KALEMA TUMBA Vs. NARCOTIC CONTROL BUREAU

JUDGEMENT

(1.) THIS is an appeal filed by the convicted accused in N. D. P. S. Spl. Case No. 84/91 on the file of Court of N. D. P. S. for Greater Bombay dated 24th June, 1994 whereby the appellant was convicted and sentenced in the following manner :

(2.) ACCORDING to the prosecution, on 21-11-1990, Mr. Anil Menon attached to N. C. B. as Intelligence Officer alongwith Assistant Director Mr. Rohatgi and I. O. Mr. Dange, received Head Intelligence report containing one ZAIRE National named Kalema Tumba travelling by Ethiopian Airlines No. ET-641 which was expected at 6. 30 a. m. on 22-11-1990 and was likely to carry sizeable quantity of heroin in his person or his checked in baggage. P. W. 1 reduced his intelligence into writing and it was discussed with others, particularly, with Dy. Director Mr. R. N. Kakar. On receipt of the intelligence information, officer P. W. 1 and other officers discussed and decided to intercept Kalima Tumba and search his person and his baggage at departure lounge at Sahar Airport, Module II. On 22-11-1990 at about 4-30 a. m. , P. W. 1 Assistant Director Mr. Rohatgi, Intelligence Officer Mr. Dange alongwith other staff reached Sahar Airport. Mr. Dange collected the manifest of the flight from Ethiopian Airlines and found out that the Mr. Kalema Tumba was manifested at Sr. No. 98 of the manifest. Immediately officers positioned themselves at the customs checking counter. At 5. 30 a. m. , Mr. Dange called two panchas, explained the intelligence which is gathered at the purpose. Within a short period, the person, Kalema Tumba came to the counter. On being questioned he disclosed his name as Kalema Tumba. Mr. Dange demanded his travelling documents. He produced his documents and verifying passenger to P. W. 1 and P. W. 2 other officers there confirmed that the same person as in the information intelligence report. The custom officers including P. W. 1 accompanied accused to the baggage of the passenger of the flight which was kept for identification. The appellant-accused identified his baggage as a black colour rexine bag having brown strips on it. It had mark, Giviliano and Dorre which was explained by the accused as Giviliano and Dorre. The bag had also one lock on it and mark on the lock was NA-Titoni with figure III-Baggage tag No. ET 1130062 was also fixed on the bag which tallied with the number of claim tag affixed on the Air ticket of the appellant-accused. When the Custom Officer asked him to open the bag, he opened the bag with his key which he had in his person. After opening the bag the officer found to contain personal things and also four bedsheets. On examination of these bedsheets, they found that one polythene bag each was concealed in between fold of two bedsheets. When polythene bag was removed from the bedsheets and opened, they found it contained brownish powder. Small quantity of powder at random was taken from both the packets and when tested with the field testing kit which they carried, it was prima facie found to contain heroin. This polythene bag was weighed separately. The weight was one Kg. From each bag, the Custom Officer removed 7. 5 grams of powder and mixed in a tin container. They took out three samples of 5 grams each from the packets. They put in separate Polythene packets and sealed and further put separate envelopes and sealed with N. C. B. The Customs Officer obtained signature of panchas on all the three sample envelopes and obtained the signature of the accused. Balance quantity of brown powder removed in the Polythene bag and sealed and put in cardboard carton and was packed and sealed with N. C. B. and pasted labels with signature of panchas. Thereafter black colour bag with two bedsheets and lock and key from which contraband was recovered were together put in other cardboard carton by removing baggage and sealed with N. C. B. After obtaining signature of panchas, the said Carton baggage which was affixed was removed and pasted on the blank paper. The panchas obtained signature on the baggage Tag and signature was obtained on the air ticket boarding pass. Thereafter personal search of the accused was taken by P. W. 1. After concluding the panchanama of the seized properly alongwith the accused they came to office at Ballard Pier. Thereafter P. W. 1 prepared a Summons in the name of the accused, signed by Assistant Director purportedly under section 108 of the Customs Act and served on the accused and obtained his signature. After service of summons, statement of accused was recorded by Assistant Director Mr. Rohitji which was transcribed by P. W. 1 as the accused requested P. W. 1 to transcribe the same as his handwriting was not good. Seized property alongwith documents were kept in safe custody of Mr. Dhange. In the evening of 22-11-1990 the accused was arrested by P. W. 1 at 9. 00 p. m. The grounds of his arrest were intimated to him and he was lodged in the custody of Azad Maidan Police Station. Thereafter, P. W. 1 made seizure report to the Assistant Director of N. C. B. for perusal. On 1-2-1991 a sanction letter was obtained and on 6-2-1991 P. W. 1 filed a complaint in the Sessions Court. The samples taken were forwarded to Chemical Analyser. On the receipt of C. As report, it was confirmed that the contraband contained heroin. After trial, the impugned judgment and order was passed by the trial Court which awarded sentences as mentioned in earlier part of the judgment.

(3.) MR. Tiwari, the learned Counsel appeared for appellant and Mr. R. M. Agrawal for respondent No. 1 and Mr. S. R. Borulkar, A. P. P. for State.