1 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Criminal Application No.2917 of 2008 Shri Prakash Antony Intelligence Officer, NCB, Mumbai Zonal Unit, Mumbai. Applicant Vs. Chottath Mohnish Padmanabhan & ors. Respondents Mr.Mandar Goswami for applicant. Mr.Ayaz Khan for resp.nos.1 to 3. CORAM: B. H. MARLAPALLE & MRS.MRIDULA BHATKAR, JJ. March 23, 2010. P.C. 1. This is an application seeking leave to appeal under Section 378(4) of Cr.P.C. against the order of acquittal passed in NDPS Special Case No. 25 of 2004 on 29/8/2007 by the learned Special Judge for NDPS for Greater Mumbai. All the present respondents were accused in the said case and tried for the offences punishable under Sections 29, 22 and 30 read 2 with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“the NDPS Act” for short). As per the prosecution on 1/9/2003 accused nos.1 and 2 were found in posession of 180 Kgs of Mandrax Tablets (Methaqualone) and all the accused had conspired together to possess, sell, store, export out of India and to procure finances from parties of foreign countries for the contraband out of India between 23/8/2003 to 1/9/2003 and that accused no.2 knowingly permitted use of his car No. BLB-2476 for transport of such contraband. Mr.Jayprakash Sharma was the driver of the said car which was intercepted at about 8 p.m. on 1/9/2003 near Ambedkar Udyan, Saki Vihar Road, Saki Naka, Mumbai and accused nos.1 and 2 were the other occupants of the car. The statements of accused nos.1 and 2 were recorded in the presence of the panch witnesses and as per the said statement accused no.1 had informed that each HDPE sack contained 30 Kgs. of mandrax tables and six such sacks were recovered from the car (one sack from rear seat and five sacks from the dicky). The prosecution examined in all fourteen witnesses. PW-1 S.V.Gokhale and PW 2 – Vipin Nair were the Intelligence Officers. PW 1 had received the information and PW 2 had seized the contraband. PW 3 – Shri B.S. Muley was the IO, PW 4 – Chandrasen Mhaskar was a panch witness for the seizure panchanama at Exhibit 32. PW 5 – C.I. Kedar was an Intelligence 3 Officer and had drawn the panchanama at Exhibit 51. PW 6 – Abdul Gafar, PW 7 – Rohit Das, PW 8 – Pravin Vora, PW 9 – Imran Ali were other panch witnesses. PW 10 – Ashokkumar Singh was an Intelligence Officer. PW 11 – Madansing Rawat was Assistant Chemical Analyser. PW 12 – Rahim Ansari was panch witness. PW 13 – Ajit Patil was then Superintendent with NCB and was claimed to be present at the time of raid. PW 14 – Keith John Sanchis was working as Assistant Director in NCB and PW 15 – Shri Dubey was the I.O. 2. On appreciation of evidence of all these witnesses and the documents which came on record through them, the learned Special Judge held that the prosecution failed to prove the charge of criminal conspiracy to possess, transport, sell, export, store mandrax and attempt to export it out of India to procure finances from parties in foreign countries, against the accused. The charge of criminal conspiracy along with Noor Mohd. Iqbal, South Africa was also held to be not proved. Accused nos.1 and 2 were also acquitted from the charge that on 1/9/2003 at about 8 p.m. after the ambassador car was intercepted, they were found in possession of 6 HDPE sacks containing mandrax tablets. In addition accused no.2 was acquitted from the charge that he permitted the use of his care for possession and 4 transport of mandrax. 3. It was the case of PW 2 that quantity of the seized contraband was 180 Kgs. But in statement at Exhibit 31 during cross-examination he admitted that in the test memo at Exhibit 35 the weight of the sample was not mentioned and there was no record to show as to what was the weight of the sample collected. However, the total net weight of the contraband after 12 samples packets were taken out was noted to be 179.28 Kgs which indicated that these 12 sample packets containing five tablets each (60 tablets) weighed 720 gms. and thus weight of each tablet came to 12 gms. Consequently each sample packet must weigh 60 gms. approximately. The Assistant Chemcial Analyser – PW 1 stated that the collective weight of five mandrex tablets which he had received from the laboratory as per his notes at Exhibit 116-A was ranging from 5.9015 gms. to 5.7228 gms. which indicated that the weight of each sample packet consisting of five tablets would be around 60 gms. There was thus a difference of about 54 gms of weight in the sample packets. This was not explained by the Seizing Officer – PW 2. This itself was a serious infirmity fatal to the prosecution case and the learned Judge in this respect relied upon the decisions in the case of Abdul Rashid Vs. State of Maharashtra [1999 (2) 5 Crimes 362] and Rajesh Jagadmaba Avasthi Vs. State of Goa [(2006) 1 SCC (Cri) 150]. The difference in weight of sample seized and sample sent itself entitles the accused for acquittal as stated in the case of Ayub Vs. State of Rajasthan [2002 Cri.L.J. 1619] and Salag Ram Vs. State of Rajasthan [2002 Cri.L.J. 1707], noted the learned Special Judge. 