WILBERG PETER TORBJORN FLORENTIN Vs. INSPECTOR OF CUSTOMS

JUDGEMENT

(1.) ALL the above appeals arise against the judgment and order 22-4-1996 delivered by the Special Judge in N. D. P. S. Special Case No. 107 of 1994. In all four accused were prosecuted for the offences of possession and conspiracy in respect of the narcotic drugs which were seized from the accused. Criminal Appeal No. 376 of 1996 is filed by original accused No. 1 against the order of his conviction and sentence recorded by the trial Court under the provisions of the N. D. P. S. Act and the Customs Act. Criminal Appeal No. 441 of 1996 is filed by original accused Nos. 3 and 4 against the order of their conviction and sentences recorded against them under N. D. P. S. Act. Criminal Appeal No. 520 of 1996 is filed by the original complainant against the acquittal of accused No. 1 in respect of the first seizure of 30 grams of heroin from his possession. Since all the appeals arise in respect of the same prosecution against all the appellants in Special Case No. 107 of 1996 which was disposed of by the judgment and order dated 22-4-1996, all these appeals were heard together and are being disposed of by this common judgment.

(2.) BRIEFLY stated the prosecution arose in the following circumstances: the officers of the customs were acting on the basis of the prior information which was received by P. W. 1 on 3-3-1994 at about 3. 30 p. m. The gist of the information which was produced on record at Exhibit No. 12 is as follows:-

(3.) IN the trial Court various charges were framed for the offence of conspiracy under section 29, for possession under section 8 (c) of the N. D. P. S. Act read with section 21 of the N. D. P. S. Act and also under section 135 (1) (a) and 135 (1) (ii) of the Customs Act. After considering the entire evidence on record the trial Court acquitted original accused No. 2 of all the charges framed against him who was concerned with the first seizure by the side of swimming pool at Breach Candy where accused No. 1 was found in possession of 30 gms. of heroin and had gone to the site as per the information to deliver the same to accused No. 2. Accused No. 1 was also acquitted in respect of the first seizure of 30 gms. of heroin from him on the ground of non-compliance with the mandatory provisions under section 50 of the N. D. P. S. Act in respect of which the complainants have filed Criminal Appeal No. 520 of 1996 against the order of acquittal of accused No. 1. The acquittal of accused No. 2 has not been challenged in this Court. The accused No. 1 was however convicted for offence of conspiracy along with accused Nos. 3 and 4 for the second seizure made from accused No. 3 in the flat at Altamount Road which belonged to accused No. 1. All these three accused were convicted for the offence of conspiracy under section 29 read with section 21 read with section 8 (c) of the N. D. P. S. Act and sentenced to suffer R. I. for 11 years and to pay a fine of Rs. 1,10,000/- in default to suffer further R. I. for one year. Accused No. 1 was also found guilty for offence under section 135 (1) (b) of the Customs Act and sentenced to R. I. for three years and to pay a fine of Rs. 5,000/- in default to suffer further R. I. for six months under section 5 (b) (ii) of the Customs Act. Accused No. 3 was further convicted for possession of 50 gms. of heroin which was seized from him in the flat of accused No. 1 and sentenced to suffer R. I. for 11 years and to pay a fine of Rs. 1,10,000/- in default to suffer further R. I. for one year for offence under section 8 (c) read with section 21 of the N. D. P. S. Act. Accused Nos. 3 and 4 were further convicted for possession of 4 kgs. of heroin seized from their flat in Savita Co-op. Hsg. Soc. at Andheri, Bombay and sentenced to R. I. for 12 years and to pay a fine of Rs. 1,20,000/- in default to suffer further R. I. for one year for offence under section 8 (c) read with section 21 of the N. D. P. S. Act. Lastly accused Nos. 3 and 4 were convicted for offence of abetment under section 29 read with section 8 (c) read with section 21 of the NDPS Act and each of them was sentenced to R. I. for ten years and to pay a fine of Rs. 1,00,000/- in default to suffer further R. I. for one year. The above order of conviction and sentences recorded against these appellants so also the order of acquittal of accused No. 1 in respect of the first seizure are under challenge in the aforesaid appeals.