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2014 DIGILAW 1599 (BOM)

Chidi Anthony Uzoukwu v. Union of India

2014-07-24

MRIDULA BHATKAR

body2014
JUDGMENT 1. This appeal is directed against the judgment and order dated 28.12.2010 passed by the Special judge, Greater Bombay in Special Case No.48 of 2006, thereby convicting the appellant/accused for the offence punishable under section 21(C) r/w 8(c) of the Narcotic Drugs and Psychotropic Substances Act, thereby sentencing him to suffer R.I. for 10 years and payment of fine of Rs.1 lakh, i/d, to undergo R.I. for six months. On 24.10.2005, the appellant was apprehended when he was carrying 13.800 kg of heroin in 46 pieces of shock absorbers at Bombay Central railway station, pursuant to an information received by the Directorate of Revenue Intelligence (DRI). The appellant on that day, travelled by Rajdhani express from Delhi to Mumbai Central. He collected the baggage from brake van. He collected his luggage of 4 black colour heavy bags from the break van and the officers of the DRI who were present, questioned him about the said baggage and in the presence of panchas, he was taken to DRI office. Thereafter upon completion of procedural formalities, when the bags were opened, they found number of capsules with heroin kept in the shock absorbers. Seizure panchanama was drawn in the presence of panchas. The officers from the DRI took samples and sent them to the Chemical Analyser. The CA gave a positive report about the heroin and thereafter the police after completion of the investigation, filed chargesheet. Charge was framed before the Special Judge. The accused pleaded not guilty. The prosecution examined in all 13 witnesses including the DRI officers, C.A. and the panch to establish its case. 2. The learned Counsel for the appellant has challenged the judgment of the trial Court on certain grounds. The main limb of challenge is that the seizure panchanama is not proved and the evidence of Panch, PW13, should not have been believed by the trial Court. He submitted that there are many infirmities and contradictions in the evidence of Panch PW13. Only one Panch i.e., PW13 is examined at exhibit 13 by the prosecution. Both the panchas are not examined. The Panch, who was examined, gave admission in the cross-examination that he did not understand English and the Roznama was explained to him by other pancha, who is not examined and, therefore, the panchanama is hearsay and it cannot be stated as a document of panchas. Both the panchas are not examined. The Panch, who was examined, gave admission in the cross-examination that he did not understand English and the Roznama was explained to him by other pancha, who is not examined and, therefore, the panchanama is hearsay and it cannot be stated as a document of panchas. Thus, the DRI officers did not comply with the provisions of section 100 (5) of the Criminal Procedure Code. 3. He further submitted that the panch PW13 has stated that on 24.10.2005, he was residing at Colaba and PW1 Mr.M. A. Juwale, the Investigating Officer, called him on phone at around 7 to 7.15am and he asked him to come to Mumbai Central railway station and accordingly, he went there near platform No.5. There he met PW13 Juwale. However, in the panchanama, i.e., exhibit 13, there is a contrary statement that the panch went to the DRI office at Colaba where the officer explained them the purpose and then, they went to the railway station. He also admitted that he could not read the panchanama when it was shown to him. The learned Counsel submitted that if the panchas evidence is not found reliable and the panchanama is not proved, then, the prosecution has miserably failed to establish the nexus between the possession of heroin and the appellant. In support of this submission, he relied on Ritesh Chakravarti vs. State of Madhya Pradesh, Appeal (Cri.) No.1016 of 2006. 4. He further argued that under section 42 of the NDPS Act, the information received is to be recorded by the Investigating Officer. However, no information was reduced into writing and there is a non compliance of section 42(2) of the Act. The evidence of DRI Officers, who have participated in the trap and evidence of panch PW13 is contradictory on the point of arrival of panch whether at the DRI office or at Mumbai Central railway station and, therefore, should have been disbelieved. The learned Counsel further submitted that it was necessary on the part of the prosecution to examine the second panch. In the absence of examination of the second panch, adverse inference is to be drawn against the prosecution. In support of his submissions, he relied on Habib Mohd. vs. The State of Hyderabad, AIR 1954 SC 51 especially paragraph 13 thereof. In the absence of examination of the second panch, adverse inference is to be drawn against the prosecution. In support of his submissions, he relied on Habib Mohd. vs. The State of Hyderabad, AIR 1954 SC 51 especially paragraph 13 thereof. The learned Counsel submitted that the collection of the luggage was a major link between the accused and the luggage. He submitted that the evidence of PW12 Pradeepkumar Shah, who produced a photocopy of the receipt of the parcel (exhibit 71 and 73), should not have been accepted by the trial Court. He further submitted that all the officers nearly 78 of Grade B, who are highly educated, however, could not collect the original luggage receipt and they could not have missed such crucial evidence. The ticket of Rajdhani train did not mention the name of the accused but it was in the name of one