JUDGMENT
M.R. Hariharan Nair, J.
1. The challenge in the appeal is with regard to the
conviction entered against the appellant as accused in
S.C. No. 150 of 1998 of the Special Court for trial of
N.D.P.S. Act cases (Sessions Court, Trivandrum) for the
offence under Sections 21 and 28 of the N.D.P.S. Act and
the sentence of R.I. for 20 years and fine of Rs. 2
Lakhs imposed for each of the said two offences.
2. The prosecution alleged that on 24.3.1998 the
first accused completed the check in procedure at the
Trivandrum Airport for leaving for Colombo and that just
before he was about to board the Aircraft concerned he was
stopped and questioned on suspicion by the Customs
Superintendent. Though the accused originally disowned
possession of any contraband, he subsequently conceded
that he had concealed in his body contraband for smuggling
out and thereupon he was produced before the Magistrate
for orders for X-Ray screening under Section 103 of the
Customs Act. Since the first accused expressed before the
Magistrate his readiness to co-operate with the
authorities in the matter of disgorging the contraband he
was taken to the Medical College Hospital and in
subsequent search conducted through intervention of the
medical officers 102 capsules which had been swallowed by
the first accused and two bigger capsules which had been
inserted into his rectum were brought out. The contents
of all these were brown sugar of net weight 504 grams.
These items were seized as per Ext. P2 series mahazars.
The identity of the substance seized was confirmed by the
Analyst who examined the sample prepared under Ext. P2 as
‘Heroin’.
3. Though there were four more accused arrayed in
the case, the case against accused 3 and 4 were split up
and re-filed. After trial of original accused 1, 2 and 5
the present appellant alone was convicted and original
accused Nos. 2 and 5 (re-arrayed as accused Nos. 2 & 3
in S.C. 150 of 1998) were acquitted.
4. Mr. Devaraj of the Chennai Bar, who argued
the case for the appellant, submitted that there is no
evidence to show that the accused was in conscious
possession of the contraband. Reliance was placed on the
confession statement of the first accused allegedly
recorded by PW1 himself, to show that he was under the
belief that the items handed over to the accused by
others, with instruction to transport it to Sreelanka,
were all dollar notes and that he never knew that the
capsules that he had swallowed and inserted into his
rectum contained any narcotic drug or psychotropic
substance. Based on the said contention it is further
argued that even if the prosecution case is believed, the
accused has committed the offence under Section 135 of the
Customs Act only by virtue of the operation of Section 79
of the N.D.P.S. Act. It is also alleged that the seizure
effected in this case was without recourse to the mandate
in Section 50 of the N.D.P.S. Act. Lastly it is argued
that the punishment imposed is, in any event, excessive in
so far as the Court has inflicted the maximum punishment
allowed under the law for both the offences for which he
was convicted. Yet another contention is that when there
is a conviction under Section 21 for possessing brown
sugar, there is no scope for invoking Section 28, which
actually contemplates only an offence of attempt.
5. I have heard the learned Public Prosecutor,
according to whom, the appellant is a professional
carrier, who had undertaken similar missions in the past
also and his expertise is revealed by the fact that he
could swallow as many as 102 capsules besides the capacity
to carry two big capsules in his rectum. As regards the
compliance with Section 50 of the N.D.P.S. Act, it is
pointed out that the seizure was effected in the presence
of PW3, who is a Gazetted Officer, notwithstanding the
fact that in a case where contraband is brought out from
inside the body through medical help, Section 50 is not
attracted. As regards the contention that the appellant
was unaware that what he was carrying in the form of
capsules was any manufactured drug, the learned Public
Prosecutor points out that the accused is bound by the
presumptions contemplated in Sections 35 and 54 of the
N.D.P.S. Act. The punishment imposed is also sought to
be justified on the ground that the accused is a
professional carrier and this is not his first errand.
6. On the arguments advanced in the case the
points that arise for decision are:
1) Whether there is reliable evidence to conclude
that the accused was in conscious possession of 504 grams
of heroin as alleged?
2) Whether the seizure is in conformity with the
requirement of Section 50 of the N.D.P.S. Act?
3) Whether the conviction under Section 28 is
justified when there is a conviction for the offence under
Section 21 of the N.D.P.S. Act? and
4) Whether the conviction and sentence entered
against the appellant are justified?
