AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.2660 OF 2010 Union of India. ... Applicant Vs. Jayantilal @ Vikram @ Jabraram & Anr. ... Respondents Mr. D.N. Salvi for the applicant. CORAM: MRS. RANJANA DESAI & MRS. V.K. TAHILRAMANI, JJ. DATED : 11TH AUGUST, 2010. P.C.:- 1. The Union of India through the Intelligence Officer, Narcotic Control Bureau has filed this appeal challenging the judgment and order dated 18/12/2008 passed by the Special Judge, NDPS, Mumbai in NDPS Special Case No. 132 of 2005. Respondents 1 and 2 are original accused 1 and 2 respectively and they shall be so referred to in this order. They were prosecuted for entering into criminal AJN 2 conspiracy with each other and with some other untraceable persons for indulging in sale and purchase, transportation and possession of 7.5 kg. of heroin. It is the case of the prosecution that in pursuance of such conspiracy accused 1 and 2 purchased, transported and possessed 7.5 kg. of heroin. The accused were charged for offences punishable under Section 8(c) read with Section 21(c), Sections 27A and 29 of the NDPS Act and Section 8(c) read with Section 21(c) of the NDPS Act. 2. Learned Special Judge has acquitted accused 1 on the ground that though it is the prosecution case that 7.5 kg. of heroin was taken possession of from the flat where accused 1 was allegedly residing under a leave and licence agreement, the said agreement is not proved. According to learned Special Judge, therefore, the prosecution has not proved beyond reasonable doubt as to whether accused 1 was, in fact, residing in the said flat. Learned Special Judge has also held that there are discrepancies in the evidence of witnesses about the AJN 3 place where the bag containing heroin was kept. The prosecution has examined one of the two panchas to the pnachanama under which narcotics were seized. Learned Special Judge has observed that the pancha, who was examined, used to leave his house at 6.00 a.m. and come home late in the evening. The seizure was effected at 8.00 a.m. Therefore, the presence of the pancha in the building in which the flat in question is situated is doubtful. 3. So far as accused 2 is concerned, learned Special Judge has observed that his presence in the flat in question at the time of seizure is not proved. Learned Special Judge has observed that as per the evidence of PW-7, 8, 2 and 9, accused 1 and 2 were taken from the place of seizure to NCB office at Ballard Pear. However, PW-6 IO Khan has not stated that accused 2 was in the flat and he was taken from the said flat to the NCB office. He has stated that accused 2 was brought to the NCB office from somewhere else. Thus whether accused 2 was in the AJN 4 flat from where the heroin was seized is doubtful. Learned Special Judge has also observed that the credibility of the officers is doubtful. Having perused the judgment, we concur with the observations of learned Special Judge. In our opinion, the view taken by learned Special Judge is a reasonably possible view, which cannot be interfered with in an appeal against acquittal. There is no merit in the appeal. 4. The appeal is dismissed. [MRS. RANJANA DESAI, J.] [MRS. V.K. TAHILRAMANI, J.]