Siddhivinayak. He further submitted that the documents produced by the prosecution are false and concocted. He further submitted that the statement of any independent witness is not recorded. The coolie, who was present at the station or one Mr.Mourya, the T.C. could have been good witnesses. The brake van supervisor from whom the luggage was collected should also have been brought as witness. The badge number of the coolie is also not mentioned in the panchanama. He further argued that there is no proof to show that the information was received by the DRI on 23.10.2005. The evidence of all the DRI witnesses is not creditworthy in the absence of independent corroboration as they are interested witnesses. The trial Court has wrongly held that there was an emergency. However, the emergency was nowhere mentioned in this case. The contents in the information are not personal knowledge of PW1, but it was hearsay. He further submitted that section 50 was not complied with. As per the said section, it is mandatory for the seizing officer to offer the accused his search either before a Gazetted Officer or a Magistrate. The message should be loud and clear to the accused when he was given a choice. He further argued that the confession of the accused was recorded under section 67 of the Act. However, it was retracted by him as he has stated that the signatures were taken on blank papers. The message should be loud and clear to the accused when he was given a choice. He further argued that the confession of the accused was recorded under section 67 of the Act. However, it was retracted by him as he has stated that the signatures were taken on blank papers. PW3 Vinod Tolani, who recorded the statement did not follow proper procedure under the criminal manual. Therefore, no weightage should have been given to the said confession. 5. The learned Prosecutor made elaborate submissions meeting out all the points raised by the learned Defence Counsel. She gave the gist of the testimony of all the witnesses to demonstrate how the chain of circumstances is complete and the prosecution has established the case against the appellant. She submitted that out of 13 witnesses, most of the witnesses are bound to be from the Investigating agency as under the NDPS Act, a specific procedure is required to be followed. She submitted that there is a strict compliance of section 42(2) and also section 50 of the NDPS Act. With the help of the panch PW13, the prosecution established recovery of heroin from the appellant. She supported the judgment of conviction as there is no illegality but the evidence of all the witnesses is rightly evaluated. 6. I have gone through the entire evidence so also the impugned judgment passed by the trial Court. The prosecution has unfolded the evidence on procedure followed under the NDPS Act through all the DRI officers. The evidence of PW1 Juwale, who is the seizing officer is very important. He has stated in detail that he was informed that one Vinod Pisharodi, Intelligence Officer of the DRI, has received the information that one Nigerian national would be arriving by Rajdhani express at Mumbai Central and he would be carrying huge quantity of heroin sealed in Gabriel brand shock absorbers and he would be most likely to check in the breke van. 7. In the judgment of the Ritesh Chakravarti vs. State of Madhya Pradesh (supra), which is relied on by the learned Defence Counsel, the officer Sabina Khatoon, who had received the information was not examined. However, in the present case, Mr.Vinod Pisharody Vasudev was examined as PW2 and he has stated that on 23.10.2005, at around 9pm, when he was at his residence, he received the information. The information was reduced into writing. However, in the present case, Mr.Vinod Pisharody Vasudev was examined as PW2 and he has stated that on 23.10.2005, at around 9pm, when he was at his residence, he received the information. The information was reduced into writing. The said information was also placed before all the superior officers for approval. PW2 has identified the information dated 23.10.2005. He placed that information before the Deputy Director, Madhavan, on 24.10.2005 for approval and signed the same. The said note is marked exhibit 26 which was produced before the Court. 8. The PW1, the seizing officer, has given all the details that how the panchas were contacted. The panchas were present at the DRI office and thereafter they all went to Mumbai Central railway station and in the presence of the panchas, the accused was spotted. They followed him upto the breke van and the accused thereafter approached the luggage supervisor and claimed the 4 black coloured bags and with the help of coolies, he was taking the 4 bags out of the station. At that time, the Investigating team intercepted the accused. Then he was questioned. He disclosed his identity. When he informed that he was carrying automobile parts including Gabriel brand shock absorbers in the four big bags, then, he was informed that they wanted to check his luggage. However, since it was not conducive to carry out a detailed check at Mumbai Central railway station which is very crowded and they took him to the DRI office alongwith the panchas. Before carrying out his search, the witness has stated, that he was informed that he had right to be searched before the Magistrate or a Gazetted Officer. However, he declined to exercise the same and thereafter infront of the panchas, he was searched but nothing was found on his person. However, in the black colour bags, 46 Gabriel brand shock absorbers were found. The