Union Of India vs Leen Martin

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S). 2150/2011

UNION OF INDIA …APPELLANT(S)

VERSUS

LEEN MARTIN & ANR. …RESPONDENT(S)

JUDGMENT

N. V. Ramana, J.

1. This criminal appeal arises from the impugned judgment, and

order, dated 20.11.2008, in Criminal Appeal No. 379/2007

passed by the High Court of Judicature at Bombay, wherein

the High Court acquitted the respondent no.1 of all the

charges under sections 8(c), punishable under Section 20(b)(ii)

(c) and under Section 28 read with Section 23 of The Narcotic Signature Not Verified

Drugs and Psychotropic Substances Act, 1985 (hereinafter Digitally signed by VISHAL ANAND Date: 2018.02.13 15:40:27 IST Reason:

referred to as ‘N.D.P.S Act’).

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2. A brief reference to the prosecution case may be necessary for

disposal of this case. On 05.05.2004, the officers of Customs,

Air Intelligence Unit, at Chhatrapati Shivaji International

Airport, Mumbai noticed that a passenger of European origin

was found to be suspiciously loitering near the airline

counters of Swiss Air. Observing such suspicious behavior, the

airline personnel were alerted for segregating the baggage of

the respondent no.1. After completing his immigration and

custom formalities, respondent no.1 was intercepted by the

Intelligence Officer and subjected to examination by a sniffer

dog.

3. When there was an indication about the presence of narcotic

or psychotropic substance, he was taken to a baggage

examination area. On opening suit case his personal

belongings were kept aside, even then, his suit case was found

to be abnormally heavy. On examination, a false bottom was

detected and when the false bottom was removed, three

rectangular packets wrapped in cellophane tape were

discovered containing brown colored substance which tested

positive for hashish, a contraband substance. Net weight of 3

the recovered substance was found to be measuring 12.03 Kg.

Later, the samples were drawn and the goods were seized

under a seizure panchnama. It is to be noted that, on

06.05.2004, respondent no.1 recorded his statement under

Section 67 of N.D.P.S Act. After completion of the

investigation, charges levelled against him, the accused

(respondent no. 1 herein) pleaded not guilty and claimed trial.

4. The trial court in N.D.P.S. Special Case No. 133 of 2004

conducted full-fledged trial which resulted in conviction of the

respondent no.1, for offences under Section 8(c), punishable

under Section 20(b)(ii)(c), with rigorous imprisonment for 10

years and fine of Rs. 1,00,000/- in default to suffer simple

imprisonment for six months. Further, the respondent no. 1

was sentenced under Section 28 read with Section 23 of

N.D.P.S Act to undergo rigorous imprisonment for 10 years

and to pay fine of Rs. 1,00,000/- and in default to suffer

simple imprisonment for six months. Both sentences were

ordered to run concurrently.

5. Aggrieved by the order of conviction of the trial court,

respondent no. 1 approached the High Court in Criminal 4

Appeal No. 379 of 2007. The High Court by an order dated

20.11.2008, acquitted the respondent no. 1 of all charges as,

in the opinion of the High Court, the prosecution failed in

establishing that the panchas were present during the seizure

procedure. The High Court while setting aside the trial court

order observed that the trial court erred in convicting the

respondent while relying on the sole evidence of PW-1 which is

highly inconsistent and full of contradictions.

6. Aggrieved by the acquittal of respondent no. 1, Union of India

has preferred the present appeal before this court by way of

special leave petition.

7. We have heard the learned counsel appearing for the

appellant – Union of India and the learned senior counsel

appearing for respondent no.1.

8. It is brought to our notice by the learned senior counsel

appearing for respondent no.1 that his client has already

undergone four and a half years of incarceration and he is

also not in the country.

9. Learned counsel appearing for the appellant – Union of India

accepts the aforesaid statement.

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10. Taking into consideration the evidence of PWs 8 and 9,

panch witnesses, we find that their evidences are

contradicting the statement of the Intelligence Officer (PW-1).

We may note that except the statement made under Section

67 of the N.D.P.S. Act by respondent no.1, there is no other

material to substantiate the case against the said respondent.

Both PW-8 and PW-9 have categorically stated that, when they

were called by the Intelligence Officer (PW-1) and by the time

they reached, the bag was already opened. Further it was

admitted by them that, the panchanama was not read over to

them. They were asked to sign on number of papers and they

were not aware of the contents. Moreover, PW-1 i.e., the

intelligence officer did not state that the bag containing the

narcotic substance was opened in the presence of panchas.

The cross-examination of PW-9 clearly reveals that he does

not agree to the contents of the panchanama with respect to

the fact that the search and inspection of the baggage took

place in his presence. His signatures obtained on the

panchanama were not voluntarily put, which is apparent from 6

the following statements made by PW-9 during the

cross-examination:

“As I was Trainee and new person I did not want to hurt the custom officer, therefore I signed panchanama and articles without reading it.”

Moreover, aforesaid conclusion is substantiated by the statement of PW-8 made in the examination-in-chief in the following manner-

“After entering the office room of AIU Section, I saw one open suitcase, number of officers were present and packets were shown to me… I signed on numbers of papers and on packets being shown to me.”

11. It is to be noted that the entire case of the prosecution

hinges on the alleged recovery of the narcotic substance from

respondent no. 1 but, this very fact is not proved beyond

reasonable doubt as independent witnesses PW-8 and PW-9

have portrayed a different story as to the recovery and seizure.

In the facts and circumstances of this case exclusive reliance

on the statement made by respondent no. 1 would neither be

prudent nor safe; especially considering the fact that, the 7

statement of respondent no. 1 procured under Section 67 of

the NDPS Act was retracted on 29.06.2004.

12. After analysis of the above circumstances and evidences;

prudence dictates that the statement of the official witness

PW-1 cannot be the sole basis for convicting the respondent

no. 1. It may be noted that when the statement of official

witness is impaired due to infirmities, it is not safe to place

reliance upon the same and pass conviction order against the

accused. In the present case, as already stated above, the

statements of the independent panch witnesses depict a

different picture than the one portrayed by the official witness

PW-1.

13. We are of the opinion that the High Court had rightly

acquitted the respondent no.1 taking into consideration the

aforesaid aspects.

14. In view of the above and having regard to the fact that

the incident is of the year 2004, we find no reason to interfere 8

with the impugned order passed by the High Court. In the

result, the appeal lacks merit and is dismissed.

……….......................J. (N.V. RAMANA)

...............................J. (S. ABDUL NAZEER)

New Delhi, February 01, 2018.