Back
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Prakash D.Naik, J.
Mgeni Abdullah Aboud - Appellant
Versus
State Of Maharashtra - Respondent
Criminal Appeal No. 1012 of 2017 With Criminal Application No. 864 of 2019
Decided On : 05-05-2021
NDPS ACT - SECTION 8(C) READ WITH SECTION 22(C) - SECTION 9(A) READ WITH SECTION 25(A) - SECTION 23 READ WITH SECTION 29 - SECTION 42 - SECTION 43 - SECTION 50 - SECTION 54 - SECTION 66 - SECTION 67 - SECTION 293 - SECTION 35 - APPEAL AGAINST CONVICTION - EVIDENCE ACT, SECTION 25 - CUSTOMS ACT, SECTION 108 - SEARCH AND SEIZURE - COMPLIANCE WITH SECTION 42 - COMPLIANCE WITH SECTION 50 - PRESUMPTION OF CULPABLE MENTAL STATE - PRESUMPTION FROM POSSESSION OF ILLICIT ARTICLES - PRESUMPTION AS TO DOCUMENTS - STATEMENT RECORDED UNDER SECTION 67 OF NDPS ACT - ADMISSIBILITY OF CA REPORT - PANCH WITNESSES - HOSTILE WITNESSES - INDEPENDENT EVIDENCE - CONFESSION - PUBLIC PLACE - GAZETTED OFFICER - PERSONAL SEARCH - RECOVERY FROM VEHICLE - ACQUITTAL OF CO-ACCUSED.
Fact of the Case:
The appellant was found in possession of 12.9 kilograms of white crystalline powder proved to be Ephedrine, a controlled substance and Phenmetrazine, a psychotropic substance at CSI Airport Mumbai. The prosecution examined eight witnesses. The accused/appellant denied the charge and claimed that he has been falsely implicated in this case.
Finding of the Court:
The prosecution has proved that the appellant was found in possession of contraband worth Rs.6,40,00,000/-. Procedural safeguards were complied. The offence was proved beyond all reasonable doubt. Section 42 of the Act is not applicable in this case. Although Section 50 is not attracted, there is compliance of the said provisions. The discrepancies, if any, are minor in nature. Evidence of panch witnesses cannot be discarded in entirety. By not declaring them as hostile witnesses, no adverse inference can be drawn against the prosecution. The CA report was admitted by accused. It is admissible in accordance with Section 293 of Cr.P.C. Section 54 of the NDPS Act can be invoked in the present case. It relates to the presumption from possession of illicit articles. Section 66 of the Act is relevant in this case. It relates to presumption as to the documents. Section 35 of the Act refers to presumption of culpable mental state.
Issues: Whether the prosecution has proved that the appellant was found in possession of contraband worth Rs.6,40,00,000/-. Whether the procedural safeguards were complied with. Whether the offence was proved beyond all reasonable doubt. Whether Section 42 of the NDPS Act is applicable in this case. Whether there is compliance of Section 50 of the NDPS Act. Whether the discrepancies in the evidence are minor in nature. Whether the evidence of panch witnesses can be discarded in entirety. Whether the CA report was admitted by the accused. Whether the CA report is admissible in accordance with Section 293 of Cr.P.C. Whether Section 54 of the NDPS Act can be invoked in the present case. Whether Section 66 of the NDPS Act is relevant in this case. Whether Section 35 of the NDPS Act refers to presumption of culpable mental state.
Ratio Decidendi: The prosecution has proved that the appellant was found in possession of contraband worth Rs.6,40,00,000/-. Procedural safeguards were complied with. The offence was proved beyond all reasonable doubt. Section 42 of the NDPS Act is not applicable in this case. Although Section 50 is not attracted, there is compliance of the said provisions. The discrepancies, if any, are minor in nature. Evidence of panch witnesses cannot be discarded in entirety. By not declaring them as hostile witnesses, no adverse inference can be drawn against the prosecution. The CA report was admitted by accused. It is admissible in accordance with Section 293 of Cr.P.C. Section 54 of the NDPS Act can be invoked in the present case. It relates to the presumption from possession of illicit articles. Section 66 of the Act is relevant in this case. It relates to presumption as to the documents. Section 35 of the Act refers to presumption of culpable mental state.
