Criminal Appeal No. 592 of 1992. Case: Sheikh Ashraf Abdul Kader Vs State of Maharashtra and another. High Court of Bombay (India)
| Case Number | Criminal Appeal No. 592 of 1992 |
| Counsel | H. S. Ghare and A. R. Khan, Advs. and For Respondents: S. R. Borulkar, APP. and R. M. Agrawal, Advs. |
| Judges | A. V. Savant, J. and S. S. Parkar, J. |
| Issue | Narcotic Drugs and Psychotropic Substances Act (61 of 1985) - Sections 42, 43, 50, 36(d) |
| Citation | 1997 CriLJ 3031 |
| Judgement Date | January 31, 1997 |
| Court | High Court of Bombay (India) |
Judgment:
S. S. Parkar, J.
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This appeal is filed against the order of conviction and sentence passed by the Special Judge, Greater Bombay on 16th October, 1992 conviction the appellant under Section 21 read with Section 8(c) of the NDPS Act and sentenced to suffer RI for ten years and to pay a fine of Rs. 1,00,000/- and in default to suffer further RI for one year. The appellant was further convicted by the aforesaid order for offences punishable under Section 22 read with Section 8(c) of the NDPS Act and sentenced to suffer RI for ten years and to pay a fine of Rs. 1,00,000/- in default to suffer further RI. for one year. The appellant was also convicted by the aforesaid order for the offence punishable under Section 23 read with Section 28 of the NDPS Act and for offence under Sections 135(1)(a) read with Section 135(i) and (ii) of the Customs Act and under Section 13 of the Foreign Exchange Regulation Act, 1973. However, no sentences were awarded appellant on these counts. The substantive sentences under Section 21 read with Section 8(c) and Section 22 read with Section 8(c) of the NDPS Act were directed to run concurrently.
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The prosecution case briefly stated runs as follows:
In the early hours of 7th August 1989 the appellant had gone to Sahar Air-port as he was to take Air India flight scheduled to leave from Bombay to Dubai. The appellant at about 2.30 a.m. had gone with suitcase Article No. 1 for screening and put the said suitcase on X-ray machine for screening. P.W. 10 Dilip Vithal Sawant was at that time working as Security Assistant with Air India at the said airport. His duty was to check baggages of passengers travelling by Air India fights from Sahar Airport. For the purpose of checking the baggages he had to screen the baggages for which purpose X-ray machine is installed. When Article No. 1, suit case was put on X-ray machine for screening, the said witness saw some black dots on the screen and, therefore, he questioned the accused appellant as to what he was carrying in the said suitcase. The appellant replied that he was carrying few clothes of his inside the suitcase and nothing, else. The witness then told the appellant to see the image of the suitcase and the dots on the screen. The witness also found the suitcase was little bit heavy. He allowed the accused to proceed further for getting the baggage checked in at the Air India counter and informed the Preventive Officer of the Customs on duty, Mr. M. R. Negi, who is examined as P.W. 1. The P.W. 10 told the Customs Officer about his doubts regarding the said suitcase pointing out to him the suitcase as well as the appellant.
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The appellant was to go to Dubai on that day by Air India flight No. 701. After being so informed P.W. 1 immediately intercepted the suitcase at the baggage examination counter at Module-2 and kept watch thereon. At that time the appellant carne towards the baggage counter after obtaining clearance from the Migration counter. The said PW 1 had also earlier informed the Superintendent Mr. Verghis who, accompanied by other officers, also came at the baggage examination counter. The appellant was then intercepted by the officers of the Customs and the services of two panchas were procured. When the panchas arrived at the said counter, the appellant was questioned by PW 1 in the presence of the panchas whether he was carrying any narcotic or other contraband in the suitcase to which he replied in the negative. The appellant was asked to produce his travel documents and accordingly he produced a Kenian Airways ticket in his name, a Passport issued at Behrain by Indian Embassy and the boarding pass.
