BONITACE CHUKWUDIZLE AKUAG BAOGU Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THROUGH this appeal the Appellant challenges the judgment and order dated 17-2-1995 passed by the Special Judge, Greater Bombay in NDPS, Special Case No. 771/90 whereby he has been convicted and sentenced in the manner stated hereinafter : (i)Under section 8 (c) r. w. 21 of the N. D. P. S. Act to suffer R. I. for 10 years and to pay a fine of Rs. 1,00,000/- in default to undergo R. I. for 2 years ; (ii)Under section 28 r. w. 23 and 8 (c) of the N. D. P. S. Act to suffer R. I. for 10 years and to pay a fine of Rs. 1,00,000/- in default to suffer R. I. for 2 years ; and (iii)Under section 135 (1) (a) r. w. 135 (i) (ii) of the Customs Act 1962 to suffer R. I. for 3 years and to pay a fine of Rs. 5,000/- in default to undergo R. I. for 3 months ; The substantive sentences of the Appellant, on all the counts, were directed to run concurrently.

(2.) THE prosecution case in short runs as follows : On the night of 4/5th April 1999 Mr. Talya Subbarao Jayram, P. W. 2 Superintendent of Customs in the Air Intelligence Unit, Sahar Airport, Bombay was posted on duty at Sahar Airport. At about4 a. m. on 5-4-1990 the Appellant came to catch Ethiopian Airlines Flight which was to depart to Addis Ababa. At about5. 40 a. m. A. S. I. Mahadeshwar, the dog handler, informed him that they had detained 8 packages on suspicion and their owner was one Nigerian National. Consequently he proceeded to Departure baggage examination hall on the first floor of the Sahar Airport, Bombay to examine the baggage. He found the Appellant and the 8 packages there. Talya Jayram called two panchas. Before their arrival he questioned the Appellant about the said 8 packages. THE Appellant claimed that they belonged to him. THEreafter he asked A. S. I. Mahadeshwar to bring the dog. THE dog sniffed the packages and gave positive indication for the presence of narcotic drugs. THEreafter the said packages were weighed in the presence of the Appellant, the panchas and the Investigating Officer, K. P. Bhatia. THEy were found to weigh 190 kgs. On being searched they were found to contain brown sugar. When a sample was tested with the Narcotic Test Kit it gave positive result for presence of heroin. In all 5.7 Kgs. of heroin was recovered from the said packages. THEreafter Talya Jayram questioned the Appellant and he gave a statement which he signed on all the pages and was also countersigned by him. THEreafter he arrested the Appellant.

(3.) FROM a perusal of the impugned judgment it appears that the learned trial judge has based the conviction of the Appellant on the testimony of Kishor Parsram Bhatia P. W. 1, Talya Subbarao Jayram, P. W. 2, Kaustubh Jaywant Pethe P. W. 3 (public panch) and Sebastian Jerome Alvares P. W. 5. Having gone through the evidence of the said witnesses we agree with the learned trial judge that the evidence of P. Ws. 2, 3 and 5 inspires confidence. As rightly observed by the learned trial judge there are only discrepencies of a minor nature in their evidence. We also find no fault in the learned trial judge's finding that despite the informant Kishor Parsram Bhatia P. W. 1 not supporting the prosecution during examination in chief he is not a wholly useless witness. This is for the reason that during cross examination by the public prosecutor he has admitted that the recitals in the panchanama were correct and they were written by him and also admitted that his earlier statement is false. The law also supports the view of the learned trial judge. It is well settled that the testimony of a hostile witness is not altogether useless. To the extent to which it receives assurance from other evidence it can be relied upon.