GILBERT MARTIN ONUHO vs THE STATE OF MAHARASHTRA

The present Appeal is directed against the Judgment and Order dated 28th February, 2012 passed by the learned Special Judge, (under NDPS Act),

Greater Mumbai, in NDPS Special Case No. 70 of 2009 thereby, convicting the Appellant for the offences punishable under Section 21(c) read with

Section 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the NDPS Act') and is sentenced to suffer

rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/Â (Rupees One Lac only), in default of payment of fine to further undergo

rigorous imprisonment for one year and under Section 29 of the NDPS Act is sentenced to suffer rigorous imprisonment for ten years and to pay a

fine of Rs.1,00,000/ (Rupees One Lac only), in default of payment of fine to further undergo rigorous imprisonment for one year. By the said

Judgment and Order, the Trial Court has directed that the substantive sentences imposed upon the Appellant shall run concurrently.

2 Heard the learned counsel for the Appellant and the learned APP. Perused the record.

3 The prosecution case in brief is as under:Â​

a) On 25th November 2008, the coÂaccused Mr. Ken @ Samuel and the Appellant gave one parcel for sending it to South Africa to the owner of

M/s. Unity Courier namely Mr. Mujafar Majid Khan (PW No. 3), situated at Mira Road, District Thane, informing him that the said parcel contains

motorÂ​cycle footrests.

Mr. Mujafar Khan (PW No. 3), in due course of his business, forwarded the said parcel to M/s. Riddhi Siddhi Couriers of which Mr. Anil Jayvant

Jadhav (PW No. 2) was a Manager. M/s. Riddhi Siddhi Couriers, in turn, forwarded the said parcel to M/s. Allied Courier Services for its further

transmission to SouthÂ​Africa and more particularly, at the address mentioned on the label affixed to the said parcel.

b) On 25th November 2008 itself, the said parcel was returned to M/s. Riddhi Siddhi Couriers by M/s. Allied Courier Services informing that, they

have suspicion about the contents of the said parcel. As the said parcel was received from M/s. Unity Courier of Mira Road from Mr. Mujafar

Khan (PW No. 3), the said information was conveyed to him by Mr. Anil Jadhav (PW No. 2). That, Mr. Mujafar Khan thereafter visited the office

of M/s. Riddhi Siddhi Couriers. At the office of M/s. Riddhi Siddhi Couriers, Mr. Anil Jadhav, (PW No. 2) in presence of Mr. Mujafar Khan (PW

No.3) opened the said parcel and it was examined. That, the said parcel was containing motorÂcycle footrests and they noticed particles of powder

on the footrests. Mr. Anil Jadhav (PW No. 2) informed Mr. Mujafar Khan (PW No. 3) to find out the said foreigners who had booked the said

parcel. Mr. Mujafar Khan, assured that he would do the needful and will try to find out those foreigners. In the meantime, the parcel was kept in

the office of M/s. Riddhi Siddhi Couriers.

c) As the parcel did not reach its destination, on 5th December, 2008 at about 9.00 p.m. Mr. Ken @ Samuel gave a call to Mr. Mujafar Khan about

the same, to which Mr. Mujafar Khan informed Mr. Ken @ Samuel that the parcel was held up at the office of M/s. Riddhi Siddhi Couriers and called

upon him to collect it personally or through his representative. Mr. Ken @ Samuel, informed Mr. Mujafar Khan that he would sent a person on 6th

December, 2008 to collect the parcel and to book another parcel. Mr. Mujafar Khan informed the said fact to Mr. Anil Jadhav of M/s. Riddhi

Siddhi Couriers. Mr. Anil Jadhav, thereafter, asked Mr. Mujafar Khan to visit the office of M/s. Riddhi Siddhi Couriers in the morning on 6thÂ

December, 2008 at about 11.00 to 11.30 a.m. and he also told him that they would make a complaint to the Azad Maidan Narcotic Cell.

d) On 6th December 2008, Mr. Anil Jadhav (PW No. 2) made a complaint (ExhibitÂ31) in writing to the Senior Inspector of Police, Anti Narcotic

Cell, Cuffe Parade, Mumbai.The Superior Officers forwarded the said complaint along with Mr. Anil Jadhav (PW No.2) to the Anti Narcotic Cell,

