defence has assailed prosecution case on various
grounds. One of the primary contention is that Section 42 of the
NDPS Act is not complied. It would be relevant to note that the
seizure was at the Airport. It is a public place although the entry
is restricted to the persons holding tickets. Thus, Section 42
would not be attracted in this case. The provisions of Section 43
of the NDPS Act would come into play. Hence, there is no
substance in the submission that on account of non compliance of
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Section 42, the conviction should be set aside. Another
contention of the defence is based on the compliance of Section
50 of the NDPS Act, but, the evidence on record indicate that the
accused was appraised of his right under Section 50 of NDPS Act.
He consented for search in the presence of Gazetted Officer.
Nothing was seized on his person, although, personal search of
the accused was conducted. The packet in which the contraband
was found was found checked-in baggage.
14 P.W.2 Nirpesh Pathak is the intelligence officer. He
recorded the statements of accused and panchas. He recorded
the statement of the accused. He also recorded the statements of
panch witnesses. In the cross-examination, he stated that before
recording statement of accused he told him that he is recording it
in respect of smuggling of 12.800 kilograms of Methaqualone.
He denied that signatures of the accused was obtained on blank
papers. The entire cross-examination of this witness was devoted
to statements of the accused. The Supreme Court in the decision
in the case of Tofan Singh Versus State of Tamil Nadu
(Supra) has observed that the statement recorded under Section
67 of the NDPS Act cannot be used as a confession and it is hit by
Section 25 of the Evidence Act. However, in this case, there is
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independent evidence establishing complicity of the appellant in
the offence.
15 P.W.3 Ajit Harne is the panch witness. He stated that
he was posted for Kenya Airlines as fight handler. He was
employee of Khambata Airways. AIU had informed them to off
load one passenger as he is carrying suspicious items in his bag.
He cannot recollect the name of the passenger. He was called by
AIU. The off loaded passenger was present. He do not recollect
the face of the passenger. There were some samples on table.
There were 5 to 6 small samples of white powder kept in
polythene packets. He has no idea from which place they have
obtained white powder. He was asked to become panch. He was
given three packets for signing. He was forced to sign on that
paper. Samples S-1, S-2 and S-3 were shown to him. He had
signed on the said packets. The packets were opened in the
Court. He admitted that the polythene packet bears his signature.
They were given empty envelope and empty bags to mark their
signature. Panchanama was shown to him. He admitted that his
signature appears on each page. Two boarding passes were
shown to him. One is Bombay to Nairobi and the other is Nairobi
to Johannsberg. Checked-in baggage tag were shown to him. The
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name of the passenger refects on the said baggage tag. The
passenger claim tag and passenger ticket was shown to him. The
ofoaded passenger list is shown to him. It reveals the name of
the passenger and his signature. He cannot recollect the
ofoaded passenger. Sealed packet was opened in the Court. The
yellow tag attached to sealed packet does not refect his
signature. He did not get chance to see the white powder in AIU
office. He was shown Exhibit-21. It is passenger ofoaded list.
He admitted that his signature is refected on Article-4. Trolley
bag was shown to him. Yellow tag is attached to the bag. It bears
his signature. He stated that his signature was obtained when
yellow tag was blank. He had not seen the bag in AIU office. He
was introduced with officers. One person of African origin was
present. He denied that in his presence bag was opened and they
found polythene bag containing white powder inside the bed-
sheets. He denied that they tested white powder in his presence
and concluded that it contains Methagualone. It is not correct
that, the passenger was asked as to whether he wants to be
searched in the presence of Gazetted officer or Magistrate. It is
correct that he put his signatures only on three sample packets.
It is not correct that contents of panchanma are true. Some part
is correct. He admitted that he put his signature only on three
rpa 26/53 cr.appeal-1012-17.doc
sample packets. The defence did not cross-examine him. The
submission of the defence is that although this witness has not
supported the prosecution case, he was not declared hostile. The
bulk quantity was not shown to him. It is pertinent to note that in
the examination-in-chief itself several suggestions were put to
him, which were related to his deviation from contents of
panchanama. This witness has admitted that his signature is
appearing at several places. Although he has denied that the bag
was opened in his presence and the contraband was recovered
from the bag. Several circumstances deposed by him in his
evidence are in-consonance with the prosecution case.
