1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICAITON NO.240 OF 2008 IN CRIMINAL APPEAL NO.39 OF 2008 Mustafa K. Salot. ..Applicant. V/s. Union of India & Anr. ..Respondents. Mr.A.R.Khan for Applicant. Mrs.P.P.Shinde, APP for Respondent-State Mrs. P.H.Kantharia, for Respondent No.1. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : APRIL 15, 2008. DATE : APRIL 15, 2008. DATE : APRIL 15, 2008. P.C. : P.C. : P.C. : 1. Heard Counsel for the parties. 2. Indeed, the Applicant has been found guilty of the offence punishable under section 8(c) and 21(c) of the NDPS Act and ordered to suffer R.I. for 10 years and to pay fine of Rs.One Lakh i.d. to suffer further R.I. for a period of three months. The Applicant was found in possession of heroine weighing about one kg., which was seized from premises situated at Room No.3, S.S.Khan Chawl, D.N.Dubey Road, Dahisar(E), Mumbai-400 068. According to the prosecution, the raid was conducted 2 on the basis of intelligence report, when the said contraband was recovered from the premises which was found in occupation of the Applicant. The Court below upon analysing the evidence on record has recorded finding of guilt against the Applicant and sentenced the Applicant for a period, as aforesaid. The Appeal preferred by the Appellant has already been admitted on 24th January, 2008 and is pending in this Court for hearing. The Applicant has now applied for bail principally on four grounds and because the Applicant is already in custody since over two and half years. 3. The first contention raised on behalf of the Applicant is that although the contraband recovered from the Applicant is stated to be one kg. in weight, however, from the Chemical Analyst’s report dated 6th February, 2006, it is noticed that the heroine contents of the bulk were only 17.30%. According to the Applicant, therefore, heroine quantity found in possession of the Applicant would be only 173 grams, which will be far less than commercial quantity. If so, the rigours of Section 37 of the Act will have no application to the case on hand. It was next contended that no evidence is forthcoming to establish the fact that the premises, 3 from which heroine was recovered, in fact belongs to the Applicant as owner or for that matter the Applicant was in exclusive possession thereof. In absence of such evidence, no amount of any other evidence would of any avail to the prosecution. It is then contended that the sample packet was kept with the Investigating Officer in his custody for almost two days and he had all the opportunity to tamper with the sample as he was in possession of the seal as well. It was argued that if such is the evidence on record, it is difficult to conclude that the prosecution has established the guilt of the Applicant beyond reasonable doubt. It is lastly contended that the prosecution has chosen to examine only one panch witness(P.W.7) and not the other panch witness. It is submitted that there is no difficulty, if the prosecution was to rely only on one panch witness, but in the present case, panch witness(P.W.7) has appeared as panch witness on 3 or 4 occasions in the past in some other cases at the instance of the same Investigating Officer, which casts doubt about credibility of the panch witness, being a stock witness. 4. On the above argument, learned Counsel for the Applicant submits that the Application deserves 4 to be enlarged on bail though found to be guilty in connection with the serious offence such as sections 8(c) r/w 21(c) of NDPS Act. 5. This Application is vehemently opposed by the learned APP for the Union of India. However, the stand taken on behalf of the Applicant that the quantity of heroine found in possession of the Applicant would be less than commercial quantity will have to be accepted. For, that view is supported by the exposition of the Apex Court in the case of Ouseph @ Thankachan V/s. State of Kerala reported in Ouseph @ Thankachan V/s. State of Kerala reported in Ouseph @ Thankachan V/s. State of Kerala reported in (2004) 4 SCC 446, (2004) 4 SCC 446, (2004) 4 SCC 446, paragraph-8. Following this decision, the Delhi High Court in the case of Ansar Ansar Ansar Ahmed etc. V/s. State(Govt.of NCT of Delhi) Ahmed etc. V/s. State(Govt.of NCT of Delhi) Ahmed etc. V/s. State(Govt.of NCT of Delhi) reported in 2005(4) Crimes 598(Delhi) reported in 2005(4) Crimes 598(Delhi) reported in 2005(4) Crimes 598(Delhi); and several other cases which are referred to in my decision dated April 4, 2008 in Criminal Application No.138 of 2008, extended that benefit to the accused in the respective cases. For the same reason therefore, I have no hesitation in taking the view that the quantity of heroine found in possession of the Applicant will have to be treated as 173 grams of heroine for the purpose of considering offence in question. In that case, the contraband found in possession of the Applicant will have to be treated 5 as less than commercial quantity for which reason rigours of section 37 will have no application. 6. There are other grounds, which are pressed on behalf of the Applicant in addition to the above-said contention. Even with regard to the contention that the prosecution has failed to produce necessary evidence to establish the connection of the Applicant with the disputed premises will have to be accepted. In that, the prosecution has relied on the evidence of P.W.2, who has fairly accepted during the cross-examination paragraph-27, that the day on which the raid was conducted, he made no effort to collect the documents to establish nexus of the Applicant with the disputed premises Room No.3. During the course of trial the prosecution has relied on driving license Exh. H-16. However, the driving license does not indicate the address of the Applicant as Room No.3 S.S.Khan Chawl, D.N.Dubey Road, Dahisar(E), from where the contraband was seized. The prosecution has then relied on the identity card issued by Rashtravadi Congress Party, which does indicate the same address and describes the Applicant as secretary of the concerned ward. The author of this Identity Card has not been examined. Significantly, the trial Court