Bandra Unit for taking necessary action. The said complaint was entrusted to Mr. Parshuram N. Kamble (PW No.9) for further action. That, in

pursuance of the said complaint, the investigating agency decided to lay a trap at the office of M/s. Riddhi Siddhi Couriers. After completing the

necessary formalities, the members of the investigating agency, proceeded to the office of M/s. Riddhi Siddhi Couriers. Mr. Anil Jadhav pointed out

the suspected parcel, which was lying on the table to P.I. Mr. Arunkumar G. Aigal (PW No. 10). A trap was accordingly laid. At about 14.15

hours, the Appellant came to the office of M/s. Riddhi Siddhi Couriers. He was carrying a black coloured carryÂbag. Mr. Mujafar Khan informed

the Appellant that the parcel returned by M/s. Allied Courier Services was lying on the table and told him to take it back. The Appellant agreed to

do so. The Appellant further told Mr. Mujafar Khan that he would like to send one more parcel to SouthÂAfrica and he took out two photo frames

from the black coloured carryÂbag and showed it to Mr. Mujafar Khan. After the identity of the Appellant was duly established, the raiding party

accosted him. The Appellant was apprised of his right under Section 50 of the NDPS Act orally, as well as, in writing, to which he denied.

e) The members of the investigating agency examined the said two photoÂframes and on removing the Sunmika affixed at the backside of the said

photoÂframes, they found one packet each wrapped with brown coloured cello tape. After opening the said packets, they noticed white coloured

powder. The said powder was tested on the field testing kit and it gave positive result of 'Heroin'. The said powder was weighing about 400

grams. Two representative samples of 5 grams each were drawn from the said two packets and the packets were thereafter, sealed and labelled.

f) As far as the earlier parcel, which Mr. Ken @ Samuel, wanted to sent SouthÂAfrica and which was returned by the Allied Courier Services to

M/s. Riddhi Siddhi Couriers, is concerned the Appellant informed the members of the raiding party that it also contains 'Heroin' concealed in the

footrests of the motorÂcycle. There were 11 footrests boxes, each box containing two footrests in the said parcel. On opening the footrests and by

removing the rubber grip, the investigating agency found black substance wrapped in cello tape on iron pipe. On opening the cello tape packing, it

was found containing white powder. On testing it with the field testing kit, it gave positive result of 'Heroin'. The total contraband collected from

the 22 footrests was found to be 575 grams. Two representative samples of 5 grams each were drawn and the samples were thereafter sealed

and labelled. The boxes and footrests were also seized. The Appellant came to be arrested by following due procedure. The forensic laboratory

gave the report of Chemical Analysis of the said contraband as 'Heroin'. After completion of the investigation, the investigating agency submitted

the chargeÂsheet for the aforesaid offences against the Appellant and the said Mr. Ken @ Samuel, as accused No. 2, showing him as an absconding

accused.

4 The learned Judge of the Trial Court framed charge below Exhibit 7. The same was read over and explained to the Appellant to which, he

pleaded not guilty and claimed to be tried. The prosecution, in support of its case, examined in all 10 witnesses. The learned Trial Court, after

recording the evidence and after hearing the parties to the said case, was pleased to convict and sentenced the Appellant as stated reÂ​inÂ​above.

5 Mr. Bhandary, the learned counsel appearing for the Appellant submitted that, the Appellant has been convicted for an offence punishable under

Section 29 of the NDPS Act i.e. for conspiracy along with other accused. However, in the absence of the coÂaccused, the Appellant cannot alone

be convicted for the charge of conspiracy. In support of his contention, he relied on the decisions namely (i) Topandas Vs. State of Bombay,

reported in AIR 1956 SC 33, (ii) Amarsingh Ramjibhai Barot Vs. State of Gujarat, reported in 2005 Â SCC (Cri.) 1704 and; (iii) Anil Kothari S/o.

Narendrasingaji Kothari Vs. C.B. I. , EOW, Bombay & Anr. reported in 2012 ALL MR (Cri.) 98.

He further submitted that Mr. Anil Jadhav, (PW No. 2) received the said packet at his office of M/s. Riddhi Siddhi Couriers which was initially

handed over to Mr. Mujafar Khan (PW No. 3) by Mr. Ken @ Samuel on 25th November 2008, and in presence of Mr.Mujafar Khan, he opened it.Â

That, the said packet was with Mr. Anil Jadhav,(PW No. 2) upto 6th December 2008, i.e. the date of conducting the raid by the Anti Narcotic

Cell.  He submitted that, there is no evidence on record to indicate that after Mr. Anil Jadhav verified the contents of the said cartons/boxes, he

again sealed it to its original condition and therefore, there is every possibility of the said parcel being tampered with by either Mr. Anil Jadhav or any

other person. He submitted that, a benefit of doubt therefore, may be given to the Appellant and he may be acquitted from the charges levelled

against him.

6 Though prosecution has examined 10 witnesses in the present case, the evidence of Mr. Anil Jadhav, (PW No. 2) a Manager of M/s. Riddhi Siddhi

Couriers, Mr. Mujafar Khan (PW No. 3) partner of M/s. Unity Courier and, Mr. Hemant S. Gupte (PW No. 7), an employee of M/s. Riddhi Siddhi

Couriers, Mr. Parshuram Kamble (PW No. 9) the Investigating Officer and Shri Arunkumar Aigal (PW No. 10) is relevant, for the decision of the

present Appeal.

