Union of India v. Johny Alexander Duran Sola

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** # **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR MONDAY, THE 30[TH] DAY OF OCTOBER 2023 / 8TH KARTHIKA, 1945** **CRL.A NO. 655 OF 2021** **AGAINST THE JUDGMENT DATED 22.07.2021 IN SC 921/2018 OF I ADDITIONAL DISTRICT COURT, ERNAKULAM** ## **APPELLANT/COMPLAINANT/UNION OF INDIA:** **UNION OF INDIA, REPRESENTED BY THE INTELLEGENCE OFFICER, NARCOTICS CONTROL BUREAU NARCOTIC CONTROL BUREAU, SUB ZONE COCHIN BY SPECIAL PUBLIC PROSECUTOR K.R RAJAGOPALAN NAIR.** **BY ADV K.R.RAJAGOPALAN NAIR (PERUMBAVOOR)** ## **RESPONDENTS/RESPONDENT/ACCUSED** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI 682 031** **2 JOHNY ALEXANDER DURAN SOLA S/O. DANIEL DURAN ANAYA, E1-SALVADON NATIONAL, R/O. BARRIO SAN JACINTO, COLONIA HARRIZON, CALLE LARA.NO. 106, SAN SALVADOR.** **BY ADVS. P.MOHAMED SABAH SAIPOOJA(K/001130/2016) LIBIN STANLEY(K/250/2015) R.GAYATHRI(K/249/2014) SADIK ISMAYIL(K/000238/2014) M.MAHIN HAMZA(K/000113/2017)** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.Appeal No.655 of 2021 -: 2 :- ## **P.B.SURESH KUMAR & P.G.AJITHKUMAR, JJ. -----------------------------------------------** ## **Crl. Appeal No.655 of 2021** ## **-----------------------------------------------** ## **Dated this the 30[th] day of October, 2023** ## **JUDGMENT** ## **P.B.Suresh Kumar, J.** The complainant in a case under Section 8(c) read with Sections 21(c), 23(c), 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) challenges in this appeal, the order of acquittal of the accused in the case. 2. The accused is an El Salvador National. On 08.05.2018, at 8.50 a.m., the accused came to the International Airport, Kochi from Dubai by Emirates Flight EK 530. PW1, the Intelligence Officer, Narcotics Control Bureau, Kochi received information that the accused is carrying substantial quantity of cocaine, a manufactured narcotic drug. Based on the said information, it is alleged that the accused was intercepted by the Intelligence Officer when he was collecting his trolley bag from the baggage area of the airport and on searching the trolley bag collected by the accused, it was found that he was possessing 2.008 kilograms of cocaine, Crl.Appeal No.655 of 2021 -: 3 :- in contravention of the provisions of the NDPS Act. It was the case of the complainant that the contraband was thereupon seized and the accused was arrested and produced before the jurisdictional Magistrate. Investigation of the case was conducted thereupon by PW6, another Intelligence Officer and the complaint was filed thereafter before the Special Court for Trial of Offences under the NDPS Act, alleging commission of the offences referred to above by the accused. 3. Upon filing the complaint, the Special Court took cognizance of the offences punishable under Sections 21(c) and 23(c) of the NDPS Act, and as it was found that there are grounds for presuming that the accused has committed the offences alleged, the Special Court framed charges against the accused under the aforesaid provisions. The complainant, thereupon examined six witnesses as PW1 to PW6 and proved through them as many as 42 documents as Exts.P1 to P42. MOs 1 to 16 are the material objects in the case. As the court did not find the case to be one fit for acquittal under Section 232 of the Code, the accused was called upon to enter on his defence. The accused thereafter gave evidence as DW1. The evidence tendered by the accused was to the effect that he Crl.Appeal No.655 of 2021 -: 4 :- was taken into custody by Narcotics Control Bureau (NCB) Officials while he was waiting for a taxi outside the airport; that MO1 trolley bag does not belong to him; that he was carrying only a yellow bag and that Ext.P4(a) baggage tag is one taken by the NCB officials from the yellow bag carried by him. 4. Later, on an appraisal of the materials on record, the Special Court found that the complainant could not prove the guilt of the accused beyond reasonable doubt and consequently, acquitted the accused giving him the benefit of doubt. As noted, the complainant is aggrieved by the said decision of the Special Court. 5. Heard the learned counsel for the appellant/complainant as also the learned counsel for the second respondent/accused. 6. The learned counsel for the complainant persuasively argued that it is without taking note of the provision contained in Section 66 of the NDPS Act, the Special Court found that the accused is not guilty of the offences alleged against him. According to the learned counsel, had the materials been considered in the light of the provision aforesaid, the court below ought not have arrived at the Crl.Appeal No.655 of 2021 -: 5 :- conclusion that the complainant has not proved the guilt of the accused beyond reasonable doubt. It was also argued by the learned counsel that the reasons stated by the Special Court are all flimsy and the conclusion arrived at on that basis cannot be said to be a reasonable view in favour of the accused. 