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PETITIONER: MOHD. ALAM KHAN

       Vs.

RESPONDENT: NARCOTICS CONTROL BUREAU &ANOTHER

DATE OF JUDGMENT:       20/02/1996

BENCH: VENKATASWAMI K. (J) BENCH: VENKATASWAMI K. (J) AHMADI A.M. (CJ) SINGH N.P. (J)

CITATION:  JT 1996 (2)   636        1996 SCALE  (2)276

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T K.VENKATASWAMI.J.      Leave granted.      This appeal  is preferred  against the  judgment of the Bombay High  Court  in  Criminal  Appeal  No.  378/93  dated 18.10.94.  The  judgment  under  appeal  has  confirmed  the conviction and  sentence passed against the appellant  under Section 22  read with Section 8(c) of the Narcotic Drugs and Psychotropic Substances  Act, 1985  (hereinafter referred to as the  ‘Act’) by  the learned Special Judge, Greater Bombay by his  judgment and  order  dated  25/28th  June,  1993  in Special Case No. 255/89. Brief facts are the following.      At  the   outset,  it  may  be  pointed  out  that  the appellant was  tried by  the Special  Judge along with other accused and  also along  with  a  connected  case.On  5.3.89 officials  of  Narcotic  Control  Bureau,  Bombay  (NCB  for short) raided  the houses of the co-accused. One of the  co- accused by name, Raj Babu Pardan, pointed out the  residence of the  appellant situated  at second  floor.  S.M. Mansion, 299 Bellasis  Road, Bombay, thereby  suggesting to conduct a raid in  that promises as well Accordingly that house of the appellant was  searched on   6.3.89  and some  incriminating documents along with cash  amount of Rs. 45,000/- came to be seized. In  connection with  that seizure, the appellant was brought   to the  office of  the  Narcotic  Control  Bureau, Bombay for   interrogation.  While the  appellant was in the office of  the  Narcotic  Control  Bureau,  Bombay  for  the purpose of   interrogations  the Intelligence officer of the said  Bureau   received  information   to  the  effect.  the appellant   was having another flat now 102, in building no. 8A1  Quba   Co-operative  Housing   Society,  Millat  Nagar, Andheri, Bombay-58.  The further information received was to the effect  that the  appellant was  trafficking in Narcotic and psychotropic  drugs in a big way and that he  had stored Mandrex tablets numbering 50,000 to 60,000 in that house. On

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receipt of  this information  on the  evening of  7th  March 1989, the  said premises came to be searched in the presence of Panchas.  In the  search,  the  officials  seized  50,000 Mandrex tablets contained in a maroon colored bag along with certain documents.  The samples  of the said Mandrex tablets were drawn under a panchnama. The Deputy Director of NCB was informed about  the result  of the  search. It  may be noted that the  said search  was conducted  when the appellant was being interrogated  by the  NCB officials. It is also common ground that the said premises was under lock and key and the search party  broke upon  the lock for conducting the search in the  course of the interrogation, the appellant was asked about the seizure of those 50,000 Mandrex tablets and he was said to  have given  statements under  Section  108  of  the Customs Act, 1962 and also under Section 67 of the NDPS Act. ]985. In  the course  of the  search and seizure of the said premises along  with the  contraband tablets.  an  agreement dated 8.3.1989 supposed to have been signed by the appellant in favour  of the  promotor/builder was  also seized  by the officials.      On  the   basis  of   the  abovesaid   materials,   the prosecution presented  the case  before  the  Special  Judge Greater Bombay.  As noticed  earlier, the  case against  the appellant was  heard and  tried along with another connected case and  also along with some other co-accused. The learned Special Judge,  Greater  Bombay  while  acquitting  the  co- accused and  also the appellant. in the connected case which related to the raid of the premisss situated at second floor S.M.  Mansion,299   Bellasis  Road   Bombay,  convicted  the appellant in  respect  of  the  seizure  of  50,000  Mandrex tablets from  flat No  102 in  building  no.  8A1  Quba  Co- operative  Housing   Society,  Millat   Nagar,  Bombay   and sentenced him  to undergo rigorous imprisonment for 10 years and pay  a fine of Rs.one lac in default to undergo one year additional  rigorous  imprisonment.  In  fact,  the  learned Special Judge in paragraph 53 concluded as follows:-      In view of my aforesaid discussion,      I  hold  that  the  accused  No.  3      Mohammad Aslam  Khan was Possession      of   such    Mandrex   tablets   is      prohibited under  Section 8  (c) of      the NDPS  Act  and  hence,  he  has      committed  an   offence  punishable      under Section 22. read with 8(c) of      the  NDPS   Act,  1985."  (Emphasis      supplied)      The above conviction and sentence was challenged by the appellant before  the Bombay  High Court  in Criminal Appeal No. 379/93.  As noticed  above, the  learned Judges  for the reasons stated  in the  judgment declined  to interfere with the judgment  of the  learned Special Judge, Greater Bombay. Hence the present appeal.      The learned  counsel appearing for the appellant raised several contentions  in assailing the judgment under appeal. However, we  do not propose to deal with all the contentions raised before  us as  it may not be necessary in view of the fact that  one of  the contentions  finds acceptance  at our ends. That  contention is that the prosecution has miserably failed to  establish the  ownership and  possession  of  the premises namely,  flat now 102 in building no.8A1, Quba  Co- operative Housing  Societies Millat  Nagar, Andheri,  Bombay from which  the contraband  tablets were seized as belonging to the appellant.      According to  the learned  counsel for  the  appellant, except the  information received  by the  officials  (Exhbt.

