1 cri-applnj.287-11 mgn IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.287 OF 2011 Deputy Commissioner of Customs (P)..Applicant Vs. Allan Graeme Bainbridge & Anr. ..Respondents Mr. Francis E. Saldanha for the applicant. Mr. Jos Peter D’Souza for respondent No.1. Mr. H.J. Dedhia, APP for the State. CORAM: B. H. MARLAPALLE & A.M. THIPSAY, JJ. DATED: 7th April, 2011 P.C. This is an application filed under Section 378 (2) of Cr.P.C., seeking leave to appeal against the order of acquittal passed in N.D.P.S. Special Case No.84 of 2007 by the learned Special Judge under the N.D.P.S. Act. 2. The respondent was tried for the offences punishable under Section 29 read with Section 8(c), 20(b)(ii)(c) and Section 23 of the N.D.P.S. Act. 2 cri-applnj.287-11 It was alleged that on 4th April, 2005 a post parcel weighing about 4 Kgs. and 840 grms., containing hashish was dispatched from the post office at Panaji, Goa and it was received and intercepted on secret information in 8th April, 2005 at the General Post Office, Mumbai. Samples were drawn of 24 gms. each and the remaining material was kept in the strong room of the post office on 11th April, 2005. It was handed over to the N.C.C.P., on 11th April, 2005. The accused was taken in custody on 1st December, 2006 for the first time and after obtaining transit remand from the Competent Court at Goa he was produced before the jurisdictional Metropolitan Magistrate, Mumbai. His statement was recorded and on completion of investigation, the charge-sheet was filed. 3. The prosecution examined in all 13 witnesses. However, the postal assistant one Mr. Gomes who booked the parcel was not examined as a witness by the prosecution. The prosecution could not prove as to how the parcel could be linked to the accused and in this regard it relied upon the declaration form at Exhibit 24. It claimed that the said form was filled in by the accused and on the same basis the parcel was sent from Panaji and the said form was lying inside the parcel. The signature of the accused could not be proved, on the basis of the expert’s evidence in as much as his 3 cri-applnj.287-11 handwriting was never referred to such an expert. Instead the prosecution wanted the Court to accept the signature of the accused on Exhibit 24 on the basis of comparisons and the Court discarded the same and rightly so, in our opinion. 4. The prosecution again could not prove by bringing on record the strong room register that the seized contraband was kept in the strong room of the post office from 8th April, 2005 to 11th April, 2005. It also could not prove that the declaration form Exhibit 24 was pasted on the parcel. In addition, the prosecution claimed that the weight of the samples was 24 gms., each. However, the samples were actually 25 gms. P.W.4 had stated in his cross examination before the trial Court that in case of cannabis, after some days because of loss of water, there would be loss in weight. Opinion of this witness was again sought during the course of re- examination as to whether due to moist there is possibility of increasing the weight of contraband drug in a sealed condition and he opined in the negative. The evidence of this witness, therefore, discarded the prosecution case that the samples of 24 gms., each were prepared. The witnesses of the prosecution like P.W.9-John Cruz, P.W.12-Mrs.Bagade, P.W.11-Mr. Amit Raut and P.W.10-Mr.Magnallow D’Souza were of no 4 cri-applnj.287-11 assistance for the prosecution case. We have perused the reasoning set out by the trial Court in support of the order of acquittal and we are satisfied that the evidence so appreciated does not require reconsiderations at our hands. Consequently, there is no case made out to grant leave to appeal. 5. Hence the application is rejected. (A.M. THIPSAY, J.) (B. H. MARLAPALLE, J.)