1 cri.appln-4637-10.doc mgn IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CRIMINAL JURISDICTION CRIMINAL APPLICATION NO.4637 OF 2010 Union of India & Ors. ..Applicants Versus Ely Salikovsky & Ors. ..Respondent Mrs. Revati Mohite-Dere for the Applicants. Mrs. M.M. Deshmukh, APP for State. CORAM: B. H. MARLAPALLE & U. D. SALVI, JJ. RESERVED ON: 19TH JANUARY, 2011 PRONOUNCED ON: 3RD FEBRUARY, 2011 P.C. This is an application filed under Section 378(4) of the Cr.P.C., for seeking leave to appeal against the order of acquittal passed in 2 cri.appln-4637-10.doc N.D.P.S. Special Case No.17 of 2006 by the learned Special Judge, Greater Mumbai, on 24th July, 2008. In all 3 accused came to be tried in the said case for the offences punishable under Section 8(c) read with Section 20(ii)(C), 23(C) read with Sections 28 and 29 of the N.D.P.S. Act, 1985. All of them came to be acquitted. Leave to appeal was initially sought in Criminal Application No.3797 of 2009 and accused Nos. 1 and 2 could not be sereved as they could not be traced. As a result Criminal Application No.3797 of 2009 came to be rejected for non-prosectuion against Nos. 1 and 2. The Application, therfore, survived only against accused Nos. 3 and this Court by its order dated 27th July, 2010 rejected the application against accused No.3. It appears that subsequently the accused No.1 came to be traced and, therefore, this fresh application only against him. 2. There is no dispute that the accused Nos. 1 and 2 are the Israeli nationals and it was claimed that on 14th June, 2005 a look out notice was forwarded to the immigration authorities of Mumbai's Chhatrapati Shivaji International Airport. In the night of 3rd August, 2005 both the accused had checked in their baggage to board the flight A1-Italia Flight No.AZ 771. Suspecting the baggage of accused 3 cri.appln-4637-10.doc No.2, he was apprehended. 8.950 Kgs. hashish was found to be concealed in the baggage of accused No.2 and the same was seized under the panchanama. During the investigation accused No.2 allegedly claimed that he had received the seized drugs from accused No.1 and, therefore, accused No.1 also came to be apprehended. It is further claimed that on interrogation and while recording his statement at Exhibt 67 he admitted that he had hidden 17 Grams of hashish in his body cavity and it was supplied to him by accused No.3. Thus the case of the prosecution against accused No.1 was that he had concealed 17 Grams of hashish and it was purged in the presence of a doctor. The prosecution case was examined by the trial Court on the basis of the oral depositions of 17 witnesses and it held that the prosecution could not prove its case beyond reasonable doubts and all of them came to be acquitted. 3. The first and foremost evidence of Ajit Patil, P.W.17 was considered by the Court and he was the author of the so-called intelligence received and in this regard the document at Exhibit 52 was relied upon. It was dated 14th June, 2005 and was claimed to be a look out notice. The trial Court found that the said notice was not reliable because there was no outword number and file number 4 cri.appln-4637-10.doc mentioned on the said document. It was regarding intelligence and not in respect of the crime number. The details of passport and date of birth of two suspects was given by the Zonal Manager and he had no personal knowledge of the same. In his cross examination he also admitted that no communication was received from the immigration authority from 14th June, 2005 to 3rd August, 2005 and he had not written any letter to the immigration authority pointing out the failure to report the arrival of accused No.1. He admitted that the letter at Exhibt 52 did not bear outward number of N.C.B. Office or inward number of immigration office. Similarly, the name and designation of the officer who received it was not mentioned. P.W.2-Hire also admitted that he had not given anything in writing to the Immigration Officer for the custody of accused No.1 and he was unable to assign any reason for the said failure. He also admitted that he did not ascertain whether any offence was registered as against accused No.1 by the Immigration Officer or by the Police. For these and similar reasons it was clear that the document at Exhibit 52 was subsequently created by the NCB. 4. This witness further admitted that accused No.1 was not wanted in any case either by the Courts in India or by the N.C.B. As 5 cri.appln-4637-10.doc on 14th June, 2005. The trial Court noted that the accused No.1 was apprehended by the Immigration Officer at the first instance and subsequently