Judgment

Nanavati, J.-The appellant was tried by the Court of Additional Sessions/Special Judge for Greater Bombay in N.D.P.S. Case No. 1232 of 1988, for committing the offences punishble under Sections 21, 23, 29 and 30 read with Section 8(c) of N.D.P.S. Act and Section 135 of the Customs Act. The learned Special Judge believed the prosecution evi­dence and held that the accused did possess 3.8 Kgs. of heroin in contravention of the provisions of N.D.P.S. Act and was thus guilty for the offence punishable under Section 21 read with Section 8(c) of the Act. The other charges of conspiracy and abetement were held not proved and, therefore, the learned Judge acquitted him of those of­fences. The charges under Section 30 of N.D.P.S. Act and Section 135 of the Customs Act were also held not proved. Feeling aggreived by the order of conviction and sentence imposed upon him, the appellant has filed this appeal.

2. The trial Court after appreciating the evidence of S.M. Sawant (P.W. 1) whoc was then working as an Intelligence Officer in the office of Directorate of Revenue at Bombay and that of Krishna Kumar (P.W. 2) who was then working as Assistant Director of D.R.I. at held that their evidence was trustworthy and can safely be relied upon as it was also corroborated by the evidence of P.W. 3 Anthony Fernandis, who was the Manager of the hotel in which the apellant had stayed. The trial Court further held that the evidence of these three witnessed clearly establishes that from room No. 201, which was occupied by the appellant, 2 packets containing 3.8 Kgs. of Heroin was found. The evidence of P.M. 3 further discloses that the appellant was the only person staying in that room and that on search by the officers P.W. 1 and P.W. 1 and P.W. 2, 2 packets of heroin, 2 passports, one in the name of Djama and other in the name of Abdul Rehman but bearing the photographs of the appellant and one packet with the false botton were found from that room. The trial Court further held that their evidence further establishes that Court held that the evidence of P.W. 4 Domnic, who was acted as a Panch witness, was also reliable and that evidance and the panchnama, Ex. 40 do corroborate the evidence of P.W. 1 and P.W. 2. The trial Court disbelieved the defence of the appellant that he was not staying in the hotel from which the said articles were found and that he was picked up by the officers while he was near his lawyer’s office and then taken to the hotel.

3. The High Court on re-appreciating the evidence of these witnessed agreed with the finding that evidence is trustworthy and that their evidence is sufficient to establish that it was the appellant who was in possession of those articles.

4. It was contended by the learned counsel for the appellant that the evidence regarding the appellant having entered the hotel at about 6.30 p.m. and that he was followed thereafter by the officers of the D.R.I. is not believable as P.W. 3 Anthony Fernandis had stated in his earlier statement recorded by the D.R.I. Officers that the appellant ws in his room No. 201 and as there was a phone call from outside, he was called from his room and while he was talking on telephone, two persons had come from outside. In his deposition before the Court, this witness had clearly stated that he was not really in the hotel at that time and that he was called from the other hotel which belonged to the same owner and which was at the distance of 5 to 7 minutes walk.

As a Manager he was looking after both the hotels. It appears that because the appellant was seen with a telephone in his hand he had inferred that he was called from his room. The fact remains that the evidence of P.W. 1 and P.W. 2 nad P.W. 3 is consistant on the point that while the appellant was near the reception centre and had the telephone receiver in his hand, two officers of DRI had gone there, that they had tried to apprenend the appellant and at that time there was some scuffle and appellant had tried to