Olatunji Ahmed Ayinde v. State of Maharashtra

Judgment

1. This appeal is directed against the appellant's conviction by the learned Special Judge for trial of cases under the Narcotic Drugs and Psychotropic Substances Act, 1985 APEAL-JR-576.2008 (for short, “the NDPS Act”) at Mumbai for offence punishable under Section 21(c) r/w Section 8(c) of the NDPS Act and sentence of rigorous imprisonment for ten years with fine `1,00,000/- or in default simple imprisonment for six months imposed upon him on conclusion of trial of NDPS Special Case No.17 of 2004.

2. Facts which are material for deciding this appeal are as under:- On 12-8-2003 the Directorate of Revenue Intelligence (for short, “DRI”) received intelligence that a Nigerian national would be travelling on seat No.16 in AS-7 Coach of August Kranti Rajdhani Express from Mumbai Central Station and would be carrying 27 kgs. of heroin in his suitcase. Panchas were called and the DRI officers prepared for a raid. The raiding party reached platform No.3 of Mumbai Central Station and noticed an African national APEAL-JR-576.2008 carrying a black suitcase and a blue & grey handbag. The person occupied seat No.16 in Coach AS-7. The officers approached the appellant who identified himself and was given option to be searched before a Gazetted Officer or a Magistrate. Since the accused declined, he was asked to open the suitcase which contained several shirts in polythene covers. One shirt was taken out and it was found to have within its fold a polythene bag covered with aluminium foil. It was opened and found to contain brown powder, which tested positive for heroin on field testing kit. The appellant tried to escape but was apprehended and then the appellant was escorted with his baggage to the office of the DRI at Colaba in the presence of panchas.

3. At the office of the DRI he was again told of his right to be searched in the presence of a Gazetted Officer or a Magistrate APEAL-JR-576.2008 which he declined. His suitcase was found to contain 17 packets containing brown powder and the hand bag was found to contain ten more packets. Each bag was found to weigh one kg.. Packets were segregated in three lots, emptied in three lots and three samples of five grams each were taken from each of the three lots in plastic pouches which were heat-sealed and put in envelopes which were sealed with the DRI seal. Remaining bulk in three bags weighing in all 26.955 grams was put in a steel trunk, which was locked and sealed with the DRI seal. An elaborate panchnama was drawn up. Statement of the appellant was recorded. Seized goods were deposited in the Customs Warehouse. One set of samples was sent to the Deputy Chief Chemist's Laboratory, which certified that the samples tested positive for diacetylmorphine. On completion of investigation, complaint for offences of conspiracy to possess the contraband, as well as possession of the contraband was filed before the learned Special APEAL-JR-576.2008 Judge.

4. The learned Special Judge charged the appellant of offences punishable under Section 29 r/w Sections 8(c) and 21 as also Section 21 r/w Section 8(c) of the NDPS Act. As he pleaded not guilty, he was put on trial at which the prosecution examined in all ten witnesses to prove the charges. After considering the prosecution evidence in the light of defence of denial, the learned trial Judge acquitted the appellant of charge of conspiracy punishable under Section 29 r/w Section 8(c) of the NDPS Act, but convicted and sentenced him for offence of possession of contraband, as stated earlier. Aggrieved thereby, the appellant is before this Court.

5. I have heard the learned counsel for the appellant and the learned Special Public Prosecutor (for short, “Special PP”) for the DRI. With the help of both, I have gone through APEAL-JR-576.2008 the record.

