N.V. Ramana, J.— This criminal appeal arises from the impugned judgment and order dated 20-11-2008, in Leen Martin v. Union of India Criminal Appeal No. 379 of 2007 passed by the High Court of Judicature at Bombay, wherein the High Court acquitted Respondent 1 of all the charges under Section 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 “the NDPS Act”).
2. A brief reference to the prosecution case may be necessary for disposal of this case. On 5-5-2004, 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 behaviour, the airline personnel were alerted for segregating the baggage of Respondent 1. After completing his immigration and custom formalities, Respondent 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 the suitcase his personal belongings were kept aside, even then, his suitcase 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 coloured substance which tested positive for hashish, a contraband substance. Net weight of 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 6-5-2004, Respondent 1 recorded his statement under Section 67 of the NDPS Act. After completion of the investigation, charges levelled against him, the accused-Respondent 1 herein pleaded not guilty and claimed trial.
4. The trial court in NDPS Special Case No. 133 of 2004 conducted full-fledged trial which resulted in conviction of Respondent 1, for the offences under Section 8(c), punishable under Section 20(b)(ii)(C), with rigorous imprisonment for 10 years and a fine of Rs 1,00,000 in default to suffer simple imprisonment for six months. Further, Respondent 1 was sentenced under Section 28 read with Section 23 of the NDPS Act to undergo rigorous imprisonment for 10 years and to pay a 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 1 approached the High Court in Criminal Appeal No. 379 of 2007. The High Court by an order dated 20-11-2008 Criminal Appeal No. 379 of 2007, acquitted Respondent 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 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 1.
8. It is brought to our notice by the learned Senior Counsel appearing for Respondent 1 that his client has already undergone four-and-a-half years of incarceration and he is also not in the country.
9. The learned counsel appearing for the appellant Union of India accepts the aforesaid statement.
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 NDPS Act by Respondent 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 panchnama 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 panchnama with respect to the fact that the search and inspection of the baggage took place in his presence. His signatures obtained on the panchnama were not voluntarily put, which is apparent from 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 panchnama and articles without reading it.”
11. 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.”
12. It is to be noted that the entire case of the prosecution hinges on the alleged recovery of the narcotic substance from Respondent 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 1 would neither be prudent nor safe; especially considering the fact that, the statement of Respondent 1 procured under Section 67 of the NDPS Act was retracted on 29-6-2004.
13. 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 Respondent 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.
14. We are of the opinion that the High Court had rightly acquitted Respondent 1 taking into consideration the aforesaid aspects.
15. 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 with the impugned order Criminal Appeal No. 379 of 2007 passed by the High Court. In the result, the appeal lacks merit and is dismissed.