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2012 DIGILAW 2257 (BOM)

Mogamat Faldi Jakoet v. Union of India

2012-12-04

R.C.CHAVAN

body2012
JUDGMENT: R.C.CHAVAN, J. 1. This appeal is directed against the conviction of the appellants, by the learned Special Judge for trial of cases under N. D. P. S. Act, at Mumbai, for the offences punishable under Sections 8(c), 22(c), 28, 23(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act (for short called as, N.D.P.S. Act), and sentence of rigorous imprisonment for 10 years with fine of Rs.1,00,000/- or in default rigorous imprisonment for further period of three months, imposed upon them, on the conclusion of trial under NDPS Special Case No.80 of 2003. 2. The facts which are material for deciding this appeal are as under:- On 5th July, 2003, Officer of the N.C.B. Shri. Sanjay Gokhale, received information at 5.00 p.m. that one person by name Jakoet staying with a partner in Hotel Ajanta at Juhu, was to take flight to South Africa on 6th July, 2003 to 12th July, 2003, carrying 65 Kg mandrax tablets in check-in-baggage which would be concealed by using carbon paper to avoid detection by x-ray machine. The informant had requested that appellant Jakoet should be intercepted only at the time of departure. After this information was reduced into writing, it was placed by Shri. Gokhale before his superiors. The officer decided to visit Airport and to check flight manifest of flights to South Africa from the next day onwards. It was revealed that appellant Jaoket was to fly to South Africa by Flight No.SA277 on 6.7.2003. Intelligence Officer Shri. Mule called two panchas at the air port. Checked in baggage of Jakoet was located. After appellant Jakoet was called in transit area, he was offered to be searched before a Magistrate or a Gazetted Officer. He declined. His baggage was searched and found to contain 80 packages containing mandrax tablets, off white in colour, and having mark of LG on one side and NJY on the other side. Appellant Jakoet informed that his partner Rashied Davids, the other appellant, was in room No.408 of Hotel Ajanta at Juhu and therefore another Officer Shri A. P. Patil went with Gokhale to the Hotel. The search of room No.408 and the personal search of Rashid Davids was conducted which yielded packing material similar to one which was used for packing the contraband. It was seized. The search of room No.408 and the personal search of Rashid Davids was conducted which yielded packing material similar to one which was used for packing the contraband. It was seized. The contraband found with the appellant Jakoet was tested on the field testing kit and it tested positive for methaqualone. The quantity seized was found to be 68 kg. 20 tablets were taken randomly and two samples of 10 tables each were drawn up, placed in polythene sachets which were then placed in envelopes and envelopes were sealed and sent to Laboratory. A panchnama was drawn up. 3. The officer brought the appellants to office of NCB and recorded their statements under Section 67 of the N.D.P.S. Act. The suit cases of appellant Rashied Davids were found to be kept in the cloak room of the hotel which too were brought to the N.C.B office. The bags contained other empty bags inside. The officers had sent the samples of contraband seized to the Laboratory of Deputy Chief Chemist which reported that the sample was of methaqualone. A complaint was lodged with the Special Court. 4. The learned Judge Special Court, charged the appellants of offences punishable under Sections 29 read with Section 8 (c), 22(c), 28, 23(c) and 30 of the NDPS Act. Since they pleaded not guilty, they were put on trial at which the prosecution examined in all 16 witnesses in its attempt to bring home the guilt of the appellants. After considering their evidence in the light of defence of false implication, the learned Judge convicted and sentenced the appellants as aforementioned. Aggrieved thereby the appellants are before this Court. 5. I have heard learned counsel for the appellants and the learned Special Public Prosecutor for the NCB. With the help page No. 4 of 23 of both I have gone through the evidence on record. 