.(1). IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.565 OF 2002 IN SPECIAL N.D.P.S. CASE NO.242 OF 1999 Sattar Mohd. Rauff, ] Adult, Muslim, aged ] about yrs. Occupation, ] residing at Room No.16, ] Jayratan Road, Nigamdo ] Sri Lanka. ] ..APPELLANT [ORIG.ACCUSED-3] Versus 1. Shri G.V. Gokhle, ] I.O., N.C.B., Mumbai. ] ] 2. The State of Maharashtra.] ..RESPONDENTS. .. ALONG WITH CRIMINAL APPEAL NO.566 OF 2002 IN SPECIAL N.D.P.S. CASE NO.242 OF 1999 Mohd.Imtiyz Moidden, ] Adult, Muslim, aged about ] yrs, Occupation, residing ] at House No.213, Mohidden ] Masjid Road, Colambo Sri ] Lanka and at present in the ] Judicial custody lodged at ] Central Prison, Mumbai. ] ..APPELLANT [ORIG.ACCUSED-2] Versus 1. Shri G.V. Gokhle, ] I.O., N.C.B., Mumbai. ] ] 2. The State of Maharashtra.] ..RESPONDENTS. ... .(2). Mr.Atul Sarpande, Adv. for the Appellants. Mr.J.C.Satpute, Spl. P.P., for Respondent No.1-NCB. Mr.Rajesh More, APP, for Respondent No.2-State. ... CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. DATED : 6th June, 2008. DATED : 6th June, 2008. DATED : 6th June, 2008. ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 1. Through Criminal Appeal No.565 of 2002 the appellant- orig.accused No.3 Sattar Mohd. Rauff has challenged the judgment and order dated 8th March, 2002 passed by the learned Special Judge (under NDPS Act) for Greater Mumbai in NDPS Special Case No.242 of 1999. By the said judgment and order the learned Special Judge convicted the appellant-orig..accused No.3 Sattar Mohd. Rauff for the offence punishable under Section 8(C) read with 21 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for the sake of brevity, hereinafter called as NDPS Act). In addition thereto he has been convicted for the offence punishable under Section 8(C) read with 29 of the NDPS Act. Under both the counts, the appellant-orig.accused No.3 Sattar Mohd. Rauff has been sentenced to undergo RI for ten years and to pay fine of Rs.1 Lakh in default further sentence of three months under each counts. .(3). 2. Through Criminal Appeal No.566 of 2002 the appellant-orig.accused No.2 Mohd.Imtiyz Moidden has challenged the very same judgment and order dated 8th March, 2002 passed by the learned Special Judge under the NDPS Act in NDPS Special Case No.242 of 1999. By the said judgment and order the learned Special Judge convicted the appellant-orig.accused No.2 for the offence punishable under Section 8(C) read with 29 of the NDPS Act and sentenced him to undergo RI for ten years and to pay fine of Rs.1 Lakh in default further sentence of three months. 3. As both the accused persons have challenged the very same judgment and order, though through separate appeals, both these Appeals are being heard together and disposed of by this common judgment and order. 4. The prosecution case, briefly stated, is as under :- . PW-1 Kanju Panickar Ravi received information that one Srilankan gang is actively .(4). engaged in drug trafficking in Mumbai. This gang is headed by Srilankan national Rauff (orig.accused No.3) and another Srilankan national Imtiyaz (orig.accused No.2) is actively associated with him in carrying, procuring, storing and packing of heroin and sending it through couriers. One another Srilankan drug courier namely Salim @ Moh. Rashdi (orig.accused No.1) is in Mumbai to carry 3 Kgs. of heroin at the instance of Rauff. This courier along with Imtiyaz (orig.accused No.2) are staying in room No.103 of hotel Sana at Dongri, Mumbai. Zipper bags containing concealed heroin are in their possession and they are likely to check out at 5:30 a.m. on 24.3.1999. The said intelligence was received by him on 23.3.1999 at 4:00 p.m.. The said information was noted down in writing and PW-1 Mr.Kanju Panickar Ravi submitted the same to his superiors. Directions were received for taking search of the hotel. Accordingly they proceeded to Sana hotel. The raiding party went to Sana hotel, Dongri at 5:00 a.m. on 24.3.1999. They checked the hotel record. The hotel record showed that the accused Nos.1 & 2 had checked into the hotel at 7:30 p.m. on 23.3.1999. The hotel entry showed that it was .