1 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 310 OF 2009 IN APPEAL NO. OF 2008 Union of India Intelligence Officer, Narcotics Control Bureau, Mumbai .. Applicant Vs. 1. Gulam Mohammed Malik and anr. .. Respondents Mr. D. N. Salvi, Special Public Prosecutor for applicant. Mr. Ayaz Khan for respondent no.2. Mr. D. P. Adsule, APP for State. CORAM: B. H. MARLAPALLE & S. J. KATHAWALLA, JJ. Reserved On : April 20, 2010. Pronounced On : April 22, 2010 P.C. 1. Heard Mr. Salvi, the learned Special Public Prosecutor for the applicant. At the outset, Mr. Salvi submitted that the application is pressed only against respondent no.2 (Original Accused No.2). We have heard Mr. Ayaz Khan, the learned counsel, for respondent no.2. 2 2. In NDPS Special Case No. 60 of 2002 accused no. 2 came to be acquitted of the offence punishable under Section 25 read with Section 20(b)(ii) and 8(c) of the NDPS Act by the learned Special Judge vide his Judgment and Order dated 6/2/2008 and hence this application by the Union of India, through the Intelligence Officer, NCB, Mumbai for seeking leave to appeal under Section 378 (3) of Cr.P.C. against accused no.2. 3. As per the prosecution case an information was received from Ahmedabad referring to accused no. 1 – Gulam Mohd. Malik and, therefore, on initiation of action against him, his statement under Section 67 of the NDPS Act was recorded, in which the subsequent storage was disclosed in the basement of Matruchhaya Building situated at Narsi Natha Road and 28 Kgs. hashish was seized. Accused no.2 was apprehended as the owner of the said premises and it was claimed that on the disclosure of accused no.1 further seizure of 159 Kgs. charas was effected from the very same premises. The accused no.2 was thus implicated only on the ground that he happens to be the owner of the premises and that the storage of the contraband was within his knowledge. The learned Special Judge rejected 3 these contentions by considering the evidence recorded by the prosecution and particularly that of the Investigating Officers. 4. Mr. Salvi, the learned Special Public Prosecutor mainly placed reliance before us on the statements of accused no.2 recorded under Section 67 of the NDPS Act on five different occasions. It is pertinent to note that all these statements came to be retracted by accused no.2 at the earliest available opportunity. Not only this, but indeed the Investigating Officer clearly admitted, in the course of recording of his evidence by the Special Court, that accused no.2 did not have the knowledge that the contraband was kept in his godown in the night of 13/2/2002. Shri Pingal was an employee of accused no.2 and as per accused no.1 in the night of 13/2/2002 it was Shri Pingal who had the keys of the godown and he opened the godown and allowed the contraband to be stored and in the early morning of 14/2/2002 accused no.1 was arrested. Shri Pingal was not examined as a witness by the prosecution for the reasons best known to it. The statements of accused no.1 were recorded under Section 67 of the NDPS Act at three different stages and the third statement so recorded on 18/2/2002 clearly indicated about the non involvement of accused no.2 in the storage of the contraband. In the first statement of accused no.1 he had 4 stated that accused no.2 had consented for keeping the hashish in the godown for one day for a consideration of Rs.10,000/-, but in his subsequent statement, he admitted that it was a false statement (about handing over the stuff to him by one Ismail), which was given by him to deliberately mislead the Investigating Officers. In the said statement he further pointed out that on the night of 13/2/2002, when accused no.2 left for his residence from the godown, accused no.1 transported the consignment in a taxi to the place opposite to the godown at B/2, Matruchhaya Building and got the same unloaded with the help of the labourers and one Shri Pingale, who was working in the godwon of accused no.2. Accused no.1 informed Shri Pingale about the said consignment as being walnuts and was to be delivered to Gurudev Singh Vohra, accused no.2. In the subsequent statement it appeared that Shri Pingale had refused to take any consignment into the godown, as his boss had instructed him not to accept any goods in his absence, but accused no. 1 convinced Shri Pingale who reluctantly allowed the accused no.1 to keep 10 cartons under the impression that those are the walnuts and kept in small room adjacent to B/2, the godown of accused no.2. It was also stated that accused no.1 had requested Shri Pingale to hand over the keys, but he refused as he wanted to convey to accused no.2 the same and accused no. 5 1 precluded Shri Pingale from doing so. 5. PW 4 – Shri Claudius Anthony Fernandes, who had recorded the statements of accused no.2 admitted in his cross-examination that the fact of handing over the keys to accused no.1 by Shri Pingale was a material fact and he had not asked accused no.2 while recording his statement at Exh.67 whether he was present when the recovery of hashish was made from his godown. In his statement at Exh.71, accused no.2 stated, “I would like to question my servant as to how they have offered keys to the lock on the shutter to Gulam Mohd. Malik (Accused No.1)”. Mr. Fernandes admitted before the court, “When the contraband came in the godwon of accused no.2, it was without his knowledge.” “I had general idea of 30 kgs. Of contraband having being recovered in the case and therefore, I forced him (accused no.2) to write 30 kgs. Of Hashish recovered from his godown.” 6 6. The learned Special Judge referred to the decision in the case of Superintendent and Rememberancer of Legal Affairs, West Bengal v/s. Anil Kumar Bhunja and ors. [1979 Cri.L.J. 1390] regarding the test for determining whether a person is in possession of anything and whether he is in general control of it and held that the possession of the contraband in the godown of accused no.2 could not be said to be the possession under his knowledge or a conscious possession. The learned Judge observed that the charge against accused no.2 was not proved and accused no.2 deserved acquittal. 7. We are satisfied that the reasonings set out by the learned Special Judge on analyzing the evidence as adduced by the prosecution does not call for any reconsideration at our hands and, therefore, there is no case made out to grant leave to appeal. 8. Hence, leave to appeal is refused and the application is rejected. (S. J. KATHAWALLA,J.) (B. H. MARLAPALLE,J.)