1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO.19 OF 2002 In N.D.P.S.SPL.CASE NO.72 OF 2000 And N.D.P.S.SPL. CASE NO.31 OF 2001 Salim Jamil Shaikh, Muslim, age 28 years, residing at Building No.125, Ground Floor, Ali Omer Street, Pydhonie, Mumbai—400 003 (At present in Yerwada Prison, Pune). : Applicant (Orig. Accused No.1) V/s. 1. Narcotics Cell, Cuffe Parade, Mumbai—400 001. 2. State of Maharashtra. : Respondents .... WITH CRIMINAL APPEAL NO.20 OF 2002 In N.D.P.S.SPL. CASE NO.72 OF 2000 And N.D.P.S.SPL.CASE NO.31 of 2001 Mohamed Husain Usman Gani Shaikh, aged about 35 years, residing at 5, Yaqub Gali, Room No.9, First Floor, Tinwalla Building, near Sir J.J.Hospital, Mumbai—400 003 AND at present detained at Yerwada Prison, Pune, Maharashtra. : Appellant (Orig.Accused no.2) V/s. 2 1. The Narcotic Control Bureau, Cuffe Parade, Mumbai—400 005. 2. The State of Maharashtra. : Respondents .... Mr.K.A.Merchant for the appellants. Mr.P.S.Hingorani, Addl. Public Prosecutor for the State in Criminal Appeal No.19 of 2002. Mr.S.A.Shaikh, Addl. Public Prosecutor for the State in Criminal Appeal No.20 of 2002. .... CORAM : B.R. GAVAI, J. DATE : APRIL 22, 2010. ORAL JUDGEMENT: Both these appeals challenge the order of conviction and sentence passed by the learned Special Judge (NDPS), Greater Mumbai, thereby convicting the the appellants (original accused nos.1 & 2) for offences punishable under section 20(b)(ii) of the NDPS Act and sentencing them to suffer R.I. For ten years with fine of Rs.1,00,000/- and in default of payment of fine, further imprisonment for six months and further convicted the accused no.2 for the offence punishable under section 25 of the said Act and sentenced him to suffer R.I. for ten years and fine of Rs.1,00,000/- and in default of payment of fine, further simple imprisonment for six months. 3 2. The prosecution case in brief is as under:- P.W.1 PSI Ravindra Maruti Ranshevar received an information at about 10.45 p.m. on 12.2.2000 that one person by name Mohd. Hussain @ Munna, aged about 35 years, height about 6’, medium built, wearing a pant and shirt, resident of room no.89, Parsi Chawl, 5th floor, 51, Pakmodia Street, Bhendi Bazar, Mumbai, along with his servant Salim Shaikh, aged about 20 years, height about 5’2”, wearing white coloured pyjama and shirt were dealing in wholesale selling of narcotic drugs and had stored charas at his residence. PSI Ravindra Ranshevar disclosed the information to PI Tele who in turn informed the superior officers and an entry to that effect in the station diary was also taken. Two panchas were called in the office. PI Tele directed PSI Sarak to act as I.O. After completing the necessary pre-trap formalities and completing the pre-trap panchanama, raiding party consisting of 14 persons went to Parkmodia Street, Bhendi Bazar, Mumbai, for carrying out the raid. After parking the vehicle near Sapana Juice Centre, the members of the raiding party went to the said room no.89 at the aforesaid address. The door was closed. PI Tele knocked at room no.89. After opening the door, a person whose description was that of Salim Shaikh was found in the room. PI Tele introduced the raiding party to the accused and informed him about the statutory rights that the accused has. 4 3. The search of the room admeasuring 20’ x 20’ was taken. One rexine bag was found at the South-East corner of the room. After opening the said bag, it was found to be containing three blakish round shaped balls, two balls were weighing 10 kgs. each and one ball was weighing 8 kgs. The test of the said articles was positive for charas. Two samples of 25 gms. each were taken from each of the balls. The said samples and the balls were separately kept in two plastic bags, sealed and kept in brown envelopes and, thereafter, sealed. One white coloured steel trunk was also found in the said room. Cash of Rs.2,20,240/- was found in the said trunk. In one plastic bag, several gold ornaments were found. One plastic bag was found kept near the trunk. It was found containing one Passport of a person named Mohd. Hussain Mohd. Usman Gunny. One more Passport of one Jarina Gulam Mohd. was found and so also one pass-book of Bombay Mercantile Co-operative Bank, Savings Bank Account No.38103 in the name of Mohd. Hussain Usman Gunny. Two paying-in-slips were also seen in the said pass-book. One ticket of Gulf Airways from Mumbai to Muscat was also seen. One agreement regarding paying guest accommodation, one photo album and one telephone bill for the month of August, 1999, was also recovered from the said plastic bag. After carrying out the raid, the raiding party returned to the police station. The articles were given in the custody of P.I.Tele. PSI 5 Sarak recorded the statement of the complainant and it was treated as F.I.R. The sample was sent along with P.W.2 Head Constable Rambhau Avad to the Chemical Analyser on 14.2.2000. The C.A. report was received on 11.3.2000. After completion of the investigation, the charge- sheet was filed on 9.4.2000. 