1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.379 OF 2007 Leen Martin ) Irish National, ) Age – 33 years, ) R/o-44/57, Belsize Park, ) London NW 342 EB ) ....Appellant. (Orig. Accused No.1) V/s 1. Union of India ) Air Intelligence Unit ) Customs, Mumbai. ) ) 2. State of Maharashtra ) ..... Respondents. ----- Mr. Mahesh Jethmalani, Senior Counsel with Mr Ayaz Khan & Ms. Nilofar Saiyad for the appellant. Mr D.N. Salvi for respondent No.1 – Union of India. Mr. S.S. Pednekar, APP for respondent No. 2 – State. ------ CORAM: V.M. KANADE, J. DATE : 20th November, 2008 ORAL JUDGMENT: 1. Heard Shri Mahesh Jethmalani, the learned Senior Counsel appearing on behalf of the appellant and Shri D.N. Salvi the learned Counsel appearing on behalf of respondent No.1 – Union of India. 2. Appellant is challenging the judgment and order 2 passed by the Special Court whereby the Court was pleased to convict the appellant for the offence under section 8(c) punishable under section 20(b)(ii)(c) and under section 28 read with section 23 of Narcotic Drgus and Psychotropic Substances Act and sentenced him to suffer rigorous imprisonment for 10 years on each count and fine of Rs 1 lac was imposed by the Trial Court and in default of payment of fine the appellant was sentenced to suffer further simple imprisonment for six months. 3. Prosecution case is that the appellant had booked a ticket of Swiss Airlines and while he was waiting at the Airport on 6th/7th May, 2004, the Intelligence Officer found that his movements were suspicious and, therefore, according to the prosecution, two panch witnesses were called and, in the presence of panch witnesses, he was asked to identify the baggage and, thereafter, his bag was opened in presence of the panchas. It was noticed that even after contents of the bag was removed, it was found to be heavy and, thereafter, it was noticed that there was an additional bottom affixed to the bag and on removing the false bottom, total quantity of 12.30 kgs. of Hashish was recovered from the said bag. Out of the said total 3 quantity of 12.30 kgs. of Hashish, samples were taken and the said samples were kept in three separate envelopes. They were sealed and signatures of panchas were taken. The accused/appellant was arrested. His confessional statement under section 67 was recorded. Trial Court relied on the testimony of panch witnesses and the Intelligence Officer and also on the confessional statement of the accused and convicted him and sentenced him to suffer rigorous imprisonment for 10 years by its judgment and order dated 22/03/2007. By the time the appeal was taken up for hearing, the appellant had already undergone 4 years and 7 months of imprisonment out of 10 years awarded by the Trial Court. 4. Mr Mahesh Jethmalani, the learned Senior Counsel appearing on behalf of the appellant submitted that, firstly, recovery has not been corroborated by the panch witnesses. He submitted that, in fact, panch witnesses have contradicted the statement of the Intelligence Officer. He submitted that the panch witnesses were not declared hostile witnesses though they had not supported the prosecution case and, therefore, on the basis of the said evidence which was given by the panch 4 witnesses, the appellant was liable to be acquitted since the seizure of contraband had not been established by the prosecution. He then submitted that the seizure of contraband and the bag from which it was seized had not been identified by the panch or even by the Intelligence Officer P.W. 1. Thirdly, he submitted that the actual extraction of samples from the contraband and their dispatch to the Chemical Analyzer was vitiated on account of several discrepancies in the statement of Intelligence Officer and the panch witnesses and, therefore, the entire process of sending the contraband to the Chemical Analyzer was under the cloud of doubt. Lastly, it is submitted that the actual quantity of Hashish which was seized had not been established by the prosecution. It is submitted that the Trial Court had relied on the testimony of panch witnesses who had not supported the prosecution case and only one statement made by the panch wintess was relied upon by the Trial Court and alongwith this statement the Trial Court had relied upon the confessional statement which had been retracted on 29/06/2004. It is, therefore, submitted that the Trial Court had erred in relying on an uncorroborated testimony of P.W 1 and on retracted confession of the accused. 