Final Decision: The appeal is dismissed. The impugned judgment and order dated 18th November, 2017, passed by N.D.P.S. Special Judge, City Civil and Sessions Court, Greater Bombay, convicting the appellant, is confirmed.
JUDGMENT
PRAKASH D.NAIK,J. - This Appeal under Section 374 of Cr.P.C. is preferred against the judgment and order dated 18th November, 2017, rendered by N.D.P.S. Special Judge, Greater Mumbai, in N.D.P.S. Special Case No.177 of 2014. The appellant is convicted for the offence under Section 8(C) read with Section 22 (c) of the Narcotic Drugs and Psychotropic Substance Act, 1985 ("N.D.P.S. Act", for short), and sentenced to suffer rigorous imprisonment for 12 years and to pay fine of Rs.1,00,000/-, in default to suffer further rigorous imprisonment for six months. The appellant is also convicted for the offences under Section 9(A) read with Section 25(A) of NDPS Act, and, sentenced to suffer rigorous imprisonment for 5 years and fine of Rs.50,000/-, in default, further rigorous imprisonment for three months. The appellant was acquitted of the offence punishable under Section 23 read with 29 of NDPS Act.
2. The essential facts of the case, which are necessary for deciding this Appeal are as under:
(a) Complainant had suspicion about accused while he was on duty and instructed Kenya Airlines check-in counter staff to keep aside the check in baggage of the accused, who had checked in at Kenya Airline Counter No.E-08 for fight no. KQ 203 departing to Nairobi.
(b) On instructions of complainant, the superintendent of Customs Mr.Girish Tilve, dog handler Mr.S.S. Mahadeshwar accompanied with suffer dog intercepted accused in presence of panch witnesses. On being asked, the accused identified himself as (Mgeni Abdullah Aboud) holding Tanzanian passport bearing No.AB246937 and stated that he was departing to Johannesburg via Nairobi by fight No.KQ-203 on 2nd July, 2014. The accused identified one checked-in black coloured hard top zipper strolley suitcase of American Tourister make bearing baggage tag No.0706 KQ 249805 and claimed that it belonged to him. He was also found in possession of one E-Ticket No.706542864837C1 and Kenya Airways confirmation no.8LHBVZ issued in his name for sector Nairobi to Johannesburg by Kenya Airways fight No.KQ 203 and another E-ticket no.7065424864837C2 and Kenya Airways confirmation No.8LHBVZ, issued in his name for Sector Nairobi to Johannesburg by Kenya Airways fight No.KQ 762 dated 2nd July, 2014. He was also found in possession of boarding pass of above fight dated 2nd July, 2014, and, baggage claim tag bearing No.0706 KQ249805 of Kenya Airways fight KQ 762 and KQ 203.
(c) The officers of AIU asked accused whether he was carrying any narcotic drugs in the checked-in baggage or on his person, the accused replied in the negative. The officers of AIU were not satisfied with his reply and asked ASI Mr.Mahadeshwar to instruct his dog to sniff the checked-in bag. Accordingly, in presence of panch witnesses, the dog sniffed the said suitcase and gave positive indication regarding presence of narcotic drug in the baggage by barking and psychotropic substances in his baggage to which he again replied in the negative. The checked-in bag bearing tag No.0706 KQ 249805 was found locked with inbuilt number lock. The accused was asked to unlock the bag. When the bag was opened by the accused, the officers examined the contents of bag. It was found containing seven sets of cotton bed-sheets. Those bed-sheets were examined by the Customs officers and in each set of bed- sheet, one white coloured transparent polythene pack was found. When the said polythene pack was cut and opened, it was found containing some white coloured crystalline powder. The accused was confronted with the said contents, and, he stated that those were some chemicals used as medicine.
(d) AIU officers decided to carry detailed examination of checked-in bag of the accused in presence of panch witnesses. Since the place of departure area was not found suitable for such detailed examination, the officers of AIU had decided to conduct the same in AIU office situated behind Gate No.67, Level 6, Terminal2, CSI Airport. The Kenyan Airways checked-in st
AI
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
