7.appln3797-09 rma IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 3797 OF 2009 IN CRIMINAL APPEAL NO. OF 2009 Union of India .. Applicant Vs Ely Salikovsky and Ors .. Respondents Mrs. Revati Mohite Dere for the Applicant Mr. Ayaz Khan for Respondent 3 Mr. H.J. Dedhia, APP. CORAM : SMT. RANJANA DESAI & SMT. V.K. TAHILRAMANI, JJ DATE : 27th JULY, 2010 P.C.: 1. Union of India through N.C.B. Mumbai has filed this appeal challenging the judgment and order dated 24.07.2008 passed by NDPS Spl. Judge for Gr. Bombay in N.D.P.S. Special Case No. 17 of 2006 whereby respondent 3 (hereinafter referred to as 'accused 3') was acquitted along with accused 1 and 2 of the offences punishable under sections 8(c) r/w 20(b) (ii)(c), 29 and under section 23(c) r/w 28 of Narcotic Drugs and Psychotropic Substances Act. It may be stated here that as original accused 1 and 2 who were respondents 1 and 2 respectively could not be served on the 1 7.appln3797-09 application made by the Union of India, their appeal was dismissed with liberty to file appeal in case they are traced vide this court's order dated 06.04.2010. 2. The case of the prosecution is that accused 2 was apprehended on 04.08.2005 at CSI Airport, Mumbai on suspicion. His baggage was examined and 9 Kgs of Hashish were recovered from his baggage. According to the prosecution, accused 2 admitted that he was carrying 9 Kgs. Hashish in his baggage. He stated that accused 1 was travelling with him. Pursuant to the look out notice issued on 04.08.2005, Immigration Officers arrested accused 1 at the airport on the same day. Accused 1 admitted that he had kept two capsules of Hashish in a cavity of his body. He admitted that 17 grams of Hashish was given to him by accused 3. According to the prosecution, during investigation, involvement of accused 3 was disclosed and he came to be arrested. 3. According to the prosecution, accused 3 admitted that he had given 17 gms of Hashish to accused 1. He also admitted that 1 Kg of Hashish was seized from his house. We are informed that in that respect, accused 3 has been tried and acquitted. We are informed that appeal is preferred against the said order of acquittal which is pending for admission in this court. 4. Thus, we are concerned in this case only with the 2 7.appln3797-09 admission of accused 1 that 17 gms of Hashish was given to him by accused 3 and admission of accused no. 3 that he had given 17 gms of Hashish to accused 1. Learned Special Judge has acquitted accused 3 on the ground that seizure is not proved, that the panchas to the panchanama under which 17 gms of Hashish was recovered were habitual panchas, that section 50 of the said Act was not complied with and the confessional statement of accused 3 was not retracted. 5. There can be no doubt about the fact that 17 gms of Hashish which was allegedly given by accused 3 to accused 1 is a small quantity within the meaning of the said Act. As per Section 20(b)(ii)(A) of the said Act, for the sale of small quantity of Hashish, the punishment would be rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both. 6. Admittedly, respondent 3 was arrested on 04.08.2005. We are informed that he was ordered to be released on bail but he did not avail of that order. Therefore from 04.08.2005 till the date of the judgment i.e till 24.07.2008, he has been in custody. Thus, he has been in custody for the period of more than six months in connection with the present case. In these circumstances, purely on this ground, without examining the merits of the 3 7.appln3797-09 case, we dismiss this appeal. [SMT. RANJANA DESAI, J.] [SMT. V.K. TAHILRAMANI, J.] 4