TMI Blog2018 (8) TMI 1985X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 That apart, the said statement was retracted, by the appellant, by way of a written retraction, placed in the file of the case relating to the recovery of 410 g heroin from the appellant, as recorded by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The statement of the appellant, under Section 67 of the Act, having been recorded in the office of the NCB, and having been retracted by the appellant subsequently, it cannot be safely said that the statement was voluntary, especially in respect of an entirely different consignment, being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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ield Testing Kit carried by the raiding team, tested positive for heroin. 2.3 In all, 166 strips were found stitched in both the lehengas, with similar powder concealed in the strips. The powder recovered from all the strips was collected together in a transparent polythene and, on weighment, was found to weigh 330 g. 2.4 Two representative samples, of 5 gm each, were drawn out from the polythene and put separately in smaller Ziploc polythene pouches, which were further kept in white paper envelopes, marked A-1 and A-2. The remaining powder was converted into a parcel with the help of a marking cloth and was marked A‟. The parcels and samples were duly sealed, and paper slips, with dated signatures of IO Surender Singh and the panch witnesses were pasted on them. Panchnama and Test memo were prepared. 2.5 Summons were issued to the panchas under Section 67 of the Act, pursuant to which they appeared in the office of the NCB and tendered their statements. 2.6 The case property, along with the samples and test memo, were deposited with the Malkhana Incharge, and the statutory report, under Section 57 of the Act, was submitted to Supdt. Sh. Y. R. Yadav. 2.7 On 6t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umar (PW-2), and was found to contain a red fibre bag having attached, to it, three copies of the Airway Bill, three copies of an invoice and one copy of a driving licence of the appellant, (ii) on opening the parcel, it was found to contain two ladies lehangas, which were stitched with laces, which, on being torn open, were found to contain small polythene strips, 166 in number, each of which contained off-white powder, (iii) a small quantity of the powder was tested with the Field Testing Kit, which tested positive for heroin, whereupon all the powder contained in the strips was collected in a separate transparent polythene, which, on being weighed, was found to be 330 g, (iv) the powder was properly mixed, and two samples, of 5 g each, were retrieved, therefrom, in two transparent Ziploc pouches, which were further kept in two separate white envelopes marked A-1‟ and A-2‟, (v) the remaining powder was wrapped in a stitched white cloth and marked as A‟, (vi) white paper slips, signed by himself and the two panchas, were pasted on A-1‟, A-2‟, A‟ and B‟ and sealed with the seal of the NCB, (vii) Test Memo and Panchnama were prepared ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... course of trial, before the learned Special Judge, the pullanda marked A‟ was produced, which was found to be sealed, at all four corners, with the seal of the NCB. It was also found that the parcel could not be cut open without disturbing the said seals. On cutting open the parcel, it was found to contain one polythene, in which some light brown powder was seen. PW-1 Surender Singh identified his signatures on the slip, whereupon the slip was exhibited as Ex. P-1, and the pullanda and packet, containing the powder, were exhibited as Ex P-2. PW-1 Surender Singh identified the powder as that which had been recovered from the parcel seized from the office of Aramex on 5th April, 2011. Similarly, the white envelope marked A-2‟, and the pullanda marked B‟ were also produced, and were identified, by PW-1, as containing the same powder. 4.5 The Seizure Report (Ex. PW-1/G) stated that testing of the powder, using the Field Testing Kit, had been done on a small sample recovered from one of the polythene strips, before the powder contained in all the slips was mixed. 4.6 Ravikant Thakur (PW-11) and Ashok Kumar (PW-2) also deposed, in their statements under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n cross-examination by the learned Public Prosecutor, PW-2 Ashok Kumar confirmed that the facts, as recorded in his statement, were true, and denied the suggestion that the powder found in the polythene strips had been tested before it was mixed. In cross- examination by learned counsel for the appellant, PW-2 reiterated that the parcel had been cut open by him, and stated that before producing the parcel before the NCB officials, he repacked the parcel in the same condition. He confirmed that he did not reveal, to the NCB officials, the fact that he had opened the parcel and seen its contents. 4.10 Ravi Kant Thakur, deposing as PW-11, corroborated the deposition of Surender Singh (PW-1) and other witnesses. He, however, asserted that a small quantity of the powder was checked using the Field Testing Kit, and tested positive for heroin. On being shown the cloth pullandas marked A and B sealed with paper slips, already exhibited as Ex.P-1 and Ex.P-5, he identified his signatures on the said slips. Similarly, he identified the paper envelopes marked A1 and A2. 