EMMANUEL O AGBAIZU Vs. NCB

JUDGEMENT

(1.) The appeal is directed against an order of conviction dated 24.7.1996 and sentence dated 25.7.1996 passed by learned Special Judge by which the appellant was convicted under Sections 21 and 23 read with Section 28 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as 'the Act" only) and was sentenced to undergo Rl for 15 years and a fine of Rs. 1 lac under Section 21 of the Act and Rl for 15 years and a fine of Rs. 1 lac under Section 23 of the Act. In default of payment of fine, he was ordered to undergo further Rl for one year. The substantive sentence were ordered to run concurrently. Benefit of Section 428 of the Cr.P.C. was given to the appellant.

(2.) I have heard learned counsel for the appellant and learned counsel for the respondent. Learned counsel for the appellant has not pressed this appeal on merits and has prayed for indulgence in the matter of sentence on the ground that the appellant has been in custody for the last about nine years and is a foreigner who is not likely to visit India again.

(3.) The prosecution case, briefly stated, is that on the intervening night of 30th and 31st March, 1994, the appellant, a Nigerian Shopkeeper, had come to IGI Airport for taking a flight to Lagos on Air France flight which was to take off at 1.10 a.m. The Officers of Narcotics Control Bureau were present at the Airport for routine checking of suspected passengers. At about 11.45 p.m. of the intervening night of 30th and 31st March, 1994, the appellant came to the Customs counter for customs clearance and got his baggage booked. Anil Rawal, an Officer of Narcotics Control Bureau, asked the appellant as to whether he was carrying any narcotics or not but the appellant replied in negative. However, ASI R.L. Yadav, In-charge of the Dog Squad brought the checked-in baggage of the accused for checking. In the presence of public witnesses Sukhdev Singh and Kishan Pal, the appellant identified his two bags which had been booked by him. The tags attached to these bags tallied with the corresponding stubs issued on the air ticket of the appellant. When these bags were opened, it was found that these bags were containing some plastic containers of vegetable oil and Johnson Baby Powder Shri P.O. Shenoy, Intelligence Officer NCB inserted a stick inside a container and some brown powder was found sticking to the stick. The entire baggage of appellant was shifted to the nearby customs room and on opening of the vegetable oil containers and Johnson Baby Powder boxes, heroin was recovered which had been concealed in polythene packets. 15 packets of this powder were recovered the total weight of which was 27 kgs. Samples were drawn from each of the 15 recovered polythene bags and were put into 30 separate envelops which were sealed with the Seal No. 08. The travel documents of the appellant, his bags, tags with two excess-baggage tickets and air tickets were taken into possession. In due course, the samples were sent to CRCL and as per report Exhibit PX, all the 15 samples were found to be of Diacetyl Morphine. According to prosecution, the appellant made a confessional statement Exhibit PW-5/B confessing that he was in conspiracy with some other persons in regard to the export of the aforesaid contraband and for doing this job, he had been paid US $ 10,000.