1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.64 OF 2010 IN CRIMINAL APPEAL NO. 606 OF 2009 Lalson George ...Applicant Vs. Union of India & Anr. ...Respondents ----- Mr. Ayas Khan with Mr. Nilofar Saiyed for the Applicant Mr. Deepak N. Salvi with Mr. S.R. Shinde for Respondent No.1 Mr.A.S. Shitole, APP for the State ----- CORAM: V.M. KANADE J. DATED: 27TH APRIL, 2010 P.C. 1. The Applicant is the Original Accused No.1. He has been convicted for the offence punishable under section 8(c) r/w. 21(c) of the N.D.P.S. Act and sentenced to suffer R.I. For 10 years and to pay fine of Rs.1,00,000/- and, in default, to suffer R.I. for six months. The Appeal was admitted by this Court on 10.6.2009. 2. Brief facts are as under:- 2 3. According to the prosecution specific intelligence was received by the Narcotic Control Bureau, Mumbai in writing at 1400 hrs. by J.S. Dubey and Vipin Nair that substantial quantity of heroin is stored in flat no.2 at Panvel and which is occupied by the Applicant herein. Accordingly, raid was organized and in the presence of panchas the premises were searched and 2 kgs. of heroin was recovered and at that time the Applicant along with his two children were present in the flat. According to the prosecution, the Applicant informed the officers that the contraband was given to him by Nasar and Mani, who were staying at Hotel Rekhi , Panvel. The said two accused were then arrested in the said hotel. The statement of accused Nos.2 and 3 were recorded under section 67 of the N.D.P.S. Act. The said raid was conducted on 1.11.2004. The Applicant is in custody since then. He has, therefore, undergone more than 50% of the sentence awarded by the Trial Court. 4. The learned Counsel -Shri Ayas Khan appearing on behalf of the Applicant submitted that the prosecution has examined 12 witnesses out of which, PW-7, PW-10 were panch witnesses. PW-11, was the owner of the hotel, PW 6 and 7 were the Chemical Analysers and other witnesses were the officers of NCB. Firstly, he 3 submitted that the seizure of the contraband was doubtful and suspicious. He invited my attention to the evidence of the PW 1,2 and 3 in support of the said submission. He then submitted that there were difference in weight of the samples which were drawn. He submitted that if there is a difference in weight, the benefit of doubt goes to the accused. In support of the said submission, he relied on the judgment of the Apex Court in the cases of (1) Abdul Rashied vs. State of Maharashtra, reported in 1999(2) CRI.362, (2) Rajesh Jagdamba Avasthi vs. State of Goa reported in 2006(a) SCC Cri.,150, (3) 2008(3) RCR SC Noor Aga Vs. DRI, (4) Criminal Appeal No. 856 of 2008 - U.O.I. & Anr. vs. Prabhakar Nair. He then submitted that the samples which were drawn, were not deposited in the godown and, therefore, no reliance can be placed on the said samples. He then submitted that the seal and samples were available without any record and, therefore, PW-3 had an access to the samples and seals without any record and there was possibility of tampering. In support of the his submission, he relied on the judgment in the case of Rajesh Jagdamba Avasthi (supra). He then submitted that carrier was not examined. Then it is further submitted that PW-1 and 2 has not deposed as to how bulk contraband was packed nor they have identified the goods in the Court. The panch witness has turned hostile and as 4 such, the accused could not be convicted on the basis of the statements of the said officers. In support of the submission, he relied on the judgment in the case of Bahadur Singh v/s. M.P. reported in 2002, Cri.L.J., 579 S.C., Jagdish v/s. M.P. reported in AIR 2002 SC 2540, Ritesh Chakravarti vs. State of M.P. reported in 2006 DGLS 671, [2007 (1) SCC (Cri)744], Dilip and Anr., Dilip and Anr. Vs. M.P. reported in 2007(1) SCC Cri.377. He then submitted that there was non- compliance of section 42 of the N.D.P.S. Act. He submitted that this aspect was not considered by the Learned Judge. He then submitted that the detention of the Applicant was illegal. It is submitted that the Applicant was not arrested on 1.11.2004 after the apprehension but they were taken to the NCB and they were detained there. He, therefore, submitted that the accused were illegally detained in the office of NCB in the night intervening between 1.4.2004 and 2.11.2002. He relied on the judgment of this Court in Criminal Writ Petition no.284 of 2008 in the case of Patrick Boon Ikeke vs. NCB. He then submitted that the statements of the co-accused would not be taken into consideration since the statements were not attracted. Secondly, the statements are computer generated statements and thirdly, the accused were illegally detained overnight in the office of NCB and, therefore, the said evidence was tainted and could 5 not be relied to base conviction. 5. On the other hand, Shri Salvi, the learned Counsel appearing on behalf of Respondent No.1 submitted that the burden was on the Applicant. The Trial Court had convicted the Applicant on the basis of the evidence produced by the prosecution. It is submitted that the evidence which was recorded, was sufficient for the purpose of confirming the conviction of the Applicant in the appeal. It is submitted that merely because the Applicant has undergone more than 50% of the sentence that would not be a ground to release the Applicant on bail in view of the restrictions being imposed by section 37 of the N.D.P.S. Act. He invited my attention to the evidence brought on record and the finding recorded by the Special Judge in support of the said submission. 