YAOMI OLADENDE Vs. N C B

JUDGEMENT

(1.) THIS appeal is filed challenging the order of conviction and sentence recorded against the appellant by the Additional Sessions Judge, Greater Bombay in N.D.P.S. Sessions Case No.28 of 1988 on 15th October, 1993. The accused was chargesheeted for the offences punishable under sections 23 and 28 read with section 8(c) of the Narcotic Drugs & Psychotropic Substances Act, 1985 ("NDPS Act" for short) as well as under section 135(1)(a) of the Customs Act, 1962 read with sections 28 and 8(c) of the NDPS Act.

(2.) THE prosecution case, briefly stated, is as follows : The Intelligence Department of the Customs had received information on 28th September, 1987 that a Nigerian national travelling by Ethiopian Airways would be carrying narcotics on 29th September, 1987 to Addis Abba. After the information was received, Alba Rebellow recorded the gist of the information received by her. Thereafter, Intelligence Officer Alba Rebellow accompanied by officers Sanchis, Patel, Shahasane and Pardeshi went to Sahar Airport and checked the manifest and found that the name of the suspect passenger was on the manifest. The said manifest was for Flight No.ET 611 dated 29th September, 1987 and the name of the suspect passenger appeared at serial No.59. All of them went to the customs examination hall and were watching the passengers coming there. At about 2.00 a.m. the suspect came to the customs checking counter and produced his passport, boarding pass, ticket and other travelling papers before the customs officer. At that time Intelligence Officer Alba Rebellow asked the suspect whether he was carrying any narcotic drugs but he denied. The accused was then asked to identify his baggage and two panchas were called before whom the accused was asked to open his baggage. After opening of the said baggage, one folded bed-sheet along with the personal belongings of the accused were noticed. After opening the bed-sheet, they noticed a polythene bag containing narcotic drug which was brown powder. When tested, the powder showed positive results of heroin. The powder weighed about 340 grams. Thereafter they drew five sample packets containing two grams of brown sugar each. They were packed and sealed with N.C.B. seal and marked them as articles A to F. The remaining contraband was also re-packed and sealed with N.C.B. seal. Labels bearing the signatures of panchas on all the sample packets and the packet containing the remaining contraband were pasted. Thereafter panchnama was prepared. The five sample packets, the packet containing the remaining contraband, carry-bag, bed-sheet under which the contraband was concealed, and the travelling papers of the accused were seized and taken in charge under panchnama. Thereafter all the articles which were seized under panchnama were produced before the Deputy Director along with the accused. The Deputy Director served summons under the provisions of the NDPS Act and statement of the accused was recorded by the Deputy Director Shri Kakkar, which was scribed by the Intelligence Officer. Thereafter the accused was arrested. One of the sample packets was sent to Deputy Chief Chemist along with the test memo. Another sample was sent to C.R.C. Laboratory, New Delhi. The third sample was sent to the concerned Magistrate, Customs and Excise, for examination. After completing the investigation, the investigation papers were submitted before the Additional Collector of Customs, Bombay for sanction for prosecution which was accorded. Thereafter complaint was filed before the Chief Metropolitan Magistrate, Bombay by the Assistant Collector of Customs on 4th November, 1987. Thereafter the case was committed by the Additional Chief Metro-politan Magistrate's 32nd Court, Esplanade, Bombay to the Sessions Court by order dated 9th December, 1987. Thereafter charge was framed against the accused under sections 23 and 28 read with section 8(c) of the NDPS Act as well as under Sections 135(1)(a) and 135(1)(ii) of the Customs Act, 1962. As the accused pleaded not guilty, trial took place and on behalf of the prosecution five witnesses were examined including the I.O. and the Intelligence Officers who were party to the raid, the Assistant Chemical Analyser and also the Deputy Director of N.C.B.

(3.) IN the present appeal, the main contention raised is that there is non-compliance with the mandatory provisions under section 50 of the NDPS Act in as much as the appellant was not asked whether the search should be conducted in the presence of a Gazetted Officer or a Special Executive Magistrate. In our view, the said contention is without any substance in view of the Full Bench decision of this Court which has taken the view after considering the judgment of the Supreme Court that provisions of Section 50 would be attracted only in case there is personal search of the accused and as a result of which the contraband is found on the person of the accused. In this case the contraband was found in the baggage of the accused which was not in the immediate possession of the accused. It was not found on the person of the accused or in the hand luggage of the accused but was actually brought from the luggage section. In the appeal the point is also taken that the accused did not admit that the baggage belonged to him. The accused, however, had given his statement under section 67 of the NDPS Act which is admissible in evidence in which he had made admission that he was carrying the contraband in his baggage. Further, there is report of the chemical analyser which shows that the sample received by him in the sealed packet contained more than 0.2% of morphine and that the morphine strength was 1 2/3.85% and hence covered by section 2(e) of Chapter I of the NDPS Act. Similarly, the sample was sent to C.R.C. Laboratory, New Delhi which had sent its report which is at Ex.27. According to the said report the percentage of morphine in the sample was "percentage diacetyl morphine in the same = 20.1 (twenty decimal one)". We have gone through the judgment of the trial Court and find no flaw in the prosecution case. The trial Court has rightly convicted the appellant under the aforesaid provisions.