- 1 - rng IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.2181 OF 2010 in CRIMINAL APPEAL NO. OF 2009 The Union of India ... Applicant Intelligence Officer, Narcotics Control Bureau, Mumbai (Through Public Prosecutor, for U.O.I.) vs 1. Amina Hamza Shaikh @ Lali & ors .. Respondents Mr.D.N.Salvi, Addl.Public Prosecutor for Union of India-Applicant Ms.P.P.Shinde A.P.P for State Mr.Ayaz Khan for Respondent no.2 ... CORAM: B.H.MARLAPALLE & MRS.MRIDULA BHATKAR,JJ DATE: 30th April,2010 P.C. 1. The present respondents were tried in N.D.P.S.Special Case No.113 of 2005 and the learned Special Judge (N.D.P.S.) for Greater Mumbai by her judgment and order dated 28th August, 2007 was pleased to acquit both the accused. Hence, this Criminal Application by the Union of India through the Narcotics Control Bureau, Mumbai for seeking - 2 - leave to appeal under section 378 (3) of the Code of Criminal Procedure against the said order of acquittal. 2. As per the prosecution case, PW 2 Nair when received information (Exhibit 17) that accused no.1 had stored 5 kg of heroin at her residence located at BHD E-9, Karnataka School I,Ghatla Khardev Nagar, Chembur, Mumbai. Accordingly PW 1 Jayprakash formed a special team of officers and reached the premises. When the accused opened the door, the officers introduced themselves to her and disclosed the information that was received and consequent search. She agreed for the same and during the search from a blue and white coloured polythene carry bag with the words “Matching centre” was found and in which there was a polythene carry bag containing brown coloured powder. On enquiry, accused no.1 stated that it was heroin and it weighed 5 kgs. Two samples of 5 gms each were drawn, packed, sealed and marked as SI and SII. She allegedly stated that she had received 6 kgs of heroin in two instalments of 3 kg each from one person by name Rahim of Ratlam and she had offered 1 kg to her mother by name Jaybunissa residing at shop No.11, Opposite 160/164, Dane - 3 - Bunder Masjid, Mumbai in the morning on 12th March, 2005. She was taken into arrest under the arrest panchanama at Exhibit 20. The search of the house of Jaybunissa was conducted and nothing incriminating was found from the same. Her statement under section 67 of the N.D.P.S.Act was recorded on 18th March, 2005 (Exhibit 26) by PW 3 and the Officers maintained surveillance near the University Campus for apprehending the wanted accused no.2. Tai of Kurla. On 10th June, 2005 accused no.2 was arrested by Kurla police station under C.R.No.2 of 2005 for possession of 15.110 gms of heroin. On 14th June, 2005 an application was moved for the custody of accused no.2 which was granted on 15th June,2005. During her interrogation, accused no.2 refused to give statement and she was arrested under arrest memorandum at Exhibit 31. 3. Charges for offences punishable under section 29 read with section 8 (c) and section 21 (c) read with section 8 (c), Section 30 read with section 21 (c) and Section 8(c) of N.D.P.S.Act were framed. The prosecution examined PW No.1 V.M.Jaiprakash, PW 2 Vipin Nair, PW 3 Sanjay Pujari, PW 4 Ajit Pandurang Patil, PW 5 Smt.Manda Krushna Gurav, PW 6 - 4 - Sachin Arvind Kulkarni, PW 7 Vinodkumar Balbirsingh, and PW 8 Narayan Yogi Panigrihi. A number of documents from Exhibit 10 to Exhibit 35 were placed along with the list of witnesses i.e. Article no.1 to article no.5 before the trial court. On assessment of the evidence, the learned Special Judge held that the prosecution had failed to prove that accused nos. 1 and 2 were guilty of any of the charges levelled against both of them. 4. This application is only against accused no.2 and therefore, we have heard Mr.Salvi and Mr.Ayaz Khan on the point whether the reasonings set out by the learned Special Judge calls for any re- consideration at the hands of this court so as to grant leave to appeal. 5. There was no reliable evidence placed on record by the prosecution to prove that accused no.2 was part of the conspiracy allegedly hatched by accused no.1 alongwith an unknown accused and pursuant to the same she had made preparations to purchase 3 kg of heroin in contravention of the prohibition under section 8 (c) of the N.D.P.S.Act. There was nothing seized from them nor was there any reliable material - 5 - to show that accused no.1 had parted with any quantity of heroin and passed it on to accused no.2. The statements of accused no.1 recorded under section 67 of the N.D.P.S.Act were retracted and therefore, they could not be relied upon. Even the procedural requirements which were mandatory in nature were not carried out by the prosecution. The accused no.1 was not arrested on the spot on 12th March, 2005 by PW 4. 6. The learned trial Judge considered the evidence as against accused no.2 as it came from the depositions of PW 3, PW 4, and PW 6 and it was observed that the arrest of accused no.2 was merely on the basis of what was disclosed by accused no.1, in her statement under section 67 of the N.D.P.S.Act. Otherwise there was nothing against accused no.2. Nothing was found from her possession and she had even refused to give her statement. 7. The evidence of PW 3 in his cross-examination went to show that the custody of accused no.2 was obtained on 15th June, 2005 but, the witnesses did not remember the time and had asked accused no.2 whether she was in a free state of mind to give - 6 - statement. He did not remember whether accused no.2 was medically examined prior to recording her panchanama. Accused no. 2 did not understand English and PW 3 was not aware whether the panchas understood English. The trial court considered the evidence of these three witnesses and recorded a finding that there was no evidence to substantiate that there was any transaction between accused nos. 1 and 2 as was alleged by the prosecution. 8. We do not find any error in the reasonings set out by the learned Special Judge and therefore, the order of acquittal does not call for re- consideration. Hence, leave to appeal is hereby refused. Application stands rejected. MRS.MRIDULA BHATKAR, J B.H.MARLAPALLE,J - 7 -