TMI Blog1993 (12) TMI 223X X X X Extracts X X X X X X X X Extracts X X X X ..... as to fly from New Delhi to Lagos via Bombay by Air India Flight No. AI-860 and for that purpose he reported for customs clearance in the International Departure Customs enclosure of Indira Gandhi International Airport, New Delhi at the Air India counter. A team of the Narcotics Control Bureau consisting of Mr. U.K. Mishra, Mr. D.C. Mishra and Mr. K.K. Sood, Intelligence Officers was present at the I.C.I. Airport, New Delhi. On suspicion it was decided by the team of the Intelligence Officers of N.C.B. to check the baggage which the appellant had booked. Before doing so, the Intelligence Officers organized a raiding party in which two independent witnesses,namely, Mr. Sita Ram (Public Witness 2), who was working as Traffic Assistant with Japan Airlines and Mr. Dhir Singh (Public Witness 5), who was working as senior loader with Air India at I.G.I. Airport, New Delhi were also included. The raiding party asked the appellant whether he was carrying some narcotics drugs or any other contraband goods and on his refusal, the luggage which was got booked by the appellant were searched. He was carrying two hand bags, one black zipper hand bag and one black coloured leather hand bag. As pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .C. Johri, Chemical Examiner, Central Revenue Control Laboratory (Public Witness 3), Mr. V.K. Srivastava, Chemical Assistant, C.R.C.L (Public Witness 4), and Mr. Dhir Singh (Public Witness 5). (5) Mr. U.K. Mishra, Public Witness 1, Mr. Sita Ram, Public Witness 2 and Mr. Dhir Singh, Public Witness -5 are the witnesses of recovery of 180 grams of heroin recovered from the baggage of the accused, its sampling, sealing and seizure vide Panchnama Ex Public Witness I/B. Mr. S.C. Johri, Public Witness 3 has proved report Public Witness 1/G relating to the analysis of the sample. Mr. V.K. Srivastava, Public Witness 4 prepared report Ex Public Witness 1/G after analysing the sample handed over to him by' Mr. S.C. Johri for the purpose of analysis. (6) In his statement under Section 313 Cr.P.C. the appellant denied the allegations against him and claimed that he was falsely implicated. According to him, the baggage from which the heroin was allegedly recovered did not belong to him and the same belonged to another Nigerian, namely, Teetu Joseph. He also denied having made the statement Ex Public Witness 1/Dvoluntarily. According to him, the statement Ex Public Witness 1/D was all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he prosecution case. (10) Learned Counsel further argued that the person who is said to have delivered the sample to the Chemical Examiner has not been produced. Even the letter which was filed with the complaint does not bear the mention of the person who had delivered the sample to the Chemical Examiner. He argued that both Pw 3 and Public Witness 4 from the office of the Chemical Examiner have not been able to explain several cuttings and changes of the dates on Ex Public Witness I /6 and Ex Public Witness I /6-1. These are copies of the report. There are contradictions in the statements of both these witnesses Public Witness 3 and Public Witness 4. He submitted that the Trial Court failed to take notice of the material defects in the case of the prosecution. (11) The learned Counsel challenged the statement of the appellant allegedly recorded under Section 67 of the N.D.P.S. Act. According to him, though the statement recorded under Section 67 of the N.D.P.S. Act is not hit by Section 25 of the Evidence Act, but in view of the Section 53A of the N.D.P.S. Act this statement so recorded loses its significance. According to the learned Counsel, no reliance can be placed on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cal Examiner has himself made appearance to explain the cuttings of the dates. He also pointed out that there was no question of complying with the provisions of Section 50 of the N.D.P.S. Act in this case. It was on the search of the baggage belonging to this accused that heroin was recovered and the search was made in the presence of two independent witnesses. Countering the argument of the learned Counsel for the appellant that it has not been proved that the suitcase from which the heroin was allegedly recovered belonged to the appellant, learned Counsel for the respondent submitted that this appellant had himself got booked this suit case along with other baggage at the counter of the Air India. While booking the baggage, the boarding card and the booking slip Ex P9 and P-10 were duly given to him and the baggage tag had also been attached with these two baggages. Whether Ex P-9 and P-10 are the counter foils of the tags attached on the baggages is immaterial. It cannot be the case of the accused that these two documents Ex P-9 and P-10 were got fabricated later on. These were found tagged with the Air ticket of the appellant. (14) Regarding the non-compliance of Section 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich led to the recovery of the heroin. PW-1, Mr. U.K. Mishra, Intelligence Officer, Ncb has clearly stated in his statement that on search of the sky star zipper suit case. Ex P-5,153 cartons of tetanus vaccines were recovered. These cartons were opened and examined. 