16 P.W.8 Shri Tessio Ferreira is another panch witness.
He deposed that he is staff of Kenya Airways. He was called by
AIU officers. He do not remember the date on which he was
called. But, it was intervening night of 1 st July, 2014 to 2nd July,
2014. He was called in the context of contraband, which was
seized from foreigner. He was supposed to board fight KQ 203 of
Kenya Airlines. Foreign national was taken to AIU office. He will
not be in a position to identify the passenger if he is present in
the Court. He do not remember which drug was seized by AIU
officer from the foreigner. Later on he was called at AIU office.
rpa 27/53 cr.appeal-1012-17.doc
The contraband was already sealed. He was asked to sign as a
witness to panchanama and he had put his signature on the
panchanama. If panchanama is shown to him, he can identify his
signature. He is identifed his signature. He admitted that he
signed the panchanama on every page. He had read the
panchanama before putting his signature, and, thereafter, signed
it. If labels of seized contraband on which he had signed are
shown to him, he can identify his signature. Article-1 bears his
signature. Article-2 bears his signature. Articles 3 and 4 also
bears his signature. He was shown statement Exhibit-28. On
every page of Exhibit-28 his signatures are there. His signature
is also below the statement. He was shown black coloured
suitcase having label. It bears his signature. The carton box was
opened. He was shown Article-5. He admitted his signature on
the label. In the cross-examination by defence, he stated that he
do not remember the date and time when his signatures were
obtained. The submission of the defence is that even this witness
was not declared hostile. The reason is obvious. He has admitted
his presence on the date of seizure. He admitted that he was
called to act as panch witness. He admitted his signature on
every page of the statements and below the statements. He
admitted his signatures on every Articles which are relied upon
rpa 28/53 cr.appeal-1012-17.doc
by the prosecution. For the reasons best known to him, he did not
support the prosecution on material aspects. However,
considering the tenor of his evidence, his version cannot be
discarded completely.
17 P.W.4 Girish Tilve is the Gazetted Officer. He was
posted as Superintendent AIU CSI Airport Mumbai. According to
him, they were keeping surveillance in departure area. One
passenger, checking in for Kenya Airways was identifed on
suspicion. Instructions were given to Kenya Airways to keep that
passengers baggage on hold for examination. After the passenger
checked-in, he was intercepted. On questioning, he denied
possession of narcotic drug. He had one checked in baggage. His
documents showed that he was travelling from Mumbai to
Nairobi and Johannesburg. Sniffer dog gave positive indication of
having narcotic drug in his bag. The suspect identifed his bag.
Contraband was seized from his bag. The accused was explained
his right under Section 50 of NDPS Act. He was informed that he
has right to be searched in front of Gazetted officer or
Magistrate. He opted for search before Gazetted officer. He
himself was Gazetted Officer. In his presence and presence of
panchas, he was searched by Mr.N.K. Pathak. Nothing
incriminating was recovered from his personal search. He
rpa 29/53 cr.appeal-1012-17.doc
identifed the accused in Court,. In the cross-examination by
defence, he stated that CCTV cameras are available and cover
entire area of Airport. It was operative at the place where the
accused was apprehended. After issuance of boarding pass, the
passenger looses control over baggage. He do not recollect
whether any written correspondence was made with Kenya
Airways before asking them to keep the passengers bag. The
place was crowded. Bag was separated by Kenya Airlines and
given to the passenger. This fact was witnessed by staff of Kenya
Airways. He do not recollect as to whether he had requested any
staff member of Kenya Airways to act as witness. He do not know
procedure for obtaining AIU seal. From the evidence of this
witness, it can be seen that he has corroborated the evidence of
P.W.1. Cross-examination of this witness has not resulted in
causing any damage to his version. He has referred to appraisal
of right under Section 50 of NDPS Act, to the accused. This fact is
not demolished in any manner in the cross- examination. It is also
apparent that personal search of the accused has not resulted in
fnding of any contraband. Thus, his evidence clearly supports the
prosecution case.
18 P.W.5 Smt.Margarat Samel was posted as
Superintendent of Customs at Airport. She issued summons to
rpa 30/53 cr.appeal-1012-17.doc
Airline Supervisor Mr.Rajesh Chapadi. He stated that some
officers had pointed out one passenger who was in queue for
Kenya Airways fight. They suspected that he was carrying
narcotic drug in his baggage since the dog has given a signal by
barking. They were told that the bag of the suspect should be
kept aside for examination after the passenger check in.
