CAPT ZARAIUS DASTUR Vs. S N SALVE

JUDGEMENT

(1.) THIS application for bail is filed by Accused No. 1 Capt. Dastur in N.D.P.S. Special Case No. 677 of 1997 for grant of bail. In this case the facts alleged by the prosecution against the Applicant are not at all in dispute and it is on the basis of these admitted facts that the Applicant claims to be entitled to be released on bail even after considering the provisions of section 37 of the N.D.P.S. Act. The Applicant joined Air India as First Officer in 1966 and in October 1977 he was taken up as Captain. The Applicant is Accused No.1 and Accused No.2 was known to him as he was also in service of Air India. He was suspended from service on account of his involvement in gold smuggling at New Delhi Airport. The Applicant and Accused No.2 were constructing respective farm houses at Bhoisar and came in close contact. Accused No.2 who wanted to transport a suit case to New York, as he had been asked by Accused No.3 to find out a proper person as carrier to transport the suit case, which contained narcotic drug in concealed condition. Accused No. 2 because of his contact with the Applicant asked the Applicant to carry a suit case containing some sweaters to New York. The narcotic drug was sealed on a false bottom of the said suit case. It was about 1.80 kg. heroin. The said suit case was handed over by Accused No. 3 to Accused No. 1 ostensibly containing only six sweaters as the Narcotic drug had been concealed in the false bottom. It was at the house of Accused No. 4 for about two days and the Applicant was on duty as Captain on 23-9-1997 and his flying duty was on a plane schedule to leave for London. The contraband drug was to be transported from India to New York. The Applicant was not to go to New York. It is also an admitted fact that Accused Nos.3 and 4 were not at all known to the Applicant and there was no contact between them at any time in the past. The suit case containing the contraband i.e. narcotic drug was given by Accused No.3 to Accused No.4 who in turn gave it to Accused No.2 prior to 25-9-1997. The said suit case containing six new sweaters (ostensibly) was given to Accused No. 2. It was also admitted that the suit case delivered at his house when admittedly the Applicant and his wife were not present and it was received by their servant. Accused No.2 had asked his wife on 27-9-1997 as to whether she had carefully checked the suit case. Accused No.2 had told him that his son and daughter are in the States and his son was operated upon and the sweaters were being sent for the son. On 4-10-1997 the Applicant was assigned the flight to London and on 7-10-1997, he informed Accused No.2 that he is not going to New York and he is going to London only. He also informed Accused No.2 that he would deliver the suit case to some of his colleagues at London with a request to carry it to New York. On 9-10-1997 at about 5 a.m. the Applicant started for his flight of London. He checked in his baggage. He had also asked his wife to check the baggage and after realising that if he takes six sweaters at a time, there may be some problem created by the Custom authorities at London, he agreed only to carry 3 sweaters and rest of the 3 were returned to Accused No.2. The Applicant put his baggage tag along with his name on the suit case and he also inserted one of his small pouch (zipper bag) in it. The suit case when given for customs clearance, it was found that there were some black spots noticed in the screen test which gave rise to suspicion of the customs authorities. When the customs authorities became suspicious, they immediately asked the Applicant about the contents and the Applicant denied knowledge about the suspicious objects in the suit case and also stated that the suit case is not his own and it belong to his friend. He even asked the Customs authorities to check it thoroughly and thereafter it was broken open and in the false bottom 45 polythene bags containing heroin were found.

(2.) THEREAFTER statement of the Applicant was recorded under section 108 of the Customs Act wherein he denied knowledge about the heroin. He also disclosed that the suit case belongs to Accused No.2. On taking search of the Applicant's house, the remaining three sweaters left behind were found. They were also seized. However, no incriminating articles were found in his house.

(3.) ACCUSED No.2 had similarly sent two suit cases in the past, one in the year 1993 through one Motiwala of Air-India and one in the year 1995 through one Joglekar, They were also not aware of the contents of the suit cases sent through them and with a view to help a friend they had carried the suit case.