29A. cr apeal 337-08.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 337 OF 2008 Marie Antoinette Bacco ] Seychelles National, Age : 44 Years, ] R/O. Beau Vallon, Mahe, Seychelles. ] (At present undergoing sentence at Mumbai ] Central Prison) ] Appellant Vs 1. Union of India, ] (A.I.U., Customs, Mumbai) ] 2. The State of Maharashtra ] Respondents Mr. Ayaz Khan for the Appellant Ms. A.A. Mane for Respondent No. 1 - Union of India Mr. V.B. Konde-Deshmukh, APP for the State CORAM : SMT. V.K. TAHILRAMANI, J DATE : 14th SEPTEMBER,2010. ORAL JUDGMENT: 1. Through this appeal, the appellant-original accused no. 1 has challenged the judgment and order dated 04.03.2008 passed by learned Special Judge for NDPS Cases, Greater Mumbai, in NDPS Special Case No. 116 of 2004. By the said judgment and order, the learned Special Judge convicted the appellant-original accused no. 1 for the offence punishable 1 29A. cr apeal 337-08.doc under Sections 20(b)(ii) read with 8(c), Section 23 read with 28 of the NDPS Act and Section 135(1)(a) read with 135(1)(ii) of the Customs Act, 1962. 2. The prosecution case briefly stated is that the applicant along with accused no. 2 were intercepted at Sahar International Airport, Mumbai. Their checked-in luggage was checked. 10 kgs of Hashish was found concealed in an air cooler. The prosecution case is that the carton containing the air cooler belonged to the appellant. The hashish came to be seized. Thereafter, samples were taken from the said contraband substance and it was sent to Chemical Analyzer. As per the CA report (Exh. 19) each of the two samples was Charas (Hashish) and hence, it was covered under the NDPS Act, 1985. 3. Charge came to be framed against the appellant-original accused under section 20(b)(ii) read with 8(c), Section 23 read with 28 of the NDPS Act and Section 135(1)(a) read with 135(1)(ii) of the Customs Act, 1962. The applicant pleaded not guilty to the said charge and claimed to be tried. Her defence is that of total denial and false implication. She stated that she was not carrying any air cooler at all, hence there was no question of any Hashish being found in her baggage. 2 29A. cr apeal 337-08.doc 4. I have heard learned advocate for the applicant, learned advocate for respondent no. 1 and learned APP for the State. I have also perused the evidence as well as judgment and order passed by learned Special Judge. After anxiously considering the matter, for the reasons stated herein below, I am of the opinion that the judgment and order passed by the Special Judge deserves to be set aside. 5. In order to prove that the seized material was Hashish, the prosecution has relied upon the CA report Exh. 19 and the evidence of PW 6 Mr. Shrivastav who is the Chemical Analyzer. Learned advocate for the appellant pointed out that no question relating to Exh 19 has been asked to the accused in her statement which was recorded under 313 of Cr.P.C. So also, the trial Judge has not asked any question to the appellant regarding testing of drugs at the spot at the airport. He submitted that in cases under NDPS Act, the most vital document is the CA report as it is on the basis of the CA report that the conviction is based. If no question is asked in relation to this vital aspect, then the conviction is liable to be set aside. 6. The learned advocate for the appellant submitted that the Supreme Court and this Court has held that when incriminating circumstances of vital importance are not asked 3 29A. cr apeal 337-08.doc to the accused, then the conviction cannot be sustained. In support of his submission he placed reliance on the decision in case of State of Punjab VS Hari Singh and Ors reported in (2009)2 Supreme Court Cases (Cri) 243. The said case was also the NDPS Act. As the vital question not put in relation to the contraband material, the conviction came to be set aside. In the said case, it was observed that no question relating to possession was put under 313 Cr P.C. to the accused, in such case, this omission vitally affects the prosecution case, hence the conviction was set aside. 7. Reliance is also placed on a decision of the Supreme Court in the case of Avatar Singh Vs State of Punjab reported in 2002(7) SCC 419. In the said case, the prosecution case was that the accused persons were in possession of poppy husk. They were found traveling in a vehicle and were found sitting on the bags of poppy husk. As there were other accused in the vehicle, the Supreme Court observed that in the course of examination under 313, not even a question was asked that they were the persons in possession of poppy husk in the vehicle and the only question put to them was that as per the prosecution evidence, they were sitting on the bags of poppy husk. In such circumstances, conviction of the appellants came to be set aside. 4 29A. cr apeal 337-08.doc 8. Learned advocate for the appellant also placed reliance on a decision of the Supreme Court in case of Sharad Sarda Vs. State of Maharashtra reported in AIR 1984 SC 1622 wherein it was held that incriminating circumstance which has not been put to the accused under 313 of Cr.P.C. cannot be used against him. 9. In all NDPS cases, the samples of the narcotic drug or psycotrophic substances are sent to the CA. After testing the said samples, CA gives report whether there is any narcotic or psycotrophic substance in the sample. Only when the report is positive, can a conviction be based under the NDPS Act. Thus, the CA report and the evidence of CA are of utmost importance in cases under the NDPS Act, hence, in cases under NDPS Act, questions regarding the CA report and the evidence of CA are elementary and would, in my opinion, be mandatory as they go to the root of the case. In NDPS cases, the conviction is entirely dependent on the CA report and if the CA report is not put to the accused, it would be a major flaw in the prosecution case which would go to the root of the prosecution case. These are question of great consequence. Not only no questions were asked to the accused on this aspect, but the appellant was also not asked any question about any sample being taken at the spot. So also, no question was asked about testing of a sample at the 5 29A. cr apeal 337-08.doc airport by the AIU officers. 10. Questioning of an accused under Section 313 of Cr.P.C. is not an empty formality. The essence of accusation has to be brought to the notice of the accused. When any incriminating circumstance is sought to be used against any accused person, he must be asked about the same in his statement under Section 313 of Cr.P.C. As the appellant- accused has not been asked any question on all these incriminating circumstances, none of these circumstances can be used against him. If all these circumstances are excluded from consideration, there is no material to show that what was seized from accused was a narcotic substance. 11. The object of examination under Section 313 of Cr.P.C., it is well known, is to afford an opportunity to the accused to explain the circumstances appearing in the evidence against him/her. Having regard to the charge of which the appellant is an accused, the failure to elicit an answer on such crucial aspect is fatal. 12. In view of the above decisions and looking to the fact that no questions were asked on many vital issues, most of them being crucial in nature, the conviction cannot be sustained. In the result, appeal is allowed. Hence, the 6 29A. cr apeal 337-08.doc order: O R D E R 1. The conviction and sentence imposed on the appellant by the trial Court is set aside. 2. The appellant Marie Antoinette Bacco be released from jail if not required in any other case. 3. The passport of the appellant which is deposited before the trial Court be returned to the appellant. 4. Appeal is allowed in above terms. [SMT. V.K. TAHILRAMANI, J.] 7 29A. cr apeal 337-08.doc 8