LAWRENCE NWAFOR ODIA Vs. DIRECTORATE OF REVENUE INTELLIGENCE

JUDGEMENT

(1.) THESE two criminal appeals preferred by original accused Nos. 1 and 2 to challenge the order of conviction and sentence recorded by the Additional Sessions Judge, Grater Bombay, on march 31, 1989, can be conveniently disposed off by common order. We propose to dismiss both the appeals summarily for the reasons to be recorded hereinafter. The two accused are convicted for the offences under Sections 21 and 28 of the Narcotic Drugs and Psychotropic Substances act, 1985, and are sentenced to suffer rigorous imprisonment for ten years and fine of Rs. one lakh each, in default further rigorous imprisonment for the period of one year each. Accused nos. 1 and 2 are also convicted of the offence under Section 9 (c) read with Section 21 of the Act, and sentenced to suffer rigorous imprisonment for the period of ten years each with fine of Rs. one lakh each. The Trial Judge also recorded conviction for offence under Section 8 (e) read with section 30 of the Act as well as under Section 135 (A) of the Customs Act and under Section 30 of the Narcotic Drugs Act but sentences are not recorded in respect of conviction under the last two counts.

(2.) ON August 3, 1987, secret information was received in the office of Narcotic Control Bureau in connection with secreting of Narcotic Drug in a room of Embassy Hotel situated near V. T. Railway Station, Bombay. The information was reduced into writing by Assistant Director of d. R. I. Mr. R. N. Kakkar and officers were deputed to search the room in the hotel. Accordingly, mr. Pardeshi (P. W. 1), Mr. Sanchis (P. W. 8), Mr. Shahsane (P. W. 3) and Mr. Patel formed a raiding party and visited the hotel at about 6. 00 p. m. The raiding party went to room No. 203 of the hotel and the door was opened by Accused No. 1. Accused No. 1 is a Nigerian National and both the accused were in the room when the raiding party reached the hotel. The raiding party had also taken two panchas, Shankar Suvarna (P. W. 4) and a room boy working in the in the hotel. On search of the room, the raiding party found a cardboard box lying in one of the corners of the room. The cardboard box was opened in the presence of panchas and inside two electric lamp stands, two lamp shades and some dried grass was noticed. The bottom of the cardboard box was covered with thick packing and appeared heavy. The officers and the panchas then opened the flaps of the cardboard box and found that there to polythene bags containing white powder concealed in the flaps of the cardboard box. The white powder was tested with the aid of field testing kit and found to be heroin. The two bags contained heroin weighing 1 kg. each. The raiding party also recovered two air tickets in the name of the accused on the flight which was leaving after midnight on August 3, 1987. A hotel bill and a visiting card and boarding card were also found. On the visiting card found with of the accused, there were several telephone numbers. After completion of search and seizure of various articles found in the room, the accused were taken in custody. Mr. Pradhan (P. W. 2) who was attached to D. R. I. as Sr. Intelligence Officer, thereafter took over the investigation in accordance with the direction of the director and recorded statement of accused Nos. 1 and 2. Each of the accused in the statement admitted that they had visited the country for the purposes of purchase of heroin and were to carry it abroad. The Investigating Authority made search in respect of telephone numbers found on the visiting cads in possession of the accused and accordingly traced the address of original accused No. 3. The investigating team proceeded towards the place of accused No. 3 and found a car parked outside the house of accused No. 3. On search of the car more heroin was found as well as an unlicensed revolver. The raiding party then proceeded towards the house of accused no. 3. Accused No. 3 while opening the door shot at the Investigating Officers. The accused No. 3 was overpowered and on search some more heroin was found in the house. Statement of accused No. 3 was also recorded in which accused No. 3 deposed about selling heron to accused nos. 1 and 2. After completion of investigation, all the three accused were sent for trial before the Sessions Court, Greater Bombay.

(3.) THE prosecution examined witness including officers Pardeshi, Pradhan, and Shahsane. The prosecution also examined Shankar Suvarna (P. W. 4) who was the panch witness in respect of search of the hotel room. The prosecution also examined Koduvayur Gopalier Narayanan who was the Chemical Examiner and the Chief Chemist who had forwarded the report about the nature of the powder found with the accused. The defence of the accused was one of denial and both the accused, inter alia, claimed that they were falsely implicated in the case. Both accused nos. 1 and 2 claimed that they were students and had nothing to do with heroin found in the room. The learned Trial Judge after careful perusal of the evidence and by exhaustive judgment came to the conclusion that the prosecution he proved that accused Nos. 1 and 2 entered into a criminal conspiracy to commit of offence under Sections 21 and 28 read with Section 29 of the narcotic Act and the accused having custody of white powder containing morphine wanted to fly with it, on August 3, 1987. The learned Trial Judge also held that though there is to no conclusive evidence about accused No. 3 selling heroin to accused Nos. 1 and 2, accused No. 3 is also liable for conviction as heroin was for in his possession. The trial Judge on the strength of this finding recorded conviction and sentence against all the three accused. Accused No. 3 preferred criminal appeal No. 444 of 1989 to this Court but it was summarily dismissed on february 9, 1990. Accused Nos. 1 and 2 had preferred appeals but the same were filed beyond the period of limitation and after condonation of delay now the two appeals filed by accused nos. 1 and 2 are placed before us for admission.