4. Even the sample packets delivered to the CA office were in the sealed condition. PW 11 at Exhibit 15 noted that the sample packets had four signatures whereas as per the PW 2 and PW 4 the panchanama at Exhibit 32 indicated that the sample packets were sealed and signed by six persons including two witnesses. This was another major discrepancy in the prosecution case. On 2/9/2003 at about 11 a.m. the seized articles came to be deposited in the godown. However, the sample packets were not so deposited. The said sample packets consisting of six packets were alleged to be in the custody of PW 2 till the same were handed over to PW 15 on the same day. The second set of sample packet consisting of six packets was not deposited in the godown at any time. As per PW 2 he had handed over the second set of sample packets to PW 5 but no record was maintained in respect of the custody of second packet and PW 5 did not state anything about the second set of sample packets. A serious doubt 6 was, therefore, created as to whether the same sample packets which were prepared at the time the panchanama, were forwarded to the chemical laboratory. 5. As per PW 2 on one side of the tablets there was a triangle and other side was plain and this description tallied with the panchanama at Exhibit 32. However, PW 1 in his statement at Exhibit 115 had stated that on one side of the tablet there was a circle and in that circle there was a triangle. This description of PW 1 did not tally with the description of the seized tablets. As per PW 2 the six seized HDPE sacks ought to have contained 150 packets of tablets containing 1000 tablets in each. However, 150 packets were not found when the sacks were opened by the Seizing Officer – PW 2 but the evidence did not indicate as to when the tablets from 150 packets were transferred to six HDPE sacks containing polythene bags and thus the learned Special Judge held that the statements under Section 67 of the NDPS Act as recorded were not reliable. There is another glaring aspect which was noted . PW 10 in his statement at Exhibit 97 stated that the driver Jayprakash Sharma was innocent and he was not aware that the contraband was loaded in the ambassador car which he was driving. Thus he was a material witness by the prosecution and he was not examined as 7 such. In the depositions of PW 2 and PW 5 the trial Court recorded material contradictions in respect of the presence of accused no.3 in his house when it was raided. It was the prosecution case that accused no.4 was handling finances of accused no.1 in drug peddling and he was arrested on the basis of the statements of accused no.1 at Exhibits 18 to 20. These statements were considered by the trial Court and it was noted that there was no material to link accused no.4 as the person handling the finances of accused no.1. In Exhibit 20 i.e. the statement recorded by accused no.1 it was stated that accused no.4 was not aware of the source of money and also about the purpose for which he used to secure the money through him by havala transactions. The statement of accused no.4 was recorded in the form of panchanama and PW 5 placed the said accused under arrest on 19/2/2004 at about 8 p.m. Such statement could not be treated as a voluntary statement recorded under Section 67 of the NDPS Act and if he had given such statement voluntarily there was no reason for him to refuse to sign the said statement. In short the statement of accused no.4 so recorded did not help the prosecution case. 6. The statements of all the four accused were recorded at different times by different officers and this created doubt whether they were 8 voluntarily made. Such statements recorded under Section 67 of the NDPS Act could be the basis of conviction only if they were made voluntarily and were truthful. The learned Special Judge concluded his final observations in para 91 as under: “In the light of the above discussed facts and circumstances it is clear that though the seizure is of huge quantity of 180 Kgs of Methaqualone tablets, search, seizure, sealing, sampling and further investigation is not carried out by the officers concerned in careful manner. The discrepancies in respect of weight of the samples, discrepancies in the statements of the accused go to show that the evidence adduced on behalf of the prosecution cannot be accepted to hold that the prosecution has proved the guilt of the accused persons or any of them beyond doubt. On account of such discrepancies which are fatal to the prosecution benefit is required to be given to the accused...” 7. The order of acquittal passed by the learned Judge is well reasoned. We are, therefore, satisfied that having heard Mr.Mandar Goswami, the learned counsel for the applicant and Mr.Ayaz Khan, the learned counsel for respondent nos.1 to 3, the evidence recorded by the trial Court and the reasoning set out in support of the findings, the acquittal order does not call 9 for any reconsideration by us and hence there is no case made out to grant special leave to appeal under Section 378(4) of Cr.P.C. 8. Hence the application fails and special leave to appeal under Section 378(4) of Cr.P.C. is hereby refused. (MRS.MRIDULA BHATKAR, J.) (B. H. MARLAPALLE, J.)