MOHD. ASLAM KHANversusNARCOTICS CONTROL BUREAU AND ANOTHER

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A                           MOHD. ASLAM KHAN
                                        v.
            NARCOTICS CONTROL BUREAU AND ANOTHER

                              FEBRUARY 20, 1996

B                  [AM. AHMADI, C.J., N.P. SINGH AND
                         K. VENKATASWAMI, JJ]

          Climinal Law :

C         Narcotic Drugs and Psychotropic Substances Act, 1985 : Section 22
    read with Sections 8(c) : 66 and 67.   '

        Contraband drugs-Possession of-Search and seizure-Proof
  of-Mandrex tablets-Seizure of-Froin premises allegedly belonging to ac-
  cused-Along with agreement allegedly signed by accused in favour of
D promoter/builder-Accused retracting his statement-Agreement neither seized
  from accused nor furnished by him-No independent evidence-Produced by
  Prosecutiort-Establishing ownership of premises-Either producing docu-
  ments from Registrar's office or examining neighbours-Held : aid of Section
   66 could not be invoked--/n the circumstances retracted statements of ac-
E cused not sufficient to connect him with the premises in question-Conviction
  set aside-Customs Act 1962, Section JOB.

           The appellant was convicted under Section 22 read with Section 8
     (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and
    _sentenced to undergo rigorous imprisonment for 10 years.
F
        According to the prosecution, the official of Narcotic Control
  Bureau, raided the premises of the appellant - accused and seized 50,000
  Mandrex tablets contained in a maroon coloured bag along with certain
  documents. The samples of the said Mandrex tables were drawn under a
  panchnama. In the course of the interrogation, the appellant was asked
G 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. 1985. In the course of the search and
  seizure of the said premises along with the contraband tablets an agree-
  ment supposed to have been signed by the appellant in favour of-the
H promotor/builder was also seized by the officials.
                                     842
                ASLAM KHAN v. NARCOTICS CON1ROL BUREAU                      843

           On the basis of the adduced on behalf of the prosecution, the Special A


--   Judge came to the conclusion that the charge levelled against the appellant
     was fully established. This finding was upheld by the High Court.

           In the appeal before this Court, on behalf of the accused person it
     was contended that the prosecution had miserably failed to establish the
     ownership and possession of the premises from which the contraband           B
     tablets were seized as belonging to the appellant; and that the reliance
     placed by the prosecution on the statements of the appellant obtained
     under Section 108 of the Customs Act and Section 67 of the NDPS Act
     would be of no avail as the appellant had retracted the same without loss
     of time.                                                                     c
            On behalf of the respondent, it was contended that the agreement
     executed by the appellant found in the premises in question and recovered
     by the officials containing the signature of the appellant was sufficient to
     establish that he was the owner and in possession of the premises; that the
     prosecution had established the case beyond doubt; and that the admission D
     of the appellant during the course of interrogation under Section 67 of the
     NDPS Act was admissible in evidence and coupled with the fact of seizure
     of agreement containing the signature of the appellant, it was not open to
     the appellant to contend that prosecution had failed to establish the
     ownership of the appellant regarding the premises in question.               E
           Allowing the appeal, this Court

           HELD : 1.1. In the instant 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 of the Narcotic   F
     Drugs and Psychotropic Substances Act, 1985 the prosecution should have
     established that the appellant is the owner and was in actual possession
     of the flat in question. [847·E]
                                             .
            1.2. 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 G
     any independent evidence to establish that the appellant was the owner of
     the Oat in question by producing documents from concerned Registrar's
     office or by examining the neighbours. No statement has been made by the
     prosecut!on that inspite of the efforts· taken by them, they could not
     produce the document or examine the neighbours to prove the ownership H
'
    844                  SUPREME COURT REPORTS                  [1996] 2 S.C.R.

A   of the appellant relating to the premises in question. In this case except
    the retracted statements of the appellant to connect him with the premises
    in question, no other independent evidence is available to sustain the
    finding of the special Judge and confirmed by the High Court. [847-F-H]
                                                                                   -
          2.1. Nobody has identified the premises in question as belonging to
B 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. (848-C]

          2.2. The prosecution failed to establish the ownership of the premises
C   in question as belonging to the appellant and consequently the conviction
    and sentence cannot be sustained. (848-D]

         CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
    241of1996.
                                                                                   -
D        From the Judgment and Order dated 18.10.94 of the Bombay High
    Court in Crl.A. No. 378 of 1993.

          Suresh C. Gupta and Sunil K. Jain for the Appellants.

         K.T.S. Tulsi, Additional Solicitor General, N.K. Bajpai, V.K. Verma,
E   D.M. Nargolkar and S.M. Jadhav (NP) for the Respondents.

