:1: IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.727 OF 2008 IN CRIMINAL APPEAL NO.585 OF 2008 Mohamed @ Mahmya Razsak Pathan. ..Applicant. Vs. The State of Maharashtra. ..Respondent. Mr.Ayaz Khan for the Applicant. Ms. M.H. Mhatre,APP. for the State. CORAM: R.S. MOHITE, J. DATE : 9/9/2008 PC : 1. This is an application for grant of bail. It is contended that pending trial, this court had granted bail by giving a finding that the present applicant was not in exclusive possession of the premises in question. I have perused the said order which has been given by Smt. V.K.Tahilramani, J. on 23.6.2007. It appears that this court was very impressed by the fact that when the raid was conducted on 19.6.2006 terrace portion of the flat was given on rent to one Mr. Sachin Choudhary by an agreement dated 14.3.2006 and according to the advocate for the accused, a zerox copy of the said agreement dated 14.3.2006 was shown to the court. The Court was also informed that against Mr.Sachin Choudhary there was another case under NDPS Act which was under investigation by Mantala Police Station, Karnataka State and the proclamation has been issued in that case. It appears that the court was also impressed by the fact :2: that there was a separate stair case which led to the house of the applicant. However, I find that after evidence was led in the matter, the court has disbelieved the said evidence as unacceptable and untruthful. I have called for the record and proceeding and perused the said evidence. Prima facie, it appears that on the so called agreement dated 14.3.2006 the names of the witnesses have been scored out by white ink and names of two other persons have been added as witnesses in the document. Though the agreement was executed on 9.6.2006 before a Notary, the notary has put his signature on 14.6.2006. Neither the witnesses nor the notary was examined. It also appears that there was another case under the NDPS Act pending against this applicant. There drug was seized from different premises. The Advocate for the applicant has tendered a copy of the Judgment of acquittal in the said Special Case No.47 of 2006 delivered on 23.5.2008 by Sessions Court, Nashik. Same is taken on record and marked "X" for identification. It appears from the said judgment that some similar agreement was also shown to the Sessions Judge and in respect of those premises also Mr.Sachin Choudhary was supposed to be the tenant. The Trial Court while acquitting the accused in Para-56 of the Judgment observed that rent agreement was also filed in Special Case No.42/2006 to prove the fact that Sachinkumar had taken the premises on rent and the rent was Rs.1500/-p.m. That observation cannot be correct :3: because the premises are different and the agreement produced in this case is pertaining to different premises. Apart from this, the proclamation said to have been received by the landlady who had stepped into the witness box and which was yet another basis for grant of bail during the trial was not produced in the trial court. In this view of the matter, the question as to whether that there was a different stair case leading to the premises of the accused and the applicant was not in exclusive possession of the premises in question, acquires a different colour. The story regarding giving premises on rent to Sachin Choudhary will require detailed consideration at the time of hearing of the appeal. It may be stated here that in so far as husband-accused No.1, it is contended that he was not present at the time of raid and it was argued that he had gone for Haj.This is not supported by any document because if the applicant has gone for Haj then this fact would have been reflected in his pass port. In view of the aforesaid position, I find that the application has no merits and stands rejected. 2. There will be liberty to the applicant to file private paper book. Inspection of the record and proceeding be given to the Advocate for filing the private paper book. 3. It is also made clear that the observations made in :4: this order are prima facie and the appeal will naturally be decided on its own merits. (R.S. MOHITE, J.)