Mr.Chapadi had checked-in the baggage of suspect and issued
him boarding card. He was asked what he was carrying. The
passenger informed that he is carrying some clothes and bed-
sheets. On opening the bag, they found bed-sheets with white
coloured polythene bags. The passenger was taken to office of
AIU for inquiry. She identifed the summons and the statement of
Rajesh Chapadi. She also stated that she issued summons to
clarify as to why name of passenger was not refected in manifest.
He replied that the passenger was booked for Kenya Airways
fight without indicating the sector in which he was intending to
travel i.e. fight segment. The fight number, destination and date
were not mentioned. That is the reason his name was not
mentioned in the manifest. The other reason is that the manifest
was issued fve hours before the fight departure. Passenger
arrived before one hour on the counter. She identifed her
statement. In the cross-examination she stated that as per
rpa 31/53 cr.appeal-1012-17.doc
Section 108 of the Customs Act, she has to call a person to record
his statement. She did not make any inquiries with Rajesh
Chapadi about senior officers of Khambata Airways. No
correspondence was made with Khambata Airways.
19 P.W.6 Yatin Narvekar has deposed that he was
working at Sahar International Airport, as Intelligence Officer.
He was instructed and authorized to collect the sample from DS-1
warehouse and to deposit the same in CSFL at Hyderabad.
Accordingly, he carried sample S-2 to CSFL Hyderabad. On 3rd
July, 2014, he submitted the same and obtained acknowledgment
of Deputy Director CSFL Hyderabad. He was shown letter written
by Assistant Commissioner of Customs dated 2 nd July, 2014
alongwith annexures and the letter of acknowledgment given by
Deputy Director at CFSL Hyderabad dated 3 rd July, 2014. These
documents were marked as Exhibit-40 (Colly) and Exhibit-41.
The Assistant Commissioner had authorized him to withdraw
sample by letter dated 2nd July, 2014 (Exhibit-42). In cross-
examination, he stated that he had received the samples on
2nd July, 2014 from the concerned officer, who was on duty at DS-
1 warehouse, but, do not remember his name. He carried sample
S-2 and made endorsement in the register at DS-1 warehouse.
rpa 32/53 cr.appeal-1012-17.doc
He received the sample on 2nd July, 2014, and, went to CFSL
Hyderabad from Mumbai by fght on 3rd July, 2014. In Exhibit-41,
the word S-2 is not mentioned in acknowledgment and there is no
rubber seal of CSFL Hyderabad on Exhibit-41. He denied that
sample S-2 was never kept in safe custody in the AIU office.
20 P.W.7 S.N. Kasture was posted at DS-1 as Custodian.
On 2nd July, 2014, he received sealed packages of seized articles.
The forwarding memo dated 2nd July, 2014, was marked as
Exhibit-44. On the said memo, he had mentioned CBK-V which
suggest that the goods were to be kept in the cupboard. He made
necessary entries in the register regarding receipt of goods. He
produced original register along with true copy of the extract of
relevant entry in the register. At page no.141, there is entry
number 1910, dated 2nd July, 2017. The said entry was made by
officer of AIU in the register. The copy of the extract was marked
as Exhibit-45. The black coloured suitcase which was deposited
in the godown, there is a label attached to the suitcase bearing
number 1910, which is given on the forwarding memo, which is
signed by him. He was shown sealed packet bearing VPR No.169
of 2016, which was opened in the presence of both the sides. On
the envelope, there was endorsement CBK-5 showing the location
rpa 33/53 cr.appeal-1012-17.doc
where the article was kept. He was shown envelope of sample
S-1 and S-3. On the envelope, there was an endorsement CBK-5
showing the location where the article is kept. He was shown
envelope containing mobile phone which was exhibited as
Article-C. On the envelope, there is an endorsement CBK-5,
showing the location where the article is kept. In the cross-
examination, he stated that he had no knowledge about the entry
in the register regarding deposit of articles in the Court. If there
is any correction in the records, it is required to initialed by
concerned officer. He stated that the correction is overwriting in
the fgure 1910 and overwriting in fgure 4 and 5 below that
writing at Exhibit-41, is not made by him. The godown is at close
distance from AIU office. If AIU officer want to withdraw the
article from godown, he has to bring a letter from the Assistant
Commissioner mentioning the name of the officer withdrawing
the articles. He is not aware whether Article S-2 was ever given
to the investigating officer for sending it to CFSL Hyderabad.