proceeds to rely on 6 the statement of the landlord recorded at the time of investigation by the Police Officer by invoking section 53A of NDPS Act. However, the said landlord is not examined. Secondly, whether the Section 53A of the Act could have been invoked in the fact situation of the present case, is also doubtful. Suffice it to observe that the Applicant has rightly pressed into service decision of the Apex Court in the case of Mohd. Alam Khan V/s. Narcotics Control Mohd. Alam Khan V/s. Narcotics Control Mohd. Alam Khan V/s. Narcotics Control Bureau and Anr. 1996 Cri. L.J.2001 Bureau and Anr. 1996 Cri. L.J.2001 Bureau and Anr. 1996 Cri. L.J.2001 that it was imperative for prosecution to establish ownership and possession of premises by Accused from which contraband articles were seized, failing which the Applicant deserves to be acquitted. Indeed, this is only the prima facie opinion recorded at this stage of proceedings for considering prayer for bail. 7. There is also force in the submission canvassed on behalf of the Applicant that the evidence does not instill confidence that there was no possibility of tampering sample package, which was in custody of the Investigating Officer for almost over two days, before it was handed over to the Chemical Analyser. Reference can be usefully made to the exposition in paragraph-15 of the Judgment of the Apex Court in the case of Rajesh Avasthi V/s. State Rajesh Avasthi V/s. State Rajesh Avasthi V/s. State 7 of Goa reported in (2006) 1 SCC (Cri.) 150 of Goa reported in (2006) 1 SCC (Cri.) 150 of Goa reported in (2006) 1 SCC (Cri.) 150 where the Apex Court has held that the least that can be said in such fact situation of the case is that there is serious doubt about untruthfulness of the prosecution case. 8. There is also substance in the stand taken on behalf of the Applicant that the prosecution has preferred to examine stock witness (P.W.7) as panch witness, who was amenable to the Investigating Officer and a pliable witness. No explanation is forthcoming as to why the independent panch witness has not been examined. Suffice it to observe that in the case of Rajesh Avasthi (Supra) Rajesh Avasthi (Supra) Rajesh Avasthi (Supra) in paragraph-16 of the said decision, in similar situation, the Apex Court negatived the prosecution theory by doubting the credibility of such panch witness and preferred to acquit the Accused. Even in the case of Hira Lal Hira Lal Hira Lal V/s. State of Haryana reported AIR 1971 SC 356, the V/s. State of Haryana reported AIR 1971 SC 356, the V/s. State of Haryana reported AIR 1971 SC 356, the Apex Court discarded the evidence of panch witness, who was examined by the prosecution. In that case, the same panch witness was incidentally involved in four or five other criminal cases pertaining to same police station, as in the present case. 9. Taking over all view of the matter, I am 8 inclined to hold that the Appellant has very good case to succeed in his Appeal. Moreso, insofar as the first contention, if finally accepted, it would necessarily follow that rigours of section 37 of the Act will have no application. As a consequence, the Applicant would be at best proceeded for offence in respect of less than commercial quantity of contraband and the punishment for such offence would surely not be 10 years rigorous imprisonment, but lighter punishment, which may extend upto five years of rigorous imprisonment. Out of the said period of five years, the Applicant, as aforesaid, has already undergone two years and four months of imprisonment. Moreover, there is no likelihood of present Appeal being finally heard in the immediate near future. Thus understood, the Applicant deserves to be enlarged on bail though found guilty in connection with the serious offence, such as section 8(c) r/w 21(c) of the Act. 10. Having regard to the seriousness of the offence, even if the Applicant deserves to be enlarged on bail, strict conditions will have to be imposed-so as to secure his presence whenever required. Accordingly, while allowing this Application and ordering release of the Applicant on 9 bail, following conditions are imposed: (a) The Applicant shall deposit the fine amount, which has been imposed by the lower Court in the Sessions Court, which deposit shall be condition precedent for releasing the Applicant on bail. It is however, made clear that the deposit will be subject to the final outcome of the present Appeal. (b) The Applicant Mustafa Kasimbhai Salot is directed to be released on bail in connection with the offence in NDPS Spl. Case No.64 of 2006, if not required in any other case, on executing bail bond in the sum of Rs.One Lakh with two local sureties in the like amount. (c) The Applicant shall report to the Superintendent, NCB Office, Mumbai once a week on every Monday between 10.00 a.m. to 2.00 p.m. till further orders to be passed by this Court and/or disposal of the Appeal. (d) The Applicant shall inform his latest place of residence immediately after being 10 released and/or change of residence, if any from time to time to the Superintendent, Narcotics Control Bureau, Mumbai. (e) The Applicant shall deposit passport, if any, with the Superintendent, NCB, Mumbai, within three weeks from the date of his release, which will be retained by the said officer till further order to be passed by this Court. In case, the Applicant does not have any passport or has already deposited the same with any Authority, shall file affidavit to that effect within three weeks from the date of her release in this Court. (f) The Applicant shall not travel outside Mumbai without prior permission of this Court. 11. Application disposed of accordingly. 12. At this stage, Counsel for Respondent No.1 prays that the operation of this order be stayed for a period of six weeks to enable the Respondent to carry the matter in appeal. I am inclined to accede to the request of the Respondent No.1 being 11 reasonable one. However, in my opinion, the period of three weeks of stay of this order, as was granted in other cases, would be just and proper. Ordered accordingly. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)