1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.284 OF 2008 Patrick Boon Erumolour Ikeke @ Big Ben Nigerian National, Age : 50 years, R/o: Flat No.71, Shrishti Complex, Vyadh, Sector III, Mira Road (E), Dist Thane ....Appellant (Orig. Accused No.2) V/s 1 Union of India (Narcotics Control Bureau, Mumbai) 2 State of Maharashtra ....Respondents. ---- Mr. Ayaz Khan with Ms. Yogini Kadam for the appellant. Mr. J.C. Satpute with Mr. H.V. Mehta for the respondent – Union of India. Mr. D.P. Adsule, APP for the respondent – State. ----- CORAM: V.M. KANADE, J. DATE : 19th November, 2008 ORAL JUDGMENT: 1. Heard the learned Counsel appearing on behalf of the appellant and the learned Counsel appearing on behalf of Respondent No. 1 – Union of India at length. 2. Appellant is challenging the judgment and order of the Trial Court whereby the Trial Court was pleased to convict him for the offence punishable under section 21(b) read with 2 section 8(c) of the NDPS Act and he was sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs 20,000/- and, in default of payment of fine, to suffer further rigorous imprisonment for six months. 3. Appellant is the original accused No.2. Prosecution case is that an information was received by the Investigating Officer P.W. 1 – Sanjay Poojari on 25/3/2006 that two persons were going to come near the Rassaz Multiplex, Mira Road and one Kwajo Oduro was going to sell 20 Gms of cocaine to the appellant. The said information was reduced in writing. Thereafter, two panchas were called and the raiding party went to the spot alongwith panchas and after the accused No.1 had given cocaine to the appellant herein, they were intercepted and their personal search was carried out near the Qualis vehcile of the raiding party. Prosecution case is that as per the provisions of section 50, both the accused were explained their right to be examined in the presence of Gazetted Officer or Magistrate. Both the accused were informed that there was a Gazetted Officer in the raiding party. Both the accused, however, declined to accept the said offer and, thereafter, they were 3 searched in the presence of the panchas and an amount of Rs 25,000/- was found with accused No.1 and Cocaine of 20 Gms was found in the pocket of appellant herein. The panchanama was accordingly made and it was concluded at 7.30 p.m in the evening. Thereafter, both the accused were taken to the Office of the Narcotic Control Bureau at Ballard Pier, Mumbai. Thereafter, the raiding party went to the residential premises of accused No.1 wherein 50 Gms of cocaine alongwith cash was found. The seizure panchanama was prepared. Statements of accused were recorded under section 67 and on the next day at 10.00 a.m., the accused were arrested. Prosecution examined in all 11 witnesses. 4. The learned Counsel appearing on behalf of the appellant submitted that the Investigating Officer had not complied with the condition imposed under section 50 of the NDPS Act and, as a result, serious prejudice was caused to the appellant herein. He submitted that, as a result, there was violation of section 50 sub-clause (5). It is submitted that the prosecution was required to conduct search under section 100 of the Criminal Procedure Code as envisaged under section 50(5) of 4 the NDPS Act and, therefore, search had to be conducted in the presence of the panchas. It is submitted that the panch witness having turned hostile, there is no independent witness to prove that the search was conducted as per the said provision. He submitted that the other panch witness was not examined and, therefore, an adverse inference has to be drawn against the prosecution. 5. The learned Counsel for the appellant further submitted that there was a clear breach of the provisions of section 50 of the NDPS Act inasmuch as it has come on record that there was joint appraisal of the right as envisaged under section 50 of the Act to both the accused. He submitted that it was essential that each accused ought to have been appraised about his right of being examined before the Gazetted Officer or Magistrate. That not having been done, there was a violation of section 50. He invited my attention to evidence of P.W. 3 – S.K. Sinha and P.W 9 – A. P. Patil in support of his submission and relied upon the judgment in the case of Dharmaveer Lekhram Sharma & anr vs. State of Maharashtra reported in 2001(5) Bom. C.R. 9. He further submitted that appraisal of the right of the 5 accused was not proper since P.W. 9 was a superior officer and he had supervised the raiding party and had participated in the said raid. Counsel for the appellant submitted that the appellant was, therefore, discouraged for opting to be searched by the independent authority. He further submitted that there is no independent evidence adduced by the prosecution in support of the seizure since the panch witness had turned hostile and the other panch witness was not examined. It is further submitted that, in defence, the accused had specifically made suggestion that no panchanama was drawn on the spot and that the accused was illegally detained in the night of 25/3/2006 and 26/03/2006 and that there was no panchanama in existence and it was separately prepared in the night in the office. In support of the said submission, he relied upon the judgment of the Apex Court in the case of Bahadur Singh vs. State of Madhya Pradesh reported in 2002 Cr. L.J. 579. He also relied on the judgment of the Apex Court in the case of Jagdish vs. State of Madhya Pradesh reported in AIR 2002 SC 2540. He also relied upon the judgment of the Apex court in the case of Ritesh Chakarvarti vs. State of M.P reported in (2007) 1 SCC (cri) 744 and finally on the recent judgment of the Apex Court in the case of Dilip & 6 anr. vs. State of M.P. reported in (2007) 1 SCC (Cri) 377. 