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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION  

CRIMINAL APPEAL NO(S).  2150/2011   

UNION OF INDIA                            …APPELLANT(S)

VERSUS

LEEN MARTIN & ANR.                               …RESPONDENT(S)

J  UDGMENT   

N. V. Ramana, J.

1. This criminal appeal arises from the impugned judgment, and

order,  dated  20.11.2008,  in  Criminal  Appeal  No.  379/2007

passed by the High Court of Judicature at Bombay, wherein

the  High  Court  acquitted  the  respondent  no.1  of  all  the

charges under sections 8(c), punishable under Section 20(b)(ii)

(c) and under Section 28 read with Section 23 of The Narcotic

Drugs  and  Psychotropic  Substances  Act,  1985  (hereinafter

referred to as ‘N.D.P.S Act’).

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2. A brief reference to the prosecution case may be necessary for

disposal of this case. On 05.05.2004, the officers of Customs,

Air  Intelligence  Unit,  at  Chhatrapati  Shivaji  International

Airport, Mumbai noticed that a passenger of European origin

was  found  to  be  suspiciously  loitering  near  the  airline

counters of Swiss Air. Observing such suspicious behavior, the

airline personnel were alerted for segregating the baggage of

the  respondent  no.1.  After  completing  his  immigration  and

custom formalities,  respondent  no.1  was intercepted by  the

Intelligence Officer and subjected to examination by a sniffer

dog.  

3. When there was an indication about the presence of narcotic

or  psychotropic  substance,  he  was  taken  to  a  baggage

examination  area.  On  opening  suit  case  his  personal

belongings were kept aside, even then, his suit case was found

to be abnormally heavy. On examination, a false bottom was

detected  and  when  the  false  bottom  was  removed,  three

rectangular  packets  wrapped  in  cellophane  tape  were

discovered containing brown colored substance which tested

positive  for  hashish,  a contraband substance.  Net weight of

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the recovered substance was found to be measuring 12.03 Kg.

Later,  the  samples  were  drawn  and  the  goods  were  seized

under  a  seizure  panchnama.  It  is  to  be  noted  that,  on

06.05.2004,  respondent  no.1  recorded  his  statement  under

Section  67  of  N.D.P.S  Act.  After  completion  of  the

investigation,  charges  levelled  against  him,  the  accused

(respondent no. 1 herein) pleaded not guilty and claimed trial.

4. The  trial  court  in  N.D.P.S.  Special  Case  No.  133  of  2004

conducted full-fledged trial which resulted in conviction of the

respondent no.1, for offences under Section 8(c), punishable

under Section 20(b)(ii)(c),  with rigorous imprisonment for 10

years and fine of  Rs.  1,00,000/- in default  to suffer  simple

imprisonment for six months. Further, the respondent no. 1

was  sentenced  under  Section  28  read  with  Section  23  of

N.D.P.S Act  to  undergo rigorous imprisonment for  10 years

and  to  pay  fine  of  Rs.  1,00,000/-  and  in  default  to  suffer

simple  imprisonment  for  six  months.  Both  sentences  were

ordered to run concurrently.  

5. Aggrieved  by  the  order  of  conviction  of  the  trial  court,

respondent  no.  1  approached  the  High  Court  in  Criminal

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Appeal No. 379 of 2007. The High Court by an order dated

20.11.2008, acquitted the respondent no. 1 of all charges as,

in  the  opinion of  the  High Court,  the  prosecution failed  in

establishing that the panchas were present during the seizure

procedure. The High Court while setting aside the trial court

order  observed  that  the  trial  court  erred  in  convicting  the

respondent while relying on the sole evidence of PW-1 which is

highly inconsistent and full of contradictions.

6. Aggrieved by the acquittal of respondent no. 1, Union of India

has preferred the present appeal before this court by way of

special leave petition.   

7. We  have  heard  the  learned  counsel  appearing  for  the

appellant  –  Union  of  India  and  the  learned  senior  counsel

appearing for respondent no.1.

8. It  is  brought  to  our  notice  by  the  learned  senior  counsel

appearing  for  respondent  no.1  that  his  client  has  already

undergone four and a half  years of  incarceration and he is

also not in the country.

9. Learned counsel appearing for the appellant – Union of India

accepts the aforesaid statement.

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10. Taking into consideration the evidence of PWs 8 and 9,

panch  witnesses,  we  find  that  their  evidences  are

contradicting the statement of the Intelligence Officer (PW-1).

We may note that except the statement made under Section

67 of the N.D.P.S. Act by respondent no.1, there is no other

material to substantiate the case against the said respondent.

Both PW-8 and PW-9 have categorically stated that, when they

were called by the Intelligence Officer (PW-1) and by the time

they  reached,  the  bag  was  already  opened.  Further  it  was

admitted by them that, the panchanama was not read over to

them. They were asked to sign on number of papers and they

were  not  aware  of  the  contents.  Moreover,  PW-1  i.e.,  the

intelligence officer did not state that the bag containing the

narcotic substance was opened in the presence of panchas.

The cross-examination of  PW-9 clearly reveals that he does

not agree to the contents of the panchanama with respect to

the fact that the search and inspection of the baggage took

place  in  his  presence.  His  signatures  obtained  on  the

panchanama were not voluntarily put, which is apparent from

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the  following  statements  made  by  PW-9  during  the

cross-examination: “As I was Trainee and new person I did

not  want  to  hurt  the  custom  officer,

therefore  I  signed  panchanama  and

articles without reading it.”

Moreover,  aforesaid  conclusion  is  substantiated  by  the

statement  of  PW-8 made  in  the  examination-in-chief  in  the

following manner-

“After  entering  the  office  room  of  AIU

Section, I saw one open suitcase, number

of officers were present and packets were

shown  to  me…  I  signed  on  numbers  of

papers  and  on  packets  being  shown  to

me.”

11. It is to be noted that the entire case of the prosecution

hinges on the alleged recovery of the narcotic substance from

respondent  no.  1  but,  this  very  fact  is  not  proved  beyond

reasonable doubt as independent witnesses PW-8 and PW-9

have portrayed a different story as to the recovery and seizure.

In the facts and circumstances of this case exclusive reliance

on the statement made by respondent no. 1 would neither be

prudent  nor  safe;  especially  considering  the  fact  that,  the

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statement of respondent no. 1 procured under Section 67 of

the NDPS Act was retracted on 29.06.2004.  

12. After analysis of the above circumstances and evidences;

prudence dictates that  the  statement of  the official  witness

PW-1 cannot be the sole basis for convicting the respondent

no.  1.  It  may be  noted that  when the  statement  of  official

witness is impaired due to infirmities, it is not safe to place

reliance upon the same and pass conviction order against the

accused.  In  the  present  case,  as  already  stated  above,  the

statements  of  the  independent  panch  witnesses  depict  a

different picture than the one portrayed by the official witness

PW-1.  

13. We are of  the opinion that the High Court had rightly

acquitted the respondent no.1 taking into consideration the

aforesaid aspects.

14. In view of the above and having regard to the fact that

the incident is of the year 2004, we find no reason to interfere

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with the impugned order passed by the High Court.  In the

result, the appeal lacks merit and is dismissed.

……….......................J.                                                             (N.V. RAMANA)

                     ...............................J.                                                              (S. ABDUL NAZEER)

New Delhi, February 01, 2018.