Case Note & Summary
The appellant, Okacha Mike, a Nigerian national aged 68 years, was convicted by the Special Judge under the NDPS Act for offences punishable under Sections 21(c) read with 8(c) read with 28 read with 23 of the NDPS Act and sentenced to 13 years rigorous imprisonment with a fine of Rs.1 lakh. The prosecution case was that on the night of 22nd/23rd March 2009, PW1 Sanjay Kumar, an Intelligence Officer of the Customs Air Intelligence Unit at Chhatrapati Shivaji International Airport, Mumbai, noticed suspicious behaviour of the appellant at the departure hall. The appellant had checked in for Flight No.ET 611 of Ethiopian Airlines to Accra. PW1 discreetly requested PW7 Mary Anastin, a Customer Service Agent, to keep aside the appellant's checked-in bags. After the appellant proceeded for security check, PW1 intercepted him and, after informing him of his rights, searched his hand baggage and found nothing incriminating. However, upon searching the two checked-in bags (a black trolley bag and a grey duffel bag), PW1 recovered 2.5 kg of heroin concealed in the lining of the bags. Samples were drawn, panchnama prepared, and the appellant was arrested. The appellant claimed that the bags belonged to someone else and that he was only carrying them for a friend, but he could not provide any details. The trial court convicted him. The High Court, on appeal, examined the evidence including the testimony of PW1, PW7, and the panch witnesses. The court held that the appellant was in conscious possession of the contraband as the baggage was in his custody until check-in and remained under his control. The presumption under Section 35 of the NDPS Act that the accused had conscious possession was not rebutted. The search and seizure were conducted in compliance with Sections 41-43 of the NDPS Act, and Section 50 was not applicable as the search was of baggage, not the person. The court found no infirmity in the sampling procedure or the credibility of the prosecution witnesses. The sentence of 13 years was held to be proportionate given the commercial quantity of heroin. The appeal was dismissed and the conviction and sentence were upheld.
Headnote
A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Conscious Possession - Sections 21(c), 8(c), 28, 23 - Recovery of 2.5 kg heroin from checked-in baggage - Appellant, a Nigerian national, was intercepted at airport before departure - Baggage was in custody of airline after check-in - Court held that possession of baggage remains with passenger until delivery to aircraft - Appellant failed to rebut presumption of conscious possession under Section 35 - Conviction upheld (Paras 1-30). B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Search and Seizure - Sections 41-43 - Compliance with procedural safeguards - Search conducted by Customs officer under Section 43 - Panch witnesses present - No violation of Section 50 as search was of baggage, not person - Seizure and sampling procedure found valid - Evidence of PW1 and PW7 credible (Paras 31-45). C) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sentencing - Section 21(c) - Commercial quantity - 13 years rigorous imprisonment and fine of Rs.1 lakh - Court considered gravity of offence, quantity of heroin, and lack of mitigating factors - Sentence not excessive - Appeal dismissed (Paras 46-50).
Issue of Consideration
Whether the conviction of the appellant under Sections 21(c) read with 8(c) read with 28 read with 23 of the NDPS Act is sustainable on the basis of the evidence on record, and whether the sentence of 13 years rigorous imprisonment is appropriate.
Final Decision
Appeal dismissed. Conviction and sentence of 13 years rigorous imprisonment and fine of Rs.1 lakh upheld.
Law Points
- Conscious possession of contraband
- presumption under Section 35 of NDPS Act
- burden of proof on accused
- recovery from baggage in custody of airline
- applicability of Section 23 of NDPS Act for import/export
- validity of search and seizure under Sections 41-43 of NDPS Act
- admissibility of panch witness testimony
- sentencing discretion under NDPS Act