(5). in respect of two Indians i.e. Mr.Moh.Rashdi and Mr.Imtiyaz who had came to Mumbai from Tamilnadu. The room was searched and 3 Kgs. of heroin found in the room came to be seized. Both the original accused Nos.1 & 2 came to be arrested at Hotel Sana. They were brought back to NCB office and their statements came to be recorded. During the course of enquiry with accused No.2 it was learnt that further 3 kgs. of heroin was kept at Razak Chambers, Dongri, Mumbai. Hence the raiding party along with panch witness PW-10 Dalvi and another panch witness went to Razak Chambers . On knocking the door of the room, accused No.3 Rauff opened the door. On search of the room 3 Kgs. of heroin was found. The same came to be seized and accused No.3 Rauff came to be arrested. It may be stated here that the statements of all the three accused persons came to be recorded, however, all the accused persons have retracted the statements made by them. The samples taken from both the seizures i.e. at Sana Hotel and Razak Chambers were sent to CA. The CA report show that the samples contain heroin. 5. Charge came to be framed against the .(6). present appellants and the original accused No.1 under Section 29 read with Section 8(C), 21, 23 and 30 of NDPS Act; Section 21 read with 81(C) of NDPS Act; and Section 30 read with Sections 23 & 29 of the NDPS Act Act or in the alternative under Section 30 read with 23 of the NDPS Act. All the accused pleaded not guilty to the said charge and claimed to be tried. Their defence is that of total denial and false implication. After going through the evidence adduced by the prosecution, original accused No.1 came to be acquitted of all the charges, however, the present appellants came to be convicted and sentenced, as stated in para-1 above. Hence these appeals. 6. I have heard Mr.Sarpande, the learned Counsel for the Appellants-orig.accused Nos.2 & 3 and Mr.Satpute, the learned Counsel for the respondent No.1-NCB. I have also perused the impugned judgment and order as well as the record pertaining to the present case. After carefully considering the same, I am of the opinion that these appeals deserve to be allowed. 7. Though it is the prosecution case that the .(7). accused persons were Srilankan nationals, no material has been brought on record to show that they were Srilankan nationals. No passports were seized from the hotel room or from any other places where search or raids were conducted. Thus, there is nothing on record to show that the accused persons were Srilankan nationals. So also no investigation in that regard has been conducted by the prosecution. 8. Though the information was received at 4:00 p.m. on 23.3.1999 the raid is conducted on 24.3.1999 at about 5:00 a.m. i.e. almost 12 hours after receiving the information. It is pertinent to note that the raid was conducted just half an hour before the time stated by the informant that the accused persons would check out of the hotel. Normally no one would wait till the last minute to conduct the raid. The delay of 12 hours from the receipt of information and conducting the raid is unexplained and it creates grave doubt about the prosecution case. 9. The hotel register Exh.104 at entry No.1804 in the hotel register of Sana hotel and the .(8). evidence of the witnesses clearly show that accused Nos.1 & 2 had checked into the hotel at 7:30 p.m. on 23rd March, 1999 i.e. three and half hours after the intelligence/information was received by the PW-1. The question arises as to how the prosecution could get such an intelligence at 16:00 hours on 23.3.1999 when the accused were not staying in the hotel at that time and they had checked into the hotel only at 7:30 p.m. The preceding and the subsequent entries in the hotel register clearly show that the entry No.1804 is not an interpolation or that it is a false or fabricated entry. This entry puts a dent in the prosecution case about the information received and stay of accused Nos.1 & 2 in Sana Hotel. 10. Looking to the evidence on record, in my opinion, the learned Special Judge has rightly disbelieved the seizure of 3 Kgs. of heroin from Hotel Sana. This leaves us only with the seizure of heroin from room No.10 in Razak Chambers at Dongri. 11. The learned Counsel for the appellants submitted that there is no evidence to show that .(9). any of the appellants were in conscious possession of the alleged contraband or that they were in conscious possession of the premises in question and hence they cannot be convicted for alleged possession of the said contraband. 