6. P. W. 1 Sanjay Gokhale is the Intelligence Officer, who received specific information, recorded it and passed it on to his superiors. He proved the information received at Exh.9. He states that the Zonal Director and Assistant Director had directed Shri B. S. Mule, Intelligence Officer to handle the further proceedings. He seems to have been present at the Airport when the appellant Jakoet was accosted by Shri. Mule on the morning of 6.7.2003. It seems that he was present till the contraband was tested on field testing kit. He states that the Zonal Director and Assistant Director had directed Shri B. S. Mule, Intelligence Officer to handle the further proceedings. He seems to have been present at the Airport when the appellant Jakoet was accosted by Shri. Mule on the morning of 6.7.2003. It seems that he was present till the contraband was tested on field testing kit. P. W. 1 states that after appellant Jakoet disclosed about the presence of appellant Rashied Davids in Hotel Ajanta in room No.408, he and Patil reached Hotel at about 8.00 a.m. where two other officers had already reached with panchas. P. W. 1 then states about search of room of Rashied Davids which yielded only packing material which was seized under the panchnama, which seems to have been drawn by another officer Felix D'souza. P. W. 1 Gokhale recorded the statement of appellant Jakoet under Section 67 of the NDPS Act, which he proved at Exh.10. The statement made by Jakoet seems to have been retracted by Jakoet vide Exh.15, to which a rebuttal was made by the department. He proved arrest report at Exh.12. He also proved the statements of receptionist of Hotel Ajanta, by name Md. Gurfan P. W. 8 at Exh.13. He stated in his cross examination that Shri. Patil was with him right from 5.30 a.m. to 2.30 p.m. and thereafter Shri. Patil was in his office. 7. P. W. 2 Intelligence Officer Bhushan Mule stated about his being instructed to come to the Airport and take further steps in respect of information received. He stated that on 5th July, 2003 at 7.00 p.m. he went to the Airport and collected information about flights to South Africa and found that Flight No.SA277 was to fly on 6.7.2003 at rescheduled time at 8.00 a.m. He, Superintendent Patil and Shri. Gokhale decided to reach Airport at 5.00 a.m. on 6.7.2003. He found that the appellant Jakoet was already checked in for the flight to Johansberg-Capetown. He called two panchas and got the preflight manifest, which included the name of appellant Jakoet in flight to Johansberg Capetown. He located Jakoet with the help of immigration and Custom Officers in transit area and found Jakoet. His passport, boarding pass, baggage tags etc were taken. The Airline staff was asked to retrieve the checked in baggage. He called two panchas and got the preflight manifest, which included the name of appellant Jakoet in flight to Johansberg Capetown. He located Jakoet with the help of immigration and Custom Officers in transit area and found Jakoet. His passport, boarding pass, baggage tags etc were taken. The Airline staff was asked to retrieve the checked in baggage. Appellant Jakoet was taken to the officer in A.I.U. The baggage identity tags of Jakoet on boarding pass were tallied with baggage identification tags. Jakoet was offered search in presence of Magistrate which he declined and thereafter Jackoet was searched. The bags were opened by the appellant himself which were found to contain Turkish towels. There were 14 scotch taped packets covered by sponge. When the scotch tape was removed, it was found that contraband was covered in aluminum foil, carbon paper, newspaper and cotton cloth. The marking on the tablet was NJY on one side and L within G on the other side. The tables tested positive for methaqualone on the field testing kit. He opened all the bags and in each of first four bags in all 80 packets containing methaqualone tablets were found. Two samples of 10 tablets each taken randomly, were prepared and placed in polythene sachet which were placed in an envelopes and sealed with NCB seal No.02, the remaining contraband was also kept in a polythene bag. The sealed articles were also seized and sealed. He identified the before the Court at Exh.20 and 23 the Airline tickets of Jakoet, Exh.21 the excess baggage ticket, Exh.22 the visiting card of Hotel Ajanta, Exh. 24 the boarding pass, Exh. 25- the checked in history, Exh.26 the passport and also identified the articles seized. The recovery memo as to return of cabin baggage to appellant was prepared in A. I. U. office vide Exh.27. The appellant's immigration was sought to be cancelled vide Exh.28. P. W. 2 Mule stated that he made an elaborate report and submitted it to his Superintendent. The witness identified the property which was produced before the Court. He stated in his cross examination that the sample sachets were heat sealed. The recovery memo Exh.27, however, does not so record. 