4.11 Sanjay Rawat, who was also IO in the NCB at the relevant time, and was part of the team which visited the office o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he course of the said statement, which continued for two days, the appellant was arrested, at about 8:30 PM on 17th April, 2012, consequent on recovery of 410 g of heroin from a parcel booked by him. PW-8 further deposed that the appellant had, in his statement under Section 67 of the Act in connection with the recovery of the said 410 g heroin, also disclosed the fact of his having booked a parcel, using the same document of identity, in April, 2011. PW-8 correctly identified the appellant in court. In cross-examination, PW-8 asserted that the statement, of the appellant, under Section 67 of the Act, was recorded without pressure or coercion. 4.15 The statement, dated 16th/17th April, 2012, of the appellant, under Section 67 of the Act, related, mostly, to the recovery of 410 g of heroin, from him, with which the present appeal is not concerned. However, the following questions, and the answers, of the appellant, thereto, are relied upon by the prosecution: Q:- Did you book any other parcel earlier containing heroin? A:- Yes in April 2011 from Student Infoline Courier office, Vasant Kunj and one black person gave this parcel to me and told about heroin and for sending to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parcel, of which four copies were prepared, three copies of which were handed over to the said boy, against payment. PW-10 further stated that, in the evening of 2nd April, 2011, he forwarded the said parcel, along with three copies of the invoice to Aramex, of which Student Infoline Courier was an authorised franchisee. A week later, he claimed to have received a telephone call from the NCB Office inquiring about the said parcel. He was directed by IO Surender Singh (PW-1) to appear in the NCB Office, in compliance with which he proceeded to the NCB Office on 12th/14th April, 2011 and tendered his statement (Ex.PW-1/L) with respect to booking of the parcel. PW-10 went on, thereafter, to state that, about a year later, in April, 2012, he received another call from the NCB, to the effect that the boy who had booked the parcel had been apprehended, and requesting him to visit the office of the NCB and identify him. He claimed that he immediately went to the office, identified the appellant, and that his statement, to the said effect, was recorded (Ex.PW-1/O). He also identified the driving licence and invoice, handed over by the said boy to him, which were exhibited as Ex.PW-1/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where they searched him thoroughly and purloined his belongings. Thereafter, the said persons, according to the appellant, took him to the office of the NCB, where he was kept in the lock-up through the night and physically assaulted. They kept enquiring, of him, as to the source from where he had got the drugs, and caused him to write the statements Exhibits PW-8/A and PW-8/B, though he claimed to have nothing to do with any drugs. On being asked, he stated that he did not wish to lead any defence evidence. 5. The impugned judgement 5.1 Consequent to recording of the evidence and after hearing of learned Special Public Prosecutor (SPP) for the NCB and learned counsel for the appellant, the learned Special Judge proceeded, vide the impugned judgment dated 8th October, 2015, to return the following findings: (i) The search and seizure proceedings at the office of Aramex stood proved by the evidence of PW-1 Surender Singh, PW-4 Sanjay Rawat and PW-7 Kiran Bala, which was corroborated by the evidence of the panch witnesses, PW-2 Ashok Kumar and PW-11 Ravikant Thakur, both of whom were officials of Aramex. (ii) All mandatory statutory compliances were effected thereafter. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Revenue Intelligence, (2003) 3 JCC 1631 (SC). No evidence of threat, pressure or coercion having been exercised, on the appellant, while recording his statement under Section 67 of the Act, existed; consequently, the statement was admissible in evidence and could be relied upon, against the appellant. (e) Even if the statement of the appellant, under Section 67 of the Act, were to be excluded from consideration, there was sufficient evidence, de hors the said statement, connecting the appellant with the offence. (f) The allegation, of the appellant, during his statement under Section 313 of the Cr.P.C., to the effect that his driving licence had been forged, was not supported by any evidence, and stood discredited, even otherwise, by the fact of recovery of the said copy of his driving licence with the copies of the invoice and Airway Bill also bearing the appellant‟s name, coupled with the testimony of Umesh Madan (PW-10). (iv) Learned counsel for the appellant had also objected to the manner in which the powder contained in the packets was sampled and tested. It was sought to be contended that the powder from each packet ought to have been tested separately, instea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s who deposed regarding the seizure effected at