TMI Blog2020 (7) TMI 354X X X X Extracts X X X X X X X X Extracts X X X X ..... d concealed in a stroller bag . On testing with the field testing kit , the powder in each packet tested positive for heroin. The I.O., without weighing the contents of each individual packet, mixed the powder from all the 4 packets in one polythene bag and then drew the sample from the mixture - In the opinion of this court, the procedure adopted by the respondent in the present case for drawing samples neither conforms to the procedure prescribed under Section 52A of NDPS Act nor under the Standing Orders - At the cost of repetition, the respondent neither filed any application before the Magistrate for drawing the samples under his supervision nor followed the procedure of drawing a representative sample outlined in paras 2.4 or 2.5 read with 2.8 of the Standing Order 1/89. This court is of the view that the samples sent to the CRCL were not the representative samples. Besides, by mixing the contents of all the 4 packets before drawing any sample not only the sanctity of the case property in the individual packet was lost but also the evidence as to how much each individual packet weighed - the prosecution has failed to prove its case against the appellant beyond reasonable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... milar features as mentioned in the secret information. The said person was intercepted by the NCB officials and on enquiry the said African person revealed his name as Amani Fidel Chris and also disclosed that he would be traveling via Siyaldah Rajdhani Express on a valid ticket. (k) The NCB officers then disclosed their identity and the secret information to the said African person. Thereafter a notice u/s 50 of NDPS Act was served upon the accused. He was also made to understand that he had a legal right to be searched before a Magistrate or a Gazetted Officer but the accused refused to exercise the said right and informed that any NCB officer could conduct his search. (l) The accused was carrying one stroller bag of blue colour (make perfect), one black colour pitthu bag (make Adidas) and one laptop bag with laptop (make Dell). Sh. G.S. Bhinder, I0 firstly took the search of the stroller bag and on its search it was found containing four brown carton boxes, one hand towel of sky blue colour and one Sunday School Manual (Book) of light pink colour. On opening of the brown carton boxes, they were found containing one door spring machine of Amrit Company in each cartoon w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed that vide the said airway bill he had sent the parcel to USA on 12/10/2009 through Sh. Subrato by Aramex Courier, Kolkata to USA. The said airway bill was of the same parcel from which 1.2 kg. of heroin had been recovered by the NCB officials on 15/10/2009. The accused also tendered the photograph of Ms. Savita, an election card of Ms. Neha Rai, Photostat copy of airway bill and his member ship card, (n) The case property along with samples and test memo was deposited with the Malkhana Incharge. Reports under Section 57 NDPS Act with respect to the seizure and arrest were submitted by IOs to the Superintendent Sh. Ajay Kumar. (o) Based on the disclosure statement of accused, Sh. Ajay Kumar, Superintendent issued a search authorisation warrant in favour of Sh. Pankaj Kumar Dwivedi, I0 at about 9:45 p.m. on 1/2/2010 and directed him to conduct the raid at the premises of accused Amani. On his instructions a raiding team consisting of Intelligence Officers of NCB namely, Sh. Pankaj Kumar Dwivedi, Sh. Akhilesh Mishra, Sh. M.M.S. Bhandari, Sh. Rajbir and other NCB officials along with accused Amani proceeded from NCB office in official vehicle and reached the house of acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or diacetylmorphine i.e. heroin. After receiving the report of the Chemical Examiner the present complaint was filed. 3. The appellant was charged along with two other co-accused persons Savita @ Neha Rai and Subrata Mitra who were declared proclaimed offenders and the trial proceeded only against the present appellant. The prosecution examined a total of 15 witnesses in support of its case. The appellant, at the time of recording of his statement under Section 313 Cr.P.C., denied the prosecution case. 4. Learned counsel for the appellant has rested his case only on the point that the respondent committed an illegality while drawing samples from the seized substance. He has submitted that as per the case of the prosecution, the recovery was made from a stroller bag which had four carton boxes carrying door spring machines. The cavity of the spring machine was found stuffed with a brown colour packet. In all, four packets were seized. The officials after recovering the contraband from the four packets transferred the contents of the four packets in separate white polythene and mixed it. Two representative samples of 5 grams each were drawn which were later sent to CRCL for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cution examined Pankaj Kumar Dwivedi, Akhilesh Kumar Mishra (PW4), M.M.S. Bhandari (PW9), Dilbagh Singh (PW11) and Bhupender Singh (PW14). Dilbagh Singh was the landlord of the appellant and Bhupender Singh is the landlord s son. 10. The investigation began with a receipt of a secret information by G.S. Bhinder at about 1450 hours on 01.02.2010 that the present appellant was indulged in drug trafficking and was likely to travel on Rajdhani Express and was suspected to be carrying huge quantity of heroin. The information was reduced into writing and put up before Ajay Kumar, Superintendent NCB, who proved the same as Ex. PW2/10. The authorisation to take necessary action in favour of G.S. Bhinder was proved as Ex. PW2/11. 