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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 856 OF 2008
WITH
CRIMINAL APPLICATION NO. 1532 OF 2008
DIST.: MUMBAI
Union of India ]
(at the instance of Assistant Director, ]
Directorate of Revenue Intelligence,
ig ]
Construction House, Ballard Estate, ]
Mumbai 400038, through Public Prosecutor, ]
Union of India) ...Appellants
Versus
1. Prabhakar Nair ]
an adult Indian inhabitant, having his address ]
as 22/704, Shastri Nagar, Goregaon (West), ]
Mumbai 400 104 ]
2. Sate of Maharashtra ] ...Respondents
Mr. R.F. Lambay for the Appellants
Mr. A.S. Gadkari, Additional Public Prosecutor, for Respondent No.2.
CORAM: B ILAL NAZKI
and
A.A. KUMBHAKONI, JJ.
DATE : AUGUST 7, 2008
ORAL JUDGMENT (Per Bilal Nazki, J.):-
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The appeal is not on Board. With consent, it is taken on
Board and heard. The registry to number the appeal.
2. This is an appeal against acquittal filed by the Public
Prosecutor against the judgment of the Special Judge under the
N.D.P.S. Act in N.D.P.S. Special Case No. 2 of 2005.
3. The brief facts are that on 3rd August, 2004 at about 6 p.m.,
P.W.1 received an intelligence message that consignment covered by
Shipping Bill No. 5393705 dated 30th July, 2004 and Air Way Bill
No.17627954161 of Emirates Air Ways, destination Johannesburg,
South Africa, the consignor being M/s. A.V.M. Exports, Goregaon, would
be lying at the Export Shed for General Cargo at Air Cargo Complex,
Sahar, Mumbai. The said consignment, according the intelligence
reports, was declared as “talcom powder”, but, in fact, in these
packages, a large quantity of methaqualone powder, which was a
psychotropic substance, was there. On the basis of the intelligence
report, a First Information Report was registered, and a party left for the
Air Cargo Complex. It was the prosecution’s case that when it left to the
Air Cargo Complex, it took with it field testing kit, weighing scale, sealing
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and sampling material and DRI seal. The panchas were collected from
the Air Cargo Complex, and panchas were apprised about the
intelligence received by the officers and they were requested to witness
the proceedings.
4. Thereafter, they took possession of the consignment. It was
in the form of 8 plastic drums / carboys of blue colour with black colour
lid. The lid was attached to the drum by metal rim seal. This was
further sealed by plastic strip seal. The drums had stickers stuck on
them, which had details like air way bill number, number of packages,
the destination, the manufacturer’s name, etc. Inside the drum, there
was a plastic bag containing coarse white powder. Small quantity of the
powder was tested with the help of field testing kit, and it answered
positive for presence of methaqualone. There was some quantity of
another powder also, which was tested, but was found negative for
methaqualone. All the drums were opened, and out of the total quantity
of 148 Kgs., methaqualone powder was found to weigh 71 Kgs.
5. Thereafter, the officers drew two samples, each of
approximately 5 grams, and placed them in two polythene bags, and
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then they were sent for chemical analysis. It was the prosecution case
that when they went for seizure, they took along with them many tools,
including a weighing balance. Obviously, they weighed the samples,
and the covering letter sent for analysis also showed that the weight of
each sample was 5 grams, but when the samples reached the
Chemical Analyst, were opened and weighed by the Analyst, the same
were found to be of 10 grams each.
6. This, in our view, was an important circumstance and a
sufficient circumstance to create doubt about the prosecution story.
We have our own doubt whether the defect was kept purposely in order
to help the accused. One cannot be certain that what was seized from
the accused was methaqualone because, admittedly, only 5 grams
sample was sent to the Chemical Analyst, but when it reaches the
Analyst, it becomes 10 grams. Who added further 5 grams to the
sample, and whether the original 5 grams were methaqualone or the 5
grams, which were added to it during transit, were methaqualone? This
circumstance has also not been explained by the prosecution, according
to the learned Special Judge. As we have said, we have doubt whether
this discrepancy was a deliberate creation of investigators or not. It is a
matter to be considered by the administrative department of the officers
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concerned.
7. With these observations, we dismiss the appeal.
8. The application also stands disposed of.
BILAL NAZKI, J.
ig A.A. KUMBHAKONI, J.
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