the premises of Aramex. She submitted that there was clear contradiction, among the statements of the various witnesses even with respect to the total quantity of heroin, with PW-2 stating that it was 400 g, Kiran Bala stating that it was 350 g, and the prosecution contending that it was 330 g. 6.2 Ms. Khiyungdzuzu contended that the case of the prosecution stood entirely demolished by the single act of PW-2 Ashok Kumar in cutting open the parcel before the arrival of the officials of the NCB at Aramex. Once the parcel had been cut open, and the powder taken out of the polythene strip by Ashok Kumar, even before the NCB officials arrived, she would submit that the possibility of tampering could not be ruled out, and that the benefit of doubt, in this regard, had necessarily to enure in her client‟s favour. 6.3 Ms. Khiyungdzuzu also contended that the statement of the appellant, though recorded under Section 67 of the Act, was recorded in the context of an entirely different investigation relating to seizure of 410 g heroin booked through Blazeflash Courier, and could not, therefore, be used in the present case. Moreover, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ening, by PW-2, of the parcel, as well as the polythene strip, in which the heroin was secreted, and the taking out, by him, of powder therefrom, (iii) the legality of the manner in which the heroin, found concealed in the lehengas, was sampled, and tested, using the Field Testing Kit of the NCB and, later, by the CRCL, (iv) the admissibility and reliability of the statement of the appellant, recorded under Section 67 of the Act, especially in view of the fact that the statement was recorded in the context of another investigation, relating to seizure of 410 g heroin, inter alia in view of the fact that the said statement was stated to have been retracted by the appellant, (v) the applicability and effect of Sections 35 and 52 of the Act, (vi) the applicability and effect of Section 106 of the Indian Evidence Act, 1872, and (vii) whether the available evidence was sufficient to maintain the conviction of the appellant, keeping in view, inter alia, the decision in Bal Mukund (supra). 7.2 Power to search and seize is conferred by Section 42 of the Act, which permits any empowered officer to, if he has reason to believe that any narcotic drug, or psychotropic substan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other drugs less than 5 packages/containers remain, no bunching would be necessary and no samples need be drawn. (d) If it is 5 or more in case of other drugs and substances and 20 or more in case of Ganja and Hashish, one more sample in duplicate may be drawn for such remainder package/containers. (e) While drawing one sample in duplicate from a particular lot, it must be ensured that representative drug in equal quantity is taken from each package/container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot. (Emphasis supplied) 7.4 The aforementioned Standing Order purports to have been issued under Section 52A of the Act. On the issue of whether the Standing Order is binding, or not, the Supreme Court held, in Khet Singh vs U.O.I., (2002) 4 SCC 380, thus (in para 10 of the report): The instructions issued by the Narcotics Control Bureau, New Delhi are to be followed by the officer-in-charge of the investigation of the crimes coming within the purview of the NDPS Act, even though these instructions do not have the force of law. They are intended to guide the officers and to see that a fair procedure is adopted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion too has no substance for two reasons. Firstly, Section 52-A, as the marginal note indicates, deals with disposal of seized narcotic drugs and psychotropic substances . Under sub-section (1), the Central Government, by a notification in the Official Gazette, is empowered to specify certain narcotic drugs or psychotropic substances, having regard to the hazardous nature, vulnerability to theft, substitution, constraints of proper storage space and such other relevant considerations, so that even if they are material objects seized in a criminal case, they could be disposed of after following the procedure prescribed in sub-sections (2) and (3). If the procedure prescribed in sub-sections (2) and (3) of Section 52-A is complied with and upon an application, the Magistrate issues the certificate contemplated by sub-section (2), then sub-section (4) provides that, notwithstanding anything to the contrary contained in the Indian Evidence Act, 1872 or the Code of Criminal Procedure, 1973, such inventory, photographs of narcotic drugs or substances and any list of samples drawn under sub-section (2) of Section 52- A as certified by the Magistrate, would be treated as primary evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om each bag had been taken. It was a requirement in law. (Emphasis supplied) 7.8 Bal Mukund (supra), therefore, accords primacy to the manner of sampling, especially where the allegedly contraband narcotic is contained in more than one bags/parcels. Being a pronouncement by three Hon‟ble judges of the Supreme Court, the mandate of Article 141 of the Constitution of India would require us to be guided by Bal Mukund (supra), in preference to Khet Singh (supra) and Makhan Chand (supra), especially as Bal Mukund (supra) itself has been followed by the Supreme Court in subsequent decisions, to which reference would be made later in the course of this judgement. 