12. As per PW-14 Mohd. Isak room belongs to his sister and he is looking after the letting out that premise on behalf of his sister. He has further stated that PW-15 Yusuf Lalani was known to him and Lalani had approached him with accused No.2 and requested to lease room No.10 on agreement. He has admitted that there is no written agreement between him and accused No.2 or Yusuf for renting out room No.10 to accused No.2 or 3. He speaks about somebody coming to said room with bag but he is not sure who it was. 13. According to the prosecution case when they knocked on the door of room No.10 in Razak Chambers, accused No.3 Rauff opened the door and in the said room drugs were found. However, PW-14 Mohd. Isak speaks about presence of one Mr.Anwar or Rauff during that time. However he has identified Mohd. Rumuz Mohd. Salim (accused .(10). No.1) as Sattar Mohd. Rauff (accused No.3). It is not the case of the prosecution that accused No.1 had been to said premises at any point of time. Mohd. Isak deposed that one Anwar was also present in the room and was apprehended by NCB officers and officers carried him to their office after the search was over. His failure to identify the appellant as Anwar or Yusuf again goes to show that the accused No.2 or accused No.3 was not present in the room as is alleged. Mohd. Isak further admits that he handed over keys to Yusuf as Yusuf was known to him and Yusuf handed over those keys to Imtiyz, therefore, there is no direct evidence about handing over the keys of the room to accused No.2 or to accused No.3. PW-15, Yusuf is totally silent about handing over the keys of the room to Imtiayz or to Mr.Anwar by himself. PW-10 is also silent about making any enquiry with appellant Rauff or Imtiayz about ownership or possession of the said premises or reasons for presence of appellant Rauff in the said premises. Admittedly nothing was recovered from the said room to show that the alleged room was occupied by the appellants and that the articles recovered from the said room belonged to .(11). any of the appellants. PW-10 or PW-14 were not declared hostile nor re-examined to clarify facts. That the premises were rented to any of the appellants has not been proved by the prosecution. The premises in question do not belong to the appellants. No question or enquiry regarding the possession of the premises or reasons for his presence in the said premises was made with accused No.3 Rauff. No such enquiry was ever made during the course of the three statements of Rauff which are Exhs.18, 19 & 20. Moreover no such question was put to the appellant while his statement was recorded under Section 313 of Cr.P.C. by the learned Special Judge 14. It is pertinent to note that as far as seizure of heroin at Razak Chambers is concerned, witness Mohd. Isak has stated that the officers did not open the bag containing powder but the officers simply told him that the bag contained powder. He has further stated that he did not see the officers weighing the packets or preparing any packet or labelling or putting seal on any packet. 15. Mr.Sarpande the learned Counsel for the .(12). appellants submitted that panch witness PW-10 Dalvi who has signed the panchanama has not actually visited the spot, but, he has signed the said panchanama in the office. He has submitted that this can be clearly seen from the fact that the panch witness is unable to state any details about where the raid was conducted and other details of the raid. On perusal of the evidence of the panch witness PW-10 Dalvi, I find much merit in this submission. The panch witness PW-10 Dalvi has stated as below "17. I cannot tell about Razzak Chambers, as to how many floors to the bldg. is, and as to how many stair cases it has. Room no.10 of Razzak Chambers is at 3rd floor. I do not recollect whether we went by lift or by walking steps. I cannot tell whether room no.10 comes from left side or right side of staircase. I do not recollect as to what number room no.10 existed to staircases. I do not recollect whether adjacent room, to room no.10 .(13). were open or closed, at the material time. ..... Q- What were the other articles lying in the room at particular spot from where the regzine bags and the plastic bag was recovered ? Ans.I cannot tell the details, of other items. 