1 (Cr.appln 48/10) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.48 OF 2010 IN CRIMINAL APPEAL NO.32 OF 2010 Mohd. Gulam Hussein Mohd. Meghu Shaikh & Nana .... Applicant. V/s State of Maharashtra ..... Responent. Mr. Ayaz Khan i/b Mr. Dilip Mishra for the applicant. Mr. A.S. Shitole, APP for the State. CORAM: V. M. KANADE, J. DATE : 2nd July, 2010 P.C.:- 1. Applicant was convicted by the Trial Court for the offence punishable under section 22 read with section 8(c) of the NDPS Act and directed to suffer rigorous imprisonment for 10 years and to pay fine of Rs 1 lakh and in default of payment of fine to suffer simple imprisonment for a period of six months in NDPS Spl. Case No.116 of 2007 by judgment and order dated 24/12/2009. 2 (Cr.appln 48/10) 2. According to the prosecution, on 06/01/2007, at about 12.30 a.m. to 02.30 a.m., a search operation was organized by the Superior Officers under the guidance of Senior Police Inspector Nimhad. During the said combing operation, the team members reached at Madina Masjid compound at around 01.30 a.m. and they noticed that one person was sitting in the hut and he was surrounded by tin trunks and one pink colour rexine bag and he was having weighing scale, plastic pouches and packing material. The said material was tested positive for presence of mandrax. In the three tin trunks, huge quantity of mandrax was found. Accordingly, FIR was registered and the applicant was arrested. Charge-sheet was filed. Prosecution examined in all 8 witnesses. 3 The learned Counsel appearing on behalf of the applicant submitted that in view of the lacunae in the prosecution case, there was no material on record for convicting the applicant and, therefore, he is entitled to be released on bail. It is submitted that conscious exclusive possession of the applicant was not proved. Secondly, it is submitted that the custody of seal and sample was not proved. Thirdly, it is submitted that the tampering of sample also was not ruled out. Fourthly, he submitted that the Muddemal Register also was not produced. It is submitted that godown in-charge also was not examined. It is further submitted that provisions of section 52A were not followed 3 (Cr.appln 48/10) and that there was non-compliance of sections 50, 55 as well as section 57 of the NDPS Act. Several discrepancies in the statements of prosecution witnesses also are pointed by the learned Counsel appearing on behalf of the applicant. 4. The learned APP appearing on behalf of the State submitted that exclusive possession of the applicant has been established and the judgments on which reliance is placed by the Counsel for the applicant are not applicable to the facts of the present case. He further submitted that there is overwhelming evidence on record against the present applicant and that the seizure of he contraband from the exclusive possession of the applicant has been corroborated by other witnesses. 5. I have heard the learned Counsel appearing on behalf of the applicant and the learned APP appearing on behalf of the State at length. 6. In my view, taking into consideration the material on record, it is not possible to come to the conclusion that the accused is not likely to be convicted on the basis of material on record. The evidence adduced by the prosecution will have to be appreciated after ascertaining the applicability of the the ratio of the judgments on which reliance is placed by the learned Counsel for the applicant taking into consideration the provisions of section 37 of the NDPS Act and, therefore, no case is made out for grant of bail. 4 (Cr.appln 48/10) Application is dismissed. 7. Appeal, therefore, be placed on final hearing board in the week commencing from 19th July, 2010. 8. Application is disposed of. (V.M. KANADE, J.)