9911796707
TMI Blog2011 (3) TMI 1384X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 suspected by Intelligence Officer Parmeshwaran (PW 1) as per his intelligence for carrying contraband 'heroin' (a narcoti c drug prohibited) while on journey to Johannesburg as per schedule flight. He therefore, passed on this information to his higher officials and they had decided to lay a trap. 4. Accordingly, appellant was intercepted at the Chhatrapati Sahar International Airport Mumbai on their intelligence on the night intervening 11th/12th of June, 2002 immediately after checking in formalities was over and boarding pass was issued to him. Enquiry on the spot revealed that he was carrying 5 baggages out of which three had been checked-in by him and in one of the checked-in- baggages, he was carrying contraband 'heroin' weighing about 2.5 kgs , in two polythene packets separately kept concealed in false top and bottom of a black coloured diplomat suit case. Therefore, he along with checked to baggages came to be seized at the office of the A. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ni, 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 said information was passed on by him to Mr.Pandurang Madkaiker (PW 7). Both submitted a note to the Deputy Director Mr.Sanjay Gahalot. Said Deputy Director himself and Madhavan another Senior I.O. with his other colleagues and two panch witness on request, agreed to act as witnesses to the seizure panchanama at the airport in need. They kept surveillance since 11 p.m. Around 11.45 p.m. the appellant got identified at the checking in counter. Appellant was found with five baggages carrying with him, two hand baggages and three check in baggages bearing 'Air India 'security traps on each. Th e checked-in baggages were also bearing marks of airlines staff. 11. According to the prosecution, Appellant was seen going to the Immigration counter, along with his baggages. By then, he had cleared his immigration formalities and was holding boarding pass/ticket and other travel documents. At that juncture, he was intercept ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 claim tags which are at Exhibit 12,13 and 14 but they did not bear his signature or signatures of panch witnesses. On the material point of number of checkedin in baggages, the said panch was allowed to be re-examined by the trial Court, who deposed as under: "When the passenger came to the counter with his baggage he gave ticket and the passport at the counter, checking staff checked them. He had two pieces of baggage on his ticket and before giving him boarding pass and his ticket to that passenger checking staff found that passenger was having two hand baggage and one plastic bag. Checking staff asked passenger to check one of the hand baggage since South African Airway does not permit to carry two pieces of hand bag. The passenger reported his additional bag. Checking staff removed baggage tag of the baggages. Checking staff wrote down 30 kgs and 3 pieces on the ticket which was up- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 acquainted with the facts and circumstances of the case. 21. It is not disputed that the accused complained to the court that the alleged statement was not voluntary and his retracted statement has been filed. It was filed by the accused before the Additional Chief Metropolitan Magistrate, Esplanade, Mumbai on 13th June, 2002. The observations made by the trial Court appears quite disturbing. To quote: " Once it is held that he had given statement vide Exh.42 and Exh.30 voluntarily then on the basis of this statement alone recorded u/s 67 of NDPS Act, the accused can be convicted for the offences charged in view of other evidence brought on record by the prosecution irrespective of the fact that there are certain shortcomings and lacunae in the prosecution evidence. " The learned trial Judge also relied on authority namely M.Prabhulal vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