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No.34) panchnama  (Exhbt, No.  33) report  and  the  alleged agreement containing the alleged signature of the appellants no other  acceptable evidence  was let in by the prosecution to prove  that the  appellant was  the owner  and in  actual possession of  the said building, He also submitted that the reliance. placed by the prosecution on the statements of the appellant obtained  under Section 108 of the Customs Act and 67 of  the NDPS Act will be of no avail as the appellant has retracted  the   same  without  loss  of  time.  He  further submitted that  a careful  perusal of  the statements of the appellants viz.,  Exhbt, 83  and 84  will clearly  show that such statements would not have been given voluntarily by the appellant.      The learned Additional Solicitor General submitted that the  agreement  executed  by  the  appellant  found  in  the Premises  in   question  and   recovered  by  the  officials containing the  signature of  the appellant is sufficient to establish  that   the  appellant   was  the   owner  and  in possession of  the premises. In this connection, he  invited our attention  to Section  66 of the NDPS Act and  submitted that the  prosecution has established the case beyond doubt. He also  submitted That  the admission  of    the  appellant during the  course of  interrogation under Section 67 of the NDPS Act  is admissible  in evidence  and   coupled with the fact of  seizure of  agreement containing   the signature of the appellant, it is not open to the learned counsel for the appellant to  contend that  the   prosecution has  failed to establish the  ownership  of  the  appellant  regarding  the premises in question.      We have  considered the  rival submissions.  We do  not think that  the learned  Additional Solicitor  General    is right in  invoking the  aid of  Section 66  of NDPS  Act for Section 66(i) visualizes the production of a  document which has been seized from the custody or control of any person or furnished by any person. In i this case, the document namely the agreement  has not  been seized  from the custody of the appellant or  it has  been furnished  by him.  In  order  to invoke the  aid of  Section 66,  the prosecution should have established that  the appellant  is the  owner  and  was  in actual possession of the flat in question. Therefore, we are not able  to accept  the argument  of the learned Additional Solicitor   General. It is not in dispute that the appellant did not  admit his  signature in  the agreement in question. The prosecution  did not  bother to  produce any independent evidence to  establish that  the appellant  was the owner of the flat  in question  by producing documents from concerned Registrar’s  office   or  by  examining  the  neighbors.  No statement has  been made  by the prosecution that inspite of the efforts  taken by  them,  they  could  not  produce  the document or  examine the neighbors to prove the ownership of the appellant  relating to  the  flat  in  question.  It  is relevant  to   note  here  that  two  independent  witnesses attested the  panchnama. Only one of them was examined as PW 5 who  did not support the prosecution version and therefore was treated  as hostile.  In this  case except the retracted statements of  the appellant  to connect  the appellant with the house  in question,  no other  independent  evidence  is available to  sustain the  finding of  the  learned  Special Judge extracted  in the  beginning and confirmed by the High Court.      The High  Court was  not right  in  holding  that  ’the learned Trial  Judge was  therefore right in holding that in view of Section 66 of the NDPS Act, the said document can be admitted in  evidence and it goes to show that the said flat was owned  by the  appellant’. Again the High Court observed

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that ’even  assuming’ that  the said  agreement is  excluded from consideration,  there remains  the specific information received,Exhbt. 33  and his  own statement  recorded by  the Authority under  Section 313,   Exhbt.  83 and 84 and all of them go  to show  that the   appellant  was the owner of the said  flat.   Ns  pointed    out  earlier  that  nobody  has identified  the   flat  in  question  as  belonging  to  the appellant and in the  absence of corroborating evidence, one cannot come  to a   confirmed conclusion regarding ownership and possession   on the basis of the retracted statements of the  appellant alone.      For all  these reasons,  we hold  that the  persecution failed to establish the ownership of the flat in question as belonging to  the appellant  and consequently the conviction and sentence  challenged in this Appeal cannot be sustained. Accordingly, the  appeal is  allowed and  the conviction and sentence passed  against the  appellant are  set aside.  The appellant will  be set at liberty at once unless required in any other case. Fine, if paid will be refunded.