11. G.S. Bhinder, IO deposed that on 01.02.2010 at 1600 hrs, he along with the raiding team reached Platform No. 12 where the appellant was asked for his identity and on confirmation of his name, a notice under Section 50 of NDPS Act was served upon him and he was explained about his legal rights to be searched before a Magistrate or a gazetted officer. On appellant s refusal, a search was carried out. The appellant was carrying a blue coloured stroller bag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zed, must be drawn on the spot of recovery, in duplicate, in the presence of search (Panch) witnesses and the person from whose possession the drug is recovered, and mention to this effect should invariably be made in the panchnama drawn on the spot. 1.6 Quantity of different drugs required in the sample - The quantity to be drawn in each sample for chemical test should be 5 grams in respect of all narcotic drugs and psychotropic substances except in the cases of Opium, Ganja and Charas/Hashish where a quantity of 24 grams in each case is required for chemical test. The same quantities should be taken for the duplicate sample also. The seized drugs in the packages/containers should be well mixed to make it homogeneous and representative before the sample in duplicate is drawn. 1.7 Number of samples to be drawn in each seizure case- (a) In the case of seizure of single package/container one sample in duplicate is to be drawn. Normally it is advisable to draw one sample in duplicate from each package/container in case of seizure of more than one package/container. (b) However, when the package/container seized together are of identical size and weight, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he packages /containers shall be well mixed to make it homogeneous and representative before the sample (in duplicate) is drawn. 2.4 In the case of Seizure of a single package/container, one sample (in duplicate) shall be drawn. Normally, it is advisable to draw one sample (in duplicate) from each package/container in case of seizure of more than one package/container. 2.5 However, when the packages/containers seized together are of identical size and weight, bearing identical markings and the content of each package given identical results on color test by the drug identification kit, conclusively indicating that the packages are identical in all respects, the packages/containers may be carefully bunched in lots of 10 packages/ containers/ except in the case of ganja and hashish (charas), where it may be bunched in lots of 40 such packages/containers. For each such lot of packages/containers, one sample (in duplicate) may be drawn. 2.6 Whereafter making such lots, in the case of hashish and ganja, less than 20 packages/containers remain, and in the case of other drugs, less than 5 packages/containers remain, no bunching will be necessary and no sample need to be d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the individual container/package and test each of the sample with the field testing kit . It is further provided that if the container/packages are identical in shape, size and weight then lots of 10 or 40 containers/packages may be prepared and thereafter representative samples from each container/package in a particular lot are to be drawn, mixed and sent for testing. 17. Mixing of the contents of container/package (in one lot) and then drawing the representative samples is not permissible under the Standing Orders and rightly so since such a sample would cease to be a representative sample of the corresponding container/package. 18. In the present case, four packets containing suspicious powdery substance were found concealed in a stroller bag . On testing with the field testing kit , the powder in each packet tested positive for heroin. The I.O., without weighing the contents of each individual packet, mixed the powder from all the 4 packets in one polythene bag and then drew the sample from the mixture. 19. In the opinion of this court, the respondent ought to have adopted the procedure outlined in Para 2.4 of the Standing Order 1/89 [or para 1.7(a) of Standing O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offences were proposed to be lodged against the respondents by the investigating officers. 88. In Moni Shankar v. Union of India and Anr. (2008) 3 SCC 484 , however, this Court upon noticing G. Ratnam (supra), stated the law thus: 15. It has been noticed in that judgments that Paras 704 and 705 cover the procedures and guidelines to be followed by the investigating officers, who are entrusted with the task of investigation of trap cases and departmental trap cases against the railway officials. This Court proceeded on the premise that the executive orders do not confer any legally enforceable rights on any persons and impose no legal obligation on the subordinate authorities for whose guidance they are issued. 16. We have, as noticed hereinbefore, proceeded on the assumption that the said paragraphs being executive instructions do not create any legal right but we intend to emphasise that total violation of the guidelines together with other factors could be taken into consideration for the purpose of arriving at a conclusion as to whether the department has been able to prove the charges against the delinquent official. It was furthermore opined: (Moni Shankar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w that adequate quantity from each bag had been taken. It was a requirement in law. (emphasis added) 24. Earlier, in Gaunter Edwin Kircher v. State of Goa, Secretariat Panaji, Goa reported as 1993 3 SCC 145, the accused was found in possession of 2 cylindrical pieces of charas which were found to be 7 gram and 5 grams respectively. The investigating agency sent only one piece weighing 5 grams for chemical analysis while neither the second piece weighing 7 grams nor any of its part was sent for chemical analysis. The Supreme Court held that both the pieces ought to have been sent. It was held as follows :- 5. As already mentioned only one piece was sent for chemical analysis and P.W.1, the Junior Scientific Officer who examined the same found it to contain Charas but it was less than 5 gms. From this report alone it cannot be presumed or inferred that the substance in the other piece weighing 7 gms. also contained Charas. It has to be borne in mind that the Act applies to certain narcotic drugs and psychotropic substances and not to all other kinds of intoxicating substances. In any event in the absence of positive proof that both the pieces recovered from the acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he process adopted by the prosecution creates suspicion. In such a situation, as per settled law, the benefit thereof should go in favour of the accused. It does not matter the quantity. Proper procedure has to be followed, without that the results would be negative. 