HASAN ISMAIL DALVI Vs. NARCOTIC CONTROL BUREAU

JUDGEMENT

(1.) THREE appellants were tried vide N. D. P. S. Special Case No. 417 of 1991 in the Court of Special Judge for Greater Bombay. By the judgment delivered on 18th, 19th and 26th of November of 1996, learned Special Judge held accused No. 1 guilty for the offences punishable under sections 21, 23, 28 read with 29 of the N. D. P. S. Act and 120-B of the I. P. C. , so also section 135 (1) (a) (ii) of the Customs Act, 1962 and section 13 (2) of the F. E. R. Act. He is sentenced to suffer rigorous imprisonment for 13 years and fine of Rs. 2,000, in default, rigorous imprisonment for two years, on the first count and rigorous imprisonment for one year on the second count. Accused Nos. 2 and 3 are held guilty for the identical charges, except under section 13 (2) of the F. E. R. Act and each of them is sentenced to suffer rigorous imprisonment for 10 years, fine of Rs. 1,00,000/- in default rigorous imprisonment for one year. Accused Nos. 2 and 3 are separately sentenced to suffer rigorous imprisonment for one year for the offence punishable under section 135 (1) (a) (ii) of the Customs Act, 1962. Substantive sentences of all the accused are directed to run concurrently and they are granted set off for under trial detention period. The judgment, conviction and sentence is being challenged by the three accused by three independent appeals. Henceforth, the appellants are being referred by their status as before the trial Court, for the sake of brevity.

