INTELLIGENCE OFFICER Vs. IBURAHIMA OLAREWAJU

JUDGEMENT

(1.) THIS appeal has been filed by the original complainant against the judgment and order dated 29th March, 1993 whereby the respondent/original accused Nos. 1 and 2 were acquitted of the offences under section 120-B of IPC and under the provisions of the NDPS Act, 1985 as well as the Customs Act with which they were charged in Sessions Case No.257 of 1989 by the learned Special Judge, NDPS Court, Greater Bombay. The present appeal was initially filed against both the accused who were acquitted by the impugned judgment and order of the Special Judge. However, the appeal as against respondent No.2 i.e., original accused No.2 came to be dismissed as per the order of this Court dated 1st July, 1997 for non-prosecution. Hence, this appeal is being prosecuted only as against respondent No.1 (original accused No.1).

(2.) BRIEFLY , the facts leading to the prosecution of the respondent-accused are as follows : On the basis of specific information received by the Deputy Director of Narcotic Control Bureau on 21st September 1988 that a Nigerian National i.e. accused No.1 was scheduled to fly to Lagos from the Sahar International Airport, Bombay by Ethiopian Airlines on 22nd September, 1988 at 8:15 a.m., carrying contraband and that he had booked one piece of unaccompanied baggage with M/s. Eastern Cargo Carriers, Andheri (East) in which heroin was concealed and was being exported to Addis Ababa, PW-1 Intelligence Officer M.K.Patel was, directed to attend the Sahar Airport and to intercept accused No.1. The raiding Party consisted also of Deputy Director Mr.Kakkar and two employees. PW-1 M.K.Patel identified accused No.1 at the airport and intercepted him. The accused was carrying three passports, two in his own name and one in the name of his co-passenger. On inquiry the accused told the officer that he had one piece of checked-in baggage but it belonged to another co-passenger. The baggage which the accused was carrying with him did not contain any contraband. The accused was thereafter asked whether he had booked any unaccompanied baggage with any cargo agency. Though initially he had denied, lateron he admitted that he had booked one baggage with M/s. Eastern Cargo Carriers. The accused No.1 was, therefore, taken to the godown of M/s. Eastern Cargo Carriers and on checking the documents, the baggage checked-in by the accused was identified and was opened. The said baggage had false bottom of plywood which contained the powder and on being tested it was found to be brown powder which weighed 400 grams. Samples were taken. The accused was taken to the office of the N.C.B. along with the co-passenger and their belongings were seized under panchanama Ex.42. Summons were served under section 108 of the Customs Act read with Section 67 of the NDPS Act and statements of both the accused were recorded wherein this accused (No.1) admitted that accused No.2 had given him an offer to carry the heroin from Bombay to Lagos for the consideration of 50% of the heroin free of cost and his travelling expenses. The accused No.2 was apprehended on 22nd September, 1988 at about 4:00 p.m. and in his personal search cash amount of Rs.13,500/- was found, which also was seized under panchanama. The accused came to be arrested on 23rd September, 1988. Samples were sent to different laboratories, one was sent to Chief Chemist of the customs Department, the second sample was sent to the C.A. of Forensic Science Laboratory, Bombay and the third was sent to C.A. at Delhi. All the samples tested for heroin. After completion of the investigation and obtaining sanction of the Collector of Customs on 14th December, 1988, complaint came to be filed in the Court of the learned Addl. Chief Metropolitan Magistrate who, by his order dated 27th February, 1989 committed the case to the court of Sessions for trial. Charges were framed before the Special Judge under section 120-B of IPC read with section 8(c) and sections 21 and 29 of the NDPS Act for having purchased, acquired and possessed 400 grams of heroin of the value of Rs.80,000/-. The accused were also charged under section 29 of the NDPS Act. Similar charges were framed under sections 135 and 135(1)(i) of the Customs Act read with Section 120-B of IPC and section 29 of the NDPS Act.

(3.) ON behalf of the prosecution the Investigating Officer M.K.Patel was examining as PW-1. Another I.O.A.S. Memon was examined as PW-4. The prosecution also examined PW-6 R.K. Kakkar, Deputy Director who had received information and recorded statements of the accused. Philips, an officer from M/s. Eastern Cargo Carriers was examined as PW-3, PWs-2 and