4. The prosecution has examined in all five witnesses – R.M. Ranshevar (P.W.1), who is the complainant; Rambhau S. Avad (P.W.2), who is the career, who has taken the samples from the office of the Narcotic Cell to the Chemical Analyser; Vishvanath P. Sawant (P.W.3), who is the panch; Dada B. Sarak (P.W.4) Investigating Officer; and Mahadev V. Mehatrskar (P.W.5) the Chemical Analyser. On completion of the trial, after considering the evidence led on behalf of the prosecution, the learned Special Judge was pleased to convict and sentence the accused as aforesaid. Being aggrieved thereby, these two appeals are filed by both the accused. 5. Mr.Merchant, the learned counsel appearing on behalf of the appellants-accused, submitted that insofar as accused no.1 Salim Jamil Shaikh is concerned, the only evidence against him is that he was in the room when the raiding party raided the premises. He, however, submits that the said evidence is not sufficient so as to convict the accused for the 6 crime in question. He relies in this respect on the judgement of the apex Court in the case of Ismailkhan Aiyubkhan Pathan v. State of Gujarat (2000 SCC (Cri.) 1241). He further submits that insofar as the accused no.2 is concerned, there is no evidence at all so as to establish the complicity of the accused with the crime in question. He submits that the name of the accused no.2 is Mohamed Husain Usman Gani Shaikh. It is submitted that the alleged agreement on which the prosecution relies is in the name of one Qureishi Mohamed Husein Mohamed Siddiq. He further submits that none of the independent witnesses has been examined so as to establish that the room was in exclusive possession of the accused no.2. He further submits that from the material collected by the prosecution, it will be seen that there were documents pertaining to some other person also in the room which was searched. It is, therefore, submitted that the room cannot be said to be in the exclusive possession of the accused no.2 so as to convict him for the offence. The learned counsel relies on the judgement of the apex Court in Mohd. Aslam Khan v. Narcotics Control Bureau & Anr. (1996 SCC (Cri.) 1062). The learned counsel for the appellants submitted that even the panch witness P.W.3 was a stock witness. He submitted that he has admitted that he had acted as a panch in 42 to 50 cases. He further submitted that it has come in evidence that said panch was known to P.W.1 Ravindra M. Ranshevar and, therefore, his evidence cannot be said to be trustworthy. The learned counsel further 7 submitted that if the evidence of panch witness is found to be unreliable, the evidence of the police witnesses also comes under a shadow of doubt. In this respect, he relied on the judgement of this Court in the case of Amarjit Singh v. State (1988 (1) Bom.C.R. 108) and in the case of Ron Chayak v. State of Goa (2007 All MR (Cri.) 2786). 6. The learned counsel further submitted that from the evidence, it can be seen that the seal was with the Investigating Officer from 12th to 14th and, as such, the possibility of tampering with the sealed contraband article could not be ruled out. He submits that coupled with the fact that the contraband article at the time of seizure has been found to be of blackish colour and the sample with the Chemical Analyser has been found to be brownish colour, the possibility of tampering cannot be ruled out. The learned counsel relied on the judgement of a Division Bench of this Court in the case of Wessel Van Beelan v. State of Goa (1999 (5) Bom.C.R. 575). He further submits that when the packets were opened for the first time in Court, the muddemal register number and also crime register number were found written on the label and the manner of seizure was not established. The learned counsel relied in this respect on the judgement of this Court in Babita v. State of Maharashtra (1994 Cri.L.J. 792). 8 7. The learned Addl. Public Prosecutor for the State points out that when the raid was conducted, the accused no.1 was found to be in the room along with the contraband articles and, therefore, the conviction of the accused no.1 did not warrant any interference. It is further submitted that similarly, since from the documentary evidence like the agreement of paying guest accommodation, the passport and the Bank pass-book, it was clear that the room in question was in exclusive possession of the accused no.2, his conviction was also rightly recorded by the learned trial Court. 8. Insofar as the evidence against the accused no.1 Salim Jamil Shaikh is concerned, P.W.1 who is the complainant has stated that after getting the information and after complying with the relevant formalities, when they went to room no.89, the door was knocked by P.I. Tele and it was opened by one person whose description was tallying with the description of person named in the information Salim Shaikh. The same is the evidence of P.W.3 who is the panch witness, who states that on knocking the door, one person opened and his description was tallying with the description of the person named Salim. He further states that the police had told him the description about Salim Shaikh. The evidence of P.W.4 I.O. is also to the same effect. It can thus be seen that the only evidence against the accused no.1 is that he was found in a room which was in possession of another person and in which room was found a 9 gunny bag containing narcotic substance charas. The apex Court in the case of Ismailkhan Aiyubkhan Pathan (supra) has observed thus:- “3. It is unnecessary for us to go into the other evidence because we