TMI Blog2021 (4) TMI 925X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, on which he requested the NCB officers to take him to NCB office to enable him to tender his voluntary statement. Petitioner recorded his voluntary statement in his own handwriting in which he accepted having swallowed pellets/capsules of drugs and requested to take him to hospital. A small amount of powder was taken separately from each packet and tested separately with the help of field testing kit which gave results for cocaine. Since all the recovered cocaine from 65 capsules were of same size, packaging, texture, colour and property, they were transferred to a polythene packet and weighed. It came out to be 1.320 kg, out of which two samples of 5 gms each were drawn and put inside two zip lock pouches. The process was completed in the presence of CSK Singh, Investigating Officer and two independent witnesses and after completion of other necessary procedure, the sample so obtained and marked was sent to the Chemical Examiner, CRCL. Pertinently, the petitioner has approached this Court when only one prosecution witness remains to be examined and trial is at the fag end. During the course of hearing, learned counsel sailed this Court through examination and cross-exa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon enquiry, he disclosed that he was carrying some pellets/capsules of drugs in his stomach and so he does not want to eat and drink anything. Thereafter, Notice under Section 67 of NDPS Act was served upon him and he agreed to accompany the NCB team to their office where he tendered his voluntary statement in his own handwriting, wherein he disclosed having swallowed pellets/capsules of drugs which were in his stomach and requested the NCB team to take him to the hospital as he was feeling uncomfortable due to pellets/capsules of drugs being inside his body for a long time. The NCB team, after following due procedure for search and seizure and collecting necessary items like weighing machine, DD kit, IOs kit etc. reached at Safdarjung Hospital where two persons, namely, Pooran Singh and Rajeshwar Singh, both working at Safdarjung Hospital, voluntarily agreed to become independent witnesses to the search and seizure proceedings. 4. Under the directions of CMO, Safdarjung Hospital, Dr. Kashika proceeded for medical examination of petitioner and after his X-ray and CT scan, it became apparent that small pellets/capsules were concealed inside petitioner s body. Hence, petitioner w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stic sutli and were marked. The entire proceedings of search and seizure were concluded in a cordial manner, following due procedure of law. 9. Subsequently, petitioner was arrested on 31.03.2015 and after completion of investigation, the complaint under Section 21/23 of NDPS Act was filed before the learned trial court on 28.09.2015. The learned trial court vide order dated 30.03.2016 framed the Charge under Section 21(c) and 23 (c) of NDPS Act and proceeded the trial. 10. This Court is informed that trial is in progress and out of 17 prosecution witnesses, 13 witnesses have been examined, three witnesses have been dropped and, thereby, only one witness remains to be examined. 11. At the hearing, learned counsel for petitioner submitted that petitioner is behind bars since the day of his arrest and trial shall take long time to conclude and, also that the prosecution case suffers from material and procedural infirmities. He submitted that the samples were not individually drawn from 65 pellets/capsules allegedly recovered from the stomach of petitioner and the samples sent to Central Revenues Control Laboratory (CRCL) were not the representative samples of contraband alle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lots of 10 packages/containers may be bunched in lots of 40 such packages such packages/containers. For each such lot of packages/containers, one sample in duplicate may be drawn. (c) Where after making such lots, in the case of Hashish and Ganja, less than 20 packages/containers remains, and in case of 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 added) 14. It was further submitted that para materia standing orders 1/88, is the standing order No.1/89 dated 13.06.1989 issued under Sub Section 1 of Section 52A of NDPS Act by the department of Revenue, Ministry of Finance, Government of India, as Section 2 thereof provides general proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or such a reminder package /container. 2.8 While drawing one sample (in duplicate) from a particular lot, it must be ensured that representative sample are in equal quantity is taken from a package/container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot. 2.9 The sample in duplicate should be kept in heat sealed plastic bags as it is convenient and safe. The plastic bag container should be kept in a paper envelope which may be sealed properly. Such sealed envelope may be marked as original and duplicate. Both the envelopes should bear the S.No. of the package(s)/ containers from which the sample has been drawn. The duplicate envelope containing the sample will also have a reference of the test memo. The seals should be legible. This envelope which should also be sealed and marked secret-drug sample/ Test memo is to be sent to the chemical laboratory concerned. 3.0 The Seizing officers of the Central Government Departments, viz., Customs. Central Excise, Central Bureau of Narcotics, Narcotics Control Bureau, Directorate of Revenue Intelligence etc. should dispatch samples of the seized drugs to one of the Labor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . No record or name of the doctor in whose presence these capsules were ejected at different intervals of time and in whose custody capsules remained from 29.03.2015 till 31.03.2015 and even discharge summary is silent on this aspect. The Panchnama prepared for seizure of contraband does not mention the name of the medical officer or doctor or Chief Medical Officer and none of these witnesses have been cited by respondent/NCB. Moreover, petitioner had retracted from his statement at the first available opportunity. 18. Reliance was also placed upon decision of Hon ble Supreme Court in Tofan Singh Vs. State of Tamil Nadu 2020 SCC OnLine SC 882 . In addition, reliance was also placed upon decision of this Court dated 04.02.2021 in Bail Appln. 3491/2020, titled as Gopal Das Vs. NCB ; order dated 25.01.2021, in Bail Appln. 4165/2020, titled as Ashwani @ Sonu Vs. The State; order dated 16.03.2020, in Bail Appln.191/2020, titled as Uruakpa Ahmed @ Baba Don Vs. State. Further, reliance is placed upon decision of a Coordinate Bench of this Court dated 28.05.2015 in Crl.A. 1113/2011, Edward Khimani Kamau Vs. The Narcotic Control Bureau. 19. The aforesaid submissions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h to petitioner, to which also he refused. Thereafter, petitioner was taken to the CISF room where his baggage was physically examined but nothing was recovered from his personal search. 26. With regard to compliance under Section 67 of the Act, it has been averred in the complaint that once the accused/petitioner disclosed carrying pellets/ capsules in his stomach, he was served with notice under Section 67 of the Act, on which he requested the NCB officers to take him to NCB office to enable him to tender his voluntary statement. Petitioner recorded his voluntary statement in his own handwriting in which he accepted having swallowed pellets/capsules of drugs and requested to take him to hospital. 27. It is further averred in the complaint that all the pellets/capsules recovered from the stomach of petitioner were found to be 65 in number. They all were in oval shape and same size. One of the capsules was cut open and found to contain white powdery substance and when it was tested with the field testing kit, it gave positive result for cocaine. Similarly, all the pellets/ capsules were cut open and all found to contain white powdery substance. A small amount of powder was ta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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