21 The statement of accused was recorded under Section
313 of Cr.P.C. His defence is that the prosecution has not proved
case. He has given retraction of statement before the Court,
which may be considered while deciding the case.
rpa 34/53 cr.appeal-1012-17.doc
22 The prosecution has placed on record the notifcation
dated 18th December, 2009, issued by Ministry of Finance. The
notifcation mentions that in exercise of powers conferred by
Clause (vii a) and (xxiii a) of Section 2 of the N.D.P.S. Act, 1995,
the Central Government makes the amendment in the
Notifcation dated 19th October, 2001, namely, in the Table at the
end after Note 3, the following Note shall be inserted, namely:-
"(4) The quantities shown in column 5 and column 6 of the Table
relating to the respective drugs shown in column 2 shall apply to
the entire mixture or any solution or any one or more narcotic
drugs or psychotropic substances of that particular drug in
dosage form or isomers, esters, others and salts of these drugs,
including salts of esters, ethers and isomers, wherever existence
of such substance is possible and not just its pure drug content."
23 The defence has assailed the judgment of the trial
Court on several grounds, which are reproduced hereinabove.
On scrutiny of evidence of the witnesses, I fnd that the
prosecution has established that the appellant was found in
possession of contraband. There is cogent evidence on record in
the form of ocular evidence of witnesses and the documentary
evidence establishing possession of contraband substance with
rpa 35/53 cr.appeal-1012-17.doc
accused. P.W.1 has proved panchanama Exhibit-13, Articles 1, 2
and 3 i.e. envelope containing plastic pouch and white powder,
boarding passes Exhibits-16 and 17, baggage claim tag Exhibit-
18, baggage identifcation tag Exhibit-19, E-ticket Exhibit-20 and
manifest Exhibit-21. The envelope containing mobile Article-4,
cartoon box containing polythene bag of white crystalline powder
Article-5, zipper trolley bag Article-6. It is established that the
accused was present at the Airport. His movements were
suspicious. Kenya Airways were instructed to keep the bag of the
accused aside. The checked-in bag was taken out. The dog
handler was summoned. The dog barking indicated presence of
the contraband in the bag. The accused denied having
contraband in the bag. He opened the bag, it was found
containing the contraband valued Rs.6,40,00,000/-. The polythene
packet containing contraband were concealed in the bed-sheets
kept in the bag. The bag containing contraband was checked-in.
There is cogent evidence on record to establish that the bag
containing contraband was in possession of the accused. The
documents, such as boarding pass, baggage claim tag and E-
tickets has proved that the bag was belonging to the appellant.
Although he was personally searched, nothing was recovered on
his person. The cross-examination of P.W.1 was futile as his
rpa 36/53 cr.appeal-1012-17.doc
version could not be shaken in any manner. Apart from oral
evidence, documentary evidence brought on record could not be
discarded in any manner through the cross-examination of P.W.1.
24 The defence has assailed the prosecution case on the
ground that there is no independent evidence to support the
evidence of interested witnesses. Evidence of P.W.3 Ajit Harne
and P.W.8 Mrs.Ferrera, who acted as panch witnesses do not
support the prosecution case. The evidence of P.W.1 is contrary to
the evidence of the aforesaid witnesses. In the absence of
separate independent evidence, it cannot be said that the
possession of contraband with the accused has been proved
beyond doubt. It is required to be noted that it cannot be said
that merely on account of lack of discrepancy in evidence of
panch witnesses, it can be said that the prosecution has failed to
prove its case. If evidence of witnesses before the Court is cogent
and there is no reason to discard such evidence merely on
account of the panch witnesses not fully supporting prosecution
case. The defence has contended that although P.W.3 and P.W.8
did not support the prosecution case, they were not declared
hostile, and, hence, their evidence has to be considered in
support of the defence of the accused. The word "hostile" has not
rpa 37/53 cr.appeal-1012-17.doc
been described in the Law of Evidence. If the witnesses resile
from their version, they can be cross-examined by the party on
whose behalf they were examined. On perusal of evidence of
P.W.3 and P.W.8, it is apparent that there are several admissions
on their part which would not discard their evidence in entirety.
Apart from that in the examination-in-chief itself, the prosecution
has given suggestion to them which would otherwise could have
been open to them by seeking permission from the Court. The
prosecution did not feel that the said witness has resile from their
version completely and on the contrary it was found that their
evidence cannot be wiped out in toto. On perusal of evidence of
P.W.3 Ajit Harne, it can be seen that he was posted for Kenya
Airways as fight handler. The fight No.KQ 203 was scheduled
from Bombay to Nairobi on 2 nd July, 2017, it was reported to him
that one bag is to be kept stand by after the checked-in of
passenger. He was informed to off load one passenger since he
was having suspicious items. He saw off loaded passenger who
was African national. He also noticed that there were 5 to 6
small samples of white powder in polythene packets. He was
given packets for signing. He was shown panchanama Exhibit-13.