5 5. In support of the said submission, the learned Senior Counsel for the appellant relied upon the judgment of the Supreme Court in the case of Mukhtiar Ahmed Ansari Vs. State (NCT of Delhi) reported in 2005 Supreme Court Cases (Cri) 1037 and an unreported judgment of this Court in Sk. Khairati v. State of Maharashtra in C.R.Appln.No.139/65 dated 11/08/1965. He also relied upon the Division Bench Judgment of this Court in the case of Mr. Milan Sarcanski Vs. The State reported in 1997 ALL MR (Cri) 496. He invited my attention to the evidence of panch witnesses viz P.W. 8 – Russell Bragana Agnelo J. and P.W 9 – Vijay Bonniface Quadras and also the evidence of Intelligence Officer Ramakant Yeshwant More - P.W. 1. In the present case, it is an admitted position that P.W. 8 and P.W. 9 have not supported the prosecution case. In fact, both these panch witnesses in their examination-in-chief itself have stated that by the time they were called by the Intelligence Officer, they had noticed that the bag had already been opened. Both of them have admitted in their examination-in-chief that the panchanama was not read over to them. P.W. 8 in his evidence has stated that he was attending work of checking passengers of 6 Flight No. LX 155 departing for Zurich and he was working as Passengers Services Representative with Swiss Airlines at C.S.I. Airport. He has stated that after entering the Office of AIU Section, he saw one opened suite-case and he has further stated that he was asked to sign on number of papers and on packets shown to him. P.W. 9 also has stated that when he arrived at the said section, the bag was already opened. P.W. 9 has stated that his signature was obtained on panchanama which was already prepared and that he did not bother to ask what was written in the panchanama. Even P.W. 1 who is an Intelligence Officer in his evidence has not stated that the bag containing contraband was opened in the presence of panchas. That being the position, seizure of the contraband had not been established by the prosecution. It is not necessary to go into various contradictions and inconsistencies in the statement of Intelligence Officer in respect of the procedure which was followed by him in sending the contraband samples to the Chemical Analyzer and also the discrepancy regarding passport, boarding passes, baggage tag and baggage claimed tag being kept in different envelopes and when the said envelopes were opened before the Court they were found in one envelope and not in separate envelopes. However, 7 without going into the said inconsistencies of the prosecution evidence, it is sufficient to mention here that the prosecution has miserably failed in establishing that when the seizure was made panchas were present. It is, therefore, difficult to accept the case of the prosecution regarding seizure of the contraband from the bag of the appellant. Prosecution, therefore, has not established the seizure of the contraband from the bag which belonged to the appellant. Appellant has already undergone 4 years and 7 months of sentence. In view of the said discrepancy which is fatal to the prosecution case, benefit of doubt will have to be given to the appellant. Trial Court has convicted the accused and has observed in para 24 of its judgment as under:- “24. From the evidence discussed above, it is clear that PW1 has deposed in details about events. The independent panch witness i.e. PW8 has corroborated the evidence of PW1 to some extent. Both the panch witnesses have stated that packets were not taken out from the bag in their presence. But PW8 is admitting the contents of panchanama at Exhibit- 12. Even though independent panch witnesses have not supported the evidence of PW1 fully, still there is statement of accused No.1 which is recorded u/s 67 of NDPS Act at Exhibit- 8 18. Therefore, the evidence on record will have to be scanned in the light of the statement of accused No.1 at Exhibit- 18.” 6. Trial Court, therefore, clearly erred in arriving at the said conclusion on the basis of evidence of P.W. 1 which is full of inconsistencies and contradictions and on the retracted confession of appellant being recorded under section 67 of the NDPS Act. The finding recorded by the Trial Court is set aside. Consequently, the judgment and order passed by the Trial Court will have to be set aside and the appeal will have to be allowed. 7. Accordingly the following order is passed:- O R D E R Appeal is allowed. The judgment and order passed by the Trial Court convicting the appellant is set aside. Appellant is acquitted of the offence with which he was charged. Appellant be released forthwith, if not required in any other case. The amount of fine, if paid by the appellant, be returned to the appellant. Passport of the appellant be returned to the appellant. (V.M. KANADE, J.) 9