((-1-)) MST IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.950 OF 2007 IN CRIMINAL APPEAL NO.388 OF 2007 Uday Kumar Abhevardhan Appellant/ Applicant versus The Union of India & another Respondents Mr.A.J.Lalla i/by Lalla & Lalla for appellant. Mrs.Revati Mohite-Dere for respondent no.1. Mr.Rajesh More, APP for State. CORAM : A.M.KHANWILKAR, J. DATE : 7th April 2008 PC : 1. Heard counsel for the parties. The appellant is convicted for the offences punishable under section 21(c) R/W 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the NDPS Act" for short) and sentenced to suffer Rigorous Imprisonment (R.I.) for ten years and to pay fine of Rs.1.00 lakh and in default to suffer further R.I. for one year. The appellant has challenged the said decision by way of an appeal before this Court which has been ((-2-)) MST admitted on 24th April 2007. In the circumstances, the appellant prays that the appellant be released on bail as the appellant has made out prima facie case which persuaded the Court to admit the appeal. 2. Indeed, the appeal has been admitted. That by itself cannot be the basis to straight way release the applicant on bail having regard to the rigours of Section 37 of the NDPS Act, which are attracted in the fact situation of the present case, as the appellant was found in possession of 5.7 kgs. of Heroin which is far in excess of Commercial Quantity. The counsel for the applicant would, however, contend that the prosecution has failed to establish the factum of possession of the applicant in respect of premises wherefrom the said Heroin was seized. According to the applicant, it was obligatory on the part of prosecution to establish factum of ownership and possession of the suit premises beyond reasonable doubt, as has been observed by the Apex Court in case of Mohd. Alam Khan Vs. Narcotics Control Bureau and another reported in 1996-Cri.L.J.-2001 in particular paragraphs 6 and 9 thereof. In the present case, contends the learned counsel for the applicant, that the ((-3-)) MST prosecution is relying on Leave and License Agreement which, however, is replete with inconsistencies brought on record by the defence in the cross examination of PW-3. According to the applicant, if the said agreement is to be discarded, the only other evidence left, is of PW-3 which, even on fair reading, does not take the matter any further for the prosecution. The argument though attractive, does not commend to me. Indeed, the applicant may be right in pointing out from the evidence of PW-3 that the inconsistencies in the document produced by the prosecution (Leave and License Agreement) have been brought on record during the cross examination. However, I would ignore this agreement for the time being having regard to the fact that it is an admitted position that the agreement is not a registered document. The registration of Leave and License Agreement was necessary not only on account of provisions of Maharashtra Rent Control Act but also provisions of Bombay Stamp Act. Indeed, such document can still be relied for collateral purposes but having regard to the provisions of Bombay Stamp Act, it will have to be held as inadmissible in evidence. ((-4-)) MST 3. With this opinion, we are left with evidence of PW-3 as also Seizure Panchanama and the evidence of official witnesses-PW Nos.1, 2 and 5. Besides this evidence, there is also Confessional Statement of accused recorded under section 67 of the NDPS Act. The contents thereof are admissible. In the statement under section 67 of the Act, there is clear confession of the fact that the premises in question were occupied by the applicant in the capacity of Licensee and were in his possession at the relevant time when the seizure in question took place. Besides this statement, we also have substantive evidence in the form of evidence of PW Nos.1, 2 and 5-the official witnesses who had raided the premises at the relevant time, which substantive evidence is substantiated also by the seizure panchanama recorded contemporaneously. The Court below has accepted all this evidence. The finding so reached by the Lower Court in relation to the above said evidence, cannot be said to be perverse for the time being. In my opinion, there is enough evidence to establish the factum of possession of the applicant in respect of the premises in question where the raid was conducted and Heroin seized from the premises. ((-5-)) MST 4. The counsel for the applicant placed reliance on decision of Mohd. Alam Khan (supra), however, the observations in the case were in the context and fact situation in that case and will be of no avail to the applicant. In that case, the prosecution had failed to prove "Ownership" and "Possession" of the premises belonging to the appellant therein. The learned counsel had also relied on the exposition in paragraph no.9 of the same decision wherein it is mentioned that the appellant did not admit his signature in the agreement in question and that the said prosecution did not bother to produce any independent evidence to establish that the appellant was the owner of the flat in question by producing documents from concerned Registrar’s Office. In the present case, however, the issue is not one of ownership of the premises of the applicant but whether he