Lawrence Nwafor Odia vs Directorate of Revenue Intelligence

Pendse, J.—These two criminal appeals preferred by original accused Nos. 1 and 2 to challenge the order of conviction and sentence recorded by the Additional Sessions Judge, Grater Bombay, on March 31, 1989, can be conveniently disposed off by common order. We propose to dismiss both the appeals summarily for the reasons to be recorded hereinafter. The two accused are convicted for the offences under Sections 21 and 28 of the Narcotic Drugs and Psychotropic Substances Act, 1985, and are sentenced to suffer rigorous imprisonment for ten years and fine of Rs. one lakh each, in default further rigorous imprisonment for the period of one year each. Accused Nos. 1 and 2 are also convicted of the offence u/s 9(c) read with Section 21 of the Act, and sentenced to suffer rigorous imprisonment for the period of ten years each with fine of Rs. one lakh each. The Trial Judge also recorded conviction for offence u/s 8(e) read with Section 30 of the Act as well as u/s 135(A) of the Customs Act and u/s 30 of the Narcotic Drugs Act but sentences are not recorded in respect of conviction under the last two counts.

On August 3, 1987, secret information was received in the office of Narcotic Control Bureau in connection with secreting of Narcotic Drug in a room of Embassy Hotel situated near V. T. Railway Station, Bombay. The information was reduced into writing by Assistant Director of D.R.I. Mr. R. N. Kakkar and officers were deputed to search the room in the hotel. Accordingly, Mr. Pardeshi (P.W. 1), Mr. Sanchis (P.W. 8), Mr. Shahsane (P.W. 3) and Mr. Patel formed a raiding party and visited the hotel at about 6.00 p.m. The raiding party went to room No. 203 of the hotel and the door was opened by Accused No. 1. Accused No. 1 is a Nigerian National and both the accused were in the room when the raiding party reached the hotel. The raiding party had also taken two panchas, Shankar Suvarna (P.W. 4) and a room boy working in the in the hotel. On search of the room, the raiding party found a cardboard box lying in one of the corners of the room. The cardboard box was opened in the presence of panchas and inside two electric lamp stands, two lamp shades and some dried grass was noticed. The bottom of the cardboard box was covered with thick packing and appeared heavy. The officers and the panchas then opened the flaps of the cardboard box and found that there to polythene bags containing white powder concealed in the flaps of the cardboard box. The white powder was tested with the aid of field testing kit and found to be heroin. The two bags contained heroin weighing 1 kg. each. The raiding party also recovered two air tickets in the name of the accused on the flight which was leaving after midnight on August 3, 1987. A hotel bill and a visiting card and boarding card were also found. On the visiting card found with of the accused, there were several telephone numbers. After completion of search and seizure of various articles found in the room, the accused were taken in custody. Mr. Pradhan (P. W. 2) who was attached to D. R. I. as Sr. Intelligence Officer, thereafter took over the investigation in accordance with the direction of the Director and recorded statement of accused Nos. 1 and 2. Each of the accused in the statement admitted that they had visited the country for the purposes of purchase of heroin and were to carry it abroad. The Investigating Authority made search in respect of telephone numbers found on the visiting cads in possession of the accused and accordingly traced the address of original accused No. 3. The investigating team proceeded towards the place of accused No. 3 and found a car parked outside the house of accused No. 3. On search of the car more heroin was found as well as an unlicensed revolver. The raiding party then proceeded towards the house of accused No. 3. Accused No. 3 while opening the door shot at the Investigating Officers. The accused No. 3 was overpowered and on search some more heroin was found in the house. Statement of accused No. 3 was also recorded in which accused No. 3 deposed about selling heron to accused Nos. 1 and 2. After completion of investigation, all the three accused were sent for trial before the Sessions Court, Greater Bombay.

The prosecution examined witness including officers Pardeshi, Pradhan, and Shahsane. The prosecution also examined Shankar Suvarna (P.W. 4) who was the panch witness in respect of search of the hotel room. The prosecution also examined Koduvayur Gopalier Narayanan who was the Chemical Examiner and the Chief Chemist who had forwarded the report about the nature of the powder found with the accused. The defence of the accused was one of denial and both the accused, inter alia, claimed that they were falsely implicated in the case. Both accused Nos. 1 and 2 claimed that they were students and had nothing to do with heroin found in the room. The learned Trial Judge after careful perusal of the evidence and by exhaustive judgment came to the conclusion that the prosecution he proved that accused Nos. 1 and 2 entered into a criminal conspiracy to commit of offence under Sections 21 and 28 read with Section 29 of the Narcotic Act and the accused having custody of white powder containing morphine wanted to fly with it, on August 3, 1987. The learned Trial Judge also held that though there is to no conclusive evidence about accused No. 3 selling heroin to accused Nos. 1 and 2, accused No. 3 is also liable for conviction as heroin was for in his possession. The trial Judge on the strength of this finding recorded conviction and sentence against all the three accused. Accused No. 3 preferred criminal appeal No. 444 of 1989 to this Court but it was summarily dismissed on February 9, 1990. Accused Nos. 1 and 2 had preferred appeals but the same were filed beyond the period of limitation and after condonation of delay now the two appeals filed by accused Nos. 1 and 2 are placed before us for admission.

