Ms.Muhumuza Pricila Mbabazi v. Union of India & Ors

Mr. Ayaz Khan for the Applicant .... Ms. A.A. Mane for Respondent No. 1 - Union of India Mr. Rajesh More, APP for the State ... CORAM : SMT. V.K. TAHILRAMANI, J DATE : 29TH OCTOBER,2010 ORAL ORDER:

1. Heard the learned advocate for the applicant-original 1 accused, Mrs. Mane, the learned advocate for A.I.U. for Customs and the learned APP for the State.

2. The applicant, by judgment and order dated 09.10.2007 passed by learned Special Judge for NDPS Cases, Greater Mumbai, in NDPS Special Case No. 60 of 2004 has been convicted for the offence punishable under Sections 29, 21(c) r.w. 8(c) and section 28 r.w. 8(c) of the NDPS Act. The appeal preferred by the applicant against the said judgment and order has been admitted. The applicant is now seeking bail.

3. The prosecution case briefly stated is that the applicant-accused was intercepted at Sahar International Airport, Mumbai. Her checked-in baggage was searched and

5.84 kgs. of Heroin was found concealed in her baggage. Thereafter, samples were taken from the said contraband substance and it was sent to Forensic Science Laboratory Kalina (F.S.L.) and Dy. C.C. As per the CA report (Exh. 34) received from Dy. C.C., the sample was heroin. As per the C.A. Report Exh. 37 received from F.S.L. Kalina, the sample was found to be heroin.

4. In order to prove that the seized material was heroin, the prosecution has relied upon the CA report Exhs. 34 and 2

37. Learned advocate for the applicant pointed out that no question relating to Exhs. 34 and 37 has been asked to the accused in her statement which was recorded under 313 of Cr.P.C. He submitted that in cases under NDPS Act, the most vital document is the CA report as it is on the basis of the CA report that the conviction is based. If no question is asked in relation to this vital aspect, then the conviction is liable to be set aside.

5. The learned advocate for the applicant submitted that the Supreme Court and this Court has held that when incriminating circumstances of vital importance are not asked to the accused, then the conviction cannot be sustained. In support of his submission he placed reliance on the decision in case of State of Punjab VS Hari Singh and Ors reported in (2009)2 Supreme Court Cases (Cri) 243. The said case was also under the NDPS Act. As the vital question was not put in relation to the contraband material, the conviction came to be set aside. In the said case, it was observed that no question relating to possession was put under 313 Cr P.C. to the accused, in such case, this omission vitally affects the prosecution case, hence the conviction was set aside.

6. Reliance is also placed on a decision of the Supreme Court in the case of Avatar Singh Vs State of Punjab reported 3 in 2002(7) SCC 419. In the said case, the prosecution case was that the accused persons were in possession of poppy husk. They were found traveling in a vehicle and were found sitting on the bags of poppy husk. As there were other accused in the vehicle, the Supreme Court observed that in the course of examination under 313 of Cr.P.C., not even a question was asked that they were the persons in possession of poppy husk in the vehicle and the only question put to them was that as per the prosecution evidence, they were sitting on the bags of poppy husk. In such circumstances, conviction of the appellants came to be set aside.

7. Learned advocate for the applicant also placed reliance on a decision of the Supreme Court in case of Sharad Sarda Vs. State of Maharashtra reported in AIR 1984 SC 1622 wherein it was held that incriminating circumstance which has not been put to the accused under 313 of Cr.P.C. cannot be used against him.

8. Reliance was also placed on a decision of this Court dated 14th September, 2010 in Criminal Appeal No. 337 of 2008 in Marie Antoinette Bacco Vs. Union of India and Anr. wherein it was held that in a case under the NDPS Act when the C.A. Report was not put to the accused, the conviction cannot be sustained. 4

9. In all NDPS cases, the samples of the narcotic drug or psychotropic substances are sent to the CA. After testing the said samples, CA gives report whether there is any narcotic or psychotropic substance in the sample. Only when the report is positive, can a conviction be based under the NDPS Act. Thus, the CA report is of utmost importance in cases under the NDPS Act, hence, in cases under NDPS Act, questions regarding the CA report are elementary and would, in my opinion, be mandatory as they go to the root of the case. In NDPS cases, the conviction is entirely dependent on the CA report and if the CA report is not put to the accused, it would be a major flaw in the prosecution case which would go to the root of the prosecution case. These are questions of great consequence and if no question is asked to the accused on this aspect, it would be a fatal lacuna.

10. Questioning of an accused under Section 313 of Cr.P.C. is not an empty formality. The essence of accusation has to be brought to the notice of the accused. When any incriminating circumstance is sought to be used against any accused person, she must be asked about the same in her statement under Section 313 of Cr.P.C. As the applicant- accused has not been asked any question on all these incriminating circumstances, prima facie none of these 5 circumstances can be used against her. If all these circumstances are excluded from consideration, there is no material to show that what was seized from accused was a narcotic substance.

11. The object of examination under Section 313 of Cr.P.C., it is well known, is to afford an opportunity to the accused to explain the circumstances appearing in the evidence against him/her. Having regard to the charge of which the applicant is an accused, the failure to elicit an answer on such crucial aspect is prima facie fatal.

12. Moreover, it is seen that the applicant was arrested on

16.11.2003 and since then she is in custody i.e. for almost a period of seven years, she has been in custody. The maximum sentence of imprisonment imposed on the applicant is ten years and the applicant has undergone more than half the period of imprisonment.

13. In Ahmed Hussain Ayub Shaikh @ Babloo Vs. Union of India this Court (Coram: R.V.More, J.) by order dated

7.1.2009 in Criminal Application No. 620 of 2008 granted bail to an accused in a case involving commercial quantity under the N.D.P.S. Act on the ground that he has undergone half the period of imprisonment. 6

14. So also in another case under the N.D.P.S.Act this Court (Coram: Mridula Bhatkar, J.) by order dated 22.7.2009 in Cri. Application No. 1259 of 2008 granted bail to the accused on the ground that he has undergone half the period of imprisonment.

15. In view of the above decisions and looking to the fact that no questions were asked on vital and crucial issues and the fact that the applicant has undergone more than half the period of imprisonment, I am inclined to grant bail to the applicant. Hence, the following order: O R D E R

1. The applicant-Muhumuza Pricila Mbabazi is directed to be released on bail in the sum of Rs.50,000/- (Rs. Fifty thousand only) with one or two sureties to make up the said amount. The applicant to report to Office of Customs, Mumbai once in a week during the pendency of the appeal. The applicant shall not leave Mumbai without the permission of the Court.

2. Application allowed in above terms. [SMT. V.K. TAHILRAMANI, J.] 7