6. Mr. Satpute, the learned Counsel appearing on behalf of Respondent No. 1 – Union of India, on the other hand, submitted that strict compliance of section 50 of the NDPS Act has been made by the prosecution. He further submitted that though the panch witness had turned hostile, the Investigating Officer had proved the panchanama and the seizure had been proved and the evidence to that effect has been given by the Investigating Officer and the other witnesses who were members of the raiding party. He invited my attention to the judgment of the Apex court in the case of State of Rajasthan vs. Ram Chandra reported in (2005) 5 SCC 151. 7. After having heard the Counsel for the appellant and respondent No.1, I am of the view that Counsel for the appellant has made out a case that seizure from the person of the appellant had not been established by the prosecution beyond the reasonable doubt. In my view, it is not necessary to consider the other submissions made by the learned Counsel appearing on behalf of the appellant regarding violation of section 50 of the 7 NDPS Act, since in my view, the prosecution has miserably failed to establish that there was a seizure of the contraband i.e. 20 Gms cocaine from the person of the appellant. It has to be noted here that other accused viz. accused No.1 has been acquitted by the Trial Court and the Trial Court has held that the seizure panchanama has not been proved and that no cocaine was found to be in possession of accused No.1 and also that no witness had seen accused No.1 handing over cocaine to accused No.2. 8. In the present case, admittedly, P.W. 7 – R. I. Khan who is a pancha witness has turned hostile. He has stated that he had never visited the place where seizure of 20 Gms of cocaine was allegedly taken place. Prosecution could have examined the other panch witness. However, no explanation has been given for not examining the second panch witness. An adverse inference, therefore, has to be drawn against the prosecution that the said witness was not examined because he was not likely to give evidence in favour of the prosecution. No independent witness has, therefore, supported the prosecution case in respect of seizure of the contraband from the person of the appellant. 8 The evidence of Investigating Officer would not be sufficient particularly taking into consideration the fact that no explanation has been given by the prosecution as to why the appellant herein and the other accused were shown to be arrested at 10.00 a.m in the morning on the next day after the seizure of the contraband from the appellant on 25/3/2006. Under this background, the defence of the appellant becomes probable that the contraband was not actually seized at Rassaz Multiplex at Mira Road as alleged by the prosecution. There is also discrepancy between the statement of the Investigating Officer and P.W. 9 regarding the time at which the Officers had assembled at the spot for the purpose of seizing contraband from the appellant. In the panchanama, it is stated that panchas had assembled at 5.00 p.m. The Investigating Officer and other witnesses, however, have stated that the Officers assembled at the spot at about 6.00 p.m. This is an additional circumstance which creates doubt about the actual seizure of the contraband at Rassaz Multiplex at Mira Road. Apex Court in series of cases viz. Bahadur Singh (supra), Jagdish (supra) Ritesh Chakarvarti (supra), Dilip & anr. (Supra) has held that, in such a case, the accused was entitled to get benefit of doubt. 9 9. In the present case, 20 Gms. of cocaine was allegedly found on the person of the appellant. It is admittedly not a commercial quantity. The appellant has already undergone 2 and half hears of sentence out of the three years awarded by the trial court. 10. Taking into consideration various discrepancies in the prosecution case, in my view, appellant is entitled to get benefit of doubt. The judgment and order passed by the Trial Court convicting the appellant is liable to be set aside. 11 Accordingly, the following order is passed. O R D E R In the result, appeal is allowed. The judgment and order passed by the Trial Court convicting the appellant, is set aside. The appellant is acquitted of the offence punishable under section 21(b) read with section 8(c) of the NDPS Act. The fine amount, if paid by the appellant, may be returned to the appellant. His bail bonds stand cancelled. Appeal is disposed of in the above terms. 10 (V.M. KANADE, J.)