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On the examination of the, Air ticket the officers found baggage identification tar was affixed to the outer side of the jacket of the Air ticket. The officers then compared the baggage identification tag pasted on the handle of the suitcase with the baggage identification tag affixed to the Air ticket and found that the numbers of bath these tags tallied. Thereafter the passenger's manifest for the said flight being Air India flight No. 701 was examined which was at the Customs counter dated 7-8-89 where the name of the appellant was at Serial No. 258. The name on the Air ticket as well as Sr. No. 258 in the passengers' manifest was the same that is Shaikh Ashraf Abdul Kadar. The suitcase was taken charge of by the PW 1 in the presence of panchas The suitcase was having a lock with combination numbers. On being questioned the appellant gave the combination number of the said lock as 786 far opening the said lack. After adjusting the said number the lack of the suitcase was opened by PW 1. The suitcase contained some clothes. When the said clothes were removed from the suitcase and the suit case was emptied the witnesses found the bottom of the suitcase extra thick and, therefore, they suspected that it had a false bottom. When the appellant was questioned whether he was carrying any contraband in that suitcase he replied in the negative. The bottom of the suitcase was thereafter ripped open in the presence of panchas and one polythene bag containing some tablets was found in the false bottom of the suitcase. When the said polythene bag was opened it was found to contain tablets of white colour with alphabets 'MX' imposed on one side. The officer thereafter ripped open the inside portion of the top flap of the suitcase from where two polythene bags were recovered out of which one bag was having similar tablets as recovered from the false bottom of the suitcase and the other polythene bag was having brownish powder substance. That powder appeared to be herein and being weighed was found to be weighing 500 gms. valued at Rs. 1,00,000/- at the illicit market rate. Those two polythene hags, one recovered from the bottom of the suitcase and the other recovered from the false top, were having mandrex tablets which weighed 7 kgs. There were in all 11,000 tablets valued at Rs. 22,000/- at the illicit market rate.
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Thereafter the officers examined the hand baggage of the passenger i.e. one, brawn jordan briefcase and one white zipper bag which the appellant claimed as his own hand baggage. On examination of this hand baggage nothing incriminating was found therein. Thereafter the personal search of the passenger was taken in the presence of one of the panchas which resulted in the recovery of US $ 500 from the pocket of his trousers equivalent to Indian Rs. 8200/-. The contraband like Mandrex tablets, heroin powder and US $ 500 were seized by the officers. The officers also seized the travel documents such as Air ticket, boarding pass, baggage identification tags for further enquiry. The officers thereafter, took out three representative samples of heroin each of 15 gms. and three representative samples of Mandrex tablets each of 15 pieces for the purpose of Chemical analysis and as Court samples. The said six sample packets were sealed by the Preventive Officer and put in Seal No. 60. 'The balance quantity of the heroin was packed in one carton and the mandrex tablets were packed in the another carton and they were sealed by the Preventive Officer under Seal No. 60. The suitcase was also sealed under seal No. 60. All the travel documents were kept in one cover and sealed under seal No. 60. The foreign currency of US $ 500 were also packed in one cover and sealed. The signatures of the panchas were obtained. The panchnama was prepared which was signed by PW 1 and the two panchas. A copy of the panchnama was also handed over to the appellant and his acknowledgment was obtained.
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The statement of the accused was recorded by PW 2 K. Sanjeeva, the Superintendent of Customs under Section 108 of the Customs Act. In the said statement the appellant had admitted that he was to travel by the said flight to Dubai and that he had got his suitcase checked-in at the Airlines counter at Sahar Airport and that baggage identification tag was affixed to his Air ticket and on his suitcase. In his statement he also mentioned the name of the persons who had handed over the said bag to him for being taken to Dubai. The appellant was put under arrest. The seized property and the documents were handed over by PW 1 the Preventive Officer of Customs to PW 2 the Superintendent of Customs. The seized property and the documents were in the safe custody of P W 2 under the lock and key.
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In the course of the investigation the two sealed sample packets containing the seized powder and tablets were sent to the chemical analyser for analysis. After examination, the CA report (Exh. 27) was obtained which showed that one sample packet contained 27.7% Morphine and the other sample answered test for presence of Methaqualene and Diaphenhydramine Hydrochloride i.e. Mandrex. Thereafter the papers were placed before the Sanctioning Authority viz. the Collector of Customs, Air Pool, Bombay, Shri H. Narayana Rao who accorded the sanction which is produced on record as Exhibit 37. Thereafter the complaint was filed in the Court on 27-10-1989 by PW 8 Mr. B. Dayal Goyal who was working as Assistant Collector of Customs, Bombay.
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The aforesaid complaint was given NDPS (Special) Case No. 916 of 1990. The charges were framed against the appellant under Sections 21 and 22 both read with Section 8(c) of the NDPS Act, 1985 so also under Sections 135(1)(a) and 135(1)(b) of the Customs Act read with Section 13(1) of the Foreign Exchange Regulation Act, 1973. The appellant had pleaded not guilty to the said charges and, therefore, the trial had taken place in which the prosecution had examined ten witnesses. On behalf of the appellant one witness was examined by name Dr. Varade, DW-1, who was the Chief Medical Officer, Bombay Central Prison, who produced the medical papers of the appellant who was examined on 9th August, 1989 i.e. two days after the appellant was arrested.
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The defence of the appellant was of total denial. He denied that the checked in...
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