9911796707
TMI Blog2011 (12) TMI 352X X X X Extracts X X X X X X X X Extracts X X X X ..... ntelligence on 05.05.2002 that two African ladies namely Josephine Funsani and the present appellant Agnes Ruddy Odhoch were to smuggle substantial quantity of heroin out of India in their baggages or on person. Both the ladies were to board Kenya Airways Flight No. KQ-201 scheduled at 3.00 a.m. on 06.05.2002 from Mumbai to Nairobi. The Intelligence Officer Rosario noted down the information and passed on the same to his superiors. Thereafter, a team of the NCB officers arranged to apprehend the said passengers. Firstly, pre-flight manifest of flight No.KQ-201 was collected. At serial No.1, name of the appellant/accused was shown while, name of Josephine Funsani was shown at serial No.35. Two panch witnesses were also called. The officers of NCB along with the panch witnesses intercepted the appellant and two boarding cards, one for Mumbai - Nairobi Sector and another for Nairobi - Johansburg Sector were found with her. On her air-ticket, two baggage claim tags were affixed having details of the accused and her journey. It also contained details of charges paid for the excess baggage. The accused identified her two suitcases, which were found locked and affixed with security sticke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the accused and she also signed at the bottom of the panchnama in acknowledgment of the receipt of the same. 6. One of the samples was submitted to the Deputy Chief Chemist, New Custom House, Mumbai along with test memo dated 07.05.2002 and another sample was forwarded to the Forensic Science Laboratory, Kalina, Mumbai for its analysis. The report from both of them confirmed that the samples contained heroin. Forensic Science Laboratory, Kalina confirmed that the heroin contents were 44%. The statement of the accused was recorded on 06.05.2002 and again on 11.05.2002 where she gave personal details and also admitted as to how and when she had started trafficking in drugs. 7. Similarly, another lady namely Josephine Funsani was also intercepted. No contraband was found in her two bags. However, 900 gm heroin was found concealed in her shoes. After completing certain formalities as per law, the said contraband was seized. During the investigation, it was revealed that the present appellant and Josephine were travelling independently and they had different modus operandi for drug trafficking, and therefore, case against Josephine was separated and separate charge-s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot the same which were allegedly seized at the time of Panchnama. He further contended that there is reason to doubt if the muddemal property produced before the Court is the same which was allegedly seized from the accused. According to him, the alleged statements of the accused recorded on 06.05.2011 and 11.05.2002 by the NCB Officers cannot be taken into consideration because they were recorded after the accused was virtually arrested though the arrest panchnama was prepared after recording of the first statement. The said statement was retracted. He also tried to contend that if the said statement is to be believed, the accused believed that she was in possession of sensitive drug, which falls in Schedule 'H' Drugs and is not narcotic drug, and therefore, she was not in conscious possession of heroin, and hence, she cannot be held guilty under the provisions of NDPS Act. 12. The learned Special Public Prosecutor for the prosecution however, vehemently supported the impugned order of conviction and sentence and tried to explain that there is no material deficiency or discrepancy or contradiction in the prosecution case and the evidence. 13. Evidence of P.W.2 Keit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused were also having baggage identification tags affixed on them. The numbers of those identification tags tallied with the number of the baggage claim tags affixed on the air ticket of the accused. As per the evidence of P.W.1 Kanta Tejwani, she had apprised the accused of the right of search in the presence of the Magistrate or Gazetted Officer but she waived her right and offered to be searched by the officer of the NCB on the spot. 15. As per her evidence, on her request, the accused herself opened both the suitcases with the help of the keys which she was carrying in her hand bag. The baggage of the accused comprised one large dark blue coloured suitcase of "Samsonite" brand and one black coloured suitcase having "The Best of the Bags" "LYS Paris" brand. Both the suitcases were of soft nylon tops with hard sides and bottom and having zipper locks. The bags were also having the zippered pouches. Both the bags had inbuilt wheels with telescopic handles. After the suitcases were opened, they were emptied but nothing incriminating was found. However, upon lifting, each suitcase was found unusually heavy even though their contents were emptied. The accused could not give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase was marked exhibit-G for identification. Their keys were put in an envelope which was pasted shut and sealed with NCB Seal No.03. The details thereof were written on the said envelope and it was marked exhibit-H. About these proceedings as well as seizure of heroin from Josephine, a common panchnama was drawn. The panch witnesses signed on each page of the panchnama, while P.W.1 Kanta Tejwani put her signatures on the last page. Copy of the panchnama was given to the accused as well as Josephine. As acknowledgment of receipt of the panchnama, the accused put her signature on the same. The certified copy of the panchnama is marked exhibit-10. P.W. 5 Nasir Rashid was an officer working with Kenya Airways. He was a panch witness. He has fully supported the evidence of P.W.1 Kanta Tejwani. 17. P.W. Kanta Tejwani deposed that after completing the proceedings at the airport, she proceeded to the office of the NCB along with the accused persons and the seized material. On the way, she had a conversation with the accused as well as Josephine . After reaching the office, she submitted search and seizure report to her superior P.W.2 Sanchis, the Superintendent of NCB. Exhibit-17 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffice of Deputy Chief Chemist in the form of lab No.129/seizure/7.5.02. Exhibit-30 and 32 are the same test memos and they also bear endorsement from the office of the Deputy Chief Chemist, Mumbai to show that the sample was received with the test memo on 07.05.2002. 