7. Per contra, the learned counsel for the accused contended that the view taken by the Special Court is a probable and balanced view and this Court may not, therefore, interfere with the impugned judgment. The learned counsel also raised various other contentions to support the decision of the Special Court. One of the main contentions was that the drawing of the sampling of the contraband allegedly seized by NCB officials was not in accordance with the provision contained in Section 52A of the NDPS Act. 8. As this is an appeal in a case of acquittal under Section 378 of the Code, the question to be considered is whether the view taken by the Special Court for acquitting the accused is a reasonable one, for the principle governing the field is that even in a case where two reasonable conclusions are possible on the basis of the evidence on record, one in favour of the accused and the other against him, Crl.Appeal No.655 of 2021 -: 6 :- the appellate court should not disturb the finding of acquittal recorded by the trial court [See **Chandrappa v. State of Karnataka** , (2007) 4 SCC 415 and **Rajesh Prasad v. State of Bihar** (2022) 3 SCC 471]. 9. In order to adjudicate the question, it is necessary to refer to the evidence tendered by PW1 who claimed to have seized the contraband from the accused and the evidence of PW3 and PW5 who witnessed the alleged search and seizure. PW1, the Intelligence Officer deposed that on 08.05.2018, when he intercepted and questioned the accused while he was picking up MO1 trolley bag from the conveyor belt area of passengers in the airport, the accused admitted that he is carrying narcotic drugs; that PW1 thereupon searched MO1 trolley bag, in the presence of PW3 and others and found one plastic bag inside MO1 trolley bag and found inside that plastic bag, 12 numbers of rectangular shaped soap like packets containing white coloured powder like substance and the said material when tested was found to be cocaine. He identified his signature in Ext.P14 seizure mahazar. PW1 also deposed that thereafter he conducted a personal search and seized from the accused, among others, Exts.P4(a) -: 7 :- Crl.Appeal No.655 of 2021 baggage tag and P4(b) baggage claim card. PW3 and PW5 gave evidence consistent with the evidence tendered by PW1, and identified their signatures in Ext.P14 mahazar. 10. Let us now see the reasons, on the basis of which the Special Court held that the complainant failed to prove the guilt of the accused beyond reasonable doubt. The main reason is that although it was deposed by PW5, the immediate superior officer of PW1 that a number would be assigned to each case only after the detection, the number of the instant case is seen mentioned in every document stated to have been prepared at the airport. Another reason stated is that even though Ext.P14 mahazar is claimed to have been prepared at the office of the Assistant Commissioner of customs, no customs official is cited as witness to any of the documents claimed to have been prepared at the airport nor were any of them questioned, and their statements were recorded by the Officer who conducted the investigation of the case later. Yet another reason stated is that the Investigation Officer in the case has not conducted any investigation as to the source of the contraband or as to the person for whom the contraband was brought. Yet another reason stated is that the -: 8 :- Crl.Appeal No.655 of 2021 Investigating Officer has not interrogated the accused during the course of investigation and that the officer was not in a position even to say as to who retained the custody of MO1 trolley bag before the same was produced before the Jurisdictional Magistrate. Yet another reason stated is that no document was found inside MO1 trolley bag to connect the accused with the said bag and even though Ext.P4(a) baggage tag was relied on by the complainant to connect the accused with MO1 trolley bag, the complainant has no case that the same was removed from the bag at any point of time. According to the Special Court, the said circumstances create a reasonable suspicion as to the time at which and the place from where the contraband was seized and that the accused, in the said circumstances, is entitled to the benefit of doubt. 11. We are in complete agreement with the view taken by the Special Court. As noted, the defence of the accused is that he has no connection whatsoever, with MO1 trolley bag from which the contraband is alleged to have been seized. As observed by the Special Court, the complainant relies on Ext.P4(a) baggage tag and Ext.P4(b) baggage claim card to connect the accused with MO1 trolley bag. The relevant -: 9 :- Crl.Appeal No.655 of 2021 portion of the evidence tendered by PW1 in this regard reads thus : “Whether have you seen any document to identify the accused from the bag (Q). Yes. Baggage card, Ext.P4(a) (Ans)” Strangely, it is seen from Ext.P14 seizure mahazar that Ext.P4(a) baggage tag was not seized along with MO1 trolley bag. Ext.P14 mahazar indicates that after the seizure of MO1 trolley bag and the various articles and the contraband kept therein, a notice under Section 50 of the NDPS Act was served on the accused by the Intelligence Officer informing the accused that he has a right to be searched in the presence of a Gazetted Officer or a Judicial Magistrate, and since the accused declined to exercise the said right and allowed the Intelligence Officer to conduct his personal search, a personal search was thereafter conducted by the Intelligence Officer, which resulted in the recovery of 14 documents, including an Emirates Baggage tag bearing No.EK878958 issued in the name of the accused and an Emirates Baggage Claim card corresponding to the Baggage Tag bearing No. EK878958 issued to the accused. The aforesaid are the documents produced and marked in the proceedings as Exts.P4(a) and P4(b). 