The trio was arrested on January 30, 2005, by the Mumbai Narcotics Control Bureau after they raided Pooja guest house in Nerul and claimed to have seized 2 kg of heroin from the room where the three accused were found. The NCB claimed that they had received a tip-off that heroin was to be sold in the room for Rs2 lakh.
"Mere presence (of the drug) on the premises is not good enough," said Jadhav, adding, "The prosecution has miserably failed to establish the conscious possession of the contraband by any of the accused." The court pointed out that the NCB officers had not conducted investigations to establish who owned the bag containing heroin, which they had claimed was lying on the bed in the room. The prosecution did not furnish an independent witness to corroborate the search and seizure, or evidence as to who had carried the bag into the room. No effort was made to check with the accused about the contents of the bag or its ownership, the HC said, pointing out that the officers had entered the room and opened the bag presuming that it belonged to the accused.
"The very fact that the prosecution failed to establish conscious possession of the contraband would entitle the accused to the benefit of doubt," the judge said. The HC agreed with the lawyers for the accused "that the possibility that the bag was left in room by the previous occupant cannot be ruled out and the present accused cannot be held responsible for the same".
The trial court had sentenced the three to 10 years rigorous imprisonment and Rs1 lakh fine each in December 2009. The appeals filed by the accused came up for hearing recently before the HC, almost at the end of the prison term awarded by the trial court. "The court cannot be oblivious of the fact that the accused have almost undergone the substantive sentence as they have been in custody since January 2005," remarked the high court.
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