20. As per the evidence of P.W. Kanta Tejwani, on 08.05.2002, she forwarded the sealed sample "BK BL II" with the covering letter addressed to Forensic Science Laboratory, Kalina, through P.W.7 Narayan Panigrahi, who was a Hawaldar working with NCB, Mumbai. Evidence of P.W.7 Narayan Panigrahi shows that he had received the said sample in sealed condition and with intact seals and had produced the said sample as well as the covering letter in the office of Forensic Science Laboratory, Kalina on the same day. Exhibit-31 is the office copy of the covering letter addressed to the Director, Forensic Science Laboratory, Kalina. It shows the endorsement and signature of the officer from the Forensic Science Laboratory, Kalina to show that the sealed envelope was received by that office on the same day. 21. Below test memo exhibit-32 sent to the Deputy Chief Chemist, there is a report from the Chemical Examiner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officer cannot be fatal to the prosecution. It is admitted by the prosecution witnesses that no register was maintained in the office of NCB about the receipt of intelligence or about submission of such intelligence to the superior officers but that itself should not be the serious matter particularly when on the basis of the intelligence, immediate action was taken and as per prosecution case, the necessary documents including pre-flight manifest was collected from the Kenya Airways about the particular flight, which revealed the name of the accused at serial No.1. The air ticket purchased by the accused from Kenya Airways with two boarding passes were recovered from her and the evidence also shows that the baggage claim tags were found affixed on her air ticket. She was also in possession of the keys of the suitcases from which the contraband was recovered. In view of these circumstances, merely because in the office of NCB, they did not maintain the intelligence register, prosecution evidence about the receipt of such intelligence by Rosario and submission of the same to his superiors cannot be doubted. 23. The learned Counsel also contended that the provisions of Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .6 Bharat Seraiya, both from Kenya Airways, admitted that it is necessary to remove relevant portion of the butter paper of the package identification tags to affix them on the baggage. However, in the present case, the butter paper was found on both the identification tags. Therefore, he argued that, it is doubtful if the baggage identification tags were really affixed on the suitcases and hence it is not proved beyond reasonable doubt that these bags belonged to the accused and she had checked in the same. The evidence of P.W.1 Kanta Tejwani shows that for the safety purpose, that is, for the protection of the material evidence, the identification tags were removed from the bags and they were kept in sealed packet. They were produced before the Court. I have carefully seen the said tags. The instructions on the said tags read thus "peel back only if used as stickers". Thus, it could be used as stickers by peeling back. It does not mean that the butter paper should be completely removed and thrown away. Even the witnesses deposed that the relevant portion of the butter paper should be removed for the purpose of using the tag as sticker. If the relevant part from both the ends is p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion of the contraband contained in those bags. 26. The learned Counsel for the appellant contended that the evidence of P.W.1 Kanta Tejwani and P.W.5 Nasir Rashid, was the panch witness is conflicting about the circumstances in which the contraband was found in the said bags. As per the evidence of P.W.1 Kanta Tejwani, the black polythene bags were found below the false bottom of the respective suitcases. P.W.5 Nasir Rashid deposed that the bags containing the powder were found in the pipes. On careful perusal of the evidence of these two witnesses as well as panchnama, I find that as per the evidence of P.W.1 Kanta Tejwani as well as the contents of the panchnama, on opening the zips of the inner cloth lining of the suitcases exposing the PVC sheets, large black coloured polythene bags were found pressed flat between the inner and outer sheets. They were placed in between the pipes which were fitted for the movement of telescopic pulling handles. Both the bags have wheels, and therefore, they also have the telescopic pulling handles for the movement of the bags. The handle can be pulled up for the purpose of pulling the bag and it can be pushed down when the bag is not t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it, conclusively indicating that the packages are identical in all respects, such packages and containers may be carefully bunched in lots and for each such lot, one sample in duplicate may be drawn. The evidence in the present case shows that small quantity of powder was taken from each of the polythene bags found in two suitcases and the said powder tested positively for heroin when tested with Field Testing Kit. Thus, P.W.1 Kanta Tejwani was satisfied that the contents of both the polythene bags were similar, and thereafter, she emptied the contraband from both the polythene bags in one and mixed the content. In view of para 1.7 (b) from the Standing Instructions No.1/88, I find that the instructions have been strictly followed and there was no violation. Further, both the bags containing contraband belonged to one person and not to different persons. Thereby mixing the contents of both the bags, no prejudice was caused to the accused. 