8. P. W. 2 Mule stated that the officers who went to apprehend accused No.2 Rashid David reached the office directly. He was asked whether he had participated in another raid on 6.7.2003. He stated in his cross examination that the sample sachets were heat sealed. The recovery memo Exh.27, however, does not so record. 8. P. W. 2 Mule stated that the officers who went to apprehend accused No.2 Rashid David reached the office directly. He was asked whether he had participated in another raid on 6.7.2003. He stated that in respect that raid, he had been examined as witness in Special Case No.77 of 2003 on 17.1.2006. and 13.2.2006. He admitted having stated in his deposition in that case that he attended the office of N.C.B. on 6.7.2003 at 10.00 a.m. and P. W. 15 Superintendent Patil was with him. He, however, denied that he was falsely stating that on 6.7.2003, he was at Airport from 5.00 a.m. to 1.30 p.m. The recovery memo at Exh.27 shows that the proceedings were concluded at 13.20 hrs at the A.I.U investigation area after having been commenced in the morning. 9. Copy of deposition of this witness in Special Case No.77 of 2003 is marked at Exh.38 and in the cross examination he had stated that he was in the office of N.C.B. on 6.7.2003 at about 10.00 a.m. to 10.30 a.m. He denied suggestion that he was not in the office on 6.7.2003 at about 10.00 a.m. and also denied suggestion that the Superintendent Patil was not present in the office at 10.00 a.m. 10. P. W. 15 Ajit Patil, the Superintendent is the other officer who was present at seizure. He stated about his accompanying Shri. Gokhale, going to Shri. Sanchis and Mrs. Tyagi with the information received. He states that Shri. Mule was to be the Incharge of proceeding at the Airport and therefore, he asked Shri. Mule to proceed to Airport. He stated that he decided to stay in his office, that night. He claimed to have gone to the Airport on 6.7.2003 by leaving his office at 5.00 a.m. He further stated that he handed over N.C.B. seal No.02 to Shri. Mule. He seems to have been present throughout the seizure operation at the Airport which was carried out by Shri. Mule. He stated that as per information received from Jakoet that appellant Rashied Davids was staying in Hotel Ajanta, he reached the hotel at about 9.30 a.m. and then searched room No.408 which was occupied by appellant Rashied Davids. He seems to have been present throughout the seizure operation at the Airport which was carried out by Shri. Mule. He stated that as per information received from Jakoet that appellant Rashied Davids was staying in Hotel Ajanta, he reached the hotel at about 9.30 a.m. and then searched room No.408 which was occupied by appellant Rashied Davids. He stated that he received note prepared by Shri. Mule which is at Exh.32 and the search and seizure report is at Exh.33. He also stated about the other steps taken in the course of investigation. In cross examination he stated that at about 5.45 a.m. to 6.00 a.m. Mule informed him that Jakoet had checked in with four baggages. 11. P. W. 11 Sunil panch witness was working as Supervisor with South African Airways, stated about rescheduling of South African Airways Flight No.SA277 on 6.7.2003, the approach by N. C. B. Officers, locating appellant Jakoet from the transit area and the search of Jakoet in his presence. He stated that 80 packets of mandrax tablet were seized from the baggage of appellant Jakoet. He stated about his signing the sample envelopes which were sealed and also identified the various documents which were seized by the officers. He stated that the panchnama was drawn in his presence. He identified his signature on panchnama at Exh.27 and proved the same. In cross examination he stated that it was not he who had located the appellant from transit area, but some other staff member. He admitted that a tag on the baggage can be removed. He stated that he saw Intelligence officer Shri. Mule at 5.45 a.m. He stated that the entire proceeding was over by 1.30 to 1.40 p.m. He specifically stated that he was with the team of the officers till 1.40 p.m. on that day and denied suggestion that he was not with the officers till then. He could not state whether Patil was also present at the Airport. This cross examination was possibly intended to test the presence of Shri. Mule at the Airport till 1.40 p.m. 12. P. W. 12 Mohnish Shah was serving with Air India. He stated that