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TMI Blog2021 (10) TMI 884X X X X Extracts X X X X X X X X Extracts X X X X ..... his cross-examination, P.W.3-Shastrinath Sawant though had stated that the accused was appraised of his legal right, nevertheless, it does not find place in the complaint and, therefore, it can safely be inferred that P.W.3-Shastrinath Sawant, by way of an afterthought, stated about the said fact only with a view to suit the prosecution story. This indeed goes to the root of the prosecution case - It reveals from the record that most of the evidence of the prosecution comprises testimonies of their officers from NCB. Statement of the accused came to be recorded on four occasions which the prosecution wants this Court to rely upon and accept as a voluntary statement made while in their custody. Confessional statement alleged to have been given by the accused is essentially a weak piece of evidence which does not have any corroboration from the other evidence on record. The prosecution has not adduced any evidence as to from which place the consignment was loaded and was destined to which foreign country. P.W.8-Ankush Bhoite who is the owner of the tempo bearing No MMS-1580 did not support the prosecution case. Sum and substance of his evidence is that he could not identify the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in a tempo bearing No. MMS-1580. The information further revealed that Mandrax tablets would be concealed in the goods. P.W.3 - Shastrinath Sawant passed the said information to his Deputy Director R.L. Kakkar for further necessary action. The said information was forwarded in writing. 3. Some officers of the NCB were called in the chamber of the Deputy Director- Mr. R.L. Kakkar including P.W.1-Vijay Shahasane, Intelligence Officer attached to NCB. Suitable instructions were given to all of them and it was decided to intercept the said tempo at the time of it s entry into Bombay Port Trust shed when the consignment was to be carted. 4. Accordingly, on the next date, raiding team comprising of the officers left the office for the purpose of conducting the raid. P.W.1- Vijay Shahasane had collected the sealing and weighing material, drug identification kit and the stationery. All of them reached near the gate of BP.T. The officers spread over in two different groups. 5. Around 10.50 a.m, the team noticed a tempo bearing No. MMS-1580 entering the gate. All of them followed the tempo. The Driver of the said tempo stopped it at the B.P.T shed No.1. It was noticed that three pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e tablets and on the other side of the tablets, there was a marking R/L . A few random tablets were collected and examined by carrying out drug identification test. The result was positive for Methaqualone. All the packets were weighed and found to be about 480 kg. 42 tablets were taken as samples from packets No.1 to 4 and 16 to 18. They were divided into two groups i.e in 20 and 22 tablets. From each group, two representative samples were drawn and were weighed about 10 grams each and 11 grams each, respectively. Sample packets were put in polythene paper and thereafter in paper envelope. All the four sample packets were duly packed, sealed and labeled. The seal was of NCB and O No.3 . 12. Rest of the bulk quantity of the contraband was packed in their respective packages, duly sealed and labelled. Signatures of Panchas as well as Mr. Vijay Shahasane were obtained. The lungis were taken separately and packed in a carton. 13. The documents received by Shri Rane from the accused were taken charge of under the panchanama. The entry pass found in possession of the accused was also taken charge of. The temporary pass issued by the BPT in favour of the Driver and Cleaner was al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, the appeal came to be dismissed as abated by an order of this Court (Coram: P. V. Hardas and Dr. Shalini Phansalkar-Joshi, JJ) dated 12th February, 2015. 23. Before analyzing the oral evidence adduced by the appellant, it is apparent that the prosecution case itself stands vitiated on account of non compliance of section 42 (2) and section 50 of the NDPS Act. 24. It is equally important to note that except officials of the NCB, there is no evidence of any independent witness except the owner of the tempo, P.W.8-Ankush Bhoite, who turned hostile. The appellant emphasized on the testimony of it s witnesses coupled with statements of the accused recorded by them. 25. In so far as compliance of section 42 (2) of the NDPS Act is concerned, evidence of P.W.2- Deepak Bhambri would be relevant who in his cross-examination unequivocally admitted that writing of the information and showing the gist thereof to the superior official is an important circumstance. Admittedly, this witness had neither visited the spot nor had received any information. The role which appears to have been played by this witness is only to give suitable instructions to the Public Prosecutor for draw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right to the accused and that thereafter his search was made. In his cross-examination, P.W.3-Shastrinath Sawant though had stated that the accused was appraised of his legal right, nevertheless, it does not find place in the complaint and, therefore, it can safely be inferred that P.W.3-Shastrinath Sawant, by way of an afterthought, stated about the said fact only with a view to suit the prosecution story. This indeed goes to the root of the prosecution case. 30. It reveals from the record that most of the evidence of the prosecution comprises testimonies of their officers from NCB. Statement of the accused came to be recorded on four occasions which the prosecution wants this Court to rely upon and accept as a voluntary statement made while in their custody. Confessional statement alleged to have been given by the accused is essentially a weak piece of evidence which does not have any corroboration from the other evidence on record. Ipse dixitism of the prosecution witnesses cannot be accepted as a gospel truth, more particularly, in light of the fact that the prosecution has failed to establish that the accused, in fact, was in conscious possession of the contraband. A useful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the course of investigation, the prosecution had not only recorded statement of the co-accused Jafar Khan (now deceased) but also one Borgaonkar who came to be discharged subsequently. In so far as statements of those accused were concerned, they being statements made by the co-accused cannot be totally relied upon against the appellant. Their statements, per se, cannot be said to be an evidence under section 3 of the Evidence Act. Even in his statement under section 313 of the Cr. P.C., no question was put to the accused/respondent that he was found in conscious possession of Mandrax Tablets. 33. An adverse inference is required to be drawn against the prosecution for non examination of Mr. Rane from whose possession the document produced at Exhibit 30 came to be seized and not from the possession of the accused. Withholding the evidence of Mr. Rane would indeed lead to draw an inference against the prosecution. His non examination would cause prejudice to the cause of the defence. 34. The prosecution has not adduced any evidence as to from which place the consignment was loaded and was destined to which foreign country. P.W.8-Ankush Bhoite who is the owner of the tempo b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te presumption under the NDPS Act against him with regard to recovered contraband. It is, inter alia, observed that conviction could not be based on foundation of conjectures and surmises. 38. Thus, there is no compliance of section 42 (2) of the NDPS Act which would go to the root of the matter and vitiate the trial. There are no independent witnesses. The overall evidence does not at all inspire confidence and, therefore, it is highly unsafe to rely upon such evidence. The learned Special Judge has rightly appreciated the entire evidence and circumstances on record and reached a legal and proper conclusion in acquitting the accused. 39. Consequently, we do not find any reason to interfere with the impugned judgment in view of the settled principle of law that while considering the appeal against acquittal, the Appellate Court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable and if the Court answers above questions in the negative, acquittal cannot be disturbed. 40. Corollary of the aforesaid discussion is that the appeal is devoid of merits. Hence, it is dism ..... X X X X Extracts X X X X X X X X Extracts X X X X
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