During the night between 17.9.1993 and 18.9.1993 PW 1 attached to Narcotic Control Bureau in short NCB Office, received information that the accused, a Gambian national, was likely to smuggle heroin in his baggage by ET flight 661, scheduled to arrive at 0645 hours that night.
He was tried in the Court of Special Judge for Greater Bombay who found that there was number compliance with the requirement of Section 50 of the Act as he was number made aware of his right to be searched before a gazetted officer or a Magistrate before the search was companyducted.
PW 1 the intelligence officer, who was also an empowered officer disclosed his identity to the accused and his intention to search his baggages.
The prosecuting agency filed an appeal before the Bombay High Court which by the impugned judgment held the accused guilty for offences punishable under Section 8 c read with Section 21 of the Act for which custodial sentence of 10 years imprisonment and fine of Rs.1 lakh for default stipulation was awarded.
He was charged for offence punishable under Sections 21, 23, 28 and 29 of the Act and also Sections 135 1 a ii of the Customs Act.
ARIJIT PASAYAT, J The appellant, a Gambian national, was apprehended around mid night of 17.9.1993 at the Sahara Airport Bombay for carrying heroin in his baggage in ET Flight No.
Three samples were drawn in separate small polythene bags.
Ashok Thaker, PW 1 an intelligence officer attached to the Narcotic Bureau screened the baggage and seizure was made of the heroine weighing about 1 kg.
Separate charge under Section 8 c of the Act read with Section 21 of the Act was also framed against the accused.
Summons were served to the accused under Section 67 of the Act and his statement was recorded by PW.1 on 18.9.1993 in which the accused admitted the recovery of 990 grams of heroin from his suit case.
Sample packets were also signed by PW 1 as well as the accused.
16 A and placed it before his immediate superior Assistant Director, Mr. S.C. Rohatgi, who was present at the Airport.
In that room PW 1 took charge of the travel document of the accused companysisting of his passport, ticket etc.
The three baggages of the accused were therefore, kept separately near the companynter.
Small quantity of the brown powder was taken out for the purpose of testing which, when tested on testing kit, answered positive for heroin.
17 was prepared.
A numbere about the interception, search and seizure was prepared by the officer, Exh.
After recording the statement accused was taken for alleged companytravention of various provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 for short the Act and also under the Customs Act, 1962 in short the Customs Act .
Though he was companyvicted under Section 135 1 a ii of the Customs Act, but numberseparate sentence was awarded.
Both the polythene bags were emptied in one big polythene bag.
The seized articles were sent for chemical examination on 23.9.1993.
Two polythene bags companytaining brown powder were found in the folds of bed sheet.
The prosecution has also produced on record the relevant documents like companyy of the information reduced to writing, Seizure panchnama, Chemical Analysts Report etc.
Chief of the Laboratory and Chemical Analysts Report from the Laboratory dated 26.10.1993 was received as per Exh.21 , according to which the sample was of heroin diacetylmorphine .
He fully supported the prosecution case.
Further for offence relatable to Sections 28 read with Section 23 of the Act a similar sentence was awarded.
The same was filled with old and new garments and one bed sheet.
One companyy of the said panchnama was handed over to the accused which he acknowledged by putting his signature on the seizure panchnama.
On the monitor of the screening machine PW 1 numbericed green dense patches spot when a blue companyoured caravan make zipper suitcase was put.
Those bags were sealed by heating and were put in separate paper bags which were closed.
This officer along with the accused, panchas and 3 baggages of the accused went to the Air Traffic Room of Air India for the purpose of search of those baggages.
The same was marked as Exh.18 .
The other witness examined was panch PW 2 Ankush Yerunkar, who was panch to the search and seizure of the companytraband from the accused.
The seizure panchnama Exh.
It was also held that the requirement of Section 42 2 to submit the gist of information to higher officer immediately was also number established.
Accused opened blue companyoured suitcase with his keys.
The same was placed before his superior officer Mr. S.C. Rohatgi along with seizure panchnama and the muddemal property.
The remaining quantity of powder was separately sealed with the seal of N.C.B. and the signatures of the panchas and the accused were taken on the labels.
17 A .
In support of the appeal, learned companynsel appearing for the appellant submitted that the trial Court was justified in holding that the accusations were number established against the appellant.
PW 1 as well as the security officer suspected companycealment of companytraband in blue companyoured suitcase.
The accused was arrested on 19.9.1993.
Other two suitcases were returned to the accused.
Accused pleaded innocence.
The panchnama was singed by both the panchas as well as PW 1.
The travel documents and foreign currency worth 201 US and 700 Francs recovered in personal search of the accused were also seized under the panchnama.
The accused was acquitted of all the charges.
Thereafter, the accused along with the companytraband and samples was brought to the N.C.B. Office.
The total quantity of powder found in the said bags weighed 990 grams.
When the accused placed three baggages for screening, the security officer gave signal to PW 1.
He received the information when he was at the airport.
On 23.9.1993, sample packet marked as S 1 was handed over to the Dy.
He reduced the same to writing Exh.
The Special Judge framed charges against the accused under Section 8 c read with Sections 21, 23, 28 and 29 of the Act and under Section 135 1 a ii of the Customs Act.
Said judgment of the High Court is under challenge in this appeal.
The blue suitcase, the companytraband and the bed sheet were seized.
All these samples packets were sealed with office seal bearing No.03 NCB in the presence of panchas whose signatures were obtained after putting particulars and marked S 1, S 2 and S 3.
PW 1, as numbered above Ashok Thaker, who had received the information, companyducted the search and also investigated the case.
which was companycealed in a suitcase.
As the accused pleaded number guilty, prosecution led evidence of two witnesses.
His further statement was recorded on 19.9.1993 as per Exh.19 .
All the 3 baggages of the accused were placed on the screening machine.
At the Airport, he called two panchas and kept a watch at the X ray machine companynter.
One Mr. Karanjla, who was a security officer, was Screen Machine Operator at the relevant time.
After the investigation was companypleted companyplaint was filed.
Mr. Rohatgi perused it and put his signature and asked the officer to act upon the said information.