the appellant Jakoet came with baggage at his counter on the incidental day and he checked in the passenger. He stated that since baggage was weighing 20 Kg more than the permitted weight, the passenger brought excess baggage coupon. P. W. 12 Mohnish Shah was serving with Air India. He stated that the appellant Jakoet came with baggage at his counter on the incidental day and he checked in the passenger. He stated that since baggage was weighing 20 Kg more than the permitted weight, the passenger brought excess baggage coupon. He stated that Jakoet checked in at about 4.15 a.m. He put a baggage tags on the boarding pass. He identified the baggage tags, excess baggage coupon, boarding card and passport which were seized. He also stated having made statement vide Exh.80. In the cross examination, he stated that his signing code should be on the baggage tag, but admitted that his signing code was not on the tag at Exh.20. He stated that baggage tag once affixed could be removed by force, but it was not feasible. 13. P. W. 3 Felix D'Souza, Inspector Central Excise, stated that at about 9.00 a.m. on 6.7.2003, the Superintendent Patil asked him to reach Hotel Ajanta and accordingly he reached at the Hotel at 10.00 a.m. where Shri. Patil, P. W. 1 Gokhale and one A.K. Singh were present. He then states about search of room of Rashied Davids and recovery of packing material and other things from him. He proved the panchnama at Exh.42 which shows that it was over at 12.45 noon having commenced at 10.15 a.m. 14. P. W. 4 Ashokkumar Singh, Intelligence officer corroborates the version of P. W. 3 D'souza about panchnama drawn at 10.30 a.m and completed at 12.45 p.m. at Hotel Ajanta. He stated that he recorded statement of Rashied Davids under Section 67 of the N.D.P.S. Act, arrested Rashied Davids at 11.00 p.m. on 6.7.2003 and made a report of arrest to Shri. Patil. He further stated about retrival of some bags and which Rashied Davids left at Hotel Ajanta on 10.7.2003 and seizure effected on that day. He states about various statements recorded by him and in the course of investigation and various steps taken by him. 15. P. W. 9 Sunil Kushwaha was working as Security Staff at Hotel Ajanta and he states about arrival of P.W.3 Fellix D'souza and another officer of N.C.B who asked him to take them to room No.408. He states about the search of a room in his presence and proved the panchnama at Exh.48 and other documents. 15. P. W. 9 Sunil Kushwaha was working as Security Staff at Hotel Ajanta and he states about arrival of P.W.3 Fellix D'souza and another officer of N.C.B who asked him to take them to room No.408. He states about the search of a room in his presence and proved the panchnama at Exh.48 and other documents. He states that the search was carried out from 8.15 a.m. onwards. This has to be read in the context of evidence of P. W. 3 Phellix D'souza that they reached Hotel at 10.00 a.m. 16. P. W. 5 Mohammad Hussein Valji states about the sale of six hand bags to appellant Rashied Davids as also purchase of one leather jacket by Rashied from him. This witness was examined in order to support N.C.B's theory that the appellant used to purchase empty bags used to have then screened an entry at the Airport and strapped with security strap, bring them back surreptitiously, packed them with contraband and reenter Airport to avoid the second screening. P. W. 6 Kiran Yedery states about the appellant Jakoet booking ticket for the flight in question. P. W. 7 Wilson Kocherie was working as Front Office Incharge in Hotal Ajanta and states about opening of the cloak room on 10th July, 2003 from where certain bags were seized. He also states about arrival of the two appellants and their stay in the hotel. He proved the relevant record from his Hotel. 17. P. W. 8 Mohammad Gufran was working as Receptionist in the same Hotel. He states that first Jakoet had checked in the hotel on 2nd July, 2003. Rashied Davids came on the night of 3rd July, 2003 and wanted to stay with appellant Jakoet, who agreed. He states that on 5th July, 2003, Rashied David stated that he wanted to put two bags in the hotel cloak room. He states that he accordingly kept the bags, prepared luggage tags, attached one to the handle of the bags and and gave counterpart to appellant Rashied Davids, who however, threw it away. Thus, it seems that the story of bags having been kept by Rashied Davids and the defence that this story was fabricated has to be evaluated only on the basis of his evidence. 