1 CA-861.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE  CRIMINAL CRIMINAL APPLICATION NO.861 OF 2010 IN CRIMINAL APPEAL NO.425 OF 2010 Tsuyoshi Nakashima .... Applicant Vs. Union of India & Anr. .... Respondents Shri Ayaz Khan for the Applicant. Shri Mandar Goswami, Special APP for Respondent No.1-UoI. Shri J.P. Kharge, APP, for the State. CORAM: R.C. CHAVAN, J. DATED: FEBRUARY 17, 2011 P.C: 1. This is an application for bail in Criminal Appeal No.425 of 2010, which has been admitted by this Court on 16-6-2010. The appeal is directed against the applicant/appellant's conviction for the offences punishable under Sections 20(b)(ii)(C) and 23(C) of the NDPS Act and sentence to suffer RI for one year and 10 years and fine of Rs.1,00,000/- on each of the two counts imposed upon him by the learned Special Judge for NDPS, Greater Mumbai, for possession of 7500 grams of hashish. On the 2 CA-861.10 night of 2-5-2006, the applicant had checked in for boarding a flight to Milan via Zurich. There was a check in baggage which had been given to the airline staff. At the time of screening, the officers had found something suspicious. The bag was then located in the baggage area and the applicant was asked to identify the bag. It was found to have a false bottom in which 7500 grams of hashish was found. This was seized and samples were drawn. The samples were lodged in the strong room of the Customs Department. On completion of the investigation, charge-sheet was sent and after trial the applicant has been convicted and sentenced, as indicated above. 2. The learned counsel for the applicant submitted, first, that the boarding pass, on which the prosecution relies, in fact is possibly a fake or forged one since there can be no stand-by passenger who would be allowed to check in his baggage on an international flight, particularly when he had been issued a card for boarding the flight for Milan from Zurich having seat No.8D. Therefore, according to him, the original boarding pass, which might have been issued to the applicant, has been replaced by this fake boarding pass in order to 3 CA-861.10 show the baggage tag to connect the applicant to the bag which was seized. He next submits that the bag was stated to have some number lock by the raiding officer Kerketta but in fact the bag did not have any such lock, either built-in or attached to it. He further submits that after the bag was screened, ordinarily there would be a security strap attached to the bag. No such security strap is referred to in the panchnama under which the bag was opened. Next he submits that there was no list of the other articles found in the bag made and they are alleged to have been given back to the applicant, without any list being made. 3. Apart from these infirmities at the time of the seizure, the learned counsel for the applicant submits that the sample drawn, which was sent to the laboratory under the orders of one officer Kar, had also mysteriously moved from the strong room where Kerketta had lodged it to a warehouse called DS-I from where it was retrieved by Kerketta and lodged in the laboratory in between 4th and 5th of May, 2006. Further, the learned counsel states that there has been a breach of the standing instructions issued by the NCB which, in terms of the judgment of the Supreme Court 4 CA-861.10 in Union of India v. Bal Mukund and others, reported in 2009 (1) Drugs Cases (Narcotics) page 241, ought to have been followed and if not followed, would result in rejection of the prosecution case. The learned counsel placed reliance on a judgment of the Supreme Court in State of Rajasthan v. Gurmail Singh, reported in 2005 Drugs Cases (Narcotics) page 79, to urge that failure to produce the malkhana register or the warehouse register where the articles were stored should result in acquittal. Relying on a judgment of the Supreme Court in Valsala v. State of Kerala, reported in AIR 1994 SC 117, the learned counsel submitted that if there is absence of evidence that the contraband was sealed and kept in proper custody, the conviction was not sustainable. 4. His learned adversary submitted, first, that in international flights there is also always overbooking in order to ensure that all seats are full. The boarding card showing that the applicant was a stand-by passenger does not imply that he was to stand in the plane but would have been eventually allotted a seat that may have become available. The boarding card was not fake. The baggage tag on the boarding 5 CA-861.10 card tallied with the tag attached to the bag which was seized and in which contraband was found. Therefore, there is nothing suspicious about it. In any case, this is an aspect which can be gone into at the time of hearing of the appeal and cannot on the face of it, show that the prosecution story is worth being rejected outright. 5. As to the absence of the lock, it is to be observed that this is not a case where the contraband was found to have been pushed inside a bag which could have been opened. It was found concealed in a false bottom of the bag. Therefore, whether the lock was found or not, may or may not be an important infirmity and would require reading of the complete evidence. Same holds good about the security strap. 6. As to the allegation about shifting of the sample from the strong-room to DS-I, even the learned counsel for the respondent was not in a position to explain as to how this occurred, but he submitted that since the laboratory found that the sample was in the sealed condition when it was sent and the seals tallied, though the movement of the sample from one warehouse to another could be irregular, it 6 CA-861.10 does not necessarily vitiate the prosecution case. In any case, this is an aspect which would have to be gone into at the hearing of the appeal and does not merit rejection of the case or prima facie holding that the applicant may not have been guilty and therefore admit the applicant to bail. The judgment in the case State of Rajasthan (supra), on which the learned counsel has placed reliance, refers to two things. The first is about non-production of the malkhana register and the second is that no sample or specimen of seal was sent to the laboratory along with the sample to enable the laboratory to compare the seals. It is not one reason alone which weighed with the Supreme Court in taking the view that it took in the case of State of Rajasthan. 7. As to the failure of the investigating machinery to stick to the Standing instructions, this question again would require elaborate arguments to be heard since what were the instructions and how their non-compliance prejudicially affected the applicant would have to be gone into only when the appeal is fully heard. Thus, for the present purpose it is not shown that the applicant is entitled to be bailed out pending the hearing of the appeal. 7 CA-861.10 The application is rejected. 8. All the observations made in this order are only for the purpose of deciding this bail application and have absolutely no bearing on the merits of the matter. 9. The learned counsel for the applicant submitted that the applicant is having some psychological problem and is not getting proper treatment. The State should see that the applicant receives appropriate treatment. 10. List the appeal for early hearing. (R.C. CHAVAN, J.)