GIWA FATIMAT OLUWASEYI Vs. HARBANS SINGH

JUDGEMENT

(1.) The appellant has filed this appeal challenging the judgment and order passed by the special Judge in N. D. P. S. Case No. 116 of 2000. By the said judgment and order dated 23-6-2003, the Special Judge held the accused guilty of the offence under section 8 (c) which is punishable under sections 21/22 read with section 28 of the Narcotic Drugs and Psychotropic substances Act, 1985 (hereinafter called "the N. D. P. S. Act") and convicted and sentenced her to suffer rigorous imprisonment for 10 years and to pay fine of rs. 1 lakh and, in default of payment of fine, to suffer rigorous imprisonment for six months. The accused was acquitted of the offence punishable under section 135 (l) (a) and 135 (i) (ii) of the Customs Act.

(2.) The prosecution case in brief is that the Commissioner of the Customs received information that the accused was to board the flight to go to Nairobi on 3-6-2000 and when she approached the X-ray counter, her baggage was screened through the X-ray machine by the attendant at the X-ray machine, Shri D'lima who noticed some black patches on the screen and therefore, called the Custom officer. Accordingly, panchas were called by the Custom Officer and, in the presence of panchas the accused was asked to put the bag on the X-ray machine for screening wherein the Custom Officer noticed dark patches on the screen which gave an impression of contraband being concealed in it. Thereafter, on detailed examination of one of the bags having green colour, they found two speakers of Music System of Akai Company and on Inspection of speakers they noticed that one black colour bag containing white colour powder was wrapped with an adhesive tape to the said speakers. The said powder was analysed with the help of a testing kit and the said powder tested positive, revealing that the powder was heroin. After the bags were weighed, it was found that the weight was 450 grams each. In the personal search of the accused, receipt of the purchase of the Music System was found. The sample was sent to the chemical analyser who reported the presence of micital morphine (heroin). The statement of the accused was recorded under section 108 of the Customs Act. In her statement, she revealed that she had come to Mumbai in the first week of may along with her husband and thereafter, they had gone to Delhi by Indian Airlines and had stayed in the hotel for three days. When she was about to leave on 2-6-2000, one Farook who was the friend of her husband gave her Akai Music system which was to be given to her husband in Nigeria and that she was not aware about the contents of the said contraband. A complaint was filed. The statements of the witnesses were recorded. A charge-sheet was framed against the accused. She pleaded not guilty to the said charge and the trial court convicted her and sentenced her to suffer rigorous imprisonment.

(3.) The learned Counsel appearing on behalf of the appellant submitted that the prosecution had not established that the accused was in conscious possession of the alleged contraband which was recovered from the two speakers of Akai music System. He submitted that the accused in her statement which was recorded under section 108 of the Customs Act had admitted that she had no knowledge about the contraband being concealed in the speakers. He submitted that though the accused was in the custody of the Officers of the Customs, she had not confessed that she had carried the said contraband for the purpose of taking the same out of India. The learned Counsel relied on the judgment of the supreme Court in the case of Abdul Rashid Ibrahim Mansuri vs. State of Gujarat reported in JT 2000 (1) SC 471 and another judgment in the case of State of punjab vs. Balkar Singh and another reported in 2004 SCC (Cri) 838. He, thereafter, relied upon the judgment in the case of Narcotics Control Bureau, jodhpur vs. Murlidhar Soni and others reported in 2004 SCC (Cri) 1561. The learned Counsel, thereafter, submitted that there was a serious lacuna in the prosecution case regarding the safe custody of the seized articles and the warehouse Register was not produced. He submitted that in the absence of warehouse Register, there was no conclusive evidence to show that the seized articles were kept at Warehouse and, therefore, he submitted that the tampering of the seized contraband could not be ruled out.