18. Thus, it seems that the story of bags having been kept by Rashied Davids and the defence that this story was fabricated has to be evaluated only on the basis of his evidence. 18. P. W. 16 P. N. Vaidyanathan was working with Samsonite Company as a Sales Executive in its show room at Tardeo and talked about the sale of bags to customer and identification of bags. According to him it was not the first time when a customer purchased nine bags at once. 19. The learned counsel for the appellant submitted that it is curious that though the appellant Rashied Davids was arrested on 6th July, 2003, in the hotel, the Hotel authorities informed the N.C.B. about bags only on 10th July, 2003. He also submits that the evidence of P. W. 5 Mohd. Valji about his writing a letter to one Mr. Ahmed about his gifting jacket to Rashied Davids is curious. There was no reliable evidence to show that Rashied Davids had in fact purchased bags from his shop. 20. P. W. 10 Tausif Khan, working as Airport Manager with South African Airways, stated about the procedure at the Airport. He stated that on 6th July, 2003, Jakoet and another passenger reported for and checked in at 4.00 a.m. 21. P. W. 14 Keith John Sanchis, the Assistant Director of N. C. B. Mumbai, stated about the information received by Shri. Gokhale being placed before him. He stated that Shri. B.S. Mule was to monitor the flights to South Africa. He states that on 6th July, 2003, P. W. 15 A. P. Patil, informed him about the seizure effected at the Airport and sought permission to search Room No.408 in Hotel Ajanta which permission he granted. He states that at 2.00 p.m. some of the officers from the Airport and Hotel Ajanta returned to the office. He states at 3.30 p.m. Shri. B.S. Mule placed before him Note at Exh.32 alongwith the necessary documents at Exh.33 report of search and seizure placed by Shri. Mule. He then stated about the statement of accused persons recorded by the some officers, accused persons being arrested, the property being lodged in the warehouse and about the various steps taken during the course of investigation. 22. P. W. 13 Shri. Madan Singh Rawat was working as Assistant Chemical Examiner at Custom Laboratory at Nhava Sheva. He then stated about the statement of accused persons recorded by the some officers, accused persons being arrested, the property being lodged in the warehouse and about the various steps taken during the course of investigation. 22. P. W. 13 Shri. Madan Singh Rawat was working as Assistant Chemical Examiner at Custom Laboratory at Nhava Sheva. He stated that he had received test memos alongwith sealed samples. He kept them in safe custody, took them out for examination on 15.7.2003, found that the tablets weighed 1.354 gram each and noted that marking on one side of tablet was NUY and on the otherside GL and then carried necessary tests. He proved the extract from his register at Exh.115 as also his report. He stated that he handed over the remnant samples to the N. C. B. Officers. He found that the sample was Methaqualone. He was cross examined at length about the tests carried out, but his evidence remained unshaken as to the conclusions drawn by him. 23. Learned counsel for the appellant submitted that the Raiding Officer P. W. 2 Shri. Mule had stated about his reaching at the Airport at 5.00 a.m. on 6.7.2003 and carrying out the entire search and seizure operation. He had stated marking on the tablet was NJY on one side and L within G on the other side. He had proved recovery memo at Exh.27 which was concluded at 13.20 hours on 6th July, 2003. He had stated in his cross examination that after this proceeding he reached his office at 2.30 to 2.35 p.m. He was then confronted with the evidence given in Special Case No.77 of 2003 where he had stated that he had attended the office at 10.00 a.m. and recorded the statements of one Sureshchandra on that day and that the Superintendent Patil (P. W. 15) was also in the office when he returned for duty on that day. A copy of his deposition is at Exh.38. In his cross-examination in that case, he had specifically stated about attending the office between 10.00 a.m. to 10.30 a.m. and had denied the suggestion that neither he nor the Superintendent Patil were present in the office at 10.00 a.m. He stated that he recorded the statements of Sureshchandra in the afternoon on that day but did not remember exact time. 24. 