/ 1 / IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.758 OF 2002 Alex Leslie Elenco ...Appellant vs. The Intelligence Officer, N.C.B. & anr. ...Respondents ---- Shri Anil Lalla i/b. Lalla & Lalla, Advocate for Appellant Mr. H.V. Mehta with Mr. J.C. Satpute for Union of India Mr.D.P. Adsule APP for the State. ---- CORAM: V.M. KANADE J. DATED 12TH DECEMBER, 2008 ORAL JUDGMENT: 1. Heard the learned Counsel appearing on behalf of the Appellant and the learned Counsel appearing on behalf of the Respondents. 2. The Appellant is challenging the judgment and order passed by the Special Court, whereby the Appellant is convicted for the offences punishable under section 29 r/w. 8(c) and 21 of the NDPS Act and sentenced to suffer R.I. for 4 years and to pay fine of Rs.1,00,000/- each and, in default, to further suffer R.I. for three months. 3. The prosecution case in brief is that on 3.5.1999, a report was received by the Officers of N.C.B. that one lady passenger by name Krishna / 2 / Reddy J. was likely to travel on 3.5.1999 by Air Mauritius Flight No.MK-755 and she was likely to carry a sizeable quantity of Heroin in her baggage or person. The Officers of N.C.B., accordingly, on 3.5.1999 intercepted the said Jayanti Reddy in the presence of two panchas and at that time, she was having a boarding pass along with the baggage tag and she had checked-in one baggage. The said Jayanti Reddy informed the Officers that the original accused Nos. 2 and 3 i.e. the Appellants herein and one Annaduraui had come with her. Thereafter, the suitcase, which she was carrying was identified and after search was conducted, the Officers of the N.C.B. noticed that there was Heroin in the false top and bottom and two packets containing Heroin weighing about 1.540 grams were recovered. Samples were drawn and sent to C.A. FSL, Kalina, Mumbai. Statements of all arrested other accused were recorded under section 67. One more accused No.4 who arrived from Mauritious also came to be arrested and, thereafter, chargesheet was filed. The Trial Court acquitted the original Accused No.1 Jayanti Krishna Reddy and convicted the Appellant and other Accused Nos.2,3 and 4 and sentenced them to suffer R.I. for ten years. 4 The learned Counsel appearing on behalf of the Appellant herein submitted that against the order of acquittal passed by the Trial Court / 3 / against the original accused No.1, an appeal against acquittal was filed being No.719 of 2002. He submitted that all these three appeals were admitted and were heard together by the Learned Single Judge of this Court and two appeals filed by the accused Nos.3 and 4 were allowed and the appeal filed by the Intelligence Officer, NCB, Mumbai was dismissed by a common judgment and order dated 9th October, 2002. The said judgment is reported in 2003 ALL MR (Cri) 455 in the case of Mr.S.M.A. Sudath Aloysius Vs. Narcotic Control Bureau & Anr. The learned Counsel appearing on behalf of the Appellant submitted that, unfortunately, at that time the present Appellant had not preferred any appeal against the order of conviction and, therefore, the said appeal did not come up for hearing before the learned Single Judge. He submitted that after the judgment was delivered by this Court in the case of other three accused, acquitting them against the charges leveled against them, the present Appellant filed an appeal and there was delay of almost six months in filing the appeal. The delay was condoned and the appeal was admitted. 5. Shri Lalla, the learned Counsel appearing on behalf of the Appellant submits that the case of the Appellant is squarely covered by the judgment of this Court in the case of other three accused which was decided on 9th / 4 / October, 2002. He submitted that the Appellant has already undergone nine years and seven months of sentence out of the ten years, which was awarded by the Trial Court. 6. I have perused the judgment and order of the Learned Single Judge in the case of Mr.S.M.A. Sudath Aloysius Vs. Narcotic Control Bureau & Anr. reported in 2003 ALL MR (Cri) 455. The learned Single Judge in paragraph 23 of its judgment, has observed that : “The person who was found in possession of the luggage at C.S.I. Airport is Jayanti Krishna Reddy but she has been acquitted. She has pointed out appellant Annadurai and Alex who have been caught, who were standing outside the Airport. They were found possessing visitors passes. From this alone, it cannot be said that they were having nexus / 5 / with the luggage, which was seized at the instance of acquitted accused Jayanti Krishna Reddy. The prosecution has to establish a strong nexus between narcotic drug and the accused. In this case prosecution has failed to achieve it in respect of the appellants.” 7. Shri Mehta, the learned Counsel appearing on behalf of the Respondent vehemently urged that the finding recorded by the Learned Single Judge is incorrect. He has invited my attention to the evidence of PW- 1, PW-3 and PW-10 and other witnesses. He submitted that the house of Accused No.2 was searched and certain relevant documents were recovered from the residents of the Accused No.2. He submitted that it was established that the Accused No.2 had booked ticket of Accused No.1 and he had been identified by PW-10 as a person, who had booked the ticket of Accused No.1. Further, he submitted that in his statement recorded under section 67, Appellant-Accused No.2 had admitted that he had kept the contraband in his house and later on given the said packets to the Accused No.1. He submitted that this evidence clearly indicates that the prosecution had established a nexus between the contraband drugs given to the Accused No.1 and the / 6 / present Appellant. Shri Mehta, the learned Counsel appearing on behalf of the Respondent has also invited my attention to the finding recorded by the Trial Court . He submitted that the Trial Court after appreciating the evidence on record, had held that the nexus between the baggage, which was given to the Accused No.1 and the present Appellant was clearly established. He submitted that the Trial Court had given cogent reason for arriving at the said conclusion and, therefore, it was not necessary to interfere with the finding recorded by the Trial Court. 8. In my view, this submission cannot be accepted, firstly because, the finding recorded by the Learned Single Judge in paragraph 23 of the judgment in appeal filed by the other accused viz. Accused Nos.1,3 and 4 has not been challenged. It is an admitted position that the judgment of the Learned Single Judge of this Court was not challenged in appeal before the Apex Court and the finding recorded by the Learned Single Judge in the said appeal has become final. Therefore, the said finding is binding on this Court also. Therefore, in my view, in view of the judgment given by this Court in the appeals filed by the original Accused Nos.1,3 and 4, the Appellant is entitled / 7 / to get benefit of doubt. Even otherwise, out of the sentence of ten years, he has already completed nine years and seven months of the said sentence. Taking into consideration these facts, therefore, it will be appropriate, if the benefit of doubt is given to the Appellant. In the result, the judgment and order passed by the Trial Court is set aside. 9. One another point, which is to be noted that the Appellant is in jail through out from the date of his arrest and has undergone nine years and seven months of sentence. Though this Court had released him on bail, he could not avail of the bail on account of financial constraints. This is another circumstance, which indicates that the Appellant herein was probably used by other Accused. 10. The Appeal is allowed. The Appellant be released forthwith unless he is required in any other case. Appeal is disposed of in the aforesaid terms. V.M.KANADE J.