((-1-)) MST IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1105 OF 2007 IN CRIMINAL APPEAL NO.702 OF 2003 Mohammed Jamahisya Khan Applicant versus The State of Maharashtra Respondent Mr.Ayas Khan for applicant. Mr.K.V.Saste, APP for respondent. CORAM : A.M.KHANWILKAR, J. DATE : 3rd April 2008 PC : 1. Heard counsel for the applicant and the learned Assistant Public Prosecutor. Amongst others, there are atleast two good reasons why I am inclined to grant bail in the present case in spite of the fact that the offence for which the applicant has been found guilty, is punishable under section 20(ii)(i)(c) of the Narcotic Drugs and Psychotropic Substances Act and ordered to suffer Rigorous Imprisonment (R.I.) for ten years and pay fine of Rs.1.00 lakh, in default to suffer one year’s R.I.. 2. The first argument canvassed on behalf of the applicant relying on the evidence of PW-4 is that the sample was brought to the Police Station ((-2-)) MST after the raid was conducted. PW-4, in his evidence, has set out that the said sample was sent to the Analyst under the covering letter Exhibit-24. The said letter is dated 28th September 2002 bearing Outward No.1774/2002. However, the acknowledgement letter given by the Public Analyst is at Exhibit-26, which indicates the Outward letter Number coming from the concerned Police Station as No.1770 of 2002, dated 28th September 2002. Assuming that the outward number referred to in Exhibit-26 is a typographical error, as it was with reference to CR No.I-177/2000, Mahatma Phule Chowk Police Station, however, what is intriguing is that the communication Exhibit-26 clearly records that the sample packet was received in the office of the Analyst on 30th September 2002. In other words, the sample was removed from the Police Station on 28th September 2002 and actually reached the office of Public Analyst on 30th September 2002. To examine this aspect, reference can be usefully made to the evidence of PW-4 in particular paragraph 2 of the examination-in-chief. The witness has stated that the Panchanama was drawn on the spot. He, however, states that after two days he carried the said sample to the C.A.. He has deposed that there were holidays during these ((-3-)) MST two days and, therefore, the sample was carried on third day. He asserts that he carried the sample with the covering letter Exhibit-24. Significantly, this version of PW-4 that the sample was physically removed from Police Station on 30th September 2002, is not substantiated by any contemporaneous record. The learned APP is not in a position to produce any material to counter this position. If it is so, there is doubt as to whether the sample remained in personal custody of PW-4 for almost two days before it was delivered along with covering letter Exhibit-24 in the office of the Public Analyst on 30th September 2002. This discrepancy has remained unexplained by the prosecution. The counsel for the applicant has rightly pressed into service exposition of the Apex Court in the case of State of Rajasthan V/s.Gurmail Singh reported in 2005-AIR-SCW-1333 that if the link evidence adduced by the prosecution is not satisfactory, the prosecution cannot be said to have proved the charge against the accused beyond reasonable doubt for which the accused deserves to be acquitted by giving benefit of doubt. 2. There is yet another formidable ground put forth by the counsel for the applicant. The ((-4-)) MST charge, as framed, Exhibit-4, is in respect of offence punishable under section 8 R/W Section 22 of the NDPS Act. The offence of Section 22 pertains to Psychotropic Substances; whereas, what has been found in possession of the applicant is "Charas", as has been noted in the evidence of the prosecution witnesses, as also by Public Analyst in his report dated 21st November 2002, Exhibit-26. To get over this position the learned APP would contend that eventually the applicant has been punished for offence punishable under section 20(ii)(c) of the NDPS Act which pertains to possession of "Charas" by the applicant. The learned APP is not in a position to point out that the charge, as was framed for offence of Section 8 R/W Section 22, has been subsequently modified suitably, so as to proceed against the applicant for offence punishable under section 20(ii)(c) of the Act. In paragraph 3 of the impugned judgement, the Court has, instead noted that the charge framed at Exhibit-4 was explained to the accused and the accused pleaded not guilty. There is no mention about the fact that the charge framed under Exhibit-4 was later on modified. If it is so, it would follow that the applicant was charged for one offence and has been found guilty of the ((-5-)) MST other. It is well established that no amount of evidence brought on record by the prosecution would be of any avail unless a charge was framed in that behalf and was put to the accused at the appropriate stage of trial. 3. Taking over all view of the matter, I have no hesitation in granting bail to the applicant herein also having regard to the fact that the applicant is in jail for almost more than five and a half years from 27th September 2002 and it is unlikely that his appeal will be taken up for hearing in the near future. 4. However, as the offence is a serious offence, it would be appropriate to impose strict conditions. Accordingly, the applicant is ordered to be released on bail in connection with offence punishable under section 20(ii)(c) of the NDPS Act in Sessions Case No.42 of 2003, if not required in any other criminal case, on the following conditions :- (a) The applicant shall be released on bail in connection with Special Sessions Case No.42 of 2003 tried before the Special Judge, NDPS Act, Thane, if not required in any other criminal case, on executing bail bond in the sum of Rs.1,00,000/- (Rs.One lakh only) with two local sureties in the like sum; ((-6-)) MST (b) The applicant shall deposit passport, if any, with the Senior Police Inspector of the concerned Police Station within three weeks from the date of his release, which will be retained by the said Senior Police Inspector till further order to be passed by this Court. In case, the applicant does not have any passport or has already deposited the same with the authority, shall file affidavit to that effect within three weeks from the date of his release in this Court; (c) The applicant shall report to the local Police Station twice a month on first and third Mondays of every English calender month between 10.00 a.m. to 01.00 p.m.; (d) The applicant shall not leave the jurisdiction of Thane and Greater Mumbai Districts without prior permission of this Court; (e) The applicant shall inform his latest place of residence immediately after being released and/or change of residence, if any from time to time, not only to the Registry of this Court but also to the local Police Station where he would report. 4. Application disposed off accordingly. (A.M.KHANWILKAR, J.)