He admitted that his signatures appears on each page. He was
shown Exhibit-16. He was shown boarding passes, one from
rpa 38/53 cr.appeal-1012-17.doc
Bombay to Nairobi and the other was from Nairobi to
Johannesburg. He was shown checked-in baggage tag and the
name of the passenger on the said baggage tag. He was also
shown tickets and the off loaded passengers list, which refects
name of passenger and his signature. His evidence discloses that
his services were summoned. He admits his signatures on the
documents and also admits the documents shown to him.
Similarly, the evidence of P.W.8 who acted as another panch
witness shows that he was staff of Kenya Airways. He was called
in the context of contraband seized from foreigner. The foreign
national was to board fight KQ 203 of Kenya Airways. He was
asked to sign as witness to the panchanama and he put his
signature on the panchanama. He identifed his signature. He was
shown panchanama Exhibit-13. He admitted that he had signed
the panchanama on every page as panch witness no.2. He
identifed his signature. He read the panchanama before putting
his signature, and, thereafter, had signed it. He identifed his
signature on the label of seized contraband. He admitted that
Article-1 appears his signature and identifed the same. He
admitted that Article-2 i.e. envelope and Article-3, which is also
an envelope contains his signature. He identifed the same. He
was also shown the envelope Article-4, containing mobile phone,
rpa 39/53 cr.appeal-1012-17.doc
which appears his signature and identifed the same. He was
shown statement Exhibit-28, which was recorded after recording
the panchanama. He admitted that on several pages there are
signatures. Even there is signature below the statements. He
identifed the same. He was shown Article-6, a black coloured
suitcase having label affixed to it. He admitted that the label
appears his signature. He was shown Article-5, which is labeled
along with lac seal. The labels appears his signature. He admitted
that he put his signature on the labels in the AIU office. He was
cross-examined by the defence and he stated that he do not
remember the date and time when his signatures were obtained,
the contraband was seized and his statement was recorded. The
defence could not succeed in demolishing the version of this
witness about his admission having signed on various documents.
His signatures were found on the panchanama. He had read
panchanama before signing it. His signatures were found on vital
documents, which supports the prosecution case. In the light of
his admissions, not declaring this witness hostile or cross-
examining him by the prosecution, would not affect the
prosecution case.
25 The evidence of P.W.2 supports the prosecution case.
He was posted as incharge officer. He recorded the statements of
rpa 40/53 cr.appeal-1012-17.doc
accused and panch witnesses. He issued a summons to accused
and the panch witnesses. The defence has challenged the
statement of the accused and the panch witnesses, which were
recorded under Section 67 of NDPS Act, on the ground that such
statement has no evidentiary value. Reliance is placed on recent
decision of the Apex Court in the case of Tofan Singh Versus
State of Tamil Nadu (Supra) . In this decision it is held that the
officer who had vested with powers under Section 53 of NDPS
Act, are police officers within the meaning of Section 25 of
Evidence Act as a result of which any confessional statements
made to them would be barred under the provisions of Section 25
of the Evidence Act. The statement recorded under Section 67 of
the NDPS Act, cannot be used as a confessional statement in the
trial of an offence under the NDPS Act. It is true that the
statement of the appellant-accused recorded under Section 67 of
NDPS Act, cannot be used as a confessional statement in the
trial. However, in the present case, there is overwhelming
evidence on record to show that the accused was found in
possession of contraband.
26 The evidence of P.W.6 and P.W.7 establishes that the
samples were sent to CSFL Hyderabad, after obtaining them from
DS 1 Warehouse. P.W.7 was the custodian for the sample. There
rpa 41/53 cr.appeal-1012-17.doc
is nothing on record to doubt the testimony of these two
witnesses. There are no reason to doubt the veracity of the CA
report.
