ANSAR ALI YUSUF KHAN Vs. UNION OF INDIA

JUDGEMENT

(1.) These Appeals are preferred by original accused Nos. 1 to 3 against the order passed by the Special Judge for NDPS Cases, Greater Bombay, in NDPS Special Case NO.50/2005 whereby the accused persons were convicted for the offences punishable under Section 29 read with Section 8(c) and Section 21(c) of the NDPS Act and sentenced to undergo R.I. for ten years and to pay fine of Rs. 1 lakh each and in default to pay fine, to undergo further R.I. for six months.

(2.) Prosecution case, in brief, is that on 28.11.2004, the Intelligence Officer PW-1 Jitendra Dubey attached to Narcotic Control Bureau of Customs Department and his colleagues Vipin Nair and P.C.Namboodiri received information that one person viz. Iqbal from Bhavani Mandi, Madhya Pradesh was likely to arrive at the Naka of Main Road at Rafi Ahmed Kidwai Marg, outside the Railway Gate No.4, Wadala, Mumbai, around 9.15 to 9.30 a.m., along with his associate, for delivery of 2 kg. of heroin to one Ansar Ali, who would be wearing white shirt and white dhoti. Immediately, the information was typed on the computer, at about 8 a.m. As the intelligence note Exhibit 13, which was signed by all these three officers and was placed before their superior PW-7 Ajit Patil, who was the Superintendent of NCB. PW-7 Ajit Patil also endorsed and signed the said information and immediately placed the same before his superior Mrs. Alka Tyagi, who was the Zonal Director of NCB. She also endorsed and signed the said intelligence note and approved action of surveillance. Immediately after that a team consisting of PW-1 Jitendra Dubey, PW-3 Henry, PW-7 Ajit Patil and other officers namely, Kedare, Poojari, Nair, Namboodiri and Sepoy Darekar was formed. The said team proceeded and reached the spot at about 9 to 9.15 a.m. Two persons were called to act as panch witnesses and they were also informed about the information and purpose of raid. The members of this team kept a watch for about 15 minutes, when one person wearing white shirt and white dhoti came at the spot with a polythene carry bag in his hand. He was accused No.3 Ansar Ali. At about 9.45 a.m. two more persons, who are identified as accused No.1 Iqbal Shaikh and accused No.2 Abdul Rashid, approached the accused No.3 Ansar Ali. Accused No.2 Abdul Rashid was carrying a black coloured hand bag. He handed over the said black coloured hand bag to the accused No.3. Immediately, all these three accused persons were surrounded by the members of the raiding party and were apprehended. The accused persons disclosed their names and the place of residence. Accused No.1 Iqbal Shaikh disclosed that he was resident of Bhavani Mandi and accused No.2 Abdul Rashid, who was holding the black coloured hand bag when he came there, disclosed that he was resident of Mandsour in Madhya Pradesh, while accused No.3 Ansar Ali disclosed that he was resident of Calcutta. All these three accused persons were taken to the vehicle of the NCB which was parked at the spot. Before taking their personal search, the officers of NCB informed each of the three accused individually that they had right to be searched before the Gazetted Officer or Magistrate, but they declined. Thereafter, PW-3 Henry took personal search of accused No.1 Iqbal Shaikh and accused No.2 Abdul Rashid. However, no contraband was found from their person. During personal search of accused No.1 some cash, a mobile phone and railway ticket were found. The cash amount was returned to him. During personal search of accused No.2, a railway ticket and an election card were found. During personal search of accused No.3 as well as during search of the bag which was with accused No.3 since beginning, only personal belongings and some cash were found. Thereafter, the black coloured hand bag was searched. It contained some personal belongings of accused No.2 Abdul Rashid and one heat-sealed polythene packet containing brown powder. On enquiry, accused Nos. 1 and 2 informed that the said powder was heroin and they had brought the same to deliver to accused No.3 Ansar Ali. The said polythene packet was cut and opened and small quantity of powder was taken out and was tested with the help of testing kit. The result was positive for heroin. The total weight of powder was 2 kg. Two samples of 5 grams each were taken from the bulk quantity and they were kept in two polthene sachets , each of which was sealed and kept in separate paper envelopes, which were sealed with NCB Seal No.02. The label, giving description of the contents, were affixed on the envelopes. The labels were duly signed by the panchas and PW-3 Henry. The balance quantity of heroin remained in the said bag which was again heat sealed and it was kept in card board carton which was closed with small scotch tape. The label giving description was affixed on it and it tied with jute string and was sealed with the seal. The black coloured hand bag was also kept in a separate cardboard. About all this proceeding, a panchnama was prepared, which was signed by the panchas as well as the officers.

(3.) After completing search and seizure proceedings and panchnama, the officers took the property and the accused persons to the Customs Office where the statements of all the three accused persons were recorded under Section 67 of NDPS Act. On the same day, after recording statements the accused persons were arrested under separate arrest memo and the reports were submitted to the senior officers. While the remaining property in the sealed carton and the seal were handed over to PW-7 Ajit Patil, who was the custodian of the godown of NCB, PW-3 Henry forwarded one sample to the Deputy Chief Chemist of the Customs Department and one sample to the Forensic Science Laboratory, Maharashtra State, for the purpose of analysis. C.A. Reports confirmed that the samples were heroin. The accused did not have any permit or authorization either for possession or transportation of the heroin. Therefore, after investigation, PW-3 Henry filed a formal complaint in the Court of Special Judge, NDPS and it came to be registered as NDPS Special Case No.50 of 2005.