TaxTMI 
TaxTMI 
TaxTMI 
2021 (10) TMI 884
X X X X Extracts X X X X
X X X X Extracts X X X X
....eceived by P.W.3 - Shastrinath Sawant, Superintendent, Central Excise that a consignment of Mandrax tablets is being carted in MOD shed No.1 at Mumbai. It was to be carted on the very next date i.e on 30th August, 1991 at about 11.00 a.m in the morning which was to be transported 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 g....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d in those plastic bags had a specific marking i.e there was a 'swastik' mark on one side and 'M'' mark on the other side. Similarly, they noticed different markings on the other set of the tablets. There was marking of letter 'M' and 'Swastik' on one side of the 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nsel for respondent No.1 and Ms. Mulekar, learned A.P.P, for respondent No.2-State. 22. It is pertinent to note that the accused in companion appeal i.e Criminal Appeal No. 456 of 1996 namely Zafar Khan died on 17th June, 2014 and, therefore, 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 impor....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rred upon them by the Statute. 29. There is no evidence in the complaint that the copy of the information received by the officer was forwarded to the superior official. The complaint is also silent as regards appraisal of the legal 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., their silence and failure to explain the circumstances in which they were travelling in the vehicle at the old hours, is one strong circumstance that can be put against them". 32. It reveals from the record that during 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 c....