(2.) ACCORDING to prosecution story, the Investigating Officer Superintendent Shri Sawant P. W. 5 on 11-3-1991 received reliable information that Charles Willey, a British National was likely to travel by flight S. R. 199 of Swiss Air departing Mumbai on 12-3-1991 at 01. 35 Hrs. with heroin in his possession. Shri Sawant typed the information and placed it before the Deputy Director Shri Kakkar with suggestion to intercept the suspect at Sahar International Airport. Shri Kakkar called N. C. B. officials including the Assistant Director Shri Rohatgi, Intelligence Officers S/shri Gujariya and Naik. After discussion the officers were instructed about interception of the passenger. The party led by Shri Sawant and consisting S/shri Gujaria and Naik reached International Airport at Departure Customs Counter at mid-night of 11 and 12th of March, 1991. Shri Gujaria, on instructions, procured two panchas, namely, Kirankumar and Vijay. Shri Naik confirmed by checking the manifest that suspect passenger was likely to board the flight. After sometime Shri Gujaria intercepted accused No. 1, after customs clearance. The team members disclosed their identity and demanded travel documents from accused No. 1. He produced passport, Swiss air ticket, boarding pass and Xerox copy of the application for extension of visa. The documents confirmed that the passenger intercepted was the suspect under information. A baggage claim tag was discovered, affixed to the air ticket. Accused No. 1 was taken to baggage examination hall, where he identified a black carry all bag as his baggage. The baggage identification tag tucked to the baggage tallied with the baggage claim tag found with the air ticket on the basis of serial number. Accused No. 1 was intimated about the information and that he was to be searched on suspicion for possession of narcotics. He was also apprised of his right under section 50 of the Act. The accused declined the offer, took out a key from his trouser pocket and opened the lock on the bag identified by him. The bag contained some personal effects and when emptied, it was heavy at the bottom. On close examination of the bottom, it was noticed that it had a flap and a package was affixed to the flap with the help of adhesive tape. Inside the carbon paper package 2 polythene bags were found which contained brown powder. The power tested positive for heroin on the field identification kit. The contraband was taken to post office and weighed. Each bag weighed 525 grams. Powder from both the bags was emptied in third polythene bag, mixed and then three samples of 5 gms. each were taken in polythene bags, which were heat sealed. Three samples were then kept in separate envelopes and sealed and marked C/i, C/ii and C/iii. Remaining major bulk, after heat sealing polythene bag, was put in a cardboard box, which was duly tied, labelled and sealed. By putting trouser, kurta, key and lock in it, carry all bag was kept in a paper envelope and then in a cardboard carton, which was closed with the adhesive tape and sealed. All the articles were labelled with labels signed by panchas, accused No. 1 and the officer. Nothing incriminating was recovered in search of a briefcase in the custody of accused No. 1. But on personal search 195 Sterling Pounds, 100 US Dollars and three half cut currency notes were recovered. Three half cut currency notes were of American, Dutch and Indian currency i. e. 5 US Dollars, 10 Guilden and Rs. 10/- denominations respectively. The travel documents recovered from the accused were also seized after marking them as K-I to K-V and obtaining signatures of panchas, N. C. B. Officer and accused No. 1 on those, except on the passport. Accused and seized articles were brought to N. C. B. office and led before the Assistant Director Shri Rohatgi. Shri Naik was directed to investigate further into the matter. It appears that Shri Sawant recorded statements of accused Charles under section 67 of the N. D. P. S. Act read with section 108 of the Customs Act on 12th, 13th and 14th of March 1991 (Exhibits 66, 67 and 68) and also on 14-4-1991 (Exhibit 70 ). The Intelligence Officer Shri Naik recorded the statements of accused No. 2 Hassan twice on 14-3-1991 (Exhibits 39 and 40) and again on 30-7-1991. He also recorded statements of accused No. 3 (Exhibits 46, 48 and 50) on 20-3-1991, 21-3-1991 and 24-4-1991. According to prosecution, the statement revealed that accused Nos. 2 and 3 had acted as interpreter and taxi driver respectively for accused No. 1 and also otherwise rendered assistance in drug trafficking. Another Intelligence Officer Ramesh Ramnathan, at the instructions of Assistant Director, on 12-3-1991, between 6 to 8 p. m. searched the premises owned by one Shri Khan, being Flat No. 18, Transworld Terrace, Fokland Road Bombay and seized documents which contain envelope, photographs, vehicle insurance receipt, report and its Xerox copy. On 20-3-1991 at between 14. 30 Hrs. to 1630 Hrs. He searched Flat C/2, II floor, Saifi Chambers, Khandia Street, in presence of accused No. 2, at the instructions of Shri Sawant. This was said to be flat of accused No. 2 and a telephone diary, electricity bill, visiting card of super trading, one photograph and passport of accused No. 2 were seized. After this search and seizure, accused No. 2 was taken to N. C. B. Office with the searching party. On 20-3-1991 at the instructions of Shri Sawant, Shri Ramnathan searched premises G-16, Ist floor, Goathan, II Lane, Juhu and also K. C. W. 1/2/3, Sea Shore, behind Palm Beach, Juhu, between 15. 00-16. 00 Hrs. and 17. 00-17. 30 Hrs. respectively. First premises were occupied by one Mrs. Reeta and the second by one Mr. Neil Creado. Few documents were recovered from each of the premises. It also appears that at all four premises searched, there were telephone connections. On 13-3-1991 Shri Naik deposited one sample to Deputy Chief Chemist and another sample was sent to Forensic Science Laboratory on the same day. The positive reports of the analysis were received in due course of time. After obtaining the sanction to prosecute under section 137 (1) of the Customs Act, 1962 dated 25-5-1991 Shri Naik launched prosecution by complaint filed in the Special Court on 30-5-1991.

(3.) THE prosecution has relied upon oral evidence of complainant who also recorded statement of accused Nos. 2 and 3 Intelligence Officer Naik P. W. 3. Superintendent of Police Shri Sawant P. W. 5, under whose supervision accused No. 1 was intercepted: Intelligence Officer Ramesh P. W. 2 who carried searches of premises and Intelligence Officer Mohan P. W. 1, who was raiding party member. The panch witness Kirankumar P. W. 4 is examined at Exhibit 59, and Assistant Chemical Analyser Shri Kadam P. W. 6 is examined at Exhibit 72. The prosecution also relies upon the statements of all three accused recorded on more than one occasions in each case, several panchanamas and reports of Analysers.