12. It is common knowledge that a baggage tag is a Crl.Appeal No.655 of 2021 -: 10 :- document printed by an Airline and attached to the passenger's bag to enable them to track the bag and deliver to the passenger at the destination and the baggage claim card is an identically printed document issued by the Airline to the passenger to enable him to claim his baggage at the destination. As noted, the evidence tendered by PW1 is to the effect that with the help of the Immigration Authorities, he identified the accused, and along with the witnesses, he followed the accused to the conveyor belt area of the airport and when the accused picked up MO1 trolley bag, they intercepted him and on questioning him, the accused admitted that he is carrying narcotic drugs. It was also deposed by PW1 that on examining MO1 trolley bag, in addition to the personal items of the accused, one plastic bag was found, in which 13 numbers of rectangular shaped soap like bars were found. The relevant portion of the evidence tendered by PW1 reads thus : “Immigration authorities on arrival of the flight identified the passenger and informed us. We followed the passenger to the conveyor belt area of passengers. Once the passenger picked up his navy blue colour trolley bag, we intercepted him and asked his name. MO1 bag identified. He revealed his name as Johny Alexander Duran Sola. When I questioned him, he admitted that he is carrying narcotic drugs. As the area was crowded, we moved to room No.S-112, Office of the Asst. Commissioner Customs, Air Crl.Appeal No.655 of 2021 -: 11 :- Intelligence Unit for further search. On examining MO1, in addition to his personal items, one plastic bag was found in which 13 numbers of rectangular shaped soap like bars were found, out of which one bar was found as a genuine soap “Jiorno-Bagno' cover of other 12 such soap MO2 identified, plastic cover MO3 identified. The other soap like bars cover MO2 series identified (12) were found to contain white colour powder packed in plastic and silver foils. They are MO4 series identified. A small quantity of powder from each 12 packets were drawn and tested with standard testing kit, to which it gave +ve results for the presence of Cocaine”. As noted, PW1 has no case in his evidence that the accused removed the baggage tag attached to MO1 trolley bag at any point of time since his arrival at the airport until the search was over. Ext.P14 mahazar contemporaneously prepared by PW1 contains an elaborate description of the various procedures claimed to have been followed by PW1 ever since he arrived at the airport on the day on receipt of the information. There is no recital in Ext.P14 also that the accused removed the baggage tag attached to MO1 trolley bag at any point of time. If the accused had no occasion at all to remove the baggage tag attached to MO1 trolley bag since his arrival, until the bag was seized by PW1, it is difficult to comprehend as to how the complainant could then say that Ext.P4(a) baggage tag which Crl.Appeal No.655 of 2021 -: 12 :- was seized from the person of the accused, after the search of the trolley bag and seizure of the same, could be said to be the baggage tag attached to MO1 trolley bag. True, there is no reference in Ext.P14 as regards the baggage tag attached to MO1 trolley bag. But, merely for the reason that there is no reference to the baggage tag attached to MO1 trolley bag in Ext.P14 mahazar, the baggage tag seized from the person of the accused cannot be said to be the baggage tag of MO1 trolley bag. It is seen that when PW1 was cross-examined on this aspect, he conceded that Exts.P4(a) and P4(b) were seized from the person of the accused and that he could not get any document other than Ext.P4(a) regarding the identity of the accused. He also deposed that he has not mentioned that Ext.P4(a) was removed from MO1 trolley bag. The relevant portion of the deposition reads thus : “As per Ext.P14 it is seen that Ext.P4a & b are seized from the person of the accused. Apart from Ext.P4(a) I could not get any document regarding the identity of accused. In Ext.P14, I have not mentioned that Ext.P4(a) was removed from the bag.” The aforesaid circumstance creates serious doubt about the case of the prosecution that MO1 trolley bag was seized from the possession of the petitioner. The prosecution failed to prove satisfactorily that Ext.P4(a) is the baggage tag of MO1 Crl.Appeal No.655 of 2021 -: 13 :- trolley bag. We have required the learned counsel for the appellant to explain as to how Ext.P4(a) baggage tag could be said to be the baggage tag of MO1 trolley bag. The vague reply given by the learned counsel is that Ext.P4(a) is one seized from MO1 bag and the recital to the contrary contained in Ext.P14 is a mistake. The reply aforesaid cannot be accepted as a satisfactory explanation to hold that Ext.P4(a) is the baggage tag attached to MO1 trolley bag. In a case of this nature, it was obligatory for the complainant to make available sufficient materials to connect the accused with the bag from which the contraband was alleged to have been seized and in the absence of satisfactory materials to establish the said fact, according to us, the Special Court is fully justified in extending the benefit of doubt to the accused. In the light of the finding aforesaid, it is unnecessary to consider the various other arguments raised by the accused. In the result, the appeal is dismissed. Sd/- **P.B.SURESH KUMAR, JUDGE.** Sd/- ## **P.G.AJITHKUMAR, JUDGE.** ds 20.10.2023