HITOCHI CHONKIONG HABIB AWAZ Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) A furious debate ensured at the hearing of this bail application, which has been preferred by a foreign national facing a charge under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the N.D.P.S. Act") which, inter alia, accuses him of an attempt to export 11.7 kgs. of heroin by concealing it in his registered baggage on 26-9-1988. The petitioner, along with four other persons, is alleged to have attempted to board Swiss Air Flight No. SR-77 bound for Geneva on the night of 26-9-i988. The Swiss Air Authorities had informed the Police that these persons, who claimed to be travelling on Korean Passports, were, in fact, in possession of forged travel documents. Pursuant to this, a general alert was arranged at the airport by the Police in anticipation of a possible hijacking attempt. The group of five persons was seen arriving at the airport together and they checked-in in one lot and not separately. They were given their boarding cards along with the tickets, luggage-tags etc., after which they proceeded for immigration and customs clearance and proceeded to the departure lounge. The Police cordoned of the five persons and it is claimed that their hand baggage as also the registered baggage were searched in the presence of Panchas. This search revealed that a huge quantity of 58.5 Kgs. of brown sugar valued at Rs. 58,50,000/ was found concealed in the check-in baggage. We are in this case concerned with accused No. 1, who is the present applicant, and the prosecution alleges that he identified a dark-rexine bag that had been chccked-in and was bearing tag No. SR-888687-ADD-151-15, which was locked. This accused is alleged to have been in possession of the key and he opened the bag on being asked to do so by the Police, and on a search of the bag 11.7 kgs. of brown sugar was found concealed in it.

(2.) SHRI Lalla, learned counsel appearing on behalf of the applicant, has contended that, admittedly, the Police has been alerted on the suspicion that the accused was likely to hijack the aircraft. It was for this reason that this search was carried out for a possible check in relation to explosives or weapons. Shri Lalla stated that there can be no deemed or vicarious laibility in respect of the baggage that has been checked-in by other persons, even if it is alleged that they were travelling together. He pointed out to me that as far as the applicant is concerned, that he was not in possession of any baggage tags and if the dark-blue-rexine bag was checked in by the applicant or belonged to him, the baggage tag in relation to this luggage would have been attached to his ticket. The tag in question was attached to the ticket of accused No. 3 and, therefore, Shri Lalla contended that there can be no legal liability vis-a-vis that piece of luggage as far as the present accused is concerned. He also contended that the Panchanama and the statements of the officers wrongly mentioned that the bag was opened by the applicant and that he accepted the ownership of it. Shri Lalla, therefore, contended that on the facts of this case, the present applicant must be enlarged on bail.

(3.) AS against this position, the learned A.P.P. relied on a Division Bench decision of this Court in the case of Hemant Vyankatesh Agwan v. State of Maharashtra, 1990(1) BCR 433, decided by M, S. Deshpande and B. G. Deo. JJ., wherein the Court held that the relevant provisions of the Act were directory and not mandatory.