ONYEKWO FELIX NWAFOR Vs. B S RAWAT

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order dated 31-3-1995 passed by the Special Judge for Greater Bombay in N.D.P.S. Case No.1093 of 1988 whereby the appellant was convicted and sentenced in the following manner :-

(2.) ACCORDING to the prosecution case, the officers of the Air Customs Pool, on suspicion, intercepted the accused who is a Nigerian national holding Passport No.1796156 at Departure Module II of Sahar Airport, Bombay while he was about to board Ethiopian Airlines Flight No.ET 611 for Brazaville via Adis Ababa on 19-7-1988. He was just proceeding to security prior to boarding the flight after immigration and Customs clearance. He was holding a ticket of Ethiopian Airlines issued in his name for sector Bombay Adis Ababa Brazaville. His ticket was confirmed. The ticket was affixed with Ethiopian Airlines baggage identification tag which the accused removed and swallowed when he was asked to identify his checked in baggage. He had obtained a boarding card for the said flight. His ticket revealed that he was having one piece of checked in baggage weighing 30 kgs. On asking to identify his checked in baggage by the officer on duty he had done it. On the demand of the officers, the baggage was opened and 8 kgs. of brown sugar, a narcotic drug, concealed in 65 fuel filters kept in the said baggage in which there were 92 fuel filters. The officers then seized the sad narcotic drugs weighing 8 kgs. and a Panchanama was also drawn at Exh.7. Samples were taken from the contraband and after seizure the same were sent for chemical analysis. A statement of the accused was also recorded under section -108 of the customs Act wherein he has almost conceded stating that brown sugar was entrusted by somebody. The samples were tested by the Chemical Analyst and the report was received at Exh.29 which shows that the preparation was containing morphine of 7.7% and hence it was covered under section 2(XVI) (e) of Chapter -1 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The Collector of Customs accorded sanction for prosecution of the accused under section 137 of the Customs Act. After all the formalities are fulfilled on 13-9-1988 a complaint was filed before the Chief Metropolitan Magistrate, Esplanade in Bombay and from there the case was committed for Sessions trial in Sessions Court.

(3.) THE learned counsel Mr.Lala challenged the reasoning of the trial Court in the impugned judgment that the appellant has conceded that brown sugar was entrusted by somebody as contained in his statement before the Customs authority and as the appellant had no animun prossedendi as the contraband articles are concerned and, therefore, according to Shri Lala it cannot be stated that he was in possession of the material. We cannot accept this contention of Mr.Lala for the simple reason that except the explanation given by him, no material evidence has been adduced on behalf of the accused that he came to be in possession of brown sugar unconsciously at the instance of somebody else. He also urged that the mandatory provisions of the N.D.P.S. Act has been violated. But on our close scrutiny of the judgment and on the materials available in this case, we are not satisfied with this contention of Mr.Lala. In view of this, the only course open to us is to reject this appeal.