the N.C.B. Officer received his custody along with baggage. Now coming to the recovery from the body cavity of accused No.1 on the basis of his statement recorded under Section 67 the evience of P.W.6-Sanjaykumar Sinha, P.W.15-Mansuri and P.W.17-Mr.Ajit Patil was considered by the trial Court along with the statements recorded at Exhibit 55 and Exhibit 69. It was claimed that P.W.15-Mansuri was the panch witness when accused No.1 purged two capsules from his rectum on 4th August, 2005 (seizure panchanama at Exhibt 67). During the cross examination P.W.6-Sinha admitted that accused No.1 was in the custody of N.C.B., without registering any crime. He started to record the statement at Exhibit 55 at 10.00 a.m., and completed at 11.30 a.m. He also admitted that the accused was in his custody for 4.00 a.m., on 4th August, 2005. The trial Court noted that the statement at Exhibit 55 and Exhibit 69 were verbatim same and were recorded when the accused was in the custody but was not arrested. Mr. Sinha had further stated that the witnesses were called at 2.00 p.m., and it was proved during his evidence that panch witness P.W.15 was a professional witness of the N.C.B., in as much as in the past he was a witness atleast in six cases 6 cri.appln-4637-10.doc filed by N.C.B. Mr. Sinha admitted that he was not aware that P.W.15-Mansuri had acted as a panch witness in six different cases earlier. Mr. Sinha further stated that he had met the panch witnesses in the N.C.B. Office situated at Ballard Pier area whereas the panch witness P.W.15-Mansuri was the resident of Null Bazar area and the other panch witness Habib Jamal Mansuri is resident of Pyhdhunie area. None of the witnesses could clarify as to why they had come in the vicinity of N.C.B. office on 4th August, 2005. Mr. Sinha also admitted in his cross examination that an independent gazetted officer was not present when the accused No.1 had purportedly expressed his desire to purge the capsules. This was in breach of the mandatory requirement of Section 50 of the N.D.P.S. Act. These findings of the trial Court have not been contested. 5. The accused were produced befrore the Metroplitan Magistrate for the first time on 5th August, 2005 and the memo of arrest at Exhibit 71 indicated that they were shown to have been arrested at 8.00 p.m. on 4th August, 2005. Mr. Sinha admitted that the accused were in the custody of the N.C.B. right from 4.00 a.m. on 4th August, 2005 and surprisingly they were shown to be arrested only at 8.00 p.m., and he did not feel it necessary to arrest the accused even after 7 cri.appln-4637-10.doc recording his statement at Exhibit 55. The evidence thus indicated that the accused were detained for more than 24 hours before they were produced in the Court and were in illegal detention. 6. As per Mr. Sinha, the accused No.1 had purged the capsules in the presence of a Doctor at Holly Spirit Hospital after his X-Ray was taken. But this X-ray never came before the Court. The Medical Officer who was present when the capsules were purged by the accused No.1 was not examined. In all 5 statements of accused No.1 came to be recorded purportedly under Section 67 of the N.D.P.S. Act. The last statement was recorded on 25th October, 2005 (Exhibits 55, 69, 79, 80 and 86). Both of them were foreign nationals having been detained by the officers for more than 24 hours. They did not know English and, thereefore, the trial Court rightly noted that the possibility of making statements on account of pressure exerted by the Police could not be ruled out. The accused had retracted from all these statements and this was admitted by Mr. Sinha in his cross examination. Though the N.C.B., had taken the assistance of of translator, these findings of the trial Court do not suffer from any error. The main claim that the accused had purged two capsules of hasish could not be proved. 8 cri.appln-4637-10.doc 7. We have gone through the record and proceedings and more particularly the depositions of the 17 witnesses. At the highest the case of the accused was only limited to 17 grams of hashish allegedly found in the cavity of accused No.1 and there was nothing on record to prove that he had supplied hashish to accused No.2 which was purportedly recovered from his bags. This recovery of 17 grams of hashish from accused No.1 could not be proved beyond reasonale doubt by the prosecution. Hence, the trial Court was justified in acquitting the accused No.1. 8. In the premises there is no case made out to grant leave to appeal. Hence leave to appeal is refused and the application is rejected. (U. D. SALVI, J.) (B. H. MARLAPALLE, J.)