:1:

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPLICATION NO.4323 OF 2004

IN

CRIMINAL APPEAL NO.1194 OF 2004

Captain Zarius Dishaw Dastur

...Applicant

Vs

Union of India & Anr.

...Respondents

Mr. V.R. Manohar, Sr. Counsel with Mr. Amit Desai

with Ms. R.B. Amrolia & Ms. Y.N. Katpitia for the

applicant.

Mr. B.A. Desai, Addl. Solicitor General with Mr. H.V.

Mehta for the respondent No.1.

Mr. D.P. Adsule, APP for the State.

CORAM: V.M.KANADE,J.

DATE: 3rd November, 2004

ORAL ORDER:

1.

Heard

the

learned

Counsel

appearing

on

behalf

of

the

Applicant

and

the

learned

Additional

Solicitor

General of India appearing on behalf of Union of

India.

2.

Applicant

is

the

Original

Accused

No.1.

He

is

convicted

by

the

Trial

Court

for

having

committed

an

offence

under

Sections

8(c),

21,

23

and

29

of

the

N.D.P.S.

Act,

1985

and

sentenced

to

suffer

R.I.

for

ten

years

on

each

count.

The

Trial

Court

also

directed

that

he

should

pay

fine

of

Rs.

1

lac

and

in

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default

to

suffer

R.I.

for

two

years

on

each

count.

Applicant was on bail during trial from 9th October

1997 to 29th July 1998.

3.

Prosecution’s

case

is

that

Applicant

was

working

with

Air

India

as

a

Senior

Pilot

and

was

scheduled

to

operate

flight

No.

AI-101;

which

was

scheduled

to

go

to

London

from

Bombay

on

9/10/1997

at

about

6.25

a.m.

Applicant

reached

Sahar

Airport

at

5.10

a.m.and

his

suitcase

was

placed

on

the

X-ray

machine

for

security

check.

Security

staff

-

PW-22

-

Mr.

Ranshevre

and

Mr.

Kamble

noticed

some

suspicious

images

on

the

screen.

On

inquiry

being

made

by

PW-22

as

to

who

had

brought

the

suitcase

in

question,

the

Applicant

replied

that

he

had

brought

the

suitcase

and

he

was

carrying

it

for

some

other

person.

Applicant

was,

thereafter,

asked

about

the

suspicious

images

which

appeared

on

the

screen.

Applicant

informed

PW-22

that

it

may

be

electric

tooth

brush

inside

the

suitcase.

However,

Security

staff

said

that

it

was

not

an

electric

tooth

brush.

Applicant,

thereafter,

asked

the

Security

staff

to

check

suitcase

thoroughly

as

he

was

carrying

it

on

behalf

of

some

third

party.

He

was,

thereafter,

asked

to

open

the

suitcase.

Some

articles

belonging

to

the

Applicant

were

found

in

the

suitcase

alongwith

three

sweaters.

The

contents

were

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removed.

Thereafter,

empty

suitcase

was

again

put

in

a

Hi-scan

X-ray

Machine

and

again

square

golden

orange

colour

patches

were

appeared.

Customs

Officials

were

summoned.

They

tore

open

the

cream

coloured

inner

cloth

lining

of

the

suitcase

and

also

decorated

laminated

sheet

and

behind

the

said

laminated

sheet

a

square

shaped

polythene

pouches

containing

white

coloured

powder

were

found.

Polythene

bags

were

weighed

and

they

contained

1080

gms

of

white

powder

which

tested

positive

for

heroin.

Personal

search

of

the

Applicant

was

taken

but

nothing

incriminating

was

found.

The

Statement

of

the

Applicant

was

recorded

under

Section

108

of

the

Customs

Act

read

with

Section

67

of

the

N.D.P.S.

Act

by

PW-2

-

Mr.

Varadkar,

in

which

he

stated

that

this

bag

was

given

to

him

by

Mr.

Dinshaw

Pastakia

(Accused

No.2)

and

at

no

time

Applicant

was

informed

about

the

concealment

of

the