MANJINDER SINGH SURI Vs. D.R.I

JUDGEMENT

(1.) THIS criminal appeal is directed against the judgment and order of the Special Judge in Sessions Case No. 97/96 whereby the learned Judge vide his judgment and order dated 29.8.1997 has held the appellant guilty under Sections 21 and 23 of the NDPS Act and further by a separate order dated 30.8.1997 sentenced the appellant to undergo rigorous imprisonment for a period often years with a fine of Rs. 1 lac and in default of payment of fine to further undergo rigorous imprisonment for six months for the offence under Section 21 of the NDPS Act. The same sentence was awarded under Section 23 of the NDPS Act. Both the sentences were directed to run concurrently.

(2.) THE facts of the case as has been noted by the trial Court are that: 'that on 14.9.1996 a secret information Ex. PW 7/A has been received by Shri S.K. Sharma wherein he was informed on telephone that a person namely the present accused would be carrying about 4 -6 kg of heroin from Delhi to Canada on 15.9.96 by Air Canada bound for Vancouver and on the basis of the aforesaid secret information which has been reduced into writing a raiding team headed by Shri B.S. Bakshi PW -6 was constituted and joined by Shri Sanjay Srivastava PW -1, Shri Kuldeep Singh Doohan PW -8 and Shri S.K. Handa PW -5 who kept a surveillance and pursuant to which accused was apprehended while he was proceeding towards his custom clearance at the I.G.I. Airport in the early hours of 15.9.96. The accused at the time when he was intercepted was in possession of a hand luggage and thereupon he was joined by two independent panch witnesses Shri Kedar Singh PW -2 and Shri Ravinder Kumar Sahu and on the perusal of the ticket which had been seized from the accused it was found to contain 2 baggage stubbs Ex. P -7 and Ex. P -8 which tallied with the baggage affixed on the checked luggage of the accused which comprised of two soft zipper suitcases of blue and maroon colour. This checked in bag of the accused was brought to the custom room where the accused had been apprehended and before the accused was searched a notice Ex. PW 1/B was given in writing to the accused offering him the option of having his search conducted either by a Gazetted Officer or a Magistrate to which he stated that he agreed to be searched in the presence of Shri B.S. Bakshi who was a Gazetted Officer. That on the personal search of the accused and from his hand luggage nothing incriminating as recovered. Nothing incriminating was also recovered from blue coloured checked in bag of the accused but the maroon coloured suitcase Ex. P -28 when opened by the accused with the keys which he had produced a polythene bag having printing of Gulati Emporium was found on the top on the suitcase and on opening the said polythene bag it was found to contain a pillow case which in turn contained sweet boxes which when opened revealed 6 polythene packets having a white powder which were giving a pungent smell which when tested with the field testing kit tested positive for heroin. These packets were marked a X -l to X -6. The total weight (gross) of the contraband recovered was 5.815 kg of heroin. The further case of the prosecution that two representative samples of 5 gm. each Ex. P -17 to P -22 and Ex. P -24 to Ex. P -29 were drawn from each packet and were separately sealed in polythene packets and sealed with seal of DRI No. 89 and pasted over paper slip signed by the two panch witnesses, the officers of the DRI and the accused. The remaining contraband was also sealed in a similar fashion and pasted over paper slip bearing the signature of the aforestated persons. The panchnama Ex. PWl/C was drawn on the spot. The special report under Section 57 of the NDPS Act Ex. PW1/D had been forwarded by Shri Srivastava to Shri Alok Tiwari, Assistant Director on 16.9.96. The statement of the accused under Section 67 NDPS Act was recorded pursuant to the summons issued to him Ex. PW5/A and the statement recorded in the handwriting of the accused is Ex. PW5/B. The accused was arrested at 10.30 P.M. on 15.9.96 vide arrest memo Ex. PW5/C. The samples Ex. X -1A to X -6A Along with test memos Ex. PW 8/A and the forwarding letter Ex. PW8/B were sent to the CRCL and report of the CRCL Ex. PW9/A tested the samples positive as heroin. The receipt of the forwarding letter and the test memos in the CRCL is evidenced by Ex. PW8/C. The charge against the accused had been framed on 23.12.96 under Section 21 of the NDPS Act for being found to be in illegal and unlawful possession of 5.815 kg of heroin as also under Section 23 of the said Act for having illegally attempted to export the aforestated contraband out of the country.

(3.) LEARNED Counsel for the appellant submits that he is not challenging the recovery of the contraband from the appellant but contends that the appellant did not have conscious possession of the same as he was given sweet boxes to be carried to Canada from India by Mr. Bajwa to be delivered to Mr. Iqbal. The contents of the boxes were not known to him. He further submits that the appellant is innocent victim of circumstances. He relies upon the statements of PW -2, PW -3 and DW -1. Learned Counsel for the appellant submits that the defense put up to show that possession of the narcotics was not conscious and the same was taken by the appellant in the first instance which is borne out by PW -2 who says that the polythene packet containing the powder was recovered from the bag on top of every other item. He further deposes in the cross -examination that the appellant had told the customs officials that the boxes were delivered to him by the one Mr. Bajwa to be delivered to Mr. Iqbal Singh in Canada and that the boxes contained sweet and that it also contained a letter for Mr. Iqbal Singh. He also states that the accused did not resist the search. On the other hand, appellant was willing to let the sweet boxes opened voluntarily. Relying upon PW -3 learned Counsel submits that although this witness was produced by the prosecution to show that the search was conducted on 15.9.1996 of the house of the accused at VB -225 Virender Nagar, New Delhi, which did not reveal any incriminating article recovered except for the pass -port of Smt. Ravinder Kaur. But in his cross -examination, this witness has deposed that he accompanied the accused with Karnail Singh to the Airport and there sweet boxes were handed over to the accused by one Mr. Bajwa, who told the accused that there was a letter in the boxes addressed to Mr. Iqbal Singh and that the sweet boxes were to be delivered to Mr. Iqbal Singh. DW -1 Karnail Singh supports the deposition of PW -3 in cross -examination. Learned Counsel for the appellant submits that relying upon the above evidence it is clear that the accused had been the victim of circumstances and that he did not have any knowledge that the boxes contained narcotics.