was in lawful possession of the premises at the relevant time and had complete control over the said premises. The evidence which is already on record does indicate that the applicant was in exclusive possession of the premises where the Heroin was found. In my opinion, therefore, the exposition of the Apex Court will have no avail to the appellant. ((-6-)) MST 5. The learned counsel for the appellant would then contend that the fact that the prosecution has failed to prove the Seizure Panchanama (Exhibit-10), having failed to examine the Panch Witnesses. Reliance is placed on the decision of Apex Court in the case of Ritesh Chakarvarti Vs. State of Madhya Pradesh reported in 2007(1)-Crimes-35 (SC), in particular para 23 onwards, to contend that non examination of Panch Witnesses by the prosecution should entail in drawing an adverse inference and to give benefit thereof to the appellant. In my opinion, the decision pressed into service by the appellant is of no avail to the appellant. Inasmuch as, in the present case, the Court below has adverted to the evidence which has come on record given by the Official Witnesses as to the circumstances in which it was not possible to examine the Panch Witnesses. The explanation so offered by the prosecution has found favour with the Trial Court, as can be discerned from the discussion in paragraph 19 of the impugned judgement. The view so taken by the Trial Court appears to be a possible view. If it is so, non examination of Panch Witnesses is not fatal in the fact situation of the present case, as the author of the Panchanama and the official witness have been ((-7-)) MST examined who have proved the said Panchanama. 6. The learned counsel for the applicant had also relied on the decision of this Court in the case of Shiv Kumar Ashok Mishra Vs. Special Judge of NDPS Court, Mapusa-Goa (State) reported in 1996-Cri.L.J.-1454. The observations in the said decision, however, are in the context of the fact that in that case one independent Panch Witness was examined. It was not a case where none of the Panch Witnesses were examined. In any case, for the reasons recorded in the earlier part of this order, non examination of Panch Witnesses, will not be fatal in the fact situation of the present case, especially when the evidence of the Official Witnesses who were present at the relevant time and the author of the Panchanama is found to be acceptable. The learned APP has relied on the decision in the case of Harish C. Bishnoi Vs. State of Maharashtra and another reported in 1993(3)-LJ- 134 which, in turn, refers to other reported decisions of Division Bench of Our High Court in the case of John Ohume Ogmekwe and another Vs. Intelligence Officer, NCB, Mumbai and another reported in 1998(2)-LJ-553 and Alice Norman Vs. Narcotic Control Bureau, Bombay and another ((-8-)) MST reported in 1997(V)-LJ-1, wherein it is observed that the statement of the accused incorporated in the Panchanama is admissible and is not hit by Section 25 of the Evidence Act or Section 162 of the Code of Criminal Procedure. It is not necessary for me to examine the wider issue as to whether the statement of accused which is incriminatory one, can be admissible in evidence in spite of bar under section 25 of the Evidence Act. 7. For the reasons recorded hereinbefore, it is not a case for grant of bail having regard to the evidence which is available on record to indicate the complicity of the applicant in the commission of the alleged crime and that offence being a serious offence. 8. The counsel for the applicant lastly contended that the applicant is already in custody since 28th February 2003 and although the appeal has been admitted almost one year back, it is unlikely that the same will reach for hearing in the near future. According to the applicant, he has already undergone almost half of the sentence imposed by the Trial Court and having regard to the fact that hearing of the appeal in ((-9-)) MST the near future is not possible, the Court may consider to release the applicant on bail. The argument, though attractive, does not commend to me for the simple reason that the offence in question is a serious offence to which rigours of Section 37 of the NDPS Act would apply. The counsel for the applicant would, however rely on the decision of Apex Court in Mansingh Vs. Union of India reported in (2006)1-SCC (Cri)-279 which was also for the offenses under NDPS Act. However, in that case, the Apex Court enlarged the accused on bail as he had already completed more than seven years of imprisonment and there was no likelihood of hearing of appeal. As and when the applicant completes seven years of imprisonment, he may choose to rely on the said decision and apply for being released on bail on those considerations which will be examined on its own merits in accordance with law at the appropriate time. 9. If the applicant is desirous of expeditious hearing of his appeal, is free to file additional paper book containing all the relevant documents so as to make the appeal ready for hearing. As and when appeal becomes ready for hearing, the same will be immediately included in the weekly ((-10-)) MST board to be proceeded further as per its turn. 10. Applicatgion disposed off accordingly. (A.M.KHANWILKAR, J.)