27 The defence had also agitated that there is non
compliance of Section 42 of the NDPS Act. It is submitted that the
seizure was from Airport which is not a public place since the
entry is restricted to persons holding tickets. Hence, Section 42
would be attracted in this case. It is not possible to agree with
this submission. The Apex Court in case of Narayanaswami
Ravishanker V/s. Assistant Director, Directorate of Revenue
Intelligence6 has held that search and seizure taken at Airport
which is a public place would invite provisions of Section 43 and
not Section 42. The Supreme Court in the case of S.K. @ Abdul
Haque @ Jajja7 has considered the the issue relating to the
compliance of Section 42. The facts of the said case would reveal
that the accused was apprehended and was found in possession
of contraband. The seizure was made from the open place. The
contention of the accused was that there is noncompliance of
Section 42 of the NDPS Act. After analyzing the factual aspects,
the provisions of Section 42 and 43 of the said Act, the Court was
6 (2002) 8 SCC 7
7 (2018) 9 SCC 708
rpa 42/53 cr.appeal-1012-17.doc
pleased to observe that it is difficult to accept the submission of
learned counsel for the accused that Section 42 is attracted in the
facts of the said case. The Court relied upon the observations in
the case of State of Punjab Vs. Baldev Singh8 and other
decisions of the Apex Court. Paragraphs 12, 13 and 14 of the said
decision reads thus :
"12 An empowered officer under Section 42(1) is
obligated to reduce to writing the information
received by him, only when an offence punishable
under the Act has been committed in any building,
conveyance or an enclosed place, or when a
document or an article is concealed in a building,
conveyance or an enclosed place. Compliance with
Section 42, including recording of information
received by the empowered officer, is not mandatory,
when an offence punishable under the Act is
attracted in situations where the seizure and arrest
are conducted in a public place, which includes any
public conveyance, hotel, shop or other place
intended for use by, or accessible to, the public.
13 The appellant was walking along the Picnic Garden
Road. He was intercepted and detained immediately
by the raiding party in front of Falguni Club, which
was not a building, conveyance or an enclosed place.
The place of occurrence was accessible to the public
8 (2005) 4 SCC 350
rpa 43/53 cr.appeal-1012-17.doc
and fell within the ambit of the phrase "public place"
in the Explanation to Section 43. Section 42 had no
application.
14 The cases relied on by the learned counsel for the
appellant will also not apply in the context of the
facts before us. In Mansuri, an auto-rickshaw driver
was intercepted by police personnel. Four gunny
bags of charas were recovered from the
autorickshaw. The police officer who had prior
information about transportation of some narcotic
substance, had neither taken down the information
before carrying out the seizure and arrest, nor
apprised his superior officer. He contended that the
action taken by him was under Section 43 and not
Section 42. Rejecting the argument of the State, this
Court held that compliance with Section 42 was
required as the autorickshaw was a private vehicle
and not a public conveyance as contemplated under
Section 43. Similarly, in Jag Raj, contraband was
recovered from a jeep which was intercepted by
police personnel on a public road after receiving
prior information. The police officer who had
received the information, admitted to not taking it
down in writing, contending that Section 43 would be
applicable. Rejecting the argument of the State, this
Court held that the jeep which was intercepted, was
not a public conveyance within the meaning of
Section 43 and compliance with Section 42(1) was
rpa 44/53 cr.appeal-1012-17.doc
therefore mandatory. In Holia, Mandrax tablets were
recovered from the hotel room of the respondent.
The information was not reduced in writing by the
officer who had frst received the information. The
State claimed that compliance with Section 42 was
not required as the hotel was a public place.
Rejecting the submission of the State, this Court held
that while a hotel is a public place, a hotel room
inside it is not a public place. This Court held thus :
"14 Section 43, on plain reading of the Act, may
not attract the rigors of Section 42 thereof. That
means that even subjective satisfaction on the part of
the authority, as is required under subsection (1) of
Section 42, need not be complied with, only because
the place where at search is to be made is a public
place. If Section 43 is to be treated as an exception to
Section 42, it is required to be strictly complied with.
.... It is also possible to contend that where a search
is required to be made at a public place which is
open to the general public, Section 42 would have no
application but it may be another thing to contend
that search is being made on prior information and
there would be enough time for compliance of
reducing the information to writing, informing the
same to the superior officer and obtain his
permission as also recording the reasons therefor
coupled with the fact that the place which is required
to be searched is not open to public although situated
rpa 45/53 cr.appeal-1012-17.doc
in a public place as, for example, room of a hotel,
whereas hotel is a public place, a room occupied by a
guest may not be. He is entitled to his right of
privacy. Nobody, even the staff of the hotel, can walk
into his room without his permission. Subject to the
ordinary activities in regard to maintenance and/or
housekeeping of the room, the guest is entitled to
maintain his privacy. There is hence no substance in
the frst submission."
