DAISY ANGUS Vs. UNION OF INDIA

JUDGEMENT

(1.) The appellant, who is accused no.1 in N.D.P.S.Special Case No.30 of 2003, was convicted by the Special Judge City Civil & Sessions Court, Greater Bombay for the offences punishable under Section 20 (1)(b) read with Section 8(c) of the N.D.P.S.Act and under Sections 28 read with 23 and 8(c) of the N.D.P.S.Act. She was sentenced to undergo R.I. for 10 years and to pay a fine of Rs.1 lakh and in default to undergo further R.I. for one year on each count. By this appeal, she has challenged the conviction and sentence.

(2.) Prosecution case in brief, is that the complainant M.Jaykumar Superintendent of Customs Department, was attached to Air Intelligence Unit of Customs at Sahar Airport, Bombay. On 21-11-2002 at about 9.45 p.m., the accused no.1, who is appellant and accused no.2 Yoram Kadesh, who was acquitted by the trial Court, had come with their baggage to the airport with the tickets for Bombay-Amsterdam-Berlin sector issued by North West airlines. The accused no.2 Yoram Kadesh had two bags but they were not checked in. However, the accused no.1 had in all 2 bags, which were submitted for being checked in. North West airlines was maintaining its own X-ray machines for screening the baggage, which were checked in by the passengers. When the baggage of accused no.1 was being checked under the X-Ray machine, one Blue Coloured Delsey zipper suitcase was not cleared. Therefore, the said suitcase was opened and the articles therein were removed but still the bag was unusually heavy. In view of this, staff members of North West airlines immediately gave massage to the officers of Air Intelligence Unit of Customs at the Sahar Airport. Officers of Air Intelligence Unit immediately rushed to the spot. It was found that the said Delsey zipper suitcase was having false bottom with some concealment. It was also noticed that the accused no.1 was accompanied by the accused no.2 Yoram Kadesh, who was an Israeli national and both were travelling together to Berlin. The accused-appellant was having British and French passports. Two panch witnesses were called and they were informed that during the screening and physical check, the security staff had noticed some concealment in the false bottom of blue coloured Delsey zipper suitcase of the appellant. Appellant had identified the said suitcase, besides one more Polo trolley bag and one paper carry bag as belonging to her. On being questioned the appellant denied that she had concealed any narcotic drug in the said bag and she denied any knowledge if the said bag contained any narcotic drug. Thereafter, the appellant alongwith the baggage and the panchas were escorted to the office of A.I.U. for further investigation. As the accused no.2 Yoram Kadesh was earlier seen in conversation with the appellant, he was also intercepted. He was having one black coloured polo trolley bag and one blue coloured zipper handbag. Both these bags were not checked in and on checking no contraband articles were found in those two bags. False bottom of the Delsey zipper suitcase of the present appellant was ripped open and it was found that false bottom consisted of 3 large and 4 small packets containing brown coloured substance concealed in the specially made cavity in the false bottom. Contents of these packets were tested on the lonscan machine and test was positive for the presence of Hashish. Collective weight of the contents was found to be 10 kg. From each packet 3 samples of 5 gm. each were taken and the same were kept in small polythene bag, which was kept in the envelope and then duly sealed.

(3.) During the course of investigation statements of the present appellant came to be recorded. According to her she was acquainted with the accused no.2 Yoram Kadesh since 1999 and she had come to India on a short visit in the month of November, 2002. She had paid visit to her parents who were staying in Himachal Pradesh. She had planned to visit Australia for which she had taken ticket but that ticket was to lapse within two days. Therefore, she had given her ticket as well as passport to the accused no.2 for re-validating her ticket. According to her, the accused no.2 asked her whether she would join him upto Berlin as he had excess luggage to be carried to Berlin and he had also offered that she could enjoy holidays at his expense in Germany. Not only this he would make arrangement for his journey from Berlin to Australia at his cost. She accepted his proposal as she also wanted to meet some of her girlfriends in Germany. This decision was taken when both the accused were in Delhi. According to her she was to join the accused no.2 in Bombay. However, she missed her train on 19-11-2002 and she came late to Bombay. The accused no.2 was staying in hotel Causeway. After getting address from him, she also went to the same hotel and stayed in the same room alongwith the accused no.2. According to her, her bag was torn in the journey, therefore, the accused no.2 offered to put her belongings in his Delsey zipper suitcase as they were to travel together. She agreed. However, she found that inner zipper of the bag was jammed up and, therefore, she packed some of her belongings into the bag. She questioned accused no.2 Yoram Kadesh if there was anything objectionable in the said bag. However, he assured her that she should not worry since it consisted only gifts of incense sticks and he would himself carry bag alongwith him. Thus, though she admitted that she had checked in that bag, she denied that she had any knowledge about the Hashish or any contraband drugs in the same. Thus, she denied conscious possession of the Hashish, which was found concealed in the false bottom of the said Delsey zipper suitcase. Thereafter statement of the accused no.2 was also recorded. He also showed ignorance about the contents of the bag and he denied that he had owned that bag though he admitted that he had seen the bag in the room of the hotel, after he had come back at about 4.00 p.m. after confirmation of the tickets. Statement of the present appellant was recorded again. She also made written statement before the Special Judge and she took consistent stand that the said Delsey zipper suitcase was given to her by the accused no.2 and she was not aware that it contained any contraband drug. The samples were referred to Chemical Analyser and it was confirmed that they were Hashish. After investigation, the complaint was filed by Jaykumar the Customs Superintendent.