1 appln-460-09 ladda IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION No. 460 of 2009 WITH CRIMINAL APPLICATION No. 62 of 2009. Union of India. .. Applicant. vs. Ms Johanna Albertina & Ors .. Respondents. Mr Vinod Joshi for the Union of India – applicant. Mr Ayaz Khan and Nilofar Saiyed for Respondent No.2. Mrs A.S.Pai, A.P.P.,for the State. CORAM: BILAL NAZKI AND A.R.JOSHI,JJ DATED : 16TH SEPTEMBER,2009 P.C.:- 1. Five accused were prosecuted under the N.D.P.S.Act and out of them original accused Nos. 4 and 5 have been acquitted. All the accused are relatives of each other and were traveling by the same flight. Contraband was recovered from accused no.1 who was suspected while taking bags on a trolley at the Sahar Airport. The Trial Court did not 2 appln-460-09 find any evidence against accused Nos. 4 and 5. 2. We have heard the learned counsel for the applicant who seeks leave to file an appeal against the acquitted persons. The learned counsel for the applicant is not able to mention any cogent evidence against original accused Nos. 4 and 5 on the basis of which they could have been convicted. He submits that there were three circumstances which prove that accused Nos. 4 and 5 were also involved in the offence and were conspirators. Firstly, he contends that accused Nos. 4 and 5 were closely related to accused Nos. 1 to 3. Secondly, he contends that the three accused were traveling together. Although accused Nos. 4 and 5 were living in a separate room but in the same hotel where accused Nos. 1 to 3 were living these two rooms were interconnected. The Trial Court has found that there was no evidence that accused Nos. 4 and 5 were aware of the contents of the bags those were seized and which were found to be containing the contraband. The learned counsel for the applicant further wants to rely on the statements alleged to have been made by the accused including accused Nos. 4 and 5 under Section 108 of the Customs Act. The learned counsel for the respondents has drawn our attention to the judgment of the Supreme Court in the case of Noor Aga v. state of Punjab and Anr 2008 AIR SCW 5964 in which it has 3 appln-460-09 been conclusively held in paragraphs 88 and 89 as under:- 88. “We may, at the out set, notice that a fundamental error has been committed by the High Court in placing explicit reliance upon Section 108 of the Customs Act”. 89. “It refers to leading of evidence, production of document or any other thing in an enquiry in connection of smuggling of goods. Every proceeding in terms of sub-section (4) of Section 108 would be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code. The enquiry contemplated under Section 108 is for the purpose of 1962 Act and not for the purpose of convicting an accused under any other statute including the provisions of the Act”. 3. For the aforesaid reasons we do not find any merit in this application seeking leave to file an appeal. Any observations made in this order may not be taken as an expression of opinion about the conviction of the accused who have been convicted by the same judgment and who have filed an appeal which is pending in this Court. 4 appln-460-09 Leave Application No. 460 of 2009 is dismissed and disposed of. Criminal Application No. 62 of 2009 is also disposed of. (BILAL NAZKI,J) (A.R.JOSHI,J)