1 cri-appln-94-11 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 94 OF 2011 (For Leave to Appeal) IN CRIMINAL APPEAL NO. OF 2010 P. S. Namboodri, Intelligence Officer, Narcotics Control Bureau, Mumbai Through Public Prosecutor for UOI .. Applicant Vs. Niranjan Jayantilal Shah and ors. .. Respondents Mr. A. S. Gadkari, Spl. PP for applicant. Mr. Ayaz Khan for respondent nos.2 and 3. CORAM: B. H. MARLAPALLE & U. D. SALVI, JJ. JANUARY 28, 2011. P.C. 1. We have heard Mr. Gadkari, the learned Spl. PP for the applicant and Mr. Ayaz Khan the learned counsel for respondent nos.2 and 3. None appears for respondent no.1, despite service. 2 cri-appln-94-11 2. The present respondents were accused nos.1 to 3 in NDPS Spl. Case No. 67 of 2003 and they came to be tried along with fourth accused for the offences punishable under Section 29 read with Sections 8(c), 12, 20(b)(ii) and 23 of the NDPS Act, 1985 and all of them have been acquitted of all the offences by the trial court. 3. The prosecution had examined in all 13 witnesses. Undoubtedly, the contraband material was sized at Detroit (United States of America) on 17/10/2002 by the U.S. authorities. In response to the communication from the U.S. authorities, PW 1 - Anand Kala went to Detroit and recorded the statement of accused – Jitendra Panchal on 25/3/2003 and another statement was recorded on the next day. The prosecution claimed that the hashish so seized (565.2 kgs.) was concealed in a consignment of pickles forwarded by a private company called Mahesh Food Products at Mumbai and it was to be received by another company called M/s. House of Spice, New York, USA. The seizure was as a result of a joint operation carried out by the US, Germany and Austria and during the investigation it had purportedly transpired that two persons by name Jitendra Panchal and Niranjan Shah (accused no.1) were engaged 3 cri-appln-94-11 in trafficking in Hashish out of India to USA and other destinations in European countries. Kishore Joshi – accused no.2 was also associated with Niranjan Shah and Jitendra Panchal in this business. 4. The trial court considered the evidence of all the witnesses as well as number of documents placed on record. It noted that the NCB did not try to seek the custody of the seized material from the U.S. authorities, it had not obtained the analysis report of the seized article so as to establish that it was Hashish or any other contraband. It was further clear that Jitendra Panchal was convicted by the competent court in US, but a copy of the said judgment was not placed on record. There was no question of any personal search of any of the accused for the recovery of the contraband and obviously, none of the NCB officers were involved in the process of search and seizure of the said material, which was in the custody of the US authorities. They had only arrested the accused persons in India and that too after recording their statements under Section 67 of the NDPS Act. It appears that the prosecution had also sought to place on record the Chemical Analyzer’s report from America and it was contended by the defence that the report was not from any Indian agencies. Consequently, the prosecution was required to prove the said report, but no witness was 4 cri-appln-94-11 examined in support of the same. It was necessary for the prosecution to prove that the seized material was covered under the NDPS Act. Mr. Gadkari, the learned Spl. PP invited our attention to the scheme of Section 66 of the NDPS Act and pointed out that when the contraband is seized at any destination beyond the Indian territories, the documents authenticated by such foreign authorities are required to be accepted by way of evidence and such a presumption, unless the contrary is proved, would support the prosecution case. However, such an authentication has to be as per the procedure prescribed under Rule 2 of the NDPS (Authentication of Documents) Rules 1992 and no such document was placed on record before the trial court and, therefore, the trial court held that the prosecution failed on all counts to prove the allegations made against the accused. 5. Lastly, the theory of conspiracy, as alleged by the prosecution, was examined by the trial court and para 67 of the impugned order deserves to be reproduced as under:- “There is no sufficient evidence to hold that accused nos.1 to 3 conspired prior to 17/10/2002 to import into India from Kathmandu, Nepal a narcotic drug. There is no sufficient 5 cri-appln-94-11 evidence to hold that accused purchased Hashish in Nepal, imported it to India and stored it in Mumbai. There is no sufficient evidence to hold that the accused transported Hashish to US. Link between the alleged recovery of Hashish and accused has not at all been established. There is no sufficient evidence about external dealing of narcotic substance by the accused..........” 6. We are, therefore, satisfied that the evidence placed before the trial court has been meticulously examined and the prosecution failed to prove its case for the reasons attributable to it. The evidence so placed by the prosecution does not require any reconsideration by the High Court. 7. Hence, this application fails and leave to appeal is refused. The application is rejected. (U.D. SALVI, J.) (B. H. MARLAPALLE, J.)