1 crappa-419-357-10 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI.APPLN. NO. 419 OF 2010 IN CRI. APPEAL NO. 139 OF 2010 Muquisur Rehman ..Applicant [Ori.Accused no.1] Vs. Union of India, NCB and Anr. ..Respondents .... Shri. Taraq Sayyed Adv. for applicant Smt. P.H.Kantharia Adv. for Respondent no.1 Smt. M.M.Deshmukh APP for State of Maharashtra .... WITH CRI. APPLN.NO. 357 OF 2010 IN CRI.APPEAL NO. 68 OF 2010 Akhtar Ali Shaikh ..Applicant [Ori.Accused no.2] Vs. Intelligence Officer NCB and Anr. ..Respondents .... Ms. Nilofar Sayed Adv. for Applicant Smt. P.H.Kantharia Adv. for Respondent no.1 Smt. M.M.Deshmukh APP for State of Maharashtra .... 2 crappa-419-357-10 CORAM : SMT.V.K.TAHILRAMANI, J. DATE OF RESERVING ORDER : SEPTEMBER 27, 2010 DATE OF PRONOUNCING ORDER : OCTOBER 12th , 2010 ORAL ORDER: 1 Heard the learned counsel for the applicants-original accused nos.1 and 2, learned counsel for the respondent no.1-N.C.B. and the learned APP for the State. 2 The applicants-original accused nos.1 and 2 have been convicted under Sections 8(c) read with Sections 29 and 21 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the “said Act ”). The appeals preferred by the applicants are pending. The applicants are now seeking bail. 3 Cri. Application No. 419 of 2010 has been preferred by original accused no.1-Muquisur Rehman and Cri. Application No. 357 of 2010 has been preferred by original accused no.2-Akhtar Ali Shaikh. As both the applicants have been convicted in the same case and the facts are the same, both the applications are being heard and disposed of together. 4 The prosecution case briefly stated is as under: 3 crappa-419-357-10 On 24.1.2006 at about 6.30 p.m. an information was received that one maroon colour Tata Indica Car bearing registration No. MP-09- HC-138 with 6 kgs. of heroin a narcotic drug concealed in it, is going to arrive at Yogi Hotel, anytime after 1 a.m. on 25.1.2006 and that the consignment of 6 kgs. of heroin is going to be delivered to one person by name Akhtar (accused no.2) by the driver (accused no.1) of the said Car. 5 Pursuant to the said information, a raid came to be arranged. At about 1.45 a.m. Accused no.1 came in the said car to Yogi hotel. When accused no.2 approached him to take the heroin from him, both these accused persons came to be nabbed. On inquiry with accused no. 2, it was learned that out of 6 kgs. heroin, 3 kgs. heroin was to be given to accused no.3-Amboli and 3 kgs. heroin was to be given to accused no.4 Laxmi Koli. 6 The learned counsel for the applicants submitted that the applicants have been falsely implicated in the present case and the entire prosecution stroy is a false and concocted one. The learned counsel for the applicants further submitted that according to the prosecution the information was received on 24.1.2006 at about 6.30 p.m. that the car was to come at Yogi hotel after 1 a.m. The car came to be intercepted at about 1.45 a.m. At that time, according to the 4 crappa-419-357-10 prosecution, accused no.1 was found in the car and when accused no.2 approached the accused no.1 in the car, both of them came to be intercepted. Thereafter, panchnama came to be conducted at the spot which came to be concluded at about 4 a.m. Thereafter, the accused were brought to the office of the N.C.B. and interrogated. Thereupon, accused no.2 is said to have revealed to the Officers of N.C.B. that 3 kgs. heroin was to be given to accused no.3 Amboli and 3 kgs. heroin was to be given to accused no.4 Laxmi Koli who was in Masina hospital in Mumbai. The learned counsel for the applicants brought to my notice Exh. 108 which is a letter written by PW 13 A.P. Patil who is the Superintendent of N.C.B. It is addressed to the R.M.O. of Masina hospital. The said letter is dated 24.1.2006 and it states that one Laxmi Koli was admitted in Masina hospital. She was required by the Zonal Unit in connection with the seizure of narcotic drug on 24.1.2006, hence, it is requested that officers of Zonal Unit may be allowed to keep her under surveillance and on her discharge from the hospital, the officers may be informed for necessary immediate action under the said Act. The learned counsel further submitted that the involvement of Laxmi Koli came to be known to the officers of the N.C.B. as per their case only after accused no.2 came to be intercepted and he came to be interrogated. During the interrogation, he revealed that 3 kgs. heroin 5 crappa-419-357-10 was meant for accused no.4 Laxmi Koli who was in Masina hospital. It is submitted that accused no.2 came to be intercepted only on 25.1.2006 and it was only thereafter that the involvement of Laxmi Koli came to be known to the officers of N.C.B. In such case, there was no question of the Superintendent of N.C.B. writing any letter to R.M.O. of Masina hospital on 24.1.2006. They submitted that this letter shows that accused nos. 1 and 2 were not intercepted on 25.1.2006 at Yogi hotel as stated by the prosecution. 