7.9 Adverting, now, to the facts of this case, it is seen that there is more than one infirmity, in the manner in which sampling and testing of the powder found concealed in the polythene strips stitched into the lehengas, took place. The witnesses are not ad idem even as to the number of polythene strips, from which powder was retrieved and subjected to testing using the Field Testing Kit. PW-1 Surender Singh categorically stated, in his deposition on 10th December, 2012, that one transparent polythene strip was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its weight came out to be 330 g. (Emphasis supplied) 7.10 Considerable inconsistency, therefore, exists, among the depositions, during trial, of the witnesses to the search and seizure operations at Aramex, on the issues of whether (i) testing, using the Field Testing Kit, was performed on the powder taken from one of the polythene strips found in the lehengas, or from more than one, and (ii) the said testing, using the Field Testing Kit, took place before, or after, collecting all the powder found in the polythene strips. It is axiomatic, in criminal law, that the benefit of such inconsistency has necessarily to enure in favour of the accused-appellant. While it is true that all the prosecution witnesses to the said search and seizure, barring PW-1 Surender Singh, deposed that testing, using the Field Testing Kit, had been performed on the powder extracted from all the polythene strips, this court cannot be unconscious of the fact that PW-1 Surender Singh, who cannot be regarded as an interested witness in any way, clearly stated that he had performed testing, using the Field Testing Kit, only on the powder retrieved from one of the polythene strips. The word of the doer h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the purported testing, of the powder, using the Field Testing Kit, as evidence against the appellant. 7.15 Coming, now, to the taking of samples, from the heroin allegedly contained in the polythene strips stitched into the lehengas, it is an admitted position that the samples, which were sent for testing to the CRCL, were taken after assimilating all the powder found concealed in the lehengas into one lot. This, in my view, would be contrary to Standing Instruction 1/88, as noticed by the Supreme Court in Bal Mukund (supra). Moreover, only two samples were taken, 5 g each, out of a total quantity of powder weighing 330 g, 360 g, or 400 g, depending on whose statement is to be believed. The manner in which the said two samples of 5 g were extracted, from the total quantity of 330/360/400 g, is not forthcoming on the record. It is not possible, therefore, for this court to be convinced, with any degree of certainty, that the two samples were actually representative in nature, so that the test reports, relating to the said two samples, could be said to represent the character of the entire quantity of powder contained in all the 166 polythene strips found in the lehengas. 7.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e results would be negative. 28. In view of above discussion, instant appeal is allowed. 7.19 In Edward Khimani Kamau (supra) nine long polythene boxes, containing powder which tested positive for heroin, were found in a cardboard box. The powder in all the nine boxes, after being transferred into one polythene, was found to weigh 717 gms. Two samples, of 5 gms each, were taken out of the said sample and transferred to two polythene pouches, with the remaining heroin being converted into a cloth parcel. One of the two samples was sent to the CRCL which returned for a positive test of heroin. Apart from Basant Rai (supra), reliance was placed, by this Court, on the following passages from Gaunter Edwin Kircher v. State of Goa, 1993 (3) SCC 145. 5. We shall first consider whether the prosecution has established beyond all reasonable doubt that the accused had in his possession two pieces of Charas weighing 7 gms and 5 gms respectively. 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 form this report alone it cannot be presumed or inferred t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (supra) and Ghewar Ram vs. State of Rajasthan reported in MANU/RH/0662/2007: 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 and having it analysed by the FSL was found defective and caused prejudice to the accused. 10. In the instant case also, 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. (Emphasis supplied) 7.21 For, inter alia, the above reason, the appellant, in that case, was ultimately acquitted. 7.22 The above decision, too, endorses the view that the manner of sampling of the substance suspected to be narcotic has to be completely credible and such that the test results, of the sample, inspires confidence as being representative of the entire quantity of suspected narcotic. If not, the accused is necessarily entitled to benefit of doubt. 7.23 Once the test reports, using the Field Testing Kit of the NCB team, and as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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