1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.804/2006 WITH CRIMINAL APPLICATION NO. 1193/2008 Logarlal Dangi , Appellant/Applicant Indian National,Aged: 38 yrs. R/O (a) Rai Dongri,Kulupwadi, Boriwali (E), Mumbai . Vs. 1] The Intelligence Officer, Narcotic Control Bureau,Mumbai Zonal Unit, Mumbai 2] The State of Maharashtra Respondents WITH CRIMINAL APPEAL NO.825/2006 Mohamad Shareef ,Age-35yrs. Muslim,Indian Inhabitant,R/o (a) 202, Shiv Shahi Apartment,Sector -31, Vashi Village, Navi Mumbai, (b) Adkasthala House,IV/360,Kalakukke ,Post Kasargode, Kerala. Appellant Vs. 1] Sanjay A.Poojari, I.O.NCB, Exchange Bldg.3rd Floor,Mumbai. 2] State of Maharashtra Respondents 2 CORAM:Mrs.Mridula Bhatkar,J. Date :12th October, 2009. Mr.Ayaz Khan a/w Ms.Nelophar Sayeed for Appellant (Appeal No. 804/2006) & Mr.Atul Sarpande for Appellant (Appeal No.825/2006) Mr.J.R.Solanki for the Union of India Mr.Y.S.Shinde,APP for State J U D G M E N T 1] These appeals are arising out of the judgment of conviction given by the Special Court,Greater Bombay under the Narcotics and Psychotropic Substances Act (NDPS Act) . These two appellants/ accused are tried for the offences punishable u/s 21(c) r/w section 8(c) and r/w section 29 of the NDPS Act. On 15/11/2003 they were found in flat no.202 at Shivshahi Apartment at Vashi, Navi Mumbai with two kilograms Heroine . The Narcotic Control Bureau(NCB)has raided the premises pursuant to the intelligence received by them and after apprehending both the appellants they conducted panchanama ,further investigation and both the accused were tried before the Sessions Court and the trial concluded in the conviction by judgment dated 24/8/2006. Both the accused were 3 convicted for the offence punishable u/s 21(c) r/w Section 8(c) of the NDPS Act for conspiracy and sentenced to suffer R.I.for 10 years, to pay fine of Rs.1 lac i/d to suffer R.I.for 1 years.They were also convicted for the offence punishable u/s 21(c) r/w Section 29 of the NDPS Act and sentenced to suffer R.I.for 10 years, to pay fine of Rs.1 Lac i/d to suffer R.I.for 1 year. Hence these appeals. 2] The appeals are challenged mainly on the following counts. [A] The officer who had received the intelligence about the Heroine had reduced the intelligence in writing as per section 42 of the NDPS Act and while doing so he did not mention the quantum but mentioned as “substantial quantity”. However, in the evidence P.W.5 has stated that the superior officer had informed him that 2 Kg. Heroine is going to be handed over. It is argued that if the quantity was known or informed at the time of intelligence then why exact quantity was not mentioned when the gist was reduced into writing. It is argued that the intelligence ,therefore, is doubtful. [B] The Investigating Officer Mr.Pujari at the time of his evidence has specifically mentioned that he put two seals of Narcotic Control Bureau on the samples , however, when the 4 sample was received by the Chemical Analyser three seals of Narcotic Control Bureau were found on the sample. [C] The panch witness is not examined during the trial. [D] The description in the sample heroine is another crucial point and was emphasised by the defence. The sample taken and weighed as per the investigating officer was 5 gms. . However, actual heroine sample received and weighed by the Chemical Analyser in the laboratory the sample of heroine weighed 3.15 gms. and the weight of polythene bag is 1.88 gms.. Hence the identification of the sample heroine is challenged. [E] After seizure the sealed packet of the sample heroine was not kept in the safe custody/ godown of the Narcotic Control Bureau where it was supposed to be deposited by the investigating officer. But the investigating officer kept it in his custody from 15/11/2003 till 17/11/2003 and on 17/11/2003 it was sent to the Chemical Analyser . Thus, there was possibility of tampering the sample. 3] The learned counsel appearing for the appellants in support of their submissions placed reliance on the following rulings. Discrepancy in weight ,and storing in warehouse. 5 [1] 2008 AIR SCW 5964 [2] (2006) 1,S.C.(Cri.) 150 [3] 1999(2) Crimes 362 Custody of seal [1] 1998 ALL M R (Cri.) 889 [2] Unreported Case no.16/99. 4] The learned A.P.P.has submitted that the Special Judge has considered all these aspects and after dealing with these aspects has given a correct finding which need not be set aside.He has pointed out from the judgment that the learned Judge on the point of discrepancy in the weight has rightly held that there might be some difference in the weight due to moist atmosphere and the difference in the weight is very marginal. The A.P.P. has further submitted that Mr.Patil who is P.W.6 , Superintendent of Narcotics Control Bureau has instructed the investigating officer Mr.Pujari to keep the samples in his custody and ,therefore, the investigating officer has kept the samples for two days with him. The learned counsel has further submitted that there is enough evidence against these two appellants as they were found in possession of 2 kg. of Heroine which is proved in the trial. 