28. The learned Counsel also argued that there is no documentary evidence to show that the samples were in custody of P.W.1 Kanta Tejwani till they were sent to the Chemical Analyser. In fact evidence of P.W.1 Kanta Tejwani and P.W.2 Sanch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat is, 07.05.2002, one sample was personally deposited by P.W.1 Kanta Tejwani in the office of Deputy Chief Chemist and on 08.05.2002, another sample was forwarded and deposited with the Forensic Science Laboratory, Kalina. As per para 13 of the Standing Instruction No.1/88, samples must be despatched to the Laboratory within 72 hours of the seizure. In the present case, both the samples were actually deposited with the two different laboratories well before the expiry of 72 hours from the time of seizure. Therefore, it cannot be said that there was any unreasonable delay in forwarding the samples to the laboratory. 30. The learned Counsel also argued that no register about the movement of the seal was maintained in the office of NCB, therefore, the seal was easily available to the officers on oral request, and therefore, there could be misuse of the same and the samples could be tampered with. It is true that the prosecution witnesses admitted that no movement register about the seal was maintained. However, from the evidence of P.W.2 Sanchis it appears that seals used to remain in custody of the Zonal Officer of NCB. According to him, immediately after seizure of the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad become sticky. I do not find any reason to disbelieve this explanation. 31. The learned Counsel argued that as per the evidence of P.W.1 Kanta Tejwani, the polythene sachets in which the samples were put were heat-sealed and then put in the envelope, which was duly sealed with the seal of NCB. According to him, P.W.4 Murlidhar Sevalkar did not find the polythene bag heat-sealed. Evidence of P.W.4 Murlidhar Sevalkar shows that the outer envelope was found sealed and the seals were intact and accordingly, he had mentioned it. He had not mentioned that the polythene bag found inside the envelope was heat-sealed, and therefore, he deposed that they were not found heat-sealed. He was expected to see the seals on the packet which he had done. In the test memo, it was not specifically stated that the said polythene sachets containing the contraband and put in the envelope were heat-sealed, and therefore, it is possible that the Chemical Analyser did not specifically note it. The samples were analysed in June 2002 and evidence of P.W.4 Murlidhar Sevalkar was recorded on 26.04.2007. His evidence shows that he had analysed about 400 to 500 samples of narcotic substance during his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... crepancies, which appear to be the result of lapse of memory due to lapse of about five years from the time of seizure till recording of evidence in the Court. For example, P.W.5 Nasir Rashid deposed that the polythene bags in which the powder was found were kept in the carton. The learned Counsel contends that the said empty bags were not found in the carton. In fact the evidence of P.W.1 Kanta Tejwani and the panchnama show that the polythene bags containing the contraband, after they were emptied, were put in the respective suitcases along with other personal belongings. On opening the suitcases, those empty polythene bags were in fact found there. The learned Counsel also tried to find some minor inconsistencies in the evidence in respect of condition of the carton after the proceeding under Section 52A were completed. In fact that proceeding was undertaken for the purpose of destruction of the remnant contraband but eventually, it was not destroyed and it was produced in the Court. Naturally, when the original carton was opened, photographs were taken and it was re-packed and sealed, some changes might occur. No importance can be give to the same. The learned Counsel contends ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aband and was also found making attempt to export it from India, there was no need to convict her separately for the offence of abetment or conspiracy particularly when no other accused is involved in the case. For the purpose of conspiracy, the prosecution relied upon her statement under Section 67 recorded on 06.05.2002 as well as 11.05.2002. The learned Counsel contended that the said confessional statement under Section 67 cannot be relied upon because in view of the facts and circumstances, she must be in custody of the NCB when that statement was recorded, and therefore, the statement cannot be said to have made voluntarily. She had also retracted from the said statement. The learned Counsel relied upon the Union of India V/s. Balmukund and others, 2009 ALL MR (Cri) 1570 (S.C.). The Supreme Court observed thus: "27. Exhibits 20 and 21 categorically show that they were interrogated. If they were interrogated while they were in custody, it cannot be said that they had made a voluntary statement which satisfies the conditions precedent laid down under Section 67 of the Act. We, in the backdrop of the aforementioned events, find it difficult to accept that such statements ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as found in possession of contraband heroin in her baggage on 06.05.2002 and the panchnama was also concluded at 06.00 a.m. Thereafter, she was taken to NCB office. It cannot be believed that she was not in custody of the NCB from the time when the contraband was recovered from her baggage. Therefore, though formal arrest was shown to have been made after recording of the statement under Section 67, there is reason to believe that the said statement was made when she was in custody of NCB. She had also retracted from that statement, and therefore, I am not inclined to give much importance to the same. However, that statement could be useful only for the purpose of proving the conspiracy. As per the evidence on record, it is established beyond reasonable doubt that she was found in possession and also found to have made attempt to export heroin from India. There was no need to go into the question of conspiracy, particularly when, no other accused is involved in this case. In view of this, in my opinion, conviction under Section 29 r/w. Section 21 cannot be sustained. 40. In view of the prosecution evidences and the material on record, I find that the prosecution has proved ..... X X X X Extracts X X X X X X X X Extracts X X X X
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