2018 (8) TMI 1985 - HC - Indian Laws

Smuggling - offences contemplated by Sections 21(c) and 23(c) read with Section 28 of the Act - inconsistencies in the testimonies of the various witnesses who deposed regarding the seizure effected - HELD THAT - Once the test reports using the Field Testing Kit of the NCB team and as provided by the CRCL are discarded from consideration the only evidence to indicate that the parcel booked at Student Infoline Courier contained heroin was the statement of the appellant recorded under Section 67 of the Act. The statement of Umesh Madan only proved the fact of booking by the appellant of the parcel at Student Infoline Courier and its subsequent booking by Umesh Madan at Aramex. It did not throw any light on the contents of the parcel. True in response to a leading question put to him during the recording of his statement under Section 67 of the Act on 17 th April 2012 the appellant did state that he had booked a parcel containing heroin at Student Infoline Courier in April 2011 the fact of the parcel containing heroin figured only in the suggestion contained in the leading question put to him in that regard. That apart the said statement was retracted by the appellant by way of a written retraction placed in the file of the case relating to the recovery of 410 g heroin from the appellant as recorded by the learned Special Judge in the statement of the appellant under Section 313 of the Cr PC on 18th February 2014. The statement of the appellant under Section 67 of the Act having been recorded in the office of the NCB and having been retracted by the appellant subsequently it cannot be safely said that the statement was voluntary especially in respect of an entirely different consignment being investigated in an altogether different case. In the absence of any other corroborative evidence I am not convinced that a case of attempt to export heroin from India can be said to have been made out against the appellant solely on the basis of his statement under Section 67 of the Act. The prosecution has not been able to prove conclusively that the appellant had attempted to export heroin and that he had therefore committed the offences contemplated by Section 21(c) 23(c) and 28 of the Narcotics Drugs and Psychotropic Substances Act 1985 - appellant is accordingly acquitted of the said charges and shall be released forthwith unless required to be detained in any other case - Appeal allowed.

Issues Involved:
1. Legality of search and seizure.
2. Compliance with mandatory statutory requirements.
3. Identification and involvement of the appellant.
4. Validity of the appellant's statement under Section 67 of the NDPS Act.
5. Sampling and testing of the seized substance.
6. Applicability of Sections 35 and 54 of the NDPS Act.
7. Applicability of Section 106 of the Indian Evidence Act, 1872.
8. Sufficiency of evidence for conviction.

Issue-wise Analysis:

1. Legality of Search and Seizure:
The court examined the procedure followed during the search and seizure at the office of Aramex. The evidence of PW-1 Surender Singh, PW-4 Sanjay Rawat, and PW-7 Kiran Bala, corroborated by the panch witnesses PW-2 Ashok Kumar and PW-11 Ravikant Thakur, proved that the search and seizure were conducted in accordance with the law.

2. Compliance with Mandatory Statutory Requirements:
All mandatory statutory compliances were effected post-seizure. The case property was produced before the empowered officer under Section 53 of the NDPS Act, as required by Sections 52 and 55. The statutory report under Section 57 was submitted, and the sample was sent to the CRCL for analysis, which tested positive for heroin.

3. Identification and Involvement of the Appellant:
The identification of the appellant was established through multiple pieces of evidence:
- The Airway Bill, invoice, and driving licence attached to the parcel were in the appellant's name.
- Umesh Madan (PW-10) identified the appellant as the person who booked the parcel.
- The appellant's statement under Section 67 of the NDPS Act admitted to booking the parcel containing heroin.

4. Validity of the Appellant's Statement under Section 67 of the NDPS Act:
The court considered the statement of the appellant under Section 67, which was recorded without evidence of threat, pressure, or coercion. The statement was deemed admissible and reliable, as held in Kanhaiya Lal v. UOI and M. Prabhu Lal v. Asstt. Director of Revenue Intelligence. However, the appellant's retraction of the statement and the context of its recording in another case raised doubts about its voluntariness.

5. Sampling and Testing of the Seized Substance:
The court found inconsistencies in the testimonies regarding the sampling and testing process. The sampling was not done in accordance with Standing Instruction 1/88, and the samples tested could not definitively be said to be representative. The court relied on precedents like Bal Mukund v. UOI and Edward Khimani Kamau v. NCB to conclude that the sampling process was flawed, creating a reasonable doubt about the evidence.

6. Applicability of Sections 35 and 54 of the NDPS Act:
Sections 35 and 54 create a statutory presumption of culpable mental state. However, the court found that the prosecution failed to conclusively prove the appellant's guilt beyond reasonable doubt, thereby entitling the appellant to the benefit of doubt.

7. Applicability of Section 106 of the Indian Evidence Act, 1872:
Section 106 shifts the burden to the appellant to explain how documents bearing his name were found attached to the parcel. The court found the appellant's explanation plausible, given the inconsistencies and procedural lapses in the prosecution's case.

8. Sufficiency of Evidence for Conviction:
The court concluded that the prosecution did not prove the appellant's guilt beyond reasonable doubt. The inconsistencies in the testimonies, flawed sampling process, and the retracted statement under Section 67 led to the appellant being given the benefit of doubt.

Conclusion:
The court quashed the impugned judgment dated 8th October 2015, and the consequent order dated 13th October 2015, convicting and sentencing the appellant. The appellant was acquitted of the charges under Sections 21(c), 23(c), and 28 of the NDPS Act and ordered to be released forthwith unless required in any other case. The appeal was allowed.

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