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2020 (9) TMI 1296 - HC - Indian LawsSmuggling - four hundred grams of Methamphetamine - ten grams of cocaine - appellant contends that the case of the prosecution is fabricated and is based solely on the testimonies of certain police officials - whether the time spent leading to the arrest of the appellant at 4.30 a.m. has been explained? - whether the responses received pursuant to the information sought under the Right to Information Act, 2005 raise any doubt as to the presence of the raiding party at the spot near the ISBT and the appellant's apprehension at the said spot? - HELD THAT - In the present case, the police officials did not include any witnesses from the public or any other independent witnesses. However, the testimony of police witnesses cannot be ignored or doubted on this ground. In absence of evidence of any public or independent witness, it is essential that the testimony of the official witnesses should be subjected to greater scrutiny. Thus in absence of testimonies of any independent witness, even minor inconsistencies in the evidence of the official witnesses may be considered as material. In the present case, this Court has carefully examined the evidence led by various official witnesses and there is no material inconsistency regarding apprehension of the appellant at the spot. Thus this Court has no doubt that the appellant was apprehended at about 07.55 pm on 19.11.2013, as claimed by the prosecution. Whether the prosecution has established the chain of custody of the samples, beyond any reasonable doubt? - HELD THAT - Even though the forwarding letter under the cover of which the two samples were forwarded to FSL, Rohini have not been produced; this Court is unable to accept that there is any doubt as to the chain of custody. The prosecution has led evidence of the police official who had sealed the two parcels (that is, SI Rajni Kant, who was examined as PW12). Further, the evidence of the police officials that had carried the parcels to PS Crime Branch and had deposited it into the Malkhana and thereafter, had withdrawn the same from the Malkhana and carried to the FSL, have been brought on record. The Chemical Examination Report (Ex. PX) also clearly records that the seals on the parcels when received were intact and it also confirms that the parcels were bearing the seals 5APSNB Delhi and VSS - the contention that the accused is liable to be acquitted only on the ground that the chain of custody of the samples allegedly drawn has not been established, is unmerited. This Court is of the view that the manner in which the samples were drawn is fatal to the prosecution's case regarding recovery of four hundred grams of methamphetamine from the appellant. The sample drawn after mixing the contents of both the polythene pouches cannot be stated to be representative of the contents of the two polythene pouches. The prosecution has been unable to establish that both the polythene packets, which were recovered from the metallic box, contained methamphetamine. This is because the contents of each of the polythene pouches were not tested prior to the same being kept together - However, once it is held that the quantity of the entire mixture including the neutral substances have to be considered for the purposes of determining whether the quantity of the illicit substance is a small quantity or a commercial quantity, then it is important that the substances found in separate packets are not mixed prior to ascertaining the nature of the substance in each packet. This is because if one of the packets does not contain any illicit substance, mixing the same with contents of another packet containing illicit substance, would increase the quantity of the offending substance (which includes neutral substance) that is required to be considered for determining the punishment liable to be imposed on the accused. The appellant's conviction for committing an offence punishable under Section 22(c) of the NDPS Act, cannot be sustained - The appellant has also been convicted for committing an offence punishable under Section 21(b) of the Act on account of ten grams of cocaine recovered from the rear pocket of the lower apparel worn by the accused. The evidence led by the prosecution (testimony of PW12, PW10 and PW8) clearly established the recovery of cocaine from the appellant. The impugned judgment to the extent that it convicts the appellant for committing an offence punishable under Section 22(c) of the Act on account of being found in possession of four hundred grams of methamphetamine, is unsustainable and is set aside - The appeal is partly allowed.
Issues Involved:
1. Legitimacy of the appellant's apprehension and arrest. 2. Chain of custody of the samples. 3. Procedure for drawing samples. 4. Conviction under Section 22(c) of the NDPS Act. 5. Conviction under Section 21(b) of the NDPS Act. Detailed Analysis: 1. Legitimacy of the Appellant's Apprehension and Arrest: The appellant contended that the prosecution's case was fabricated and he was arrested from his house, not near ISBT. The court examined testimonies of police officials (PW8, PW10, PW12) and found their accounts consistent and credible. The timeline from the secret information received at 6:30 pm, the departure of the raiding team at 7:05 pm, and the appellant's apprehension at 7:55 pm was corroborated. The delay in formal arrest until 4:30 am was explained by the procedural steps taken post-apprehension. The court concluded that the appellant was indeed apprehended at the stated time and place, dismissing the appellant’s claim of being picked up from his house. 2. Chain of Custody of the Samples: The appellant challenged the chain of custody, arguing that the FSL Form and the covering letter indicating the sample seals were not produced. The court noted that although there was a lapse in not exhibiting the FSL Form, the Chemical Examination Report confirmed that the seals on the parcels were intact and matched the forwarding authority's specimen seals. Testimonies from police officials (PW4, PW5) and the Malkhana register entries supported the intact chain of custody. The court found no merit in the appellant's contention and upheld the chain of custody as established. 3. Procedure for Drawing Samples: The court scrutinized the procedure used by SI Rajni Kant (PW12) for drawing samples. It was found that the contents of two polythene pouches were mixed before testing and drawing samples, which is not representative of the individual contents of each pouch. This mixing could not establish that both pouches contained methamphetamine. The court emphasized the necessity of testing each packet separately to ensure the sample's composition matches the recovered substance. The failure to do so was deemed fatal to the prosecution's case regarding the methamphetamine recovery. 4. Conviction under Section 22(c) of the NDPS Act: Given the flawed procedure in drawing samples, the court concluded that the prosecution failed to establish beyond a reasonable doubt that 400 grams of methamphetamine was recovered from the appellant. The conviction under Section 22(c) of the NDPS Act was thus unsustainable. The court set aside the conviction and the corresponding sentence for this charge. 5. Conviction under Section 21(b) of the NDPS Act: The court upheld the conviction for possession of 10 grams of cocaine under Section 21(b) of the NDPS Act. The evidence, including the testimonies of PW8, PW10, and PW12, and the FSL Report, confirmed the recovery of cocaine from the appellant. The sample marked E was found to contain 23.6% cocaine. The court found no material to doubt the integrity of the samples and thus upheld the appellant's conviction and sentence for this offence. Conclusion: The appeal was partly allowed. The conviction and sentence under Section 22(c) of the NDPS Act were set aside due to procedural lapses in sample testing. However, the conviction under Section 21(b) of the NDPS Act was upheld based on consistent and credible evidence of cocaine recovery.
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