24. The learned counsel for the appellant submitted that in the face of this statement on oath by Shri. Mule that both he and P. W. 15 Patil were present in the office from 10.00 a.m on 6th July, 2003, it would not be possible for them to claim that they were present at the Airport at the same time when the seizure was effected. Therefore, according to him the entire edifice of prosecution story must collapse because the officers were not at all present at the Airport. The learned Special Public Prosecutor for N.C.B. submitted first, that the statement of Shri. Mule about his presence in the office may be inaccurate and he may have stated so on account of lapse of memory. She submitted that there was sufficient other evidence to show that the officers were present at the Airport at the relevant time and had in fact conducted search. According to her, the evidence of other witnesses would also be sufficient, after excluding the evidence of Patil and Mule, to conclude that the contraband was seized from the appellant Jakoet. 25. The learned counsel for the appellant is right in submitting that the evidence of other witnesses like panchas would not be helpful in proving search and seizure when the evidence of the officer who conducted search itself is in doubt. He submitted that there is another aspect which is relevant. According to him page No.177 which is the last page of the recovery memo was signed by Shri. Mule as well as Jakoet but not by panchas, when Mule and panchas had signed each and every other page of the recovery memo. This, according to him, may happen because the last page of Exh.28 which had been endorsed in the handwriting of Mule was drawn up after the entire proceeding was over as Mule was in fact not present during the proceeding and panchas had left. 26. Learned counsel for the appellant also submitted that Shri. Mule had described the tablets as having marking NJY on one side and L within G on the other side. P. W. 13 Madan Singh Rawat, the Assistant Chemical Examiner had stated that at one side of the tablet, there were letters NUY and not NJY. He submitted that this inaccuracy also must have been arisen because Shri. Mule was not at all present at the time of raid. P. W. 13 Madan Singh Rawat, the Assistant Chemical Examiner had stated that at one side of the tablet, there were letters NUY and not NJY. He submitted that this inaccuracy also must have been arisen because Shri. Mule was not at all present at the time of raid. Learned Special Public Prosecutor on the other hand submitted that this may be because Shri. Mule did not have magnifying glass which the Scientist in the Laboratory had. He submitted that without magnifying glass, it would be possible to confuse letter J for letter U. As rightly submitted by the learned counsel for the appellants that in such serious matter of about seizure of drugs, this type of carelessness is not expected and if the officer had to decipher letters on the tablet nobody prevented the officer from taking help of magnifying glass. In any case it would be difficult to discern whether the difference in the letters on one side of the tablet could be because of carelessness by the officer or because he was not present at the time of raid. 27. Learned counsel also pointed out that P. W. 11 panch had identified the sample packet at Article No.38/1 and 38/2. He had stated that Article No.38/1 had his signature, signature of the other panch and signature of the appellant Jakoet. Learned counsel pointed out that this article No.38/1 should have ordinarily borne the signature of Shri. Mule also, if he was in fact present at the time of raid. He submitted that curiously this article No.38/1 was not referred to in the evidence of P. W. 2 Mule, creating a possibility that Mule did not refer to this Article 38/1 because it was not prepared by him. It appears that Article No.38 came to be identified by P. W. 4 Ashokkumar Singh, who had stated about the receipt of remnant sample, from the Laboratory of Deputy Chief Chemist. It appears that Article No.38 came to be identified by P. W. 4 Ashokkumar Singh, who had stated about the receipt of remnant sample, from the Laboratory of Deputy Chief Chemist. Learned counsel for the appellant submitted that it was indeed strange co-incidence that Mule not only deposed in another case about his presence at N.C.B. office at 10.00 a.m. on the incidental day but admitted in this case that he had so deposed and did not furnish any explanation; that the signatures of panchas are missing on the last page of recovery memo at Exh.27; that the officer is inaccurate about marking