7. Point No. 1: The fact that 102 capsules which
had been swallowed by the first accused and two bigger
capsules which had been concealed inside the rectum of the
appellant were actually brought out through medical help
while in the Medical College Hospital is not seriously
disputed before me. There is also the evidence of PW1,
who was the Intelligence Superintendent, Air Customs,
Trivandrum to the effect that the apprehension of the
accused took place based on Ext. P21 information, pursuant
to which surveillance was mounted in the vicinity of
departure lounge in the International Airport on the
particular day and that at about 8 a.m. the first accused
was seen waiting inside the departure lounge for
proceeding to the security check point after completing
the immigration clearance. The first accused was
questioned and when his answer denying possession of any
such contraband was found unacceptable, he was apprised of
his right under Section 50 of the N.D.P.S. Act to have
the search done in the presence of a Gazetted Officer or
Magistrate. Based on Ext.P16 statement to the effect that
search might be conducted in the presence of a Gazetted
Officer, PW3, who is a Gazetted Officer of the Central
Excise Department, was brought and in the subsequent body
search nothing was found concealed inside his dress nor on
his body outwardly. It was therefore decided to have an
X-ray examination.
8. The fact that the accused was subjected to
X-ray examination is spoken to by PW4, who was the Head of
the Department of Radio Diagnosis, Medical College,
Trivandrum. His evidence shows that multiple foreign
bodies were found inside the stomach and rectum of the
first accused. Exts.P17 and P18 are the X-ray films
showing the said fact and Ext.P1 certificate issued by PW4
shows the relevant details.
9. PW3, who is a Gazetted Officer, has
corroborated the evidence of PW1 in the above matter. His
evidence shows the details of ejectment of capsules from
inside the body of the appellant.
10. PW1 has spoken about the details of sampling
and the seizure effected. His evidence shows that the
total weight of the contraband seized in the case was
found to be 504 grams. Four of the samples produced in
Court were sent over to the Central laboratory at Delhi
for analysis and Ext.P13(a) report confirmed the fact that
it contained diacetyl morphine, which is the constituent
of heroin. The result revealed by the analysis directly
made by the departmental laboratory evidenced by
Ext.P14(a) also to the same effect. In these
circumstances there is adequate evidence available in the
case to show that heroin weighing 504 grams was actually
found concealed inside the body of the first accused when
he had completed immigration formalities and was about to
subject himself to security check after having checked in
at the Trivandrum International Airport for taking flight
to Sreelanka on 24.3.1998.
11. Point No. 2: The trial court has observed
that in a case where contraband is seized from inside the
body of a person Section 50 of the N.D.P.S. Act is not
attracted. In the instant case, the medical examination
or the X-ray test was not the first step followed by PW1.
Initially the appellant was alerted of his right under
Section 50 of the N.D.P.S. Act and the body search was
conducted, but that was futile. But before doing so, the
necessary formalities had been followed and in Ext.P9
statement the appellant had stated that presence of any
Magistrate was not essential. The examination was in fact
made in the presence of PW3. During the recovery of the
items at the hospital also he was present. In such
circumstances the appellant cannot be heard to contend
that there is violation of Section 50 of the N.D.P.S. Act
justifying acquittal.
12. The appellant has a contention that he was
not in conscious possession and that hence the offence is
not complete. In this regard it is pointed out that even
before the Magistrate he had mentioned that he was having
dollar notes concealed in his body and that this indicates
that the accused was under the belief that what he had
swallowed and concealed in the rectum were only dollar
notes. Pursuant to the said contention the M.Os. in the
case were brought down and examined. What is seen is that
the capsules were not factory made. Actually the heroin
was inside a plastic packet. That was covered with yellow
insulation tape and to cover it further an outer balloon
was used. This is presumably to avoid contamination of
the substance while inside the body of the first accused.
It may be that the accused did not have an opportunity to
see what was inside the capsules before they were put into
his body. That, however, is not sufficient to conclude
that he had not knowledge of the contents.
13. Section 35 of the N.D.P.S. Act provides that
in such a prosecution requiring culpable mental state of
the accused, the Court shall presume the existence of such
mental state but it shall be a defence for the accused to
prove the fact that he had no such mental state with
respect to the act charged as an offence. The accused did
not go to the box to speak about the knowledge that he
had. Nor was any other witness examined or documents
produced to show that his knowledge was otherwise. On the
other hand, the statements recorded by the authorities go
to indicate that the accused had in fact the information
as to the contents. It is to be mentioned here that even
according to his statement he had gone abroad thrice and
this is not the first occasion when he was acting as a
carrier. Again, Section 54 of the Act enables this Court
to presume that unless and until the contrary is proved
that the accused has committed the offence under the Act
in respect of any narcotic drug or psychotropic substance
as long as possession of the item is not accounted for
satisfactorily by the accused.
