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Edward Khimani Kamau Versus The Narcotics Control Bureau

2015 (6) TMI 817 - DELHI HIGH COURT

Conviction under Section 21(C) read with Section 23 read with Section 28 of NDPS Act - Held that:- Transferring the powder of all 9 packets into one polythene and then taking out two samples and sending one sample to CRCL causes serious prejudice to the appellant as it cannot be ascertained whether all the 9 packets were containing heroin or not. - appellant was also carrying a paper Ex.PW3/DA containing the details of the consigner and consignee according to which the parcel was to be consigned .....

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t Pinto Deep was his boss who was not in Delhi. Admittedly, neither the invoice nor the copy of the passport in the name of Pinto Deep were seized nor placed on the judicial file. Moreover, no enquiry was made by the NCB officials as to who had handed over the cardboard box containing the narcotic drug to the appellant and where the same was to be sent.

Burden to prove the case beyond reasonable doubt was upon the prosecution. The provisions of the Act and the punishment prescribed t .....

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t be sustained and is set aside - Decided in favour of appellant. - CRL.A. No. 1113/2011 - Dated:- 28-5-2015 - Sunita Gupta, J. For the Appellant : Mr. Vikas Gautam, Adv For the Respondent : Mr. Mukesh Malik, Adv JUDGMENT Sunita Gupta,J. 1. Edward Khimani Kamau impugns the judgment dated 06.05.2011 and the order on sentence dated 11.05.2011 vide which he was convicted under Section 21(C) read with Section 23 read with Section 28 of NDPS Act and was sentenced to undergo rigorous imprisonment for .....

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ersons are actively involved in the illegal export of heroin and drugs to various countries through courier and this group has a member namely Edward resident of Uttam Nagar who books parcels containing drugs through courier in Delhi. It was further informed that he would come to DTDC office at 1666-C, first floor, Govind Puri Extension on the night of 05.02.2009 to book a parcel in which drug has been concealed. This information was reduced into writing and was put up before the Superintendent .....

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of the informer, he was intercepted at the counter of DTDC office. Sh.P.C.Khanduri gave his introduction and told him about the information. Sh.Arvind Kumar, In-charge of DTDC office was joined to witness the proceedings. The accused was served with a notice under Section 50 of NDPS Act apprising of his legal right to be searched before a Gazetted Officer or a Magistrate explaining its meaning but he declined. The Investigating Officer also offered the search of the raiding party to the accused .....

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rees were also kept in a cloth. All the parcels were sealed with the seal of Narcotics Control Bureau DZU 2. The accused was also carrying a paper containing the consignor and consignee details which was taken into possession vide Ex.PW3/DA. Summons under Section 67 NDPS Act was served upon the accused to appear in the NCB office where he tendered his statement admitting his complicity in the business of drug trafficking. He was thereafter arrested. The seizing officer and the arresting officer .....

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antiate its case, prosecution examined as many as 8 witnesses. In his statement recorded under Section 313 Cr.P.C, the accused controverted the entire prosecution case and pleaded his innocence. He stated that he never dealt with narcotic drugs and he was forcibly taken by the NCB officers to their office where they illegally kept him and forcibly made him to sign some written and blank papers and later on completed all the formalities. He denied visiting DTDC office. After hearing arguments and .....

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t was not complied with; (ii) Presence of the accused at DTDC office and his arrest is doubtful; (iii) The accused was not searched in the presence of a Gazetted Officer or a Magistrate hence Section 50 of the NDPS has been violated; (iv) Accused is not the owner of the alleged parcel/packets and the same is planted by NCB after failing to locate the actual owner of the consignment; (v) Prosecution did not join at least two independent witnesses in the seizure and search of the alleged recovery .....

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summons under Section 67 NDPS Act and in response to the summons, he appeared before Sh.Manoj Kumar and gave his voluntary statement Ex.PW-7/A where he admitted his involvement in the commission of offence under NDPS Act. No complaint was made by him to the Court when he was produced for the first time that he was forced to write the statement. No allegation of any torture was made by the appellant and only bald and vague allegations were made that he was mistreated and threatened. There was no .....

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ions filed by the parties. 8. Although the impugned judgment has been challenged by learned counsel for the appellant on number of grounds, however, the appeal filed by the appellant can be decided on the ground (vi) alone. It is the case of prosecution as reiterated from the seizure memo Ex.PW3/A and the testimony of PW-2, PW-3, PW-6 and PW-7 that on checking the cardboard box nine long polythene boxes were recovered. On checking of all the nine boxes they were found to contain off white colour .....

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relied upon Basant Rai vs State 2012 VI AD (DELHI) 707. In that case also as per the prosecution case the accused was carrying a green coloured polythene bag which contained 8 similar polythene bags having black coloured substance. Two samples of 25 gms each were taken after breaking charas from each of the 8 slabs the samples were sent to FSL and it found to be charas. Reliance was placed on Gaunter Edwin Kircher vs. State of Goa 1993(3) SCC 145 where in similar factual matrix their Lordship h .....

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also contained Charas. It has to be borne in mind that the act applies to certain narcotic drugs and psychotropic substances and not all other kinds of intoxicating substances. In any event in the absence of positive proof that both the pieces recovered from the accused contained Charas only, it is not safe to hold that 12 gms. of Charas was recovered from the accused. In view of the evidence of P.W.1 it must be held that the prosecution has proved positively that Charas weighing about 4.570 gms .....

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should be sent for chemical examination under a regular panchnama and as per the provisions of law. 9. Following this judgment, it was held by a single Judge of this Court that a wrong process of taking samples was adopted by the police. The police should have taken the samples from each packet instead of mixing all samples into two representative samples. This is precisely for the reasons that if the 8 packets were allegedly recovered from the appellant and two packets have contraband substanc .....

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o the recovered material was found packed in two separate gunny bags weighing 40 kgs each. The seizure officer mixed the material packed in the two gunny bags and then collected the samples which were forwarded to FSL. Relying upon Gaunter Edwin Kircher (supra) and Ghewar Ram vs. State of Rajasthan reported in 2007(2) Cr.L.R.(Raj.) 1695, it was held that the procedure adopted by the seizure officer in mixing the articles contained in different packets and collecting a single sample from the same .....

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ner and consignee according to which the parcel was to be consigned at USA and name of the consigner was shown as Pinto Deep C-33, Kalkaji, New Delhi-17 India. Admittedly no enquiry regarding Pinto Deep or the consignee was made by the prosecution. Moreover, as per the testimony of PW-3 Arvind Kumar the accused was carrying the photocopy of passport in the name of Pinto Deep and also one invoice in his hand. He had seen invoice wherein the address was mentioned and also the passport which was in .....

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g to PW-3, the accused had also told him that the parcel was to be sent to South Africa, however, he admitted that on the parcel, address of South Africa was not mentioned. This also cast a suspicion on the prosecution story. 12. Further, there is a lot of discrepancies and contradictions regarding the colour, smell and texture of the contraband allegedly recovered from the appellant in the testimony of the witnesses. As per the prosecution case, two samples were drawn one was sent to CRCL and t .....

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d that colour of the alleged contraband was yellowish while PW-8 Budwan Ram, the Chemical Examiner mentioned that colour was dark brown. Furthermore, there was difference in weight of the sample in the test memo. The net weight of the sample sent for analysis was given as 5 gms while the sample received at the laboratory was 5.7 gms. Furthermore, it is not clear as to what was the texture of the sample allegedly recovered from the possession of the accused whether it was powder or tikiya or pebb .....

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