shock absorbers were welded. So they cut shock absorbers from one side and found packets of black coloured sticky tape in capsule form and when the packets were cut, they found brown and white colour powder and when it was tested, it gave a positive result of heroin. It was weighed at 13.800 kgs. They prepared 3 lots and out of 3 lots, they collected 3 samples of 5 gms each. The shock absorbers were also collected. Everything was sealed and seized. It was weighed at 13.800 kgs. They prepared 3 lots and out of 3 lots, they collected 3 samples of 5 gms each. The shock absorbers were also collected. Everything was sealed and seized. Panchanama was prepared and in the personal search of the accused, they recovered 900 USD and `13000/- Indian currency. The panchanama was concluded on the same at 11pm. The whole day the panchas were with them and panchanama (exhibit 13) was prepared. 9. PW13 panch Sayed Shahid Sayed Ahmed has corroborated in all material particulars, the evidence of PW1 and also of the panchanama (exhibit 13). The panch has stated in his evidence that he received phone call from PW1 Juwale between 7pm to 7.15am informing that he has to act as panch. It is true that the panch has made inconsistent statement that he was asked to reach Mumbai Central railway station directly. He did not mention that he went to DRI office in the morning. Barring this inconsistency in the evidence of panch and the Investigating Officer and panchanama, the evidence of PW13 is found consistent in all material particulars with the evidence of PW1. This cannot be treated as a major contradiction but it is insignificant and for that reason, the evidence of PW13 cannot be disbelieved. It is to be noted that the incident of seizure has taken place on 24.10.2005 and the evidence of this witness was recorded after 5 years i.e., on 14.10.2010. The evidence cannot be considered as a memory test of the witness. It is expected that he should be in a position to depose before the Court in such a manner that his testimony should inspire confidence in the mind of the Judge that the witness is speaking the truth. The learned Prosecutor has rightly pointed out that the appellant was travelling and was found with the ticket that he travelled by Rajdhani express. It showed that he had just arrived at Mumbai though his name is not seen on the ticket. He was in possession of the said ticket and he travelled in a fake name. Exhibit 61 is a luggage receipt. Learned Prosecutor pointed out a letter written by the DRI officer to the Chief Luggage Supervisor on 31.10.2005 which is marked at exhibit 61. Exhibit 70 is the register maintained in the course of business by the luggage department. He was in possession of the said ticket and he travelled in a fake name. Exhibit 61 is a luggage receipt. Learned Prosecutor pointed out a letter written by the DRI officer to the Chief Luggage Supervisor on 31.10.2005 which is marked at exhibit 61. Exhibit 70 is the register maintained in the course of business by the luggage department. It shows the name of the appellant as the last entry. PW12 Pradeep Shah is the Chief Goods Supervisor. He has identified his signature on the copy of the luggage ticket which is marked at exhibit 69 and has stated that a luggage was booked in four bags weighing 150 kgs. from Delhi to Mumbai Central station in the name of Chidi Antony Uzoukwu. He has stated that Rajesh Mourya, was posted as assistant clerk. On exhibit 70 also, he has identified his signature. He has stated that the original documents could not be produced as they all have been destroyed and photocopies were produced and he also produced a certificate of luggage officer stating that the original documents have been destroyed on 20.12.2008. 10. Thus, the prosecution could establish the nexus between the accused and the luggage and on the basis of the DRI officer and Panch PW13, it was established that heroin was found. The prosecution has also proved its case with the help of the other witnesses like PW4, who was Superintendent of Customs. The testimony of PW10, a Storekeeper, who made entry of keeping samples of heroin in the store at exhibit 57 and 57A supports prosecution. Then, PW7 was a carrier of the samples. PW6 is the C.A., who proved exhibit 44 and 45 that the samples when tested gave the result of 84% purity of heroin. Learned Prosecutor has submitted that under section 67, his confessional statement was recorded. However, the learned Judge has relied on the evidence of the actual seizure and the evidence of other witnesses and the documentary evidence to convict the accused. Exhibit 67 is just one additional factor in support of this foolproof case. The submissions of the learned Prosecutor that the presumption under section 54 and 35 of the NDPS Act runs in favour of the prosecution as the possession is proved, are correct. 11. Exhibit 67 is just one additional factor in support of this foolproof case. The submissions of the learned Prosecutor that the presumption under section 54 and 35 of the NDPS Act runs in favour of the prosecution as the possession is proved, are correct. 11. On the point of presumption and appreciation of the discrepancies, reliance is placed on Dalel Singh vs. State of Haryana, (2010) 1 SCC 149 ; Parshotam Lal & Ors. vs. State, 2001 CRI.L.J. 3378 wherein it is held that It can be concluded that if the recovery of the contraband is once proved, then the onus is on the accused to show that he did not have knowledge when he was carrying the contraband. 12. Thus, in the circumstances, the appeal fails and is hereby dismissed.