SHAIKH ASHRAF ABDUL KADER Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS appeal is filed against the order of conviction and sentence passed by the Special Judge, Greater Bombay on 16th October 1992 convicting the appellant under Section 21 read with Section 8 (c) of the NDPS Act and sentenced to suffer RI for ten years and to pay a fine of Rs. 1,00,000/- and in default to suffer further RI for one year. The appellant was further convicted by the aforesaid order for offences punishable under Section 22 read with Section 8 (c) of the NDPS Act and sentenced to suffer RI for ten years and to pay a fine of Rs. 1,00,000/- in default to suffer further RI for one year. The appellant was also convicted by the aforesaid order for the offence punishable under Section 23 read with Section 28 of the NDPS Act and for offence under Sections 135 (1) (a) read with Section 135 (i) and (ii)of the Customs Act and under Section 13 of the Foreign Exchange Regulation Act, 1923. However, no sentences were awarded to appellant on these counts. The substantive sentences under Section 21 read with Section 8 (c) and Section 22 read with Section 8 (c) of the NDPS Act were directed to run concurrently.

(2.) THE prosecution case briefly stated runs as follows : In the early hours of 7th August 1989 the appellant had gone to Sahar Air-port as he was to take Air India flight scheduled to leave from Bombay to Dubai. THE appellant at about 2.30 a. m. had gone with suitcase Article No.1 for screening and put the said suitcase on X-ray machine for screening. P. W. 10 Dilip Vithal Sawant was at that time working as Security Assistant with Air India at the said airport. His duty was to check baggages of passengers travelling by Air India flights from Sahar Airport. For the purpose of checking the baggages he had to screen the baggages for which purpose X-ray machine is installed. When Article No.1, suitcase was put on X-ray machine for screening, the said witness saw some black dots on the screen and, therefore, he questioned the accused appellant as to what he was carrying in the said suitcase. THE appellant replied that he was carrying few clothes of his inside the suitcase and nothing else. THE witness then told the appellant to see the image of the suitcase and the dots on the screen. THE witness also found the suitcase was little bit heavy. He allowed the accused to proceed further for getting the baggage checked in at the Air India counter and informed the Preventive Officer of the Customs on duty, Mr. M. R. Negi, who is examined as P. W. 1 THE P. W. 10 told the Customs Officer about his doubts regarding the said suitcase pointing out to him the suitcase as well as the appellant.

(3.) THEREAFTER the officers examined the hand baggage of the passenger i. e. one brown jordan briefcase and one white zipper bag which the appellant claimed as his own hand baggage. On examination of this hand baggage nothing incriminating was found therein. THEREAFTER the personal search of the passenger was taken in the presence of one of the panchas which resulted in the recovery of US $ 500 from the pocket of his trousers equivalent to Indian Rs. 8200/ -. The contraband like Mandrex tablets, heroin powder and US $ 500 were seized by the officers. The officers also seized the travel documents such as air ticket, boarding pass, baggage identification tags for further enquiry. The officers thereafter took out three representative samples of heroin each of 15 gms. and three representative samples of Mandrex tablets each of 15 pieces for the purpose of chemical analysis and as court samples. The said six sample packets were sealed by the Preventive Officer and put in Seal No.60. The balance quantity of the heroin was packed in one carton and the mandrex tables were packed in the another carton and they were sealed by the Preventive Officer under Seal No.60. The suitcase was also sealed under Seal No.60. All the travel documents were kept in one cover and sealed under Seal No.60. The foreign currency of US $ 500 were also packed in one cover and sealed. The signatures of the panchas were obtained. The panchanama was prepared which was signed by P. W. 1 and the two panchas. A copy of the panchnama was also handed over to the appellant and his acknowledgment was obtained.