on one side of tablet; and does not even refer to Article 38 sample packet in his evidence, which bears signature of panchas and the accused, with no attempt by the prosecution to state or show that it was also signed by P. W. 2 Mule. 28. The contention of the learned Special Public Prosecutor that even after excluding the evidence of Shri. Mule there is ample evidence to connect the appellants to crime, cannot be accepted since Mule was the officer who had carried the entire operation and if he had stated on oath that he was at a different place, the whole edifice must collapse. Further, P. W. 12 Mohnish who is alleged to have checked in the bags admitted that his signing code was not on tag at Exh.20 when his signing code should have been on the baggage tag. 29. As far as appellant Rashied Davids is concerned, P. W. 15 Ajit Patil had stated about operations carried at Hotel Ajanta, after having been present at the Airport. It seems that he was accompanied there by P. W. 3 Fellix D'souza and P. W. 4 Ashokkumar Singh. All that was seized at Hotel Ajanta is packing material and some bags. Though the learned Special Public Prosecutor submits that this packing material and the bags were similar to the material which was used for carrying the contraband by the appellant Jakoet at the Airport, this in itself, would not be sufficient to connect appellant Rashied Davids with an attempt to export the contraband. The contention of the learned Special Public Prosecutor is that the appellant Jakoet's already staying in the said room and Rashied Davids joining him afterwards would be indicative of their engaging in conspiracy to smuggle the goods out of India. The contention of the learned Special Public Prosecutor is that the appellant Jakoet's already staying in the said room and Rashied Davids joining him afterwards would be indicative of their engaging in conspiracy to smuggle the goods out of India. However, here too one cannot overlook fact that P. W. 15 Ajit Patil, who was the officer who conducted search at Hotel Ajanta, was according to deposition of Shri.Mule in Special Case No.77 of 2003, in the office of N.C.B. itself at the relevant time. 30. Though the offence is quite serious the doubts created by evidence of Mule in case No.77 of 2003 about his and Patil's presence in the N.C.B. office at the relevant time would make it imperative that the prosecution story cannot be accepted for its face value. The learned Special Public Prosecutor submitted that there are statements of accused persons recorded under Section 67 of the N.D.P.S. Act which though retracted are admissible and would prove the conspiracy as well as attempt to export the contraband. However, when the officers of N.C.B. depose in a manner which would discredit their version, even statements recorded would become suspicious. When P. W. 2 Mule states that he and P.W. 15 Patil were at the N.C.B. Office, their claims in this case that they were present at the Airport and at Hotel Ajanta, or the claim of their colleagues that they were so present at the Airport or Ajanta Hotel would have to be looked at with suspicion. The conviction of the appellants cannot be based on such suspicious evidence. 31. The conviction of the appellants cannot be based on such suspicious evidence. 31. At the cost of repetition, it has to be pointed out that what has been seized from appellant Rashied Davids in Room No.408 of Hotel Ajanta was the only packing material and empty bags which he claims that the appellant Jakoet had left behind, and, as far as appellant Jakoet is concerned, possibly the absence of Mule and Patil at the time of raid alongwith the other circumstances enumerated above, namely, absence of signature of panchas on the last page of exh.27 when they had signed all other pages, Mule stating about letters on one side of tablet to be NJY when they were in fact NUY and his failure to refer to Article 38/1 the sample packet with remnant received from the Forensic Science Laboratory would result in doubt about the appellants' complicity in the offence, benefit whereof must go to them. 32. In the result the appeal is allowed. The conviction of the appellants for the offences punishable under Sections 8(c), 22(c), 28, 23(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, and the sentences imposed are quashed and set aside. They are acquitted of the above offences and they be set at liberty after completing with the requirements of Code of Criminal Procedure, if not wanted in any other cases.