18. I do not recollect whether there were additional plastic bags apart from the one plastic bag with the contraband were found in the room. I cannot tell from which part of the room the empty card board box was collected by the officer. I cannot tell whether in the room, there was only one empty carton or other cartons. 19. I do not recollect whether NCB Officers carried some material with them in the taxi, in which I .(14). travelled. The other NCB Officer travelling in other taxi were probably carrying one bag, I do not exactly recollect. I cannot tell description or size of the bag carried by NCB Officer. I cannot tell whether it was like a gani, or a liap bag, I do not recollect whether it was a iron box. I do not recollect whether the officers confronted with me the items they were carrying while proceeding from NCB Office. .." . Thus, from the evidence of the panch witness, it is seen that, he is unable to state anything about the place where the raid was conducted or other details regarding the raid, this raises doubt about the presence of the panch witness during the raid. In fact this raises doubt about whether the raid was actually conducted as per the prosecution case. 16. Mr.Satpute, the learned Counsel for respondent No.1-NCB submitted that even if the .(15). evidence of PW-14 or the panch witness does not establish the complicity of both the appellants, in such case the evidence of the officers of the NCB can be relied upon. However, after going through the entire evidence in this case, I find it extremely unsafe to place reliance on the evidence of the officers of NCB. One of the main reasons for this is that the panchnama, which was drawn regarding the raid conducted at Sana Hotel on 24.3.1999 at 5:00 a.m., shows that C.I.Mathew, J.S.Dubey, S.V.Gokhale, R.N.Tonape, N.M. Tambe all Intelligence Officers, NCB and N.J. Panigrahi Havaldar were present at the time when the raid was conducted at Sana Hotel and panchanama was drawn. So also the panchnama Exh.30 drawn in respect of the seizure of heroin at Razak Chambers shows that havaldar N.J.Panigrahi was part of the raiding party. Havaldar N.J. Panigrahi has been examined as PW-2. He had carried the sealed packets to the CA. Though as per both the panchanamas Havaldar Panigrahi was present during the raid at Sana Hotel as well as Razak Chambers wherein the drugs were seized and samples were drawn on 24.3.1999. However, Havaldar Panigrahi stated that on 24.3.1999 he was not on duty. He .(16). has stated that that day was off-day for him. He has further stated that on 24.3.1999 he did not meet any NCB officers. Though Havaldar Panigrahi had carried the samples drawn in the present case at Sana Hotel and at Razak Chambers to C.A. he has stated that he does not know from where Smt.Tejwani or Shri.Asawale brought the sample packets. He has further stated that he does not know where the samples were drawn. The final nail in the coffin is the statement of Havaldar NJ Panigrahi wherein he has stated that sample packets relating to the present case were handed over to him on 26.3.1999 and they were not seen by him anytime prior thereto. The categorical statement of Havaldar NJ Panigrahi that he was not present on duty on 24.3.1999 and his above evidence clearly show that both the panchanamas drawn at Hotel Sana as well as Razak Chambers cannot be relied upon as they are not the true and faithfull account of the events of that day. Thus, in such case, no reliance can be placed even on the evidence of officers of NCB. Thus, in my opinion the prosecution has not proved its case against both the appellants, hence the conviction of both the appellants deserve to be set-aside. .(17). 17. In the result, the appeals are allowed. The judgment and order dated 8th March, 2002 passed by the learned Special Judge (under N.D.P.S. Act) for Greater Mumbai in N.D.P.S. Special Case No.242 of 1999 is set aside. Both the appellants i.e. Sattar Mohd. Rauff (in Criminal Appeal No.565 of 2002) & Mohd. Imtiyz Moidden (in Criminal Appeal No.566 of 2002) are acquitted of the offences punishable under Sections 8(c) read with 29 of N.D.P.S. Act. Appellant - i.e. Sattar Mohd. Rauff (in Criminal Appeal No.565 of 2002) is also acquitted of the offence punishable under Section 8(c) read with 21 of the N.D.P.S Act. Appellants are in jail. They be set at liberty forthwith if not required in any other case. Fine amount, if any, paid by the appellants shall be refunded to them. (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.)