6 5] In the present case the circumstances pointed out by the defence are not properly explained by the prosecution in the evidence and so the learned Trial Judge also could not arrive at a conclusion by giving satisfactory reasoning to these lacunae . On the sample as per the evidence of the investigating officer two seals of the N.C.B.were affixed. However, the said sealed sample remained with the investigating officer from 15th November to 17th November and when it reached to the Chemical Analyser there was addition of one more seal of the N.C.B.. There is a possibility of human error in writing number of the seals in the panchanama. In that event the investigating officer ought to have given the explanation in his evidence. However, in absence of any such explanation from the prosecution the question of increase in the number of seals has remained unanswered. On the point of use of seal reliance is placed on the ruling of our Bombay High Court (Shri Murata Chiharu Vs.State of Goa ) reported in 1998 ALL MR (Cri.)889 in which it is observed in paragraph 8 that - “ There is sanctity in sending specimen seal to the Analyst and the specimen seal is separately sent to him so as to ensure that there is no tampering of the sealed envelopes. In this case, the prosecution has not been able to give any explanation whatsoever as to how the seal was put by PSI Mhamal on the said letter (Exh.P.W. 1/A).This, as rightly pointed out by the Senior Counsel for the appellant,throws further doubt on the prosecution version. “ 7 6] The prosecution has failed to explain why the sealed sample was not deposited in the safe godown but was kept with the investigating officer for two days .The submission of learned Prosecutor that it was not the lapse on the part of the investigating officer but he has acted on direction given by the Higher Authority is not convincing. This itself in isolation would not have been considered as a loophole in the investigation , but , this fact coupled with other lapses is to be appreciated. The defence has pointed out the discrepancy in the weight of the heroin when collected and when it was again weighed by the Chemical Analyser after two days. 7] On the point of weight of sample and identification of substance I place reliance on the ruling Rajesh Jagdamba Avasthi Vs. State of Goa, reported in (2006) 1 Supreme Court Cases (Cri.) 150 in which the Hon’ble Supreme Court has observed that the credibility of the recovery proceeding is considerably eroded if the quantity found by the analyst is less than the quantity sealed and sent to him. In the said case the same question was involved as 100 gms. substance was recovered and sealed in the envelope (A) and when it was opened by the chemical analyser it was found 98.16 gms.,so also in the envelope (B) 115 8 gms.Charas was packed and sealed, however, the quantity found was 82.52 gms.. So this discrepancy was found fatal to the prosecution. 8] Further in the case of (Abdul Rashid Vs.The State of Maharashtra),reported in 1999 (2) Crimes, 362 the Division Bench has also taken the similar view as the discrepancy in the sample contraband when sealed and when opened by the Chemical Analyser was considered as a serious infirmity in the prosecution case and the conviction was liable to be set aside. It is held in paragraph 6 of the said judgment that - “ Now, it is well-settled that in the prosecutions of the present type, where the evidence in respect of the identity of the contraband is very crucial, it needs to be emphasised that every aspect and , more importantly, the weight of the contraband, which is something that is one of the most important features on which it can be distinguished or identified, must be attended to with a degree of precision and with a degree of correctness. Any amount of laxity, looseness or error could have fatal consequences to the prosecution . Similar view has been taken by this Court in the decision in Amina Abdul V.State of Maharashtra.” 9] It is to be noted that in each case the facts differ with its peculiar nature of offence, transaction , collection of evidence , topography , location, etc. and needs to be assessed by taking in to account all these factors. In the present case if immediately after 9 sealing of sample it would have sent to the Chemical Analyser directly then the submission of the learned Prosecutor that the precision of the weighing scales may differ could have been accepted, however, the samples were kept in the custody of the investigating officer for two days. Moreover the panch witness was not examined by the prosecution . Thus, all these factors render the identification of the sample doubtful. 10] The submissions of the defence counsel that it was obligatory on the part of the investigating officer to write the exact quantity of the heroine i.e. 2 kg.in the gist of intelligence is not appealing as the investigating officer has mentioned ‘ substantial ‘ quantity and 2 kg.is a substantial quantity. 11] The corresponding effect of the discrepancies and the loopholes in the case of the prosecution if weighed in the light of the ruling of the Hon’ble Supreme Court conclusion of the acquittal has to be drawn. Hence the order. O R D E R 1] The Order passed by the learned Special Judge, Greater Bombay dated 24th August, 2006 in NDPS Spl. Case No. 40 of 10 2004 is set aside. 2] Accused Nos. 1 and 2 are acquitted from the offences, punishable under Section 21(c) read with Section 8(c) of the NDPS Act. 3] Accused Nos. 1 and 2 are acquitted from the offences, punishable under Section 21(c) read with Section 8(c) and 29 of the NDPS Act. 4. Accused are set at liberty if not required in any other offence. 5. The Accused did not deposit the fine amount. 6. Appeals and the application are disposed of accordingly. (MRIDULA BHATKAR, J.)