KALEMA TUMBA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The appellant, a Zaire National, arrived at the Sahar Airport (Bombay) by Ethiopian Airlines flight on 22-11-90. Mr. Anil Menon, Intelligence Officer in Narcotic Control Bureau had received information that one Zaire National, Kalema Tumba (the appellant), was to arrive by that flight and was likely to carry sizeable quantity of heroin. That information was reduced into writing and a watch was kept at the airport by him and other officers. After the flight had arrived and the appellant had reported at the customs checking counter, Mr. Dange who had accompanied Mr. Menon and Mr. Rohtagi, Asst. Director, questioned the appellant and after satisfying themselves that he was the same person in respect of whom they had earlier received the information, asked him to identify his baggage. The appellant identified his black colour rexine bag with brown strips. It was found locked. Baggage tag fixed on it tallied with the claim tag affixed on his Air-ticket. The appellant then opened the bag after taking out a key from his pocket. On examination packets containing brownish powder were found from it. The test revealed that the said powder was heroin. The total quantity thus found from the possession of the appellant was 2 Kgs. The Customs Officer thereafter completed all the formalities in presence of two panch witnesses and then took him to the office of the Narcotic Control Bureau. There his statement under Section 108 of the Customs Act was recorded and on the same day in the evening at about 9.00 p.m. he was arrested. After obtaining the report of the Chemical Analyser he was charge-sheeted and prosecuted in the Court of the Special Judge (NDPS) for Greater Bombay in NDPS Case No. 84 of 1991 for commission of offences under the NDPS Act and the Customs Act.

(2.) The learned Judge relying upon the evidence of P.W.1 Mr. Menon, P.W.2 Mr. Rohatgi, P.W.5 Mr. Dange and the evidence of Panch witness held that the appellant had brought 2 Kgs. heroin with him and was in possession thereof. He, therefore, convicted the appellant for the offences punishable under Section 21, read with Section 8(c) and Section 23 read with Sections 28 and 8(c) of the NDPS Act. He also convicted him under Section 135(1)(a) read with Section 135(i), (ii) of the Customs Act, 1962.

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