6. PW-1 Vinod Pisharody was working as an Intelligence Officer at the relevant time. He

claims that on 12-8-2003, Mr. Madhavan, Senior Intelligence Officer, told him about the intelligence gathered by Mr. Prasun Singh and asked him to work out the information. He claims to have called two panchas. The information was about a Nigerian national who was to travel by August Kranti Rajdhani Express on seat No.16 in Coach No.AS-7 from Mumbai Central Station with 27 kgs. of heroin. He states that he and other officers reached Mumbai Central Station at about 16:20 hours and found a dark complexioned man carrying a blue suitcase and a blue and grey handbag and waiting for the train to arrive. On arrival of the train, the said man boarded Coach No.AS-7 APEAL-JR-576.2008 and occupied seat No.16. He states that he and the other members of the raiding party approached the passenger and asked him his name. He was told that his baggage was required to be searched and therefore he had the option of it being searched before a Gazetted Officer or a Magistrate. The appellant refused to exercise the option. The black coloured suitcase was kept below the seat and the handbag was next to the appellant. The appellant then took out the suitcase from under the seat and opened it. It was found to contain shirts packed in polythene bags. When one of the shirts was removed from the polythene bag, it was found that there was a packet wrapped in aluminium foil in the fold of the shirt. The pouch was containing brown coloured powder which was tested and was found to be heroin. The appellant hesitantly admitted that he had 27 kgs. of heroin in the suitcase and handbag. As the appellant tried to give a slip, he was APEAL-JR-576.2008 held by the officers and GRPF staff was also called. He was then made to alight from the train with his baggage and since the railway platform was not a conducive place for carrying out a search, the appellant was brought to the office of the DRI at Colaba. The witness then states about the details of search, seizure of contraband as well as other articles from the appellant, drawing up and sealing of samples, sealing the contraband, keeping it in metal trunk, etc..

7. The witness stated that the panchnama was typed by him and a copy was given to the appellant. He proved the panchnama at Exhibit-

12. He stated he prepared a seizure note and submitted it to Shri Shetty. He states that all the articles including the samples were delivered by him to Mr. Mubin Juvale, the investigating officer. According to PW-1, on 10-3-2005 he applied to the Special APEAL-JR-576.2008 Metropolitan Magistrate for drawing samples from the bulk. The trunk was brought. The packets containing bulk contraband were opened and two samples were taken in plastic bags, heat-sealed and put in envelopes from each of the three bags. The bulk was again sealed in the presence of the Special Metropolitan Magistrate. On 11-3-2005 the contraband was destroyed in the presence of a committee of four officers. He identified the property before the Court. In cross-examination he stated that the sample packets were heat-sealed but also admitted on seeing Article-11/1 that the pouch was self-locking and did not appear to be heat-sealed.

8. PW-2 Prasun Singh was another Intelligence Officer who stated that he had received a telephone call informing him that a Nigerian national would be travelling with 27 kgs. of heroin by August Kranti Rajdhani APEAL-JR-576.2008 Express on 12-8-2003 on seat No.16 in Coach No.AS-7 from Mumbai Central Station. He stated that he typed the information, signed it and placed it before his senior, Shri Madhavan. Shri Madhavan made an endorsement on the information and then both of them carried it to the Deputy Director, Shri Samir Bajaj, who also put his signature on it. The witness proved the intelligence note at Exhibit-21. He then states about the raid being organised and his evidence substantially corroborates that of PW-1 Vinod. He states that after the panchnama was drawn up, he recorded statement of the appellant vide Exhibit-23. In cross-examination he stated that he had himself put seals on the samples and the bulk contraband.

9. PW-3 Parmeshwaran Shankaran is another Intelligence Officer who claims to have received the tin box containing the bulk of contraband and three sealed samples for being APEAL-JR-576.2008 deposited in the Customs Warehouse and on 13-8- 2003 personally handed over the three samples vide Exhibit-27 to the Deputy Chief Chemist's Laboratory.