7 At the outset, it is to be noted here that the Applicant has been charged for an offence of conspiracy under Section 29 of the NDPS Act along with

the coÂaccused Mr. Ken @ Samuel. The charge sheet submitted in the present crime clearly mentioned that, the coaccused Mr. Ken @ Samuel is

absconding and therefore, the chargesheet against the Appellant had been submitted by the investigating agency. In view thereof, I find no

substance in the contention of the learned counsel for the Appellant that the Appellant alone was tried for an offence of conspiracy as contemplated

under Section 29 of the NDPS Act.Â

8 It is further to be noted here that the Appellant has been charged for attempting to export narcotic drugs namely 'Heroin' weighing 575 grams to

SouthÂAfrica and has not been charged for possession of the said 400 grams of 'Heroine' allegedly concealed in the said photo frames. It is therefore

clear that, the Appellant has to answer the charge for attempting to export a narcotic drugs 'Heroin' to SouthÂ​Africa, weighing 575 grams.

9 Mr. Anil Jadhav, (PW No. 2), has specifically deposed that, after receipt of the said parcel on 25th November, 2008 from Allied Courier Services at

his office on the ground of suspicion, he in the presence of Mr. Mujafar Khan (PW No. 3), opened it and noticed motorÂcycle footrests in it. He

also observed, white coloured powder particles on the said footrests. He has further admitted that, till the date of conducting raid till 6th December,

2008, the said parcel was lying in his office. Mr. Mujafar Khan (PW No. 3) has also admitted the said facts.

10 Mr. Hemant Gupte, (PW No. 7) an employee of M/s.Riddhi Siddhi Couriers, in his testimony has stated that under the directions of Mr. Anil

Jadhav the another person by name Mr. Asif Kadir, who was present in the office, opened the said parcel. There were small boxes in the said

larger box and they found two footrests of the motorÂbike in it. After removing the footrests from the boxes, they noticed white coloured powder

particles therein. He has stated that the said footrests were kept in the box and the small boxes are kept in a larger box and thereafter, they sealed

it.

In his crossÂexamination, he has further admitted that on 25th  November, 2008, the said carton was opened in the office of M/s. Riddhi Siddhi

Couriers and the same was in custody of Mr. Anil Jadhav (PW No. 2).

Mr. Parshuram Kamble (PW No. 9) the Investigating Officer, has also admitted the fact that Mr. Anil Jadhav had told him that, in the office of M/s.

Riddhi Siddhi Couriers in presence of Mr. Mujafar Khan, the said parcel was opened and on examining, they found the motorÂcycle footrests and

some particles of powder on it. That, the said parcel was lying in the office of M/s. Riddhi Siddhi Couriers till 6th December, 2008, i.e. till the date of

conducting the raid. It is thus clear from the record that, since 25th November 2008 till 6th December 2008, the said parcel was lying in the office

of M/s. Riddhi Siddhi Couriers and particularly in the possession of Mr. Anil Jadhav, (PW No. 2), being the Manager of the said firm.Â

11 Thus, it creates strong suspicion in the mind of this Court about the tampering of the said parcel at the office of M/s. Riddhi Siddhi Couriers.

Thus, it was vulnerable for tampering, though Mr. Hement Gupte (PW No. 7) has stated that the said parcel after opening was again reÂsealed. No

evidence on record is produced by the prosecution to confirm the said fact. Even the prosecution has not examined the said another person namely

Mr. Aasif Kadir, who was instrumental in opening the said parcel at the office of M/s. Riddhi Siddhi Couriers.Â

12 After analyzing the evidence on record minutely, it is clear that the parcel, which was booked by Mr. Ken @ Samuel for its transmission to

SouthÂAfrica, was received back from M/s. Allied Courier Service to M/s. Riddhi Siddhi Couriers and Mr. Anil Jadhav, (PW No. 2), in presence of

Mr. Mujafar Khan, opened the same and after finding white powder in it, retained it with them, for about 10 days. The said parcel was amenable

for tampering at the office of M/s. Riddhi Siddhi Couriers and even after Officers of the investigating agency reached to the office of M/s. Riddhi

Siddhi Couriers on 6th December 2008, they also did not effect punchanama thereby, mentioning the status/nature of the parcel which was shown by

Mr. Anil Jadhav, (PW No. 2), to them. Â As noted earlier, it creates strong doubt in the mind of this Court about the tampering of the said parcel at

the office of M/s. Riddhi Siddhi Couriers, and therefore, the Appellant is entitled for benefit of doubt in that behalf.

13 In view of the above, the Appellant succeeds. Hence the following order:Â​

a) The Judgment and Order dated 28th February 2012, passed in the NDPS Special Case No. 70 of 2009, is hereby quashed and set aside and the

Appellant is acquitted from the charges levelled against him.

b) The fine amount, if any, already paid by the Appellant, be returned to him.

c) Appeal is allowed in the aforesaid terms.