6. I have given my anxious consideration to the submissions made by the learned Counsel appearing on behalf of the applicant and the learned Counsel appearing on behalf of Respondent No.1. The Applicant was arrested on 1.11.2004 and he is in the custody since last 5 years and 6 months and has undergone 50% of the sentence awarded by the Trial Court. 7. Section 37 of the NDPS Act puts restriction on the 6 Court to release the accused on bail both as an under trial prisoner and also after the appeal is admitted by the High Court. By virtue of the said section, the court has to record two-fold satisfaction for the purpose of releasing the accused on bail. Firstly, it has to be recorded by the Court that there are reasonable grounds for believing that the accused is not guilty and that, secondly, it has also to be recorded that he is not likely to commit any offence while on bail. The Apex Court had an occasion to consider the said provision in the case of Union of India Vs. Shiv Shanker Kesari reported in 2007(7) SCC 798. In the said case the Apex Court in paras 6, 7, 8, 9, 10 and 11 of its judgment has observed as under:- 6.As the provision itself provides no person shall be granted bail unless the two conditions are satisfied. They are; the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty and that he is not likely to commit any offence while on bail. Both the conditions have to be satisfied. If either of these two conditions is not satisfied, the bar operates and the accused cannot be 7 released on bail. 7.The expression used in Section 37 (1)(b) (ii) is "reasonable grounds". The expression means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged. 8.The word "reasonable" has in law the prima facie meaning of reasonable in regard to those circumstances of which the actor, called on to act reasonably, knows or ought to know. It is difficult to give an exact definition of the word 'reasonable'. Stroud's Judicial Dictionary, Fourth Edition, page 2258 states that it would be unreasonable to expect an exact definition of the word "reasonable'. Reason varies in its 8 conclusions according to the idiosyncrasy of the individual, and the times and circumstances in which he thinks. The reasoning which built up the old scholastic logic sounds now like the jingling of a child's toy. (See: Municipal Corporation of Delhi v. M/s Jagan Nath Ashok Kumar and another (1987) 4 SCC 497. and Gujarat Water Supplies and Sewerage Board v. Unique Erectors (Gujarat) Pvt. Ltd. and another [(1989) 1 SCC 532]. 9.It is often said "an attempt to give a specific meaning to the word 'reasonable' is trying to count what is not number and measure what is not space". The author of 'Words and Phrases' (Permanent Edition) has quoted from in re Nice & Schreiber 123 F. 987, 988 to give a plausible meaning for the said word. He says, "the expression 'reasonable' is a relative term, and the facts of the particular controversy must be considered before the question as to what constitutes reasonable can be determined". It is not meant to be 9 expedient or convenient but certainly something more than that. 10.The word 'reasonable' signifies "in accordance with reason". In the ultimate analysis it is a question of fact, whether a particular act is reasonable or not depends on the circumstances in a given situation. (See: Municipal Corporation of Greater Mumbai and another v. Kamla Mills Ltd. (2003) 6 SCC 315). 11.The Court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the Court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the Court has not to consider the matter as if it is pronouncing a judgment of acquittal and 10 recording a finding of not guilty. From the aforesaid observations, it is apparent that before granting bail, two conditions have to be satisfied. Apart from that in para 11 of the said judgment, the Apex Court has observed that the Court is not called upon to record the finding of not guilty. It has also observed that two-fold satisfaction is for limited purpose essentially confined to the question of releasing the accused on bail. Simultaneously, the Court also is not required to consider the matter as if it is pronouncing judgment of acquittal recording finding of not guilty. From the aforesaid observations, it is apparent that the Court has to come to the reasonable conclusion that there are reasonable grounds for believing that the accused is not guilty. Therefore, Court has to consider the grounds on merits and consider the settled law on the said point and, thereafter, consider whether in the light of the facts and circumstances of the case and law settled by virtue of the judgments of the Supreme Court and High Courts, there are reasonable grounds for coming to the said conclusion. Keeping in view the aforesaid principle, I propose to consider the submissions made by the learned Counsel appearing on behalf of the applicant 11 and the learned Counsel appearing on behalf of NCB.