- (1.) ALL the above appeals arise against the judgment and order 22-4-1996 delivered by the Special Judge in N. D. P. S. Special Case No. 107 of 1994. In all four accused were prosecuted for the offences of possession and conspiracy in respect of the narcotic drugs which were seized from the accused. Criminal Appeal No. 376 of 1996 is filed by original accused No. 1 against the order of his conviction and sentence recorded by the trial Court under the provisions of the N. D. P. S. Act and the Customs Act. Criminal Appeal No. 441 of 1996 is filed by original accused Nos. 3 and 4 against the order of their conviction and sentences recorded against them under N. D. P. S. Act. Criminal Appeal No. 520 of 1996 is filed by the original complainant against the acquittal of accused No. 1 in respect of the first seizure of 30 grams of heroin from his possession. Since all the appeals arise in respect of the same prosecution against all the appellants in Special Case No. 107 of 1996 which was disposed of by the judgment and order dated 22-4-1996, all these appeals were heard together and are being disposed of by this common judgment.
(2.) BRIEFLY stated the prosecution arose in the following circumstances: the officers of the customs were acting on the basis of the prior information which was received by P. W. 1 on 3-3-1994 at about 3. 30 p. m. The gist of the information which was produced on record at Exhibit No. 12 is as follows:- "that one white foreigner by name Jack will be delivering thirty grams of white heroin to another white foreigner named Martin near the Breach Candy Swimming Pool between 15. 00 hrs. to 15. 30 hrs. today i. e. 3-3-1994. I will point out the persons from a distance. Jack is staying at flat No. 62 sixth floor, Venus Apartment Altamount Road, Bombay-26. In his house he keeps heroin and a huge amount of foreign and Indian Currency and a transmitter. His wifes name is Maria. She is also a foreigner. He is receiving supplies of heroin from one Mrs. Mishra staying at flat No. 42, Savita Co. op. Hsg. Soc. , J. P. Road, Andheri (W.), Bombay-58. She is also having three more flats in her name. She has a son who helps her in this business of heroin trafficking. She can be identified by her burn marks on her neck and chest. Her late husband by name Shyam Narain Mishra, who was involved in heroin trade died under mysterious circumstances a few years back. She also stores huge quantities of white heroin and cash in her house. " Acting on the basis of the said information the officers of customs had made three seizures. Firstly 30 grams of heroin was seized from accused No. 1 in the same afternoon near Breach Candy Swimming Pool where accused No. 1 had allegedly gone to deliver 30 gms. of heroin to accused No. 2. The second seizure had taken place the same evening in the flat belonging to accused No. 1 viz. flat No. 62, Venus Apartment, Altamount Road, Bombay from the possession of accused No. 3. In that seizure 50 gms. of heroin was seized during the personal search of accused No. 3. The third seizure took place same night in the early morning of 4th March, 1994 between 2 a. m. and 6 a. m. from the flat of accused Nos. 3 and 4 viz. flat No. 42 in Savita Co-operative Housing Society, J. P. Road, Andheri (West), Bombay. From that flat the officers has seized 4 kgs. of heroin. The samples taken from all the three seizures were sent to the office of the Deputy Chief Chemist. Customs House and according to the CA reports of the said Laboratory samples contained Placetyle Morphine. Those reports are dated 13-4-1994 which are produced at Exhibits 15, 16 and 23. On behalf of the prosecution 15 witnesses were examined which included Customs Officers e. g. P. W. 1 K. T. Sanches who was the Superintendent of Customs and a Gazetted Officer and was an empowered officer within the meaning of the provisions of the N. D. P. S. Act. It is he who had received the information and was personally present at the three sites at the time of search and seizure. The other witnesses are panchas to the three seizures who are P. W. 7 Rafic Khan for the seizure from flat at Altamount Road and P. W. 8 Durga Chhatri who was panch for seizure of contraband from Andheri flat. During the course of investigation the prosecution also recorded the statements of all the accused persons in which they had admitted that they were dealing in heroin and the contraband was recovered from their possession on the relevant date by the Customs Officers. During the course of search of flat No. 62 in Venus Apartment at Altamount Road the Officers had also seized foreign currency in terms of US dollars, Swiss Francs. Deutsche Mark and UAE Dirhams and Indian currency of Rs. 4 lakhs and Sony Transmitter etc.
(3.) IN the trial Court various charges were framed for the offence of conspiracy under section 29, for possession under section 8 (c) of the N. D. P. S. Act read with section 21 of the N. D. P. S. Act and also under section 135 (1) (a) and 135 (1) (ii) of the Customs Act. After considering the entire evidence on record the trial Court acquitted original accused No. 2 of all the charges framed against him who was concerned with the first seizure by the side of swimming pool at Breach Candy where accused No. 1 was found in possession of 30 gms. of heroin and had gone to the site as per the information to deliver the same to accused No. 2. Accused No. 1 was also acquitted in respect of the first seizure of 30 gms. of heroin from him on the ground of non-compliance with the mandatory provisions under section 50 of the N. D. P. S. Act in respect of which the complainants have filed Criminal Appeal No. 520 of 1996 against the order of acquittal of accused No. 1. The acquittal of accused No. 2 has not been challenged in this Court. The accused No. 1 was however convicted for offence of conspiracy along with accused Nos. 3 and 4 for the second seizure made from accused No. 3 in the flat at Altamount Road which belonged to accused No. 1. All these three accused were convicted for the offence of conspiracy under section 29 read with section 21 read with section 8 (c) of the N. D. P. S. Act and sentenced to suffer R. I. for 11 years and to pay a fine of Rs. 1,10,000/- in default to suffer further R. I. for one year. Accused No. 1 was also found guilty for offence under section 135 (1) (b) of the Customs Act and sentenced to R. I. for three years and to pay a fine of Rs. 5,000/- in default to suffer further R. I. for six months under section 5 (b) (ii) of the Customs Act. Accused No. 3 was further convicted for possession of 50 gms. of heroin which was seized from him in the flat of accused No. 1 and sentenced to suffer R. I. for 11 years and to pay a fine of Rs. 1,10,000/- in default to suffer further R. I. for one year for offence under section 8 (c) read with section 21 of the N. D. P. S. Act. Accused Nos. 3 and 4 were further convicted for possession of 4 kgs. of heroin seized from their flat in Savita Co-op. Hsg. Soc. at Andheri, Bombay and sentenced to R. I. for 12 years and to pay a fine of Rs. 1,20,000/- in default to suffer further R. I. for one year for offence under section 8 (c) read with section 21 of the N. D. P. S. Act. Lastly accused Nos. 3 and 4 were convicted for offence of abetment under section 29 read with section 8 (c) read with section 21 of the NDPS Act and each of them was sentenced to R. I. for ten years and to pay a fine of Rs. 1,00,000/- in default to suffer further R. I. for one year. The above order of conviction and sentences recorded against these appellants so also the order of acquittal of accused No. 1 in respect of the first seizure are under challenge in the aforesaid appeals.;