TMI Blog2011 (3) TMI 1384X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal No. 1243 of 2005 - - - Dated:- 25-3-2011 - N.D. Deshpande, J. S.B. Keshwani a/w Y.R. Israni and R.S. Bidkar for the Appellant A.A. Mane APP for the State of Maharashtra JUDGMENT 1. This Appeal impugns the correctness of the judgment and order of conviction and sentence both, of the appellant/accused, by name Essop Casoojee a South African national dated 4th December, 2004 passed by the Special Judge, Greater Mumbai in NDPS Special Case No.78 of 2002. 2. By the impugned judgment and order the appellant has been held guilty and convicted for the offences punishable under section 21 and 29 of the Narcotics and Psychotropic Substances Act, 1985 (for short NDPS Act) and further directed to undergo R.I. for 10 years and to pay fine of 1,00,000/- in default of payment of fine further to suffer R.I. for three months on each count. However, both the substantive sentences to run concurrently. Facts in brief, are as follows: 3. The accused is a South African national and came to Mumbai and had his stay for a couple of days at Hotel Moghal Palace. His schedule return journey to Jahannesburg was by Flight No./SA 277 on 12th June, 2002. He was suspecte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght on record. 7. The defence further took exception to the order of conviction which is wholly based on the alleged confessional statement recorded under section 67 of the N.D.P.S. Act not being voluntarily made. It has been pointed out by the defence that the learned trial court did not consider the evidence of retracted statement placed on record immediately after his arrest. As such, evidence under section 67 of NDPS Act cannot be the basis of conviction even to establish the charge of criminal conspiracy or trafficking in narcotic drug. 8. Learned defence counsel took me through the entire evidence in order to disprove 'the seizure evidence' . 9. I have gone through the relevant evidence and statements relied by the prosecution. In all, 9 witnesses have been examined during trial and therefore their testimony have been recalled during hearing of this appeal in the light of the submissions of Mr.S.B.Keshwani, learned counsel for the appellant. 10. The prosecution case begins with the evidence of Parmeshwaram Shankaran (IO) PW 1. He decided to lay a trap at the Chhatrapati Shivaji Sahar Airport on the basis of the information/intelligence received by him. The sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrying only two checked-in baggages and not three. However, in collusion with the air line staff the complainant (IO) PW 1 fabricated the evidence by over writing and changing the figures 2/20 to 3/30 on the coupon. Admittedly, the accused had not paid the excess charges for carrying 3/30 checked-in baggages with him and he was not allowed to do so for he was passenger of economy class. Therefore, he was only allowed to carry 2/20 kg. The appellant was also not apprised of his right under section under section 50 of NDPS Act before effecting search and seizure of the baggages at the airport. 16. The most important document is Exhibit 48 panchanama dated 11th/12th June, 2002 and name of the panchas are (1) Sunil Athilat and (2) Kushal Mer. PW 3 Sunil Athilat was cross-examined on the point of check in procedure. According to him, the appellant as a passenger was allowed baggages weighing 20 kgs as per passenger coupon and he was having two baggages total weighing 20 kgs and he admitted that there is over writing of 30 kgs in place of 20 kgs and the appellant did not pay any extra charges as per Exhibit 16. The accused had only two checked in baggages. However, there are baggage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that there is nothing to indicate that belongings of the the accused person were found in checked-in baggage containing the contraband and further that he was liable to pay charges for excess baggage for 10 kgs. 19. Thus, the entire evidence of seizure of Article No.3 a diplomat bag becomes doubtful as the checked-in baggage of the appellant and therefore, the appellant was justified in claiming benefit of doubt. 20. Now, coming to the evidence of PW4 Derek Picardo, Intelligence Officer who recorded statement under section 67 of the NDPS Act. Section 67 of the NDPS Act reads as under: "Power to call for information, etc; Any officer referred to in section 42 who is authorised in this behalf by the Central Government or a State Government may, during the course of any enquiry in connection with the contravention of any provision of this Act:- (a) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder; (b) require any person to produce or deliver any document or thing useful or relevant to the enquiry; (c) examine any person acquain ..... X X X X Extracts X X X X X X X X Extracts X X X X
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