A K THAKER Vs. MARYLIVINA CHINYERE OKEREKED

JUDGEMENT

(1.) THIS appeal has been preferred by the Intelligence Officer, Narcotics Control Bureau, Bombay against the judgment and order of acquittal recorded by the Special Judge for Greater Mumbai at Mumbai in NDPS Special Case No. 278 of 1992. Respondent Nos. 1 and 2 herein were put up for trial before the Special Judge, charged variously on offences punishable under sections 21, 23, 28, 29 and 30 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) and under section 135-A of the Customs Act, 1962. By this impugned judgment and order, the Special Judge acquitted both the respondents of all the charges levelled against them.

(2.) MR. Tiwari, Advocate, appeared before us on behalf of respondent No. 1, Miss Merylivina Chinyere Okereke. Respondent No. 2, Mr. Joseph Ikeh @ Jonathan, however, could not be served with notice of this appeal as he was traceless. Hence, the appeal as against him stood dismissed in terms of the order of this Court, dated 9th February, 2000. Counsel for the appellant informed us that respondent No. 2 could not be traced out and has apparently absconded.

(3.) THE case of the appellant is that on the basis of secret information by the Narcotics Control Bureau, Mumbai, it was suspected that large quantity of heroin had been concealed in the unaccompanied baggage booked by respondent No. 1 herein with M/s. Eastern Cargo Carriers, Adarsh Industrial Estate, Andheri (East), Mumbai, respondent No. 1 is a female and a Nigerian citizen. The unaccompanied baggage was booked for Lagos. On receiving such information (Exhibit 35), Mr. S. M. Sawant (P. W. 3), Superintendent in the Narcotics Control Bureau, recorded the information in his own handwriting and signed it. After typing the gist of the said information, he initialled the same and put the original information in an envelope and sealed the same. He handed over the said sealed envelope containing the original information and the typed gist of information to Mr. R. N. Kakkar, Deputy Director, who instructed him to work out the said information, and to find out whether such baggage was in fact booked with the said carriers. The information had revealed that respondent No. 1 had booked two piece of baggage with M/s. Eastern Cargo Carries, Andheri for Lagos and the baggage contained about 20 kgs. of heroin concealed in them. Mr. Sawant (P. W. 3) made enquiries with M/s. Eastern Cargo Carriers and it was confirmed that two pieces of baggage were booked by respondent No. 1. He also collected information regarding the address of respondent No. 1 and the carriers also furnished her contact telephone number. The telephone number was of Hotel Oriental Palace and it was revealed on further enquiry that both the respondent were staying in Room No. 411 of the said Hotel in Khar, Mumbai. He again placed the matter before Mr. Kakkar, who gave written instructions to trace out respondent Nos. 1 and 2 and examine the baggage booked by respondent No. 1. Thereafter, Sawant along with Mr. Balchandran (P. W. 1), Intelligence Officer, Mr. Ghorpade, Mr. S. M. Dange and Mr. Thakkar (P. W. 4), Intelligence Officer, were briefed by Mr. Kakkar and they were instructed to work with Mr. Sawant (P. W. 3 ). The team then went to Hotel Oriental Palace at about 8. 00 p. m. on 16-9-1992. They went to Room No. 411 and the door was opened by one lady who gave her name as Ms. Marylivina. Another person was present in the same room who gave his name as Jonathan. These two persons were respondent Nos. 1 and 2. After disclosing their identity, enquiries were made with respondent No. 1 who confirmed that she had booked two pieces of baggage with M/s. Eastern Cargo Carries for being transported to Lagos. Mr. Sawant (P. W. 3) requested her to accompany them to the premises of M/s. Eastern Cargo Carriers. Along with the raiding party, the accused was taken to the office of the carrier, situated on the ground floor of Adarsh Industrial Estate, Chakala, Mumbai. On reaching the office of M/s. Eastern Cargo Carriers, they met Mr. Vinodkumar Seth (P. W. 5), who was the Chief Executive of M/s. Eastern Cargo Carriers. Two panchas were called, and in their presence, Mr. Vinodkumar Seth and the accused were told about the information received by the Bureau and their intention to take search. Mr. Vinodkumar Seth confirmed the booking of two piece of baggage by respondent No. 1. Respondent No. 1 also confirmed this fact. Thereafter, Mr. Vinodkumar Seth produced and booking documents. He took the raiding party and respondent No. 1 to the rear side of the office where the baggage was lying. Respondent No. 1 identified the baggage. The baggage was examined in the presence of the panchas, the accused and Mr. Vinodkumar Seth (P. W. 5 ). A panchanama (Exhibit 11) was prepared. 15. 080 kgs. of heroin as recovered from the baggage. In the presence of the panchas, the same was sealed under panchanama (Exhibit 11 ). The heroin was found concealed in leather portfolios. From one baggage, 8 such portfolios and from the other, 51 such portfolios were recovered. The other goods in the baggage were also seized under the same panchanama. Samples were drawn from the heroin recovered. Booking documents were also seized. The seizure panchanama was drawn up by Mr. Balchandran (P. W. 1), Intelligence Officer on the spot. Both the respondents signed the said panchanama which was also signed by Mr. Vinodkumar Seth. Copies of the panchanama were given to the respondents who acknowledged receipt. The seized goods were taken charge of by Mr. Thakkar. After the seizure of the contraband, this witness along with the raiding party and the accused returned to Hotel Oriental Palace, and went to Room No. 411. Two panchas were called who were informed about the seized panchanama (Exhibit 11) and their intention to take search of the said room. The room was opened by one of the accused, who took out the keys in presence of the panchas. The room was searched in the presence of the panchas and the accused but no contraband was found. However, four leather portfolios, identical with the ones seized under panchanama (Exhibit 11) were found, and these leather portfolios did not contain heroin. The aforesaid leather portfolios along with some other documents, including passports of the accused, etc. , were seized and the panchanama (Exhibit 20) was drawn up in the hotel room itself by Intelligence Officer, Mr. Ghorpade, which was signed by the panchas. Copies of the panchanama were furnished to the accused who acknowledged receipt. This witness then requested accused to accompany the raiding party to NCB office, and along with the members of the raiding party, the accused went to the NCB office with the seized articles. In the morning of 17th September, 1992, he prepared a note of such search and seizure and placed it before Mr. Kakkar along with panchanamas (Exhibits 11 and 20) and the seized articles. In cross-examination, this witness admitted that he had not asked Mr. Vinodkumar Seth (P. W. 5) about the list of articles contained in the baggage when he had gone to the office of M/s. Eastern Cargo Carriers. He had perused the documents produced by Mr. Vinodkumar Seth, and found no necessity of enquiring about the list of articles referred to in the declaration marked X-1 at Exhibit 12 colly. The baggage was weighed on the weighing scale of M/s. Eastern Cargo Carriers. The samples were weighed on the weighing scale carried by the raiding party. The keys of the baggage were with M/s. Eastern Cargo Carriers, and were produced along with the documents by Mr. Vinodkumar Seth. Mr. Vinodkumar Seth had stated that the two pieces of baggage were received by M/s. Eastern Cargo Carriers and were kept in the same condition. He denied the suggestions that the accused had not identified the baggage.