10. PW-4 Mubin Juvale is another Intelligence Officer who states that at about 12:30 p.m. on 12-8-2003 he was asked to accompany Mr. Shetty to the Domestic Airport at Santacruz by way of abundant caution, though the appellant was to travel by train itself. He states that at 6:00 p.m. he learnt of the seizure telephonically and thereafter he received the seized articles and documents from PW-1 Vinod and carried out further investigation in the matter. Thus, the witness had not actually seen the seizure of the contraband from the appellant. He proved the other documents pertaining to travel of the appellant, his medical examination, etc.. APEAL-JR-576.2008

11. PW-5 Shri Madansingh Rawat was working as an Assistant Chemical Analyser in the Laboratory of the Deputy Chief Chemist which received the samples on 13-8-2003 and analysed them on 2-9-2003 and found them to contain diacetylmorphine. He proved copies from his register at Exhibit-51 and his report at Exhibit-38. In the cross-examination he stated that the quantity of the sample was slightly less than that mentioned in the requisitions.

12. PW-6 Subhendranath Das was a custodian of the Customs Warehouse at Sewree, who brought the original register of the Warehouse and proved copies therefrom about receipt of the articles seized. PW-7 Maharam Singh was also a custodian of the Customs Warehouse who stated that a trunk was deposited in sealed condition on 13-8-2003 and it contained 26.955 kgs. heroin. APEAL-JR-576.2008

13. PW-8 Santosh Lad is the panch who was present at the time of the raid. He states that he was called on 12-8-2003 at the office of the DRI and was informed of the purposes of the trap. His evidence substantially corroborates that of the officers who participated in the raid. He identified the appellant as well as the property. His cross-examination shows that he was serving in a clearing house located at Mohammed Ali Road.

14. PW-9 Shri Madhavan was working as a Senior Intelligence Officer under whose guidance the raid was organised and seizure was effected.

15. PW-10 Jaswanti Arvind Shah was working as a Chief Reservation Supervisor in the Western Railways at Churchgate and stated that on 12-8-2003 a ticket was booked for a foreign national in Coach No.AS-7 for seat No.16 and APEAL-JR-576.2008 that the name of the foreigner was Olatunji Ahmed A. She was obviously not the person who had actually issued the ticket.

16. The learned counsel for the appellant submitted that this evidence was inadequate to establish the appellant's guilt. He submitted first that the search itself was vitiated as mandatory provisions of Section 50 of the NDPS Act were not followed while searching the baggage of the appellant. He submitted that the search was therefore vitiated. In support of his contention the learned counsel relied on the Judgment in Dharmaveer Lekhram Sharma & another v. The State of Maharashtra & others, reported in 2001 (5) Bom.C.R. 9, where this Court had held as under:- It was urged on behalf of “13. the prosecution that the provision of section 50 of the said Act would not be applicable to this case as there was search of baggage which resulted in finding of contraband, APEAL-JR-576.2008 and it was not personal search of the concerned person. In support of this argument, the prosecution sought to rely upon the Supreme Court ruling in the case of (Kalema Tumba v. State of Maharashtra & another), reported in 2000 (5) Bom.C.R. (SC) 545 : 1999 (8) S.C.C. 257. However, the perusal of the facts of the said case shows that it would not be applicable to the present set of facts because the search of baggage of the accused involved in that case was of foreign national at the airport not in immediate physical custody of the contraband. As against this, the evidence on record has sufficiently shown that the gunny bags were allegedly held by Accused Nos.1 and 2 and were kept near them when they arrived on the spot. Therefore, the submission of the prosecution that the provision of section 50 of the said Act would not be attracted in this case, is devoid of any merits.”

