(1.) By the appeal appellant/original accused challenges the judgment delivered on 17th June. 1996 by Special Judge for N. D. P. S. cases. Greater Bombay in Special Case No. 462 of 1991. The Petitioner is held guilty for possession of heroin, offence under Section 21 r/w 8(c) of the N. D. P. S. Act, 1985 and is sentenced to suffer R. 1. for 10 years, fine of Rs. 1 lac i/d further R. I. for one year. He is also held guilty and convicted for offence punishable under Section 28 r/w 23 and 8(c) of the N. D. P, S. Act. 1985 i.e. for attempt to illegally export the narcotics, and is sentenced to suffer R. I. for 10 years, fine of Rs. 1 lac i/d further R. 1. for one year. The learned Judge has also convicted and sentenced the accused for offence punishable under Section 135(1)(a) r/w 135(1)(ii) of the Customs Act. 1962 and sentenced him to suffer R. I. for one year, fine of Rs. 2000/- i/d further R. 1. for 5 months. All substantive sentences are directed to run concurrently and accused-appellant is also given benefit of set off under Section 428 of the Code of Criminal Procedure. 1973.
(2.) According to the prosecution on 29th April, 1991 information was received by Assistant Director Mr. S. C. Rohatagi at about 7 P. M. that one A. O. Adekunle a Nigerian national was to travel by Swiss Air Flight No. SI-197 scheduled to depart on 30th April, 1991 at 0130 Hrs. it was further informed that he was likely to carry heroin concealed in his baggage. Shri Rohatagi recorded the information in writing under his signature and delivered it to Deputy Director in a sealed cover. Simultaneously gist of information was recorded in Form DRI-I and forwarded it to Headquarters of N. C. B.. New Delhi in due course of time. Shri Rohatagi himself. Superintendent Sawani and Intelligence Officers Bhambri and Dhange formed raiding party and at about 11.30 P. M. they reached Sahar International Airport. They kept surveillance at N. I. P. T. Sahar Module-I. At about midnight suspect passenger was intercepted after clearance from immigration and customs. Presence of two panchas viz. Mr. Contractor and Mr. Peter Rajesh was secured and the customs officers after disclosing their identity to the panchas apprised them of information received and accordingly the suspect having been intercepted. On inquiry the suspect now appellant before this Court produced his passport, air ticket and couple of boarding passes. On examination of the documents it stood confirmed that he was the suspect under Information. The appellant told the raiding party that he had checked-in one baggage. Hence he was escorted by officers and panchas to the baggage examination hall. The appellant accused identified one cream colour soft leather suitcase as his checked in baggage. The suitcase was labelled with baggage identification tag and the number of this baggage identification tag tallied with the counter part i.e. baggage claim tag which was found affixed to the air ticket of the appellant. On asking by the officers, the appellant unlocked the bag by taking out key from his trouser pocket. The bag was emptied and yet found to be abnormally heavy. The bag had a false bottom which, when opened was found containing a polythene bag with brown powder. The bag weighed 1 Kg. Small quantity of powder was tested with field testing kit which gave positive results for heroin. Three samples of 5 Grains which were withdrawn, kept in separate polythene bags and heal sealed. Thereafter three polythene bags were kept in three different envelopes and sealed with N.C.B. seal and also signatures of panchas. Inteiligence Officer Shri Bhambri and the accused. The remaining powder was also accordingly separately sealed. Search of hand baggage carried on the person of the accused did not reveal any incrementing material but 1500 U.S. Dollars were recovered in the personal search. Travel documents i.e. passport, air ticket, two boarding passes, name tag that was affixed to the identified baggage and claim tag were taken in the custody and signatures of panchas were obtained on all these documents except passport. Lock and key was separately sealed so also the cream colour suitcase. Panchanama of all these occurrences was drawn by Shri Bhambri and all the articles were seized under the same. Copy of panchanama was supplied to the accused and acknowledgment was obtained on the Panchanama. After this the party returned to N.C.B. office along with all the seized articles and accused at about 8 or 9 A.M. on 30.4.1991. As directed by Mr. Rohatagi Mr. Bhambri also recorded statement of appellant at the office. On 3.5.1991 Mr. Doshi, Inspector, Central Excise reached one sample to Deputy Chief Chemist and another sample was forwarded to Chemical Analyser Forensic Science Laboratory on 10th May. 1991. On completion of investigation, complaint was filed in the Court of Special Judge for N.D.P.S. Greater Bombay.
(3.) It appears that the accused pleaded total denial before the Trial Court. He has retracted his statement recorded under Section 67 of the N.D.P.S. Act, 1985 on 2nd May, 1991 when he was produced before Special Judge for extension of remand. He has claimed that cream colour suitcase does not belong to him. He had only brown colour zipper bag. When he was asked to identify his baggage on the Conveyer Belt in the baggage identification hall, he touched cream colour suitcase for the purpose of shifting It in order to find out his brown colour bag. Thereupon, officers forcibly contended that the cream colour suitcase was his baggage. According to him name tag and identification tag were removed from his brown suitcase and seized. No panchanama was drawn at the airport and he was forced to sign the statement by torture.