will assume that whatever PW 7 has said is correct and the rest of the evidence for the prosecution had only supported the version of PW 7. But the question is how the appellants can be fastened with the liability for possession of the contraband article wrapped in the gunny bag which was kept in the room. 4. There is no evidence that anybody had seen that any one of the accused was dealing with narcotic drugs. There is also no evidence to show that any one of them had admitted either through a confession or otherwise of any incriminating role. Nor is there evidence that the accused persons, who were found sitting in the room, had possession of the room, actual or constructive. It is the prosecution case that the said room was in the possession of Nasir. But that Nasir is not an 10 accused in this case. He was not examined as a prosecution witness to disclose as to how the accused persons happened to be in the room. None of the neighbours supported the prosecution case that any one of the accused had a connection with the article in question. 5. Thus, we are left with only a modicum of evidence as against the accused, which only shows that they were present in the room which was in the possession of one Nasir and that the said room contained a gunny bag with the narcotic substance “charas”. 6. We are unable to sustain the conviction of the offence under Section 20(b) read with Section 29 of the Act as for any one of the appellants on the strength of the aforesaid evidence. It is too insufficient to bring home the guilt of the appellants. 7. It appears that the High Court put the burden 11 on the appellants to explain as to how they were present in the room. This is what the High Court has observed: “In the present case, at odd hours of the night when the premises was raided, all the accused were present and have not explained as to how and why and since when they were present in the premises. Therefore, in our opinion, only inference can be drawn from their unexplained presence in the premises, they being not tenants of the premises is that they were in possession of the premises at the relevant time and the substance found from that premises is possessed by them.” 8. There is no statutory provision for drawing any presumption that a person who was present at any particular place shall be presumed to be in possession of the narcotic or psychotropic substance. No presumption under law can be drawn even under Section 114 of the Evidence Act merely because these persons were present when 12 PW 7 went there.” 9. In the present case also, there is no evidence that anybody has seen the accused selling or dealing in narcotic drugs. There is also no evidence to show that he has admitted either through confession or otherwise to any incriminating goods. It is further to be noted that none of the neighbours has been examined to support the prosecution case. I, therefore, find that only because the accused was found in room wherein the alleged contraband was seized cannot be evidence, so as to convict him for the offence punishable under section 20(b)(ii) of the Act. 10. Insofar as the accused no.2 is concerned, the prosecution relies on the alleged agreement between the accused no.2 and one Mohamed Idris Kallan Qureishi, who is the alleged landlord of the accused no.2. The prosecution also relies on the circumstance of Passport of the accused no.2 and the pass-book of his account with one Bank which were also found in the same room. However, it is to be noted that the said agreement is between the landlord and one Qureishi Mohamed Husein Mohamed Siddiq whereas the name of the accused no.2 is Mohamed Husain Usman Gani Shaikh. It is further to be noted that even according to the prosecution, one another passport of Zarina Gulam Ahmad and one cheque book of Afzal Ahmed Shaikh were also recovered from the said 13 room. The Investigating Officer in his cross-examination has clearly admittedly that he had no ration card or document of ownership to show that the accused no.2 was residing in room no.89. He has further admitted that he has not recorded the statement of the neighbours to find out the names of the occupants. He has further admitted that he has not recorded the statement of any person to show that accused Salim Shaikh was working as servant of the accused no.2. The I.O. further admitted that the statement of Mohamad Kalam was not found along with the charge-sheet. The I.O. has further admitted that after the search was completed, the room was handed over to the owner Mohamed Qureishi. 