-:1:- IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPEAL NO. 463 OF 2001 APPEAL NO. 463 OF 2001 APPEAL NO. 463 OF 2001 T.S.K. Murthy, Inspecor, Customs(P), Pune. ... Appellant. V/s. Jameel Ahmed @ Khaja Shaikh & Ors. ... Respondents. Mr. Manoranjan Sahu, Addl.P.P. for the Appellant. Mr. P.S. Hingorani, A.P.P.for the State. CORAM CORAM CORAM : F.I. REBELLO & : F.I. REBELLO & : F.I. REBELLO & K.U. K.U. K.U. CHANDIWAL,JJ. CHANDIWAL,JJ. CHANDIWAL,JJ. DATE DATE DATE : 22ND APRIL, 2008. : 22ND APRIL, 2008. : 22ND APRIL, 2008. P.C. P.C. P.C. : : : . There were four accused in the N.D.P.S. Special Case No.1 of 1999 before the learned Special Court under N.D.P.S. Act, 1985. After considering the evidence on record, the learned Judge was pleased to convict original Accused No.2 for the offence punishable under Section 20(b)(i) of the N.D.P.S. Act, 1985 as also under Section 66-A of the Bombay Prohibition Act, 1949. 2. The learned Judge however was pleased to acquit Accused No.1, Jamil Ahmed alia Khaja Shaikh for the offence punishable under Section 25 of the N.D.P.S. Act, 1985. Similarly, Accused No.1, Accused No.3 Pandurang Ganpat Chavan and Accused No.4 Chand Mehboob Shaikh were acquitted for the offence -:2:- punishable under Section 20(b)(i) of the N.D.P.S. Act, 1985 and under Section 66-A of the Bombay Prohibition Act, 1949. Similarly, Accused Nos.1 to 4 were acquitted for the offence punishable under Section 29 of the N.D.P.S. Act and Section 81 of the Bombay Prohibition Act, 1949. 3. The State is in appeal against the acquittal of original Accused Nos.1, 3 and 4. In so far as Accused No.1 is concerned, as he could not be served, service has been effected by proclamation. 4. In so far as Accused No.1 is concerned, the prosecution case was that Ganja was recovered from his house. The learned Judge in paragraph 38 has held that the search was illegal as the recovery was made by a person not authorized under the N.D.P.S. Act. The learned Judge placed reliance on the judgment in the case of State of Punjab V/s. Balbir Singh (1994) State of Punjab V/s. Balbir Singh (1994) State of Punjab V/s. Balbir Singh (1994) 3 S.C.C. 299. S.C.C. 299. S.C.C. 299. Similarly, the learned Judge found descripancies in the evidence of PW 1,4 and 5 as they had given different description of the raided house and hold that raised a doubt about the prosecution story. 5. The contention of the defence Counsel for Accused No.1 was that the prosecution has failed to establish conscious possession of Accused No.1. The -:3:- learned Judge, after considering the evidence was pleased to hold that there is no cogent and convincing evidence that he had brought Ganja to the house and he is in conscious possession and consequently, held that even that the statement was recorded under Section 67 of the N.D.P.S. Act that the prosecution had not established that Accused No.1 was in conscious possession of the Ganja recovered from the house. The admissibility of the statement made was also considered and after considering the evidence on record, the learned Judge came to the conclusion that evidence brought on record is not sufficient, cogent and free from doubt and the delay was in non-compliance of the mandatory provision of Section 42(1) of the N.D.P.S. Act. In view of that, acquitted the accused. 6. In so far as Accused No.1, who is Respondent No.1 who is absconding, nothing has been brought before us to point out anything warranting us to take a different view from the view taken by the learned Special Judge. 7. In so far as Original Accused Nos. 3 and 4 who are Respondents 3 and 4 in this case, the Ganja was recovered from the house of Accused No.2. The only evidence against Accused Nos.3 and 4 was that they were present in the house. On considering the -:4:- evidence on record, the learned Judge came to the conclusion that the prosecution had failed to prove the conscious possession of Ganja against Accused Nos. 3 and 4, in respect of Ganja recovered from the house of Accused No.2. The statements which were recorded under Section 67 of the N.D.P.S. Act, the Court held are not sufficient to prove the guilt of the Accused and accordingly, acquitted Accused Nos.3 and 4. Having heard Counsel for the Appellants, nothing has been brought on record, which would require us to re-consider the view taken by the learned Judge. 8. In the light of that, in our opinion, there is no merit in this application and accordingly, application for leave to appeal is dismissed. (F.I. (F.I. (F.I. REBELLO, J.) REBELLO, J.) REBELLO, J.) (K.U. (K.U. (K.U. CHANDIWAL,J.) CHANDIWAL,J.) CHANDIWAL,J.)