1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 856 OF 2008 WITH CRIMINAL APPLICATION NO. 1532 OF 2008 DIST.: MUMBAI Union of India ] (at the instance of Assistant Director, ] Directorate of Revenue Intelligence, ] Construction House, Ballard Estate, ] Mumbai 400038, through Public Prosecutor, ] Union of India) ...Appellants Versus 1. Prabhakar Nair ] an adult Indian inhabitant, having his address ] as 22/704, Shastri Nagar, Goregaon (West), ] Mumbai 400 104 ] 2. Sate of Maharashtra ] ...Respondents Mr. R.F. Lambay for the Appellants Mr. A.S. Gadkari, Additional Public Prosecutor, for Respondent No.2. CORAM: B ILAL NAZKI and A.A. KUMBHAKONI, JJ. DATE : AUGUST 7, 2008 ORAL JUDGMENT (Per Bilal Nazki, J.):- 2 The appeal is not on Board. With consent, it is taken on Board and heard. The registry to number the appeal. 2. This is an appeal against acquittal filed by the Public Prosecutor against the judgment of the Special Judge under the N.D.P.S. Act in N.D.P.S. Special Case No. 2 of 2005. 3. The brief facts are that on 3rd August, 2004 at about 6 p.m., P.W.1 received an intelligence message that consignment covered by Shipping Bill No. 5393705 dated 30th July, 2004 and Air Way Bill No.17627954161 of Emirates Air Ways, destination Johannesburg, South Africa, the consignor being M/s. A.V.M. Exports, Goregaon, would be lying at the Export Shed for General Cargo at Air Cargo Complex, Sahar, Mumbai. The said consignment, according the intelligence reports, was declared as “talcom powder”, but, in fact, in these packages, a large quantity of methaqualone powder, which was a psychotropic substance, was there. On the basis of the intelligence report, a First Information Report was registered, and a party left for the Air Cargo Complex. It was the prosecution's case that when it left to the Air Cargo Complex, it took with it field testing kit, weighing scale, sealing 3 and sampling material and DRI seal. The panchas were collected from the Air Cargo Complex, and panchas were apprised about the intelligence received by the officers and they were requested to witness the proceedings. 4. Thereafter, they took possession of the consignment. It was in the form of 8 plastic drums / carboys of blue colour with black colour lid. The lid was attached to the drum by metal rim seal. This was further sealed by plastic strip seal. The drums had stickers stuck on them, which had details like air way bill number, number of packages, the destination, the manufacturer's name, etc. Inside the drum, there was a plastic bag containing coarse white powder. Small quantity of the powder was tested with the help of field testing kit, and it answered positive for presence of methaqualone. There was some quantity of another powder also, which was tested, but was found negative for methaqualone. All the drums were opened, and out of the total quantity of 148 Kgs., methaqualone powder was found to weigh 71 Kgs. 5. Thereafter, the officers drew two samples, each of approximately 5 grams, and placed them in two polythene bags, and 4 then they were sent for chemical analysis. It was the prosecution case that when they went for seizure, they took along with them many tools, including a weighing balance. Obviously, they weighed the samples, and the covering letter sent for analysis also showed that the weight of each sample was 5 grams, but when the samples reached the Chemical Analyst, were opened and weighed by the Analyst, the same were found to be of 10 grams each. 6. This, in our view, was an important circumstance and a sufficient circumstance to create doubt about the prosecution story. We have our own doubt whether the defect was kept purposely in order to help the accused. One cannot be certain that what was seized from the accused was methaqualone because, admittedly, only 5 grams sample was sent to the Chemical Analyst, but when it reaches the Analyst, it becomes 10 grams. Who added further 5 grams to the sample, and whether the original 5 grams were methaqualone or the 5 grams, which were added to it during transit, were methaqualone? This circumstance has also not been explained by the prosecution, according to the learned Special Judge. As we have said, we have doubt whether this discrepancy was a deliberate creation of investigators or not. It is a matter to be considered by the administrative department of the officers 5 concerned. 7. With these observations, we dismiss the appeal. 8. The application also stands disposed of. BILAL NAZKI, J. A.A. KUMBHAKONI, J.