28 In the case of State of Punjab Vs. Baldev Singh
(supra), the Supreme Court in para 10 has observed that the
material difference between the provisions of Section 43 and
Section 42 is that whereas Section 42 requires recording of
reasons for belief and for taking down of information received in
writing with regard to the commission of an offence before
conducting search and seizure, Section 43 does not contain any
such provision and as such while acting u/s 43 of the Act, the
empowered officer has the power of seizure of the article etc and
arrest of a person who is found to be in possession of any narcotic
drug or psychotropic substance in a public place where such
possession appears to him to be unlawful. In Narayan Swami
Ravishankar Vs. Directorate of Revenue Intelligence
(supra), the three Judge bench of Supreme Court considered
whether the empowered officer was bound to comply with the
rpa 46/53 cr.appeal-1012-17.doc
mandatory provisions of Section 42 before recovering heroine
from the suitcase of the accused at the airport and subsequently
arresting him. Answering the question in the negative the Court
held that the search and seizure took place at the airport which is
a public place. This being so, it is the provision of Section 43 of
the NDPS Act which would be applicable. As Section 42 of the
said Act was not applicable, seizure having been effected in a
public place, the question of non compliance, if any, of the
provisions of Section 42 of NDPS Act, is wholly irrelevant. In
another decision in the case of Krishna Kanwar (Smt) @
Thakuraeen Vs. State of Rajasthan9, the Supreme Court has
considered whether a police officer who had prior information
was required to comply with the provisions of Section 42 before
seizing contraband and arresting the accused who was travelling
on a motor cycle on a highway. The question was answered in the
negative. in para 16 it was observed as follows :
"16 The proviso comes into operation if such officer has
reason to believe that search warrant or authorization
cannot be obtained without affording opportunity for
the concealment of evidence or facility for the escaped
offender, he may enter and search such building,
conveyance or enclosed place any time between
9 (2004) 2 SCC 608
rpa 47/53 cr.appeal-1012-17.doc
sunset and sunrise after recording grounds of his
belief. Section 42 comprises of two components. One
relates to the basis of information i.e. : (i) from
personal knowledge, and (ii) information given by
person and taken down in writing. The second is that
the information must relate to commission of offence
punishable under chapter IV and/or keeping or
concealment of document or article in any building,
conveyance or enclosed place which may furnish
evidence of commission of such offence. Unless both
the components exist Section 42 has no application.
Sub section (2) mandates, as was noted in Baldev
Singh (Supra) case that where an officer takes down
any information in writing under sub section (1) or
records grounds for his belief under the proviso
thereto, he shall forthwith send a copy thereof to his
immediate official superior. Therefore, sub section (2)
only comes into operation where the officer concerned
does the enumerated acts, in case any offence under
Chapter IV has been committed or documents etc are
concealed in any building, conveyance or enclosed
place. Therefore, the commission of the act or
concealment of document etc must be in any building,
conveyance or enclosed place."
29 Learned advocate for the applicant had submitted
that the C.A. is not examined by the prosecution as its witness. It
is submitted that although the document was exhibited in
rpa 48/53 cr.appeal-1012-17.doc
accordance with Section 293 of Cr.P.C. it would not absolve the
prosecution from examining the chemical anlyser. There are
reasons to doubt the genuineness of the report. There are
chances of tampering. Reliance is placed on the decision of this
Court in the case of Mirza Haider Vs. Staet of Maharashtra 10.
The said decision is not applicable in the facts of this case. There
is no reason to doubt the C.A. report. Merely on account of non-
examining the C.A. report, the C.A. report cannot be discarded.
The decision relied upon by the learned counsel for the appellant
was delivered in the facts of that case. It would be relevant to
advert to Section 293 of Cr.P.C., which reads as follows:
"293. Reports of certain Government scientifc experts.
(1) Any document purporting to be a report under the hand
of a Government scientifc expert to whom this section
applies, upon any matter or thing duly submitted to him
for examination or analysis and report in the course of
any proceeding under this Code, may be used as
evidence in any inquiry, trial or other proceeding under
this Code.
(2) The Court may, if it thinks ft, summon and examine any
such expert as to the subject- matter of his report.
(3) Where any such expert is summoned by a Court and he
10 Criminal Appeal 554 of 2006
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is unable to attend personally, he may, unless the Court
has expressly directed him to appear personally, depute
any responsible officer working with him to attend the
Court, if such officer is conversant with the facts of the
case and can satisfactorily depose in Court on his behalf.