17. In Vijaysinh Chandubha Jadeja v. State of Gujarat, reported in (2011) 1 SCC (Cri.) 497 = (2011) 1 SCC 609, on which too the learned counsel placed reliance, the Supreme Court had held as under:- APEAL-JR-576.2008 The short question arising “1. for consideration in this batch of appeals is whether Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “the NDPS Act”) casts a duty on the empowered officer to “inform” the suspect of his right to be searched in the presence of a Gazetted Officer or a Magistrate, if he so desires or whether a mere enquiry by the said officer as to whether the suspect would like to be searched in the presence of a Magistrate or a Gazetted Officer can be said to be due compliance with the mandate of the said Section?” In the above background, we “23. shall now advert to the controversy at hand. For this purpose, it would be necessary to recapitulate the conclusions, arrived at by the Constitution Bench in Baldev Singh's case (supra). We are concerned with the following conclusions: (SCC pp.208-10, para 57) “(1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under sub-section (1) of Section 50 of being taken to the nearest gazetted officer or the nearest Magistrate for making the search. However, such APEAL-JR-576.2008 information may not necessarily be in writing. (2) That failure to inform the person concerned about the existence of his right to be searched before a gazetted officer or a Magistrate would cause prejudice to an accused. (3) That a search made by an empowered officer, on prior information, without informing the person of his right that if he so requires, he shall be taken before a gazetted officer or a Magistrate for search and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act. (4) * * * * (5) That whether or not the safeguards provided in Section 50 have been duly observed would APEAL-JR-576.2008 have to be determined by the court on the basis of the evidence led at the trial. Finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of Section 50 and, particularly, the safeguards provided therein were duly complied with, it would not be permissible to cut short a criminal trial. (6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but hold that failure to inform the person concerned of his right as emanating from sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law. (7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of APEAL-JR-576.2008 proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, proceedings, against an accused, notwithstanding the recovery of that material during an illegal search.” (emphasis in original)” In view of the foregoing “29. discussion, we are of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded APEAL-JR-576.2008 only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision.” “31. .... Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf.”

18. The learned Special PP on the other hand submitted that since the contraband was in fact found in the baggage of the appellant and not on his person, provisions of Section 50 of the NDPS Act were not attracted and in support of the proposition relied on Judgment of the Supreme Court in State of H.P. v. Pawan Kumar, reported in (2005) 4 SCC 350, where the Court held as under:- APEAL-JR-576.2008 “1. In view of difference of opinion between two learned Judges who heard the appeal, the matter has been placed before this larger bench and the question for consideration is whether the safeguards provided by Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the NDPS Act' or 'the Act') regarding search of any "person" would also apply to any bag, briefcase or any such article or container etc., which is being carried by him.” “14. The above quoted dictum of the Constitution Bench shows that the provisions of Section 50 will come into play only in the case of personal search of the accused and not of some baggage like a bag, article or container, etc. which he may be carrying.” “18. There is another aspect of the matter, which requires consideration. Criminal law should be absolutely certain and clear and there should be no ambiguity or confusion in its application. The same principle should apply in the case of search or seizure, which come in the domain of detection of crime. The position of such bags or articles is not static and the person carrying them often changes the manner in which they are carried. People waiting at a bus stand or railway platform sometimes keep their baggage APEAL-JR-576.2008 on the ground and sometimes keep in their hand, shoulder or back. The change of position from ground to hand or shoulder will take a fraction of a second but on the argument advanced by learned counsel for the accused that search of bag so carried would be search of a person, it will make a sharp difference in the applicability of Section 50 of the Act. After receiving information, an officer empowered under Section 42 of the Act, may proceed to search this kind of baggage of a person which may have been placed on the ground, but if at that very moment when he may be about to open it, the person lifts the bag or keeps it on his shoulder or some other place on his body, Section 50 may get attracted. The same baggage often keeps changing hands if more than one person are moving together in a group. Such transfer of baggage at the nick of time when it is about to be searched would again create practical problem. Who in such a case would be informed of the right that he is entitled in law to be searched before a Magistrate or a Gazetted Officer? This may lead to many practical difficulties. A statute should be so interpreted as to avoid unworkable or impracticable results. In Statutory Interpretation by Francis Bennion (3rd Edn.) para 313, the principle has been stated in the following manner: "The court seeks to avoid a construction of an enactment that produces an unworkable or APEAL-JR-576.2008 impracticable result, since this is unlikely to have been intended Parliament. Sometimes however, there are overriding reasons for applying such a construction, for example where it appears that Parliament really intended it or the literal meaning is too strong."” “20. .... It is, therefore, absolutely imperative that those who indulge in this kind of nefarious activities should not go scot-free on technical pleas which come handy to their advantage in a fraction of second by slight movement of the baggage, being placed to any part of their body, which baggage may contain the incriminating article.” “26. .... Having regard to the scheme and the language used, a very strict view of Section 50 of the Act was taken and it was held that failure to inform the person concerned of his right as emanating from sub-Section (1) of Section 50 may render the recovery of the contraband suspect and sentence of an accused bad and unsustainable in law. As a corollary, there is no warrant or justification for giving an extended meaning to the word "person" occurring in the same provision so as to include even APEAL-JR-576.2008 some bag, article or container or some other baggage being carried by him.”

