1 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 583 OF 2009 (For leave to appeal) IN CRIMINAL APPEAL NO. OF 2008 Union of India (Through K.S. Hate, Intelligence Officer, Narcotics Control Bureau, Mumbai Zonal Unit, Mumbai.) .. Applicant Vs. Chandrakant Nagappa Koli and ors. .. Respondents Ms. P. H. Kantharia, Addl. Public Prosecutor with Mr. Y.M. Nakhawa for applicant- UOI. Mr. Ayaz Khan for respondent no.1. Mr. Sherali Khan for respondent nos.2 to 4. CORAM: B. H. MARLAPALLE & A. A. SAYED, JJ. April 26, 2010. P.C. 1. Heard Ms. Kantharia, the learned Additional Public Prosecutor for the applicant-Union of India. Mr. Ayaz Khan the learned counsel appears for respondent no.1 and Mr. Sherali Khan the learned counsel 2 appears for respondent nos. 2 to 4. 2. This is an application filed by the Union of India, through the Intelligence Officer, NCB, Mumbai Zonal Unit at Mumbai for seeking leave to appeal under Section 378 (3) of Cr.P.C. against the order of acquittal passed on 7/5/2008 by the learned Special Judge for NDPS, Greater Mumbai in NDPS Special Case No. 151 of 2004 and NDPS Special Case NO. 89 of 2006. In the first case, the present respondent nos. 1 to 3 and in the second case present respondent no.4 were arraigned as accused and the learned Special Judge was pleased to acquit all the accused for the offences punishable under Sections 8(c) read with Sections 21 (c) and 29 of the NDPS Act. 3. As per the Intelligence Officer, the NCB received information on 9/6/2004 that accused no.2 had delivered substantial quantity of heroin to accused no.1 at this residence at Hut No.FNMC/195, 3/3, M.H. Plot No. 10, Wadala Azad Vikas Mandal, Wadala Sewree Cross Road, Wadala, Mumbai and, therefore, the said premises were searched, in which four persons were found. The search of the premises allegedly resulted in the recovery of 3 kgs. heroin stored in a blue nyhlon zipper bag containing two 3 transparent polythene packets and a polythene bag, containing Rs.3 lac currency notes, was also seized. Four persons were taken in custody. Accused nos.3 and 4 were found to be minors and, therefore, their case was transferred to the Juvenile Board. Present respondent no.3 was subsequently added as accused no.3 before the Special Court on account of her arrest on 22/6/2004 and the present respondent no.4 was arrested on 25/1/2006, after recording her statement under Section 67 of the NDPS Act. 4. The prosecution examined in all 17 witnesses and also relied upon various documents, including the multiple statements of each of the accused recorded under Section 67 of the NDPS Act. In the intelligence note (Exh.20) which was drawn at about 10 a.m. on 9/6/2004 indicated that the delivery of the contraband was going to take place at about 11 a.m. and before that itself accused no.1 was taken in custody. Whereas the seizure panchanama at Exh.27 which was drawn by PW 2 – seizing officer, there was a reference that the officer had intelligence that one person from Rajasthan by name Anees Khan had delivered substantial quantity of heroin to accused no.1. Thus the contents of Exhs.27 and 20 were materially different. The exclusive possession and ownership of the 4 premises, from where the alleged recovery was made, of accused no.1 was not proved and, therefore, the accused was entitled for acquittal as per the decision in the case of Omprakash @ Baba Vs. State of Rajasthan [(2009) 10 SCC 632]. PWs 14 and 17 were claimed to be the independent witnesses for the alleged seizure and they turned hostile. This weakened the case of the prosecution in view of the law laid down in the case of Ritesh Chakravarti vs. State of M.P. [2007 (1) SCC (Cri) 744] and Dilip and anr. vs. M.P. [2007 (1) SCC (Cri) 377]. 