UNION OF INDIAversusLEEN MARTIN & ANR.

656                      [2018]REPORTS
               SUPREME COURT    1 S.C.R. 656                  [2018] 1 S.C.R.


A                               UNION OF INDIA
                                          v.
                             LEEN MARTIN & ANR.
                       (Criminal Appeal No. 2150 of 2011)
B                              FEBRUARY 01, 2018
              [N. V. RAMANA AND S. ABDUL NAZEER, JJ.]
             Narcotic Drugs and Psychotropic Substances Act, 1985 –
      ss.8(c), 23 – Contraband goods – Recovery of hashish weighing
      12.03 kg from respondent no.1 – Conviction under ss.8(c), 23 –
C
      High Court acquitted respondent no.1 of all charges on the ground
      that the prosecution failed to establish that the panchas were present
      during seizure procedure and the testimony of intelligence officer
      (PW-1) relied upon by trial court was highly inconsistent and full of
      contradictions – On appeal, held: Evidence of independent
D     witnesses contradicted the statement of PW-1 – They categorically
      stated that they were called by PW-1 and by the time they reached,
      the bag was already opened – The Panchanama was not read over
      to them and they were asked to sign on number of papers and they
      were not aware of the contents – When the statement of official
      statement is impaired due to infirmities, it is not safe to place reliance
E
      upon the same and pass conviction order against the accused –
      High Court rightly acquitted respondent No.1.
            Dismissing the appeal, the Court
             HELD: Both PW-8 and PW-9 have categorically stated that,
F     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
G     narcotic substance was opened in the presence of panchas. The
      cross-examination of PW-9 clearly revealed that he did 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
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          UNION OF INDIA v. LEEN MARTIN & ANR.                             657


voluntarily put. The entire case of the prosecution hinged on the          A
alleged recovery of the narcotic substance from respondent no.
1 but, this very fact was not proved beyond reasonable doubt as
independent witnesses PW-8 and PW-9 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
                                                                           B
no. 1 would neither be prudent nor safe; especially considering
the fact that, the statement of respondent no. 1 procured under
Section 67 of the NDPS Act was retracted. [Paras 10, 11] [659-E-
G; 660-B-D]
       2. The statement of the official witness PW-1 cannot be the
sole basis for convicting respondent no. 1. When the statement             C
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, the statements of the
independent panch witnesses depict a different picture than the
one portrayed by the official witness PW-1. The High Court had             D
rightly acquitted the respondent no.1 taking into consideration
the aforesaid aspects. [Paras 12, 13] [660-D-F]
      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 2150 of 2011.
      From the Judgment and Order dated 20.11.2008 of the High Court       E
of Judicature at Bombay in Criminal Appeal No. 379 of 2007.
      Ms. Alka Agrawal, T. C. Sharma, K. L. Janjani, B. V. Balaram
Das, Mrs. Anil Katiyar, Advs. for the Appellant.
     Anand Grover, Sr. Adv., Ms. Tripti Tandon, Satbir Singh Pillania,     F
Somvir Deswal, R. C. Gubrele, Kunal Cheema, Nishant Ramakantrao
Katneshwarkar, Advs. for the Respondents.
      The Judgment of the Court was delivered by
       N. V. RAMANA, J. 1. This criminal appeal arises from the
impugned judgment, and order, dated 20.11.2008, in Criminal Appeal No.     G
379/2007 passed by the High Court of Judicature at Bombay, wherein
the High Court acquitted the respondent no.1 ofall the charges under
sections 8(c), punishable under Section 20(b)(ii)(c) and underSection 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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658            SUPREME COURT REPORTS                           [2018] 1 S.C.R.


A            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 ChhatrapatiShivaji 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
B
      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.
C     On opening suit casehis 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
D     contraband substance. Net weight of the recovered substance was found
      to be measuring 12.03 Kg. Later, the samples weredrawn 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
E     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
F     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
G     concurrently.
            5. Aggrieved by the order of conviction of the trial court,
      respondent no. 1 approached the High Court in Criminal 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
H     prosecution failed in establishing that the panchas were present during
           UNION OF INDIA v. LEEN MARTIN & ANR.                                 659
                     [N. V. RAMANA, J.]

the seizure procedure. The High Court while setting aside the trial court       A
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            B
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   C
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.
                                                                                D
       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             E
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 ofthe contents.
Moreover, PW-1 i.e., the intelligence officer did not state that the bag        F
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 panchanamawerenot voluntarily put, which is
apparent from the following statements madeby PW-9 during the cross-            G
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.”
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660              SUPREME COURT REPORTS                         [2018] 1 S.C.R.


A          Moreover, aforesaid conclusion is substantiatedby 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
B            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
C     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 statement of
      respondent no. 1 procured under Section 67 of the NDPSAct was
      retracted on 29.06.2004.
D             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
E     statements of the independent panchwitnesses 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.

F            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 with the
      impugned order passed by the High Court. In the result, the appeal lacks
      merit and is dismissed.


G     Devika Gujral                                               Appeal dismissed.




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