We have heard Miss Gupta, learned counsel appearing on behalf of the two accused and after perusal of the entire record, the judgment of the trial court and after considering the submissions of the learned counsel, we find that the appeals preferred by the two accused are required to be summarily dismissed. The learned counsel has raised five or six contentions to claim that the order of conviction against accused Nos. 1 and 2 is bad. We will consider each of the contentions. The first submission of the learned counsel is that Mr. Pardeshi (P W - 1) did not obtain any search warrant empowering to search room No. 203 of Embassy Hotel on August 3, 1987, and, therefore, reliance cannot be placed on the search and seizure carried out by Mr. Pardeshi. There is no merit in this submission. It is undoubtedly true that search warrant was not secured by Mr. Pardeshi, but an officer attached to Narcotic Department is empowered by proviso to Section 42 of the Narcotic Act to search any premises between sunrise and sunset without a search warrant on satisfaction that there is a reasonable ground that a search warrant cannot be obtained without affording opportunity for the concealment of evidence. In the present case Pardeshi had carried the search at 6 p.m. i.e., before sunset and we do not find any infirmity in the search and seizure. The first submission of the learned counsel is, therefore, rejected.

Miss Gupta then submitted that the secret information recorded by the Directorate of Revenue Intelligence about the narcotics being concealed in Embassy Hotel was not produced at the trial and failure to do so should be construed adversely against the prosecutions. We are not impressed by the submission. It is true that in DRI. From I the gist of information received is written down as per the normal practice. The have led to several difficulties. The defence was unable to point out any provision for production of this secret information recorded in Form 1. We are in agreement with the Trial Judge that failure to produce the form does not affect the prosecution case, or cause any prejudice to the defence.

Miss Gupta then submitted that in the search the prosecution claims to have secured a bill from the custody of the accused and the bill was in respect of payment of charges of the hotel room upto 10.00 p.m. on August 3, 1987. Learned counsel urged that the search started at 6.00 p.m. and was over by 9.00 p.m. and therefore it was unlikely that a bill issued for payment of charges upto 10.00 p.m. Would have been found in the custody of the accused. There is no merit in this submission also. The bill was issued by one Fernandes who was the manger of the hotel and who was on duty before 6.00 p.m. It is not unusual that the customers secure bill from the manager long before they depart from the hotel. In the present case, accused had confirmed air tickets for a flight which was to leave late at night on 3rd August, 1987. It is, therefore, impossible to suspect the prosecution when the bill for charges upto 10.00 p.m. was found on the person of the accused.

It was also contended by learned counsel that the box containing heroin was planted in the room by the Investigating Agency. The submission is required to be stated to be rejected. At the time of the search the two accused were found in the room and a large cardboard box containing heroin was lying in one corner of the room. The cardboard box was not hidden and it is impossible to believe that the accused would not have noticed it. The management has also a key of the room with it and a submission was advanced to urge that the management could have planted heroin in the room. The submission is devoid of any merit. The heroin found is a quantity of 2 kgs. and the value is very high and it is impossible that the heroin would be planted by the management, in flaps of a cardboard box to involve the customers of the hotel.

It was also contended by the learned counsel that one of the Investigating Officers Mr. Sanchis (P W-8) did not depose about the bags having been found in between the flaps of the cardboard box. The Trial Judge has rightly pointed out that even though Mr. Sanchis has not deposed about the finding of the bags, the evidence of Sanchis clearly indicates that heroin was found in the room. The evidence of Pardeshi (PW-1) and deposition of Shankar Suvarna (P W-4) leaves no manner of doubt that the accused was in possession of the room and was also in possession of heroin which was surreptitiously hidden in the cardboard box.

Miss Gupta then submitted that the prosecution deliberately did not produce the report of sample forwarded to Laboratory at Delhi. There is no merit in this submission because Pardeshi deposed in the witness box that five samples were taken of the powder found in the room and one sample was forwarded to Laboratory at Delhi but the report was not received for a considerable time and not till the date of his deposition before the Trial Judge. Pardeshi further deposed that as the report was not received from the Delhi Laboratory, another sample was sent to Bombay Laboratory and the report was produced and proved at the trial. The report of the Bombay Laboratory leaves no manner of doubt that the powder found with the accused was heroin.

Finally, Miss Gupta submitted that Pradhan (P W-2), the Senior Officer of the Directorate of Revenue Intelligence was not authorised to carry out investigation and record statements of accused Nos. 1 and 2. It was contended that Mr. Pradhan was not empowered to record statements u/s 108 of the Customs Act. A statement can be recorded says the learned counsel, only by a person who is competent and who had been given sanction by the High Court under Oath Act. The submission is devoid of fancy merit. In the first instance a person recording statement u/s 108 of the Customs Act do not require sanction of the High Court. Secondly Mr. Pradhan deposes that he is a gazetted Officer. Mr. Pradhan further deposes that the Ministry of Finance has created a cell known as Narcotic Control Bureau and in the year 1987 the cell commenced work in Bombay. The Director of DRI and the Cell were working together. Mr. Kakkar who was Assistant Director of Directorate of Revenue Intelligence was Incharge of the Cell. From this testimony of Mr. Pradhan there is little doubt that Mr. Pradhan was authorised to record statement under. Section 108 of the Customs Act. Even assuming that Mr. Pradhan was not authorised and the statements cannot be relied upon, still, the fact that heroin was found in possession of the two accused on search of room No. 203 is sufficient to sustain the order of conviction and sentence. In our judgment, there is no merit whatsoever in both the appeals.

Accordingly, both the appeals are summarily dismissed.