26. Similarly, another coordinate bench of this court in Edward Khimani Kamau v. The Narcotics Control Bureau reported as 2015 SCC OnLine Del 9860 held that transferring the powder of 9 packets into one polyethene and taking two samples and sending one sample to CRCL caused serious prejudice to the case of the appellant as it could not be ascertained whether all the nine packets contained heroin or not. 27. Recently, in Charlse Howell (Supra), 166 polythene strips, allegedly containing heroin, were found stitched in two lehngas. After mixing the substance from all the polythene strips, the samples were sent to CRCL for analysis. While allowing the appeal, it was held that the samples were drawn contrary to the Standing Order 1/88. It was held that the sample was not representative in nature and the test report could not be said to represent the character of entire quantity of powder contained in all 166 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings under this Act and make an application, to any Magistrate for the purpose of,- (a) Certifying correctness of the inventory so prepared; or (b) Taking, in the presence of such Magistrate, photographs substances and certifying such photographs as true; or (c) Allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn. (3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application (4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1972) or the Code of Criminal Procedure, 1973 (2 of 1974), every Court trying an offence under this Act, shall treat the inventory, the photographs of narcotic d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 on the other hand came to be considered by the Supreme Court in Union of India (UOI) v. Mohanlal and Ors , reported as (2016) 3 SCC 379 where it was held as under: Seizure and sampling: 12. Section 52-A(1) of the NDPS Act, 1985 empowers the Central Government to prescribe by a notification the procedure to be followed for seizure, storage and disposal of drugs and psychotropic substances. The Central Government have in exercise of that power issued Standing Order No. 1/89 which prescribes the procedure to be followed while conducting seizure of the contraband. Two subsequent standing orders one dated 10.05.2007 and the other dated 16.01.2015 deal with disposal and destruction of seized contraband and do not alter or add to the earlier standing order that prescribes the procedure for conducting seizures. Para 2.2 of the Standing Order 1/89 states that samples must be taken from the seized contrabands on the spot at the time of recovery itself. It reads: 2.2. All the packages/containers shall be serially numbered and kept in lots for sampling. Samples from the narcotic drugs and psychotropic substances seized, shall be drawn on the spot of recovery, in duplicate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertified by him to be correct. 17. The question of drawing of samples at the time of seizure which, more often than not, takes place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Section 52-A(4) of the Act, samples drawn and certified by the Magistrate in compliance with Sub-section (2) and (3) of Section 52-A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act that mandates taking of samples at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure. 18. Be that as it may, a conflict between the statutory provision governing taking of samples and the standing order issued by the Central Government is evident when the two are placed in juxtaposition. There is no gainsaid that such a conflict shall have to be resolved in favour of the statute on first principles of interpretation but the continuance of the statutory notification in its present form is bound to create confusion in the minds of the authorities concerned instead of helping them in the discharge of their duties. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is of the view that the samples sent to the CRCL were not the representative samples. Besides, by mixing the contents of all the 4 packets before drawing any sample not only the sanctity of the case property in the individual packet was lost but also the evidence as to how much each individual packet weighed. In reaching the aforesaid conclusion, I also draw support from the decisions in Shajahan v. Inspector of Excise (DB) reported as 2019 SCC OnLine Ker 3685 Kulwinder Kumar v. State of Punjab, reported as 2018 SCC OnLine P H 1754 and Santosh Kumar v. The State of Bihar passed in Criminal Appeal (SJ) No.158/2016 decided on 30.08.2019. 34. Additionally, it is noted that the two independent public witnesses namely Sher Singh and Pinkesh Kumar, who participated in the raid proceedings and put their LTI and signatures respectively on various documents prepared on the spot were not examined during the trial. As already stated above, in the present case, the prosecution alleged two different recoveries from the appellant out of which, the first recovery was disbelieved by the trial court and the present appeal relates only to the second recovery. 35. Although in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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