          The Judgment of the Court was delivered by

           K. VENKATASWAMI, J. Leave granted.

F         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 convictien 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
G   '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
H   case. On 5.3.89 officials of Narcotic Control Bureau, Bombay (NCB for
  ASLAM KHANv. NARCOTICS CONTROL BUREAU [K. VENKATASWAMI, J.] 845


short) raided the houses of the co-accused. One of the co-accused by name,     A
Raj Babu Pardan, pointed out the residence of the appellant situated at
second floor. S.M. Mansion, 299 Bellasis Road, Bombay, thereby suggest-
ing to conduct a raid in that premises as well. Accordingly that house of
the appellant was searched on 6.3.89 and some incriminating documents
along with cash case amount of Rs. 45,000 came to be seized. In connection
with that seizure, the appellant was brought to the office of the Narcotic     B
Control Bureau, Bombay for interrogation. While the appellant was in the
office of the Narcotic Control Bureau, Bombay for the purpose of inter-
rogation, the Inteligence Officer of the said Bureau received information
to the effect the appellant was having another flat No. 102, in building No.
8Al. Quba Co-operative Housing Society, Millat Nagar, Andheri, Bombay-         C
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
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,        D
the officials seized 50,000 Mandrex tablets contained in a maroon coloured
bag along with certain documents. The samples of the said Mandrex tablets
were drawn under a panchnama. The Deputy Director of NCB was in-
formed 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      E
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, 1985. In the course of the search and seizure      F
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 G
case against the appellant was heard and tried long 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 premises
situated at second floor S.M. Mansion, 299 Bellasis Road, Bombay con- H
    846·                 SUPREME COURT REPORTS                   [1996] 2 S.C.R.

A victed the appellant in respect of the seizure of 50,000 Mandrex tablets
    from flat No. 102 in building No. 8Al Quba Co-operative Housing Society,
    Millat Nagar, Bombay and sentenced him to under 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 learne_d Special Judge in
    paragraph 53 concluded as follows :
B
                "In view of my aforesaid discussion. I hold that the accused No.
            3 Mohammad Aslam Khan was found in possession offifty thousand
            Mandrex tablets at his premises at Mil/at Nagar Possession of such
            mandrex tablets is prohibited under Section 8(c) of the NDPS Act
c           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
D   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 con-
    tentions in assailing the judgment under appeal. However, we do not
E   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 No. 102
    in building No. 8Al, Quba Co-operative Housing Society, Millat Nagar,
    Andheri, Bombay from which the contraband tablets were seized as
F   belonging to the appellant.

        According to the learned counsel for the appellant, except the infor-
  mation received by the officiats (Exhbt. No. 34) panchnama (Exhbt. No.
  33) report and the alleged agreement containing the alleged signature of
  the appellant, no other acceptable evidence was let in by the prosecution
G to prove that the appellant was the owner and in actual possession of the
  said building. He also submitted thaHhe reliance plaeed by the prosecution
  on the statements of the appellant .obtained· under S~ction 108 of the·
  Customs Act and 67 of the NDPS Act Will be of no avail as the appellant
  has retracted the srune without loss of time. He further submitted that a
H careful perusal of the statements of the appellants viz., Exhbt. 83 and 84
  ASLAM KHANv. NARCOTICS CONTROL BUREAU (K. VENKATASWAMI, J.] 847


will clearly show that such statemcms would not have been given voluntarily    A
by the appellant.

       The learned Additional Solicitor General submitted that the agree-
ment executed by the appellant found in the premises in question and
recovered by the officials containing the signature of the appellant is        B
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       C
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      D
learned Additional Solicitor General is right in invoking the aid of Section
66 of NDPS Act, for Section 66(i) visualises the production of a document
which has been seized from the custody or control qf any person or
furnished by any person. In 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    E
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
agreement 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         p
establish that the appellant was the owner of the flat in question by
producing documents from concerned Registrar's office or by examining
the neighbours. 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 neighbours fo prove the ownership of the appellant relating
to the flat in question. It is relevant to note here that two independent      G
witnesses attested the panchnama. Only one of them was examined as PW
5 who did riot 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 tlie finding of the learned Special Judg~     H
        848                  SUPREME COURT REPORTS                   [1996] 2 S.C.R.
                                                                                        )
    A   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
q     the said flat was owned by the appellant'. Again the High Court observed
    B that 'even assuming' that the said agreement is excluded from considera-
      tion, there remains the specific information received, Exbt. 33 and his own
      statement recorded by the Authority under Section 313, Exbts. 83 and 84
      and all of the them go to show that the appellant was the owner of the said
      flat. As pointed out earlier that nobody has identified the flat in question
    C 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
    D   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.

    E v.s.s.                                                        Appeal allowed.




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