NISCHOLAS NWOKENKWO Vs. KENNETH 0 OHIA BUSH

JUDGEMENT

(1.) The accused No. 1 in S.C. 215/1990 on the file of VIII Additional Sessions Judge, Madras is the appellant in C.A.458 of 1992 and the 2nd accused in S.C. 2151 1990 on the file of the said court is the appellant in C.A. 457 of 1992.

(2.) A. 1 was charged for the offence under Section 8 (c) read with 29, 8 (c) read with 21, 21 read with 30 and 28 of N.D.P.S. Act 1985 and the 2nd accused was also charged under the same sections. Both were tried be common trial and both the accused were found guilty and sentenced to surfer R.1. for 10 years and to pay a fine of Rs. 1,00,000/- in default to undergo R.1. for 2 years. The 1st accused was found guilty under Section 8 (c) read with 29 of N.D.P.S. Act 1985 and convicted and sentenced to suffer R.1. for 10 years and to pay a fine of Rs. Lakh in default to undergo R.1. for 2 years; under Section 8 (c) read with 21 and convicted and sentenced to suffer R.1. for 10 years and to pay a fine of Rs. 1,00,000/- in default to suffer R.1. for 21/2 years; under Section 21/2 read with Section 30 and convicted and sentenced to suffer R.1. for 5 years and to pay a fine of Rs. 50,000/- in default to suffer R.1. for 15 months and u/s 28 and convicted and sentenced to suffer R.1. for 10 years and pay a fine of Rs. lakh in default to undergo R.I. for 21/2 years and the sentences are to run concurrently. The 2nd accused is found guilty under Section 8 (c) read with Section 29 and convicted and sentenced to suffer R.I. for 10 years and to pay a fine of Rs. lakh in default to undergo R.1. for 21/2 years; u/s 29 and convicted and sentenced to suffer R.1. for 10 years and to pay a fine of Rs. 1 lakh in default to undergo R.1. for 21/2 years u/s 28 and convicted and sentenced to undergo R.1. for 10 years and to pay a fine of Rs. 1 lakh in default to undergo R.1. for 21/2 years and sentences are directed to run concurrently Both the accused are entitled to set off for the period in detention already undergone.

(3.) The case of the prosecution is briefly as follows: - On 4. 10.1990 at about 12-20 hours on an information received over phone, the officers attached to the Narcotic Control Buryau, conducted a search of an open courier cover produced by the Regional Manager at M/s Blue Dart Courier Service, Cessions Complex, ignore, Madras8 in the presence of independent witnesses. The Courier cover booked by the brother of the 2nd accused by name Judge Nwekenkwe from Antiqua and addressed to the 2nd accused, could not be served and therefore, the Manager of the service, opened the cover to find out alternative address if any, for delivery. As per his company procedure, on such opening, he learnt that some illegal activities were being carried on by the parties concerned. On search the officers recovered U.S. $ 3000 (30 sets of 100 dollar denomination) concealed in a book titled Just for youT inside the courier cover. Besides, they recovered envelopes with greeting cards, color photographs and handwritten letters. The letters indicated that the foreign currency was meant for purchases and alleged export of Brown Sugar (Heroin), a narcotic drug, out of India, thereby violating the relevant provisions of FERA 1973 and N.D.P.S. act, 1985. The above articles were seized under the cover of a mahazar. When the Officers were about to leave the premises of the said courier service, second accused came there to collect the said courier cover. He was taken by the officers to the Bureau for enquiry. Second accused gave avoluntary statement admitting that his brother Jude had sent the foreign currency for purchase of the Brown Sugar to be sent to Antigua through courier service in a concealed manner. He also stated that he had arranged for supply or said substance by his friend, the 1st accused another Nigerian and that the latter had purchased the drug, packed in a concealed way and kept ready for delivery. The 2nd accused would have procured the stuff, its he had paid the foreign currency to the 1st accused. Furtiler, accused No. 2 admitted that some time in January, 1990, his brother sent U.S. $ 1000 through courier parcel and he sent half a kilogram of brown sugar to his brother through one Titus, a Nigerian, after having purchased if from the 1st accused. Pursuant to the information or the A-2, the Officers conducted a searches of the residence of A.1. at No.7, Cheny Street, Ayanavaram, Madras on the night of 4.10.1990 before two independent witnesses and the At. and his wire, Mrs: Philomena. They seized two rectangular accounts books which contained brown sugar packed in polythene covers, which the 1st accused had purchased for Rs. 25,000/- from a Srilankan national, without permit or legal documents to possess. The sturf weighed 460 grams Another polythene cover containing 100 grams or brown powder was seized from the top portion or a cot. In the course of the said search, two pieces of a paper, which were attempt to be swallowed by the 1st accused but prevented by the officers, were also seized and on reconstruction, they disclosed the address of one S. Sridhar. Some more documents were also recovered from the almirah for further action. Samples were taken separately from the seized polythene covers for analyses under amahazars duly attested by the witnesses and the 1st accused, a copy of which was handed over to the 1st accused under acknowledgement. The 1st accused who was taken to the N.C.B. Office was examined on 5.10.1990 and he gave a voluntary statement. In it he stated among others that he purchased the brown sugar for personal consumption, kept concealed 460 grams for future use while 100 grams for immediate use. He did not satisfactory explain the source of money or why he purchased such a large quantity for personal con-sumption and failed to furnish details of moneys received by him through normal banking channels. He also failed to accounts for the mention of his name in the letters seized from the courier cover and gave evasive explanation to the word garments found in the letters. He denied that 2nd accused was to purchased narcotic drug from him, and his wife, Mrs. Philomena, had anything to do with the drugs. The statement of Mrs. Philomena was recorded. On enquiry, S. Sridhar, whose name was found in the torn pieces of paper, expressed ignorance of the 1st accused but stated that he gave the said address to his two Nigerian friends, Sam and. Austin. His statements was recorded on 5.10.1990. Both the accused were arrested at 5.00 P. M. on 5.10.1990 and remanded to Judicial custody before the learned Additional Chief Metropolitan Magistrate, E.O.I. Madras-8 After analysis of tile samples of the seized powder, a report was received to the effect that they contained society Morphine (heroin) Further investigation was pursued. The statements of witnesses were recorded. It was learnt that the 2nd accused made use of Telephone No. 66730 attached to the office of Friends Missionary Prayer Band, Kilpauk, Madras situate opposite to the residence of the 2nd accused and the statement of the Executives Coordinator of said Missionary Ban, Mr. Frank Manual was recorded on 6.11.1990. The statements of Mrs. Getsy Vanita and others were recorded with whom the A.l had a quittance and sought help for getting passport for Mrs. Philomena and receiving parcels and mails, meant for him. Thus the Al and A2 have criminally conspired and contravened the provisions of N.D.P.S. Act 1985 punishable under Section 8, 23, 28, 29 and 30 read with 21.