\ 8. In the present case, specific information was received by the NCB that certain contraband was kept in the house of the present applicant. The said information was reduced into writing. It has come on record that the said information was reduced in writing on a piece of paper. There is no material on record to indicate that this information was forwarded to the Superior Officer. After recording the said information on a piece of paper, the raiding party raided the house of the applicant in the presence of panchas. The Panch witness, however, has turned hostile. The second panch was not examined. The evidence in respect of seizure therefore solely depends on the testimony of the Officers of the NCB. Even in respect of the said statements of the Officers of the NCB who had accompanied the Raiding Party to the house of the applicant, there is no unanimity regarding actual place where the said contraband was found. P.W. 2 has stated that he tried to search for the said contraband at various places and he did not locate the contraband. P.W. 3 has stated that he was with P.W.2 all along and, therefore, reiterates what is stated by P.W.2. P.W.1 is silent on the question of recovery of the contraband from the trolley as stated in the panchanama. There is, therefore, clear 12 contradiction in the statement of officers of the NCB and the panchanama which was recorded. The Apex Court in several cases has held that if panch witness turns hostile and if there is discrepancy in the statements of the Officers of the NCB regarding recovery of the contraband then doubt is created regarding seizure of the contraband. Secondly, custody of the sample also has not been deposited in the godown. It is a settled principle of law that the godown register has to be maintained in a prescribed format as laid down under Standing Order No.1 of 1988. The Apex Court in the case of Union of India Vs. Balmukund reported in 2009 Cr.L.J.2407 has held that in the event the register is not maintained, the custody of the contraband in the godown becomes doubtful and that benefit should go to the accused. Thirdly, it has come on record that weight of the sample is different. According to the Officers of NCB who conducted raid, they had taken sample of 5 grams in two packets; one was sent to Dy.C.C and the other was sent to FSL. The Officers of these two Agencies, however, state that they received the sample which weighed 3.048 grams and 3.93 grams. There is therefore difference in the weight of the sample which was received. The Apex Court in Rajesh Jagdamba Avasthi Vs. State of Goa reported in 2006 (1) SCC 150 and in Noor Aga Vs. DRI reported in 2008 (3) RCR (Criminal)633 has held that in such cases, it 13 creates a doubt regarding tampering of the sample and, therefore, it has been held that reliance cannot be placed on the C.A. Report. Similarly, Division Bench of this Court in Abdul Rashied and Prabhakar Nair also have taken the same view. Fourthly, even in respect of bulk of the contraband which was seized, number of witnesses which were examined by the prosecution have stated that it was not deposited on the same day but, in fact, was deposited on the next day. 9. There is some substance in the submissions made by the learned Counsel for the applicant that the bulk article which was brought in Court by P.W.3 for the first time indicate that this could be opened without disturbing the seals along with the scotch tape. P.W. 1 and 2 have not deposed as to how bulk contraband was packed. They also did not identify the Articles in Court. P.W. 3 has stated that this bulk was deposited in the godown by P.W.4 on the next day. Exhibit 32 collectively also indicates that it was deposited not on the same day but on the next day. In view of these discrepancies, therefore, possibility of tampering of the contraband cannot be ruled out. Then the statement of the applicant under section 67 has been recorded. In the present case, admittedly, applicant was detained in the Office of the NCB and, thereafter, on the next day in the morning his statement was 14 recorded. It is submitted that, therefore, the applicant was illegally detained by the Officers of the NCB and, therefore, statement which was recorded under section 67 cannot be relied upon since it was recorded by the Officers of the NCB when he was detained by them in their office. The Apex Court in the case of Union of India Vs. Balmukund reported in 2009 Cr.L.J.2407 and in Raju Premji Vs. Customs reported in 2009(1) Drugs Cases (Narcotics) 334 has held that the statement recorded in the custody is not within the parameters of section 67 of the NDPS Act. The statements are also computer generated statements and the Apex Court in the case of Noor Aga (surpa) has held that voluntariness of the statement has to be established by the prosecution. 10. In view of these discrepancies, therefore, in my view, there are reasonable grounds for coming to the conclusion that the applicant is not guilty of the offence alleged against him. Applicant is permanent resident of Panvel. He is working as a driver. In my view, if he is released on bail, he is not likely to commit the said offence during pendency of the appeal. Apart from this applicant has already undergone almost 50% of the sentence. Appeal is not likely to come up for hearing immediately in the near future and if he is not released on bail, applicant may undergo the 15 entire sentence, although, he has statutory remedy of preferring an appeal against the order of conviction, in such cases, the statutory remedy would be rendered nugatory if he is not released on bail and if he undergoes entire sentence during pendency of the appeal. 11. Under these circumstances, therefore, applicant deserves to be released on bail. 12. Applicant be released on bail on execution of P.R. Bond of Rs 25,000/- with one or two sureties in the like amount. He shall report to the NCB Ballard Pier, Mumbai once in a month. Hearing of the appeal is expedited. Liberty is granted to both the parties to apply for fixed date of hearing. 13. Application is disposed of. (V.M. KANADE J.)