11. The apex Court in the case of Mohd. Aslam Khan (supra) has observed thus: “9. We have considered the rival submissions. We do not think that the learned Additional Solicitor General is right in invoking the aid of Section 66 of the NDPS Act for Section 66(i) visualises the production of a document which has been seized from the custody or control of any person or furnished by any person. In this case, the document namely the agreement has not been 14 seized from the custody of the appellant or it has been furnished by him. In order to invoke the aid of Section 66, the prosecution should have established that the appellant is the owner and was in actual possession of the flat in question. Therefore, we are not able to accept the argument of the learned Additional Solicitor General. It is not in dispute that the appellant did not admit his signature in the agreement in question. The 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 form the Registrar’s office concerned or by examining the neighbours. No statement has been made by the prosecution that in spite of the efforts taken by them, they could not produce the document or examine the neighbours to prove the ownership of the appellant relating to the flat in question. It is relevant to note here that two independent witnesses attested the panchanama. Only one of them was examined as PW 5 who did not support the prosecution version 15 and therefore was treated as hostile. In this case except the retracted statements of the appellant to connect the appellant with the house in question, no other independent evidence is available to sustain the finding of the learned Special Judge extracted in the beginning and confirmed by the High Court.” In the case before the apex Court, there was a retracted confession of the accused. In the present case, there is not even such a material. I am of the considered view that the learned Special Judge has grossly erred in holding that since the passport of the accused no.2 and his pass-book were found in the room and since there was an agreement of tenancy seized from the room they were sufficient to establish the nexus of the accused with the room. I find that the learned Judge has totally erred in observing thus:- “It is true the incorrect name is written on the document by writing Mohammed H. Kureshi. So partially the name is appearing as Mohd. Hussain. The adverse inference is to be drawn against the accused for deliberate use of incorrect mention of 16 name as he used the room for illegal purpose i.e. storing of the contraband.” I find that in view of the judgement of the apex Court in the case of Mohd. Aslam Khan (supra), since the prosecution has failed to lead any cogent and independent evidence to establish either the ownership or exclusive possession of the accused no.1 of room no.89, the order of conviction passed by the learned Sessions Judge is not sustainable in law. 12. The learned Judge has further failed to take into consideration that in the said room, the prosecution has also seized the Passport of one Jarina Gulan Mohd. and Abdulla Khan and that the I.O. had admitted that the statements of the said persons were not recorded. It is further to be noted that though the statement of the landlord was recorded, it was not filed along with the charge-sheet nor the landlord, viz., Mohamed Qureishi was examined by the prosecution. The prosecution could have also very well led the evidence of the neighbours to establish the possession of the accused no.2 of the premises in question and further that the accused no.1 was the servant of the accused no.2. I find that the approach of the learned Sessions Judge of shifting the burden on the accused and drawing an adverse inference is not at all sustainable in law. 17 13. Apart from the evidence of P.W.1 and P.W.4 who are the police officers, the prosecution also relied on the evidence of P.W.3 panch. It has come in the evidence of P.W.3 panch that he has acted as panch on a number of cases. He has further admitted that he has acted as a panch witness in criminal Case No.109/99 of Khar police station. It is to be noted that P.W.1 was attached to Khar police station prior to his transfer to the Narcotic Cell. The said witness has categorically stated as follows:- “It is true that I have acted as panch witnesses in about 40 to 50 cases, of Khar P. Stn.” It is to be noted that the office of the Narcotic Cell is at Cuffe Parade whereas P.W.3 resides at Khar. The very fact that the said witness has acted as a panch in various cases and about 40 to 50 in the police station at Khar alone wherein P.W.1 was attached and his presence at the office of the Narcotic Cell on 12.2.2000 when P.W.1 received the secret information when he was residing at Khar, casts doubt about the credibility of this witness. This Court in the case of Ron Chayak (supra) has observed thus:- “In my view, the evidence of a person who stood as a panch witness on more than four or five 18 occasions, cannot be said to carry any value.” It is difficult to understand as to why P.W.3, who is admittedly a stock panch witness was chosen to act as a panch when he was residing about 20 to 25 kms. away from the office of the Narcotic Cell. It is to be noted that in the present case, the police officers and so also the panch have been cross-examined on that point and the admission regarding he being a stock witness has come on record. I, therefore, find that the evidence of this witness cannot be said to be worthwhile or reliable. 14. Though the learned counsel has also advanced their arguments on the other grounds, since I find that on the aforesaid two grounds, the prosecution has failed to prove the guilt of the accused, I do not find it necessary to refer to the other grounds. 15. The appeals are, therefore, allowed. The impugned judgement and order of conviction and sentence is quashed and set aside. The appellants (original accused nos.1 & 2) Salim Jamil Shaikh and Mohamed Husain Usman Gani Shaikh are directed to be set at liberty forthwith, if not required in any other case. B. R. GAVAI, J.