19. In view of the Judgment in Pawan Kumar (supra), which is categorical, there is no question of search being vitiated on account of any deviation from the provisions of Section 50 of the NDPS Act. In any case, the evidence does not show that the appellant was not made aware of his right to be searched before a Gazetted Officer or a Magistrate. So long as the law does not require use of any specific words to make the person aware of such a right, unless the expression used can be shown to be non- communicative, search cannot be assailed on such a ground.

20. Reliance by the learned counsel for the appellant on Judgments in Deepak Sharma v. State of Goa, reported in 2007 All M.R. (Cri.) 1072, or Murata Chiharu v. State of Goa, APEAL-JR-576.2008 reported in 1998 All M.R. (Cri.) 889 is unhelpful since those cases have been decided on facts as unfolded in those cases. Order dated 22-2-2011, passed in Criminal Application No.143 of 2011 (Suresh Somraju Ali v. The State of Maharashtra), is unhelpful since it decides a bail application. In any case, there is nothing to show that there was any violation of provisions of Section 42 of the NDPS Act, as the evidence discussed above shows that information received was duly recorded and communicated to superiors.

21. The learned counsel for the appellant next submitted that there was nothing to connect the baggage from which the contraband was seized to the appellant. He submitted that the baggage was merely near the appellant under his seat. There was nothing in the bags to connect the bags to the appellant. As rightly pointed out by the learned Special PP, the APEAL-JR-576.2008 raiding officers specifically state having seen the appellant boarding the train with those specific pieces of baggage. There is no reason to disbelieve the words of those witnesses.

22. The learned counsel for the appellant submitted that GRPF personnel who are stated to have caught the appellant while attempting to flee have not been examined. As rightly submitted by the learned Special PP, the evidence of PW-1 Vinod clearly shows that the officers had themselves apprehended the appellant – rather prevented him from giving the slip. It is not that any GRPF personnel actually caught the appellant. Therefore, their non-examination is irrelevant. The learned counsel for the appellant also submitted that there was no need to take the appellant with baggage to the office of the DRI and seizure could have been completed at the railway station itself, where sufficient secured place APEAL-JR-576.2008 like Government Railway Police Station could have been available. Now there is nothing wrong in raiding party taking the appellant to the office of the DRI in the backdrop of the appellant's attempt to flee.

23. The learned counsel for the appellant also submitted that evidence of PW-5 Shri Rawat, Assistant Chemical Analyser, would show that quantity actually found by him was slightly less than that shown in the forwarding note and that this would cast a doubt about the sample being tampered with. This small deviation may be on account of chemical balance being used in the laboratory as against standard scales being used by the officer drawing samples.

24. To sum up, the evidence properly appreciated by the learned trial Judge unmistakably points to the appellant being APEAL-JR-576.2008 found in possession of 27 kgs. of heroin. The sentence imposed is the minimum prescribed for the offence punishable under Section 21(c) of the NDPS Act and therefore does not call for any interference. Consequently the appeal is dismissed. s.suresh Sd/- (R.C. CHAVAN, J.)