152 cartons were found to contain tetanus vaccine. The carton marked H was found to contain a polythene packet containing brown coloured powder closed with black adhesive tape. The brown coloured powder recovered from that carton was weighed and it came to 180 grams. The said powder believed to be heroin was seized by Mr. U.K. Mishra under the provisions of the N.D.P.S. Act vide Panchnama Ex Public Witness 1/B, which was prepared in the presence of the witnesses and the accused on the spot. Mr. Sita Ram (Public Witness 2) , the other panch witness also corroborated the statement of Mr. U.K. Mishra, PW-1. (18) As far as this part of the evidence led by the prosecution is concerned, there does not seem to be any dispute. The dispute is only with respect to the fact whether this suit case, Ex P-5 from which the said heroin was recovered belonged to the appellant or not. In this regard, it has come in the statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The statement made by the accused was recorded by the Intelligence Officer of the N.C.B., who is not a police officer,and it is admissible in evidence. Section 53A of the N.D.P.S. Act concerns a different aspect of the matter. As per the provisions of Section 53A the relevancy of the statement has to be seen. A statement made and signed by a person before any officer empowered under Section 53 for the investigation,of offences, during the course of any inquiry or proceedings by such officer, shall be relevant for the purpose of proving the truth of the facts which it contains, when the person who made the statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considered unreasonable; or when the person who made the statement is examined as a witness in the case before the Court and the Court is of the opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interest of justice. (19) The statement recorded under Section 67 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er making the deposit to take sample etc. (21) Regarding the taking of samples and sending the same to the Chemical Examiner for analysis, Public Witness -I has stated that three representative samples were taken from the seized heroin and were sealed under his signatures and those of the public witnesses and the accused. Thereafter, three representative samples were sealed with the seal of the N.C.B. bearing No. 08,which were marked H-1, H-2 and H-3. The remaining brown powder along with the adhesive tape was kept back in the same carton marked \\ and then the same were sealed with seal No.OS under his signatures and those of the public witnesses and the accused. He further stated that one representative sample was sent to the C.R.C.L. Laboratory, New Delhi on the same day with a covering letter Ex Public Witness 1 /5, bearing the specimen of the seal. Mr. S.C.Johri, Chemical Examiner, Public Witness -3, of C.R.C.L, New Delhi has stated that he received one sample from Mr. S.K. Wadhera, Intelligence Officer, N.C.B pertaining to this case along with the forward ing letter No. Ex PW 1/E. He allotted the sample to Mr. V.K.Srivastava, Chemical Assistant Grade Ii for analysis and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... along with the forwarding letter Ex P.W 1/F. The plea that the seal was not handed over to the public witness after use is also not tenable in view of the present circumstances of the case. There is neither a statutory requirement nor a precedential mandate for handing over the seal used by the police officer in the course of an investigation to a third person forthwith. A Full Bench of the Punjab and Haryana High Court has held it so in the case of Piara Singh vs. State of Punjab [1982 Vol. 84, P.L.R. 244]. (24) Regarding the not taking into possession the key of the alleged suit case, Ex P-5, it is also not fatal to the case of the prosecution in the present circumstances of the case. The Trial Court has discussed this aspect of the matter in detail and it needs no interference. (25) The plea of the learned Counsel for the appellant that Mr. Dhir Singh, Pw 5, the other public witness has not supported the case of the prosecution and the benefit of doubt should have been given to the appellant is also not tenable in the present circumstances of the case. Besides the statement of the other public witness, Mr. Sita Ram, who appeared as Public Witness 2 and has supported the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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