14. The Apex Court had occasion to deal with the
scope and ambit of Section 35 of the N.D.P.S. Act in
Abdul Rashid Ibrahim Mansuri v. state of Gujarat (2000
Crl. L.J. 1384). A Bench of three Judges held therein
that when it is shown that a narcotic drug was in the
possession of a person or vehicle driven by him, the
burden is on him to prove that he had no knowledge about
the fact that the item carried was a substance under the
N.D.P.S. Act. The standard of proof required is proof
beyond a reasonable doubt. If the Court, on an appraisal
of the entire evidence does not entertain doubt of a
reasonable degree that the accused had real knowledge of
the nature of the substance concealed, then the appellant
is not entitled to acquittal. However,if the Court
entertains strong doubt regarding the accused’s awareness
about the nature of the substance carried by him, it would
be a miscarriage of criminal justice to convict him
keeping such strong doubt undispelled. Even so, it is for
the accused to dispel any doubt in that regard. The
burden of proof cast on him under Section 35 can be
discharged through different modes, viz. (1) he can rely
on the materials available in the prosecution evidence;
(2) he can elicit answers from prosecution witnesses
through cross examination to dispel the doubt; and (3) he
may adduce other evidence at the stage of defence
evidence. If the circumstances appearing in prosecution
case or in the prosecution evidence are such as to give
reasonable assurance to the Court that the appellant could
not have had the knowledge or the required intention, the
burden cast on him under Section 35 of the Act would stand
discharged even if he has not adduced any other evidence
of his own when he is called upon to enter on his defence.
15. Applying the said decision to the facts of
this case, I do not find any reason to accept the defence
contention that the accused has discharged his burden
arising under Section 35 of the Act. The mere statement,
when questioned by PW1 that he was under the impression
that what was conveyed to him was dollar notes is
insufficient to discharge the burden arising under this
section.
16. In the circumstances the conviction for the
offence under Section 21 of the N.D.P.S. Act is certainly
justified and the alternative suggested by the accused
i.e. to alter the conviction to one under Section 135 of
the Customs Act involving Section 79 of the N.D.P.S. Act
is unacceptable.
17. Point No. 3: It is true that when there is a
conviction for the offence under Section 21 an attempt to
commit the same offence does not deserve any separate
conviction or sentence. But in the present case Section
28 is invoking against the accused not because he was
trying to possess the contraband. On the other hand, the
allegation is that he was trying to export the items by
boarding the Sreelanka Flight, which was to take off
within minutes of his check in at the Airport after
loading himself with the contraband. Section 21 does not
cover merely possession. Export is also one of the
ingredients mentioned in Section 21. As far as that
aspect of Section 21 is concerned, only an attempt stands
established. If the accused had not been apprehended at
the particular time and he could manage to get into the
Aircraft, the office of ‘export’ also would have been
completed. In that perspective there was scope for
involving Section 28 also as far as the offence ‘attempt to
export’ was concerned. That the appellant has accepted
the contraband given to him by other persons and was
acting only as a carrier does not alter the situation. In
the circumstances the conviction entered against the
accused for the offence under Section 21 and 28 of the
N.D.P.S. Act cannot be assailed.
18. Point No. 4: What remains is the aspect of
sentence. The learned Public Prosecutor submitted that
there is no justification for reducing the sentence
imposed by the trial court in so far as it is established
that the accused had engaged himself in activity as
carrier even earlier and since the quantum of brown sugar
seized in the case is substantial. He however, concedes
that there is no previous conviction against the accused
for any offence under the N.D.P.S. Act. The value of the
contraband seized in the case, according to the market
price prevailed in India, is said to be around
Rs. 50,000/-. Taking into account this aspect I think some
reduction is called for in the matter of sentence. The
substantive term of imprisonment for the offence under
Sections 21 and 28 of the N.D.P.S. act are hence brought
down from R.I. for 20 years to R.I. for a period of 12
years. Both will be suffered concurrently. The fine
imposed in the case, which is the maximum under Section
21, is also brought down to Rs. 1 Lakh for each of the
two offences with alternative term of R.I. for one year
each.
The appeal is disposed of with this reduction in
sentence.