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TMI Blog2011 (12) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... ing an overcoat during summer season which seemed unusual. Due to suspicion he was intercepted at the customs counter. On inquiry, he replied that he was carrying only US $ 2000 and Indian Rs.450/- and denied carrying any Narcotics Drugs. Not being satisfied by the reply of the Respondent, the Air Custom Officer Shri Jarnail Singh, the Complainant decided to examine the hand bag and the person of the Respondent in the presence of panch witnesses. Notices under Section 102 of the Customs Act and Section 50 of the NDPS Act were served on the Respondent apprising him of the legal right available to him. The Respondent did not want to get himself examined by a Gazetted Officer or a Magistrate and thus the Air Custom Officer examined him. The overcoat worn by the Respondent revealed some hand stitches, thus it was further examined. On thorough examination of the overcoat, one capsule type substance concealed in the inner side of the overcoat was found and the same was tested on Ionscan Barringer scanner which tested positive for presence of Narcotic Drugs i.e. Heroin and THC. On cutting open the capsule white powdery substance was found wrapped in plastic packing. A small sample of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is contended that the finding of the Learned Trial Court regarding discrepancy in collection of the samples and deposition thereof with the CRCL is erroneous. Learned counsel refers to the testimony of PW1, PW5, PW7 and PW10. Reliance is placed on Siddiqua vs. NCB, 2007 (1) JCC Narcotics 22 Delhi, Gita Lama Tamang v. State of (G.N.C.T.) of Delhi,2006 (3) JCC Narcotics 197. 5. It is contended that the finding of the Learned Special Court that there was discrepancy with regard to marking of the samples in the forwarding letter is erroneous. Three samples were drawn from the first recovery and marked as A1, A2 and A3. Sample mark A1 was sent to CRCL along with test-memo and forwarding letter dated 15th March, 2007. As per the receipt obtained from CRCL, sample A1 had been received. It is stated that inadvertently in the forwarding letter dated 15th March, 2007 it has been written that sample mark A has been sent instead of sample mark A1. Similarly, with regard to other set of recovery, samples mark B1, B2 and B3 were drawn and sample B1 was sent to CRCL along with test memo and forwarding letter dated 16th March, 2007, however, the same mistake occurred and instead of B1, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egard cannot be relied upon. 8. It is further contended that even the recovery of 77 capsules from the Respondent is doubtful. No MLC, X-ray, CT Scan or any medical document has been placed on record. Even the OPD slip does not mention the fact that the capsules were ejected before the Customs Officers. The Doctors in whose presence the capsules were ejected have not been examined. Further the order of the Learned Metropolitan Magistrate under Section 103, Customs Act has also not been complied with. The testimony that samples were drawn from 77 capsules was also doubtful. The only explanation with the Appellant is that there was a typographical error which is not possible. Further the test memos were prepared on the 15th March, 2007 and not on 13th March, 2007. They were not deposited in the malkhana. Samples mark A1, A2 and A3 and remaining case property were not deposited in the malkhana on 13th March, 2007. PW1 has admitted in his statement before the Court that he neither remembers the time of taking/drawing nor of depositing the seal affixed on the samples and the case property. There is no evidence as to who handed over the samples to PW4. The samples received by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grams. Three samples of 2 grams each were taken from this. The samples were marked as A1, A2 and A3 and the remaining substance was kept in a plastic pouch and sealed with the cloth, stitched and sealed with the custom seal over a paper slip bearing the signatures of the concerned signatories of the panchnama. The overcoat was also taken into possession vide memo Ex. PW1/C. 11. PW1 has further stated that the Respondent was asked whether he had any further substance to which he replied that he had concealed 70-75 more capsules in his body. The currency of US $ 2,000 and Rs.450/- and the hand bag were returned to the accused, however, the travelling documents, that is, the air ticket, boarding pass were seized. Thereafter in view of the disclosure of the Respondent of having concealed capsules, he was taken to the learned Duty Magistrate and an application under Section 103 of the Customs Act was filed before the learned Duty Magistrate being Ex. PW1/G. The learned Duty Magistrate permitted the Respondent to be admitted in RML hospital for medical assistance, X-ray and CT Scan. Thereafter the Respondent was admitted to RML hospital where he remained till 14th March, 2007. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re sealed. The samples were sent to CRCL by Shri Rajiv Kumar, ACO. The statements of panch witnesses were recorded under Section 67 of the NDPS Act, which were duly exhibited. The test memos were prepared in triplicate on 15th March, 2007 for the recoveries effected on 13th March, 2007 and 14th March, 2007. The two tests reports were duly received and exhibited as Ex.PW10/A and Ex.PW10/B along with their remnant samples. All these articles were duly exhibited during the evidence of this witness and marked as Ex. P1 to P36. The statements of the doctors were also recorded under Section 67 of the NDPS Act. 12. A perusal of the testimony of PW1 and Exhibit PW1/B shows that the Respondent was duly informed about his legal right to be searched before a Gazette Officer or a Magistrate, which he declined. Further notice under Section 102 of Customs Act informing the Respondent about the fact that if he so desires his search could be conducted before a Gazette Officer or a Magistrate was also given vide Exhibit PW1/A which was also declined by him. Further Section 103 of the Customs Act was also complied with as an application was moved to the learned Metropolitan Magistrate being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... letter was inadvertent due to typing mistake and is not an error which goes to the root of the matter especially in view of the fact that the Respondent has not cross-examined PW-1 on this aspect. Further a perusal of Exhibits PW4/B, 4/C, 4/E and 4/F shows that it was the samples marked A1 and B1 which were sent to the CRCL. This testimony of PW1 is corroborated by PW10 Shri S.K. Mittal, Chemical Examiner. He states that he had received sample packets marked A1 and B1 with seals intact. There is no doubt that there is an error in the forwarding letter which states that sample A is being sent, however the CRCL form annexed thereto clearly states that the samples sent to the laboratory were A1 and B1. The finding of the Learned Trial Court that there is no cogent evidence on record that sample mark A1 which was drawn at the spot from the substance recovered on 13th March, 2007 was sent to the CRCL as in the forwarding letter Ex.PW4/A the sample which was sent to CRCL for analysis is mentioned as mark A and not mark A1, is perverse. 15. Further the difference in the weights of samples sent to the CRCL has also been explained by PW10 in his cross-examination. He has clarified t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be positive for heroine (diacetylmorphine) and reports regarding the same were Ex.PW10/A and PW10/B . 17. Much emphasis has been laid by the Learned Trial Court on the fact that the representative samples mark A1, A2 and A3 and the remaining case property were not deposited with the Malkhana on 13th March, 2007 itself and was kept by PW1 in his own custody till 15th March, 2007. It may be noted that the facts of each case have to be looked on the basis of their peculiar circumstances. Learned Special Judge has held that PW1 in his cross-examination has stated that Panchnama proceedings were over on 13th March, 2007 at 6.00 PM and then he reached the house of Duty Magistrate at 8.30 PM but still he failed to explain why the case property and the samples were not deposited. PW1 was put this question and he replied that the accused had concealed some capsules in his body, due to fever the said capsules may have bursted and due to shortage of time he could not deposit the above said case property and samples with the SDO(A) on the same day. Whenever an investigation is conducted minute by minute explanation of the sequence of events cannot be given meticulously. Before going ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... From the evidence of the PW1 it is evident that he took the customs seal No.6 on the 13th and 15th March, 2007 and returned the same on the same day after conclusion of proceedings. 20. The statements of the PW1 is corroborated by the statement of the Respondent recorded under Section 67 of the NDPS Act by PW2. The Respondent has retracted the said statement on 28th March, 2007 and has stated that the same was taken from him under duress, by beating and torturing physically and mentally. It may be noted that the Respondent was taken to Hospital immediately after his apprehension and admitted therein. A perusal of the OPD cards of the Respondent being Exhibits PW1/J and PW1/K do not show that the Respondent had received any injury. Further the statement was recorded on 15th March, 2007 and the Respondent was produced before the learned ACMM on 15th March, 2007 itself wherein no injury was pointed out by him and the learned ACMM sent him to judicial custody after getting medically examined. 21. A criminal trial is a quest for truth. The prosecution is required to prove its case beyond reasonable doubt and not by way of perfect proof free from all blemishes. Thus, I f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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