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2021 (2) TMI 1047 - HC - Indian LawsSmuggling - Heroin - Alleged Recovery of 2.850 kgs of Heroin from the Office of Dart Air - Cross-examination of independent witnesses - Name of the appellant as mentioned in the Airway Bill - Testing of the contraband - Alleged Recovery of 180 grams of Heroin from the Premises of the Appellant - HELD THAT - There are several questions that arise in the context of the evidence led by NCB. The first question that arises is why would a person who had already booked a consignment come to the courier agency on the next day to enquire about the parcel. Such enquiries could have been made telephonically and it may have been possible to make it online as well. However, Mr. Manchanda submitted that that is a matter of secret information and therefore, there is no evidence in this regard required to be led. This contention is not persuasive. Cross-examination of independent witnesses - HELD THAT - It is also material to note that in his cross examination, Sh. Rajeev Sharma (PW-11) had stated that the accused did not fill the Proforma Invoice on 07.06.2011 and, had informed him that he would come on the next day, that is, on 08.06.2011 to fill up the same. However, no such explanation was given by any witness in their examination-in-chief. There is also no plausible explanation of why the appellant would not have filled up the Proforma Invoice on 07.06.2011. It is NCB s case that the accused had only come to make enquiries about his parcel. In his examination-in-chief, PW-11 had stated that the accused had come at around 4 00 PM and had enquired from him and Sh. Rajesh about the parcel that he had booked on 07.06.2011 for USA. PW-12 had also stated in his examination-in-chief, that a Nigerian had come to their office at about 4-4 30 PM and, had confirmed about the parcel from Sh. Rajeev Sharma - There is no evidence that these independent witnesses shared any information with the NCB officials. According to NCB, these witnesses were independent witnesses and were joined to witness the proceedings. Name of the appellant as mentioned in the Airway Bill - HELD THAT - The said Airway Bill has not been filled in by the appellant. It is also relevant to note that none of the witnesses that testified had stated in their examination-in-chief, as to who had filled up the Airway Bill. However, PW-11, in his cross-examination, conceded that the Airway Bill in question had been filled up in his hand writing. Interestingly, the Airway Bill mentions the name of the appellant as Mosike . But, that is not the appellant s name in his passport or any of his identification documents. The officials from Dart Air (PW-10 and PW-11) had confirmed that they were required to fill-up the details as per the identification documents. A copy of the passport was allegedly made available along with the Airway Bill, which mentioned the name of the appellant as Mokibe MR Leepile Moses . It is also important to note that the Passport indicates that that the Passport had been issued by the Republic of Botswana and not by the Federal Republic of Nigeria. Therefore, PW10 and PW11 could not have known that the appellant was a Nigerian. It is material to note that none of the documents pertaining to the shipment bear the signatures of the appellant. Testing of the contraband - HELD THAT - It is at once clear that the procedure followed for testing the substance and drawing samples was not in conformity with the procedure that would lend sufficient credibility to the assertion that the entire white powder was Heroin - It is incumbent upon NCB to have at least tested and ensured that the contents of each of the pouches are tested on a Field Testing Kit and further, ascertain that each of the one hundred and forty eight packages were identical in volume, weight and size. However, the NCB officials had failed and neglected to do the same. On mixing the substance from each of the pouches, the identity of the substances in each pouch was lost and a sample drawn from the mixture did not establish that the content of the sample was identical to the substance in each of the pouches. Thus, this Court is unable to accept that NCB had established beyond any reasonable doubt that the appellant had booked a parcel with Dart Air that contained Heroin weighing 2.850 kilograms. Alleged Recovery of 180 grams of Heroin from the Premises of the Appellant - HELD THAT - Although, there does not appear to be any source of such secret information, on receipt of the said note (Ex. PW7/3), an authorisation for search was issued by the Superintendent, Sh. Yadav in favour of Sh. G.S. Bhinder, Intelligence Officer. He was authorised to search the said premises (B-75, Hardev Nagar, Second Floor, Burari) on the basis of the secret information placed before the Superintendent, Sh. Yadav. This Court is unable to accept that there are no doubts as to the recovery of 180 grams of Heroin from the premises in question as asserted by NCB. This Court is of the view that NCB has failed to meet the standard of proof for convicting the appellant for the offence for which he was charged. The appellant is acquitted of the offence for which he was charged. He is directed to be released forthwith, if not wanted in any other