5. The statements recorded under Section 67 of the NDPS Act were retracted. In the second case, it was claimed that on 25/1/2006 the NCB Officers had carried a search and seized 6 kgs. of heroin from a car bearing registration No. MP-09-EC-0138 near Yogi Hotel, Sion, Mumbai and apprehended two persons by name Muqisur Rehman and Akthar Ali Shaikh and it was claimed to have been revealed that the said heroin was for the mother of accused no.1 and accused no.4. The residential premises of accused no.4 was searched but no incriminating article was recovered. There were three statements of accused no.2 recorded under Section 67 of the NDPS Act. The first statement at Exh. 66 was recorded on 9/6/2004, the second statement was recorded on 10/6/2004 and the third statement 5 was recorded on 25/6/2004 (Exh. 69) and all these statements were found to be at variance and even contrary to each other on material aspects. PW 12 – Shri Patil in his cross-examination had stated that accused no.3 was brought to NCB Office at about 8 p.m. and she was not arrested prior to the said time. PW 11 – Shri Singh recorded the first statement of accused no.3 at Exh.96 and during his cross examination, he stated that about 2 to 2 ½ hours were required for recording the said statement and it was continuously recorded. The memo of arrest of accused no.3 at Exh.98 went to show that she was placed under arrest at about 10 p.m. on 22/6/2004 and accused no.3 was in the custody of NCB till 7/7/2004 as per PW 11. When the application dated 6/10/2004 was shown to this witness, which was filed by accused no.3, he stated that it was not brought to his notice. The said statement indicated that there were assaults inflicted on the person of the accused and she had injuries, as per the medical certificate issued by the Medical Officer on 8/7/2004. Two contusions on right buttock and another on left scapular region and swelling over the left shin were noticed on the person of accused no.3 and she was referred to J.J. Hospital for further treatment. This went to show that force was used on accused no.3 while she was in the NCB custody. Consequently her statements at Exhs. 96 and 100 could not be said to be voluntary statements. 6 6. Accused No.4 was arrested, as noted earlier, on 25/1/2006, but during the trial it was shown that she was arrested on 30/1/2006. Her first statement recorded under Section 67 of the NDPS Act at Exh.50 was dated 25/1/2006, second statement at Exh.51 was recorded on 30/1/2006 and her last statement at Exh.54 was claimed to have been recorded on 3/2/2006. In the first statement at Exh.50, accused no.4 had disclosed about her previous involvement in drug trafficking and there was no reference in that statement regarding the seizure of 3 kgs. of heroin from the premises of accused no.1. In the second statement at Exh.51 dated 30/1/2006 the accused no.4 had stated that seized 3 kgs. of heroin was meant for herself and her elder sister Jyoti i.e. accused no.3. This statement was contrary to the statements of accused nos.1, 2 and 3 allegedly recorded by the prosecution. The statements recorded under Section 67 of the NDPS Act could not be said to be voluntary. 7. The trial court, by considering the evidence, held that the samples were not deposited in the godown and they remained with PW 2. It had claimed that the sample S-I was forwarded to Dy.C.C., on 10/6/2004 and the second sample – S-II was handed over to Panigrahi on 11/6/2004. 7 The delay to send sample S-II to FSL was not explained and PW 2 had access to the sample as well as the seal on 10/6/2004 and, therefore, possibility of fabricating the sample could not be ruled out. The trial court also held that by not keeping any register with regard to the custody of the sample, Standing Order 1 of 1988 was violated and, therefore, the accused were entitled for acquittal in view of the judgment of the Supreme Court in the case of Union of India vs. Balmukund [2009 CR.L.J. 2407]. 8. It was under these circumstances the trial court held that the evidence in respect of the seizure of the contraband from the premises of accused no.1 was not cogent, consistent and reliable and the statements of accused persons recorded under Section 67 of the NDPS Act were self contradictory. Secondly, the prosecution failed to prove the guilt of the accused persons or any of them beyond doubt and, therefore, by giving benefit of doubt they were entitled for acquittal. 9. We find no error in the reasoning set out by the learned Special Judge and, therefore, there is no case made out to grant leave to appeal, as the said reasoning does not call for reconsiderations at our hands. 8 10. Hence, leave to appeal is refused and the application is rejected. (A. A. SAYED,J.) (B. H. MARLAPALLE, J.)