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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Bharati Dangre, J.
Edyma Siregar - Appellant
Versus
V. V. Satardekar - Respondent
Criminal Appeal No. 128 of 2016
Decided On : 30-04-2021
CRIMINAL - NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 8(C) READ WITH SECTION 22(C) AND SECTION 23 READ WITH SECTION 28 - POSSESSION OF PSYCHOTROPIC SUBSTANCE - SEARCH AND SEIZURE - COMPLIANCE WITH SECTION 42(2) - SECTION 43 - SECTION 50 - DISTINCTION - INTERPRETATION - EVIDENCE ACT, 1872 - SECTION 35 - PRESUMPTION OF CULPABLE MENTAL STATE - APPLICABILITY - STATEMENT UNDER SECTION 67 OF THE NDPS ACT - ADMISSIBILITY.
Fact of the Case:
The Appellant, an Indonesian National, was convicted for the offences punishable under Sections 8(c) read with Section 22(c) and Section 23 read with Section 28 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). She was found in possession of 3.930 kgs. Of Methamphetamine, a psychotropic substance in contravention of provisions of the NDPS Act and was therefore tried for commission of offences punishable under relevant provisions of the NDPS Act.
Finding of the Court:
The Court held that the search and seizure was carried out in compliance with Section 43 of the NDPS Act, which empowers an officer to seize and arrest in a public place, and not Section 42, which requires a warrant or authorization for search and seizure. The Court also held that the provisions of Section 50 of the NDPS Act, which require a search of a person to be conducted in the presence of a gazetted officer or a Magistrate, were not applicable in the present case as the contraband was found in the checked-in baggage of the Appellant and not on her person. The Court further held that the prosecution had proved its case beyond reasonable doubt by adducing cogent and reliable evidence, and that the Appellant's conviction was upheld.
Issues: 1. Whether the search and seizure was carried out in compliance with Section 42 or Section 43 of the NDPS Act? 2. Whether the provisions of Section 50 of the NDPS Act were applicable in the present case? 3. Whether the prosecution had proved its case beyond reasonable doubt?
Ratio Decidendi: 1. The Court held that the search and seizure was carried out in compliance with Section 43 of the NDPS Act, which empowers an officer to seize and arrest in a public place, and not Section 42, which requires a warrant or authorization for search and seizure. The Court relied on the distinction between Sections 42 and 43 of the NDPS Act, as laid down by the Supreme Court in several cases, and held that Section 43 was applicable in the present case as the search and seizure took place at the Aerobridge, which is a public place. 2. The Court held that the provisions of Section 50 of the NDPS Act, which require a search of a person to be conducted in the presence of a gazetted officer or a Magistrate, were not applicable in the present case as the contraband was found in the checked-in baggage of the Appellant and not on her person. The Court relied on the Supreme Court's decision in State of H.P. v. Pavan Kumar, wherein it was held that Section 50 is not attracted to the search of a bag, briefcase, or any such article or container, etc., as they cannot be treated as part of the body of a human being. 3. The Court held that the prosecution had proved its case beyond reasonable doubt by adducing cogent and reliable evidence. The Court relied on the evidence of the prosecution witnesses, including the panch witnesses, the Chemical Analyzer, and the officers from the Ethiopian Airlines, to establish the possession of the psychotropic substance by the Appellant and her involvement in the offences punishable under the NDPS Act.
Final Decision: The Court dismissed the Appellant's appeal and upheld the judgment of the Special Court of Greater Bombay dated 19/08/2015 in NDPS Special Case No.21 of 2013.
JUDGMENT
1. This Appeal is preferred by the Appellant, an Indonesian National assailing the judgment and order dated 19/08/2015 passed by the Special Judge in N.D.P.S. Special Case No.21 of 2013 thereby convicting and subjecting her to undergo sentence on such conviction. By the impugned judgment, the Appellant stands convicted for the offences punishable under Sections 8(c) read with Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 ("NDPS Act") and sentenced to undergo RI for a term of 14 years and to pay fine of Rs.1 lakh, in default, to undergo SI for one year. The Appellant is also convicted for offences under Section 23 read with Section 28 of the NDPS Act and has been sentenced to undergo RI for 16 years and to pay fine of Rs.1 lakh, in default, to suffer SI for one year. The substantive sentences on both counts are directed to run concurrently.
The Appellant was found in possession of 3.930 kgs. Of Methamphetamine, a psychotropic substance in contravention of provisions of the NDPS Act and was therefore tried for commission of offences punishable under relevant provisions of the NDPS Act.
2. The prosecution case can be aphoristicly stated as under:-
(a) On 22/08/2012, Customs Officers intercepted one passenger Ms. Edyma Siregar on the basis of prior information, as she was arriving by Ethiopian Airlines Flight No.ET 610 from Addis Ababa, and was to be in transit at Mumbai for onward journey to Singapore. In the presence of panchas, on arrival of the Ethiopian Airlines Flight No.ET-610 on Aerobridge Bay No.50, the Customs Officers in presence of the panchas started checking passports of disembarking passengers, one by one, to intercept the suspect lady passenger, and finally intercepted her. She was found carrying one piece of brown colour checked design Louis Vluitton bag as hand baggage. The Customs Officers questioned her about her travel details and checked in baggage, upon which she informed that she was also carrying one piece of checked in baggage and produced a baggage claim tag No. XH-247600 for Flight No.ET-610. She also informed that she was a transit passenger in Mumbai, and was about to travel to Singapore, by flight no.9W-0012 dated 22.08.2012.
(b) In presence of the panchas, the passenger was asked whether she was carrying any contraband concealed or otherwise in her baggage, to which she replied in the negative. Not being satisfied with her answer, the Customs Officers called for her checked in baggage from the Ethiopian Airlines staff. Shri Narendra Kotian of Ethiopian Airlines immediately directed his junior staff to locate the checked in baggage of Ms. Edyma Siregar, and produced the same for examination by Customs Officers. The Ethiopian Airlines staff produced one piece of checked in baggage comprising of a light green coloured moulded plastic suitcase with wheels of "Tuff" make and having baggage tag No.XH-247600 ET 610 dated 21/08/2012. The same was claimed by the passenger as her checked in bag in the presence of panchas. The Customs Officers requested ASI Shri V.D. Chavan to allow sniffer dog to sniff the checked in baggage. ASI Shri V.D. Chavan informed the officers that there was a positive indicator for Narcotic Drug.
(c) The Customs Officers decided to examine the baggage. Before examining the said bag, the officers once again asked the suspect as to whether she was carrying any contraband items to which she replied in negative. As stipulated under the provisions of Section 50 of the Narcotic Drugs and Psychotropic Substance Act, 1985, the officers asked her in presence of the panchas whether she would like to examine herself and her baggage in the presence of a Gazetted Officer of Customs or the Magistrate, to which she replied, that she would like to be examined in the presence of a Gazetted Officer of Customs. She then informed the panchas that the secret code number of the lock is 000' for both sides, after which the Customs Officers asked the passenger Ms. Edyma S
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