(4) This section applies to the following Government
scientifc experts, namely:-
(a) any Chemical Examiner or Assistant Chemical Examiner
to Government;
(b) the Chief Inspector of- Explosives;
(c) the Director of the Finger Print Bureau;
(d) the Director, Haffkeine Institute, Bombay;
(e) the Director, Deputy Director or Assistant Director] of a
Central Forensic Science Laboratory or a State Forensic
Science Laboratory;
(f) the Serologist to the Government.
(g) any other Government scientifc expert specifed, by
notifcation, by the Central Government for this
purpose."
30 The documents were admitted by the defence. There
is nothing on record to doubt the genuineness of the C.A. report.
In this circumstances, the turn around by the defence that C.A.
ought to have been examined by the prosecution, cannot be
accepted.
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31 The other decisions relied upon by the defence were
delivered in the facts of those cases which are not applicable in
this case. It was further submitted that non-compliance of
Section 50 of the NDPS Act, learned advocate for appellant had
relied upon the judgment of the Apex Court in the case of
Rajasthan Vs. Pramod and Anr. (Supra). It is contended that
apart from the search of the bag of the appellant, he was
personally searched. Although nothing was recovered from his
person, Section 50 would be attracted. It was also contended that
P.W.4 cannot be tagged as Gazetted Officer. From the evidence on
record, it is evident that there was no prior information.
Movements of the accused were found suspicious and he was
intercepted. Apart from that as a matter of abundant caution, the
appellant was appraised of his right under Section 50 of NDPS
Act. He opted for search before Gazetted officer. P.W.1 was the
Gazetted officer. In view of the circumstances, compliance of
Section 50 of the NDPS Act. In a recent decision of Apex Court in
the case of State of Pubjb Vs. Baljinder Singh and Another 11,
it was observed that, Section 50 affords protection to person in
matters of concerning personal search and stipulated various
safeguards. The contraband was seized from vehicle of accused.
Personal search was conducted. No recovery from person of
11 (2019) 10 SCC 473
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accused. The question that was considered by the Court is that, if
a person found to be in possession of a vehicle containing
contraband is subjected to personal search, which may not be in
conformity with requirements under Section 50 of the Act, but
the search of vehicle results in recovery of contraband material,
which stands proved independently would the accused be entitled
to beneft of acquital on the ground of non compliance of Section
50 of the Act even in respect of material found in the search of
the vehicle. It was held that personal search of accused did not
result in recovery of contraband. The search of vehicle and
recovery having been proved, merely because there was non-
compliance of Section 50 of the Act as far as personal search was
concerned, no beneft can be extended to invalidate recovery
from vehicle. Apart from that, in the present case, there is
compliance of Section 50 of the Act.
32 Learned counsel for the appellant then submitted that
on the date of seizure, two persons were apprehended. Source of
the alleged contraband was common. On search of their bags,
contraband were recovered from them. The modus was similar.
However, both were tried separately. The panch witnesses were
common in both cases. They have not supported the prosecution
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in both the cases. Appellant was convicted, however, the other
person, namely, Nganila Yaqub Macho was acquitted. It is
pertinent to note that the appellant was convicted vide judgment
and order dated 18th November, 2017. Whereas, the other person
was acquitted by the trial Court vide judgment and order dated
17th May, 2018. While acquitting, the trial Court has observed
that the panch witnesses has not supported prosecution, C.C.T.V.
at the Airport was not obtained, independent Gazetted officers
were not called. It was not a chance recovery and Section 42 of
NDPS Act would be attracted. However, on considering the
evidence on record, merely on the ground that aforesaid person
was acquitted subsequently, the appellant cannot be absolved of
the charges. The evidence on record establishes the offence for
which appellant is convicted.
33 Considering the evidence before the Court, I am of
the considered opinion that the prosecution has established its
case beyond all reasonable doubt. The appeal is devoid of merits
and deserves to be dismissed.
:: O R D E R ::
(i) Criminal Appeal is dismissed;
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(ii) The impugned judgment and order dated 18 th
November, 2017, passed by N.D.P.S. Special
Judge, City Civil and Sessions Court, Greater
Bombay, convicting the appellant, is confrmed;
(iii) Criminal Appeal stands disposed of accordingly;
(iv) Criminal Application No.864 of 2019, stands
disposed of.
(PRAKASH D. NAIK, J.)