7 Mrs. Kantharia, the learned counsel for the N.C.B. drew my attention to the evidence of PW 13 A.P.Patil the Superintendent of N.C.B. wherein he has stated that the date on the letter is a typographical mistake. However, I have perused the said letter. Not only does the letter bear the date 24.1.2006 but the contents of the letter also show that Laxmi Koli was required in connection with seizure of narcotic drug on 24.1.2006. Moreover, the letter has been signed by PW 13 Patil at two places and below both the signatures, he has written the date in hand as 24.1.2006. Even if there was a typographical mistake in one place, the fact remains that the contents of the letter also speak of raid on 24.1.2006 and the signatures put by PW 13 Patil also bear the date 24.1.2006 in hand at two places. Thus, it cannot be said that it is a simple case of typographical mistake. 6 crappa-419-357-10 8 It appears from the evidence on record that in the evening of 24.1.2006 the NCB Officers knew about the admission of accused no.4 Laxmi Koli in Masina hospital for treatment. Exh. 108 a letter dated 24.1.2006 addressed to R.M.O. of Masina hospital Mumbai under signature of PW 13 Patil is on record which bears out this fact. Matters are made worse if one considers the evidence of PW 14 Dr. Modi who was attached to Masina Hospital at the relevant time. It has come on record through his evidence that N.C.B. officers visited Masina hospital on 24.1.2006 at about 3.30 p.m. and they contacted Ms. Dhanashree the Registrar of Masina hospital and stated that they wanted to take charge of a lady patient Laxmi Koli in connection with some narcotic case. The case of the prosecution is that information was received on 24.1.2006 at about 6.30 p.m. and only thereafter accused nos.1 and 2 were intercepted and they learnt from accused no.2 that Laxmi Koli is also involved in this case. However, the evidence of Dr. Modi of Masina hospital shows that on 24.1.2006 at 3.30 p.m. the officers of N.C.B. had already come to Masina hospital and they sought custody of Laxmi Koli. In view of the evidence of PW 14 Dr. Modi, the entire prosecution case appears to be palpably false. 9 I may also make a reference to the evidence of W.P.C. Mrs. Kale who is a lady constable. She has stated that in the night between 7 crappa-419-357-10 24.1.2006 and 25.1.2006 at about 12 to 12.30 a.m. N.C.B. staff visited the police station. They asked the Duty Officer for assistance of a lady police officer. Duty Officer directed her to accompany N.C.B. staff to the Masina hospital. Accordingly, she accompanied N.C.B. staff to the said hospital in between 2 to 2.30 a.m. The N.C.B. staff asked her to keep watch on Laxmi who was admitted in the hospital. Thus, the evidence of this witness also shows that before 12 to 12.30 a.m. the N.C.B. staff was well aware of the involvement of Laxmi Koli in the incident. If the prosecution case is that they came to know about the involvement of accused no.4 Laxmi through accused no.2 who came to be intercepted only after 1.45 a.m. then the entire prosecution case does appear to be a false and concocted one. 10 The information received on 24.1.2006 at 6.30 p.m. does not state about the involvement of Laxmi Koli. From the evidence of PW 9 Mr. Pujari, Inspector (Central Excise) it is clear that only after the interception and seizure, it was learnt that part of it was to be given to accused no.4 Laxmi Koli. From the evidence on record it is seen that accused no.2 was interrogated after he was brought to NCB office. The evidence also shows that the officers came back to N.C.B. office after the panchnama was conducted. Perusal of panchnama shows it was concluded at 4 a.m. If thereafter the officers came to N.C.B. office and 8 crappa-419-357-10 questioned accused no.2 and received information about the involvement of accused no.2. This information could not have been received before 5 a.m. In such case, if as per the prosecution case, the involvement of Laxmi was learnt only at the earliest in the morning of 25.1.2006, it is not understood how the NCB officers landed at Masina hospital prior to the interception of the car. All these facts raise grave doubts regarding the genuineness of the prosecution case. 11 Thus, I find that there is a reasonable ground for believing that both the accused are not guilty of the offences charged under the said Act. In this view of the matter, I am inclined to grant bail to both the applicants. 12 Each of the applicants i.e. applicant-Muquisur Rehman and applicant-Akhtar Ali Shaikh be released on bail in the sum of Rs.50,000/- each with one or two sureties to make up the said amount. They shall report once a week to the office of N.C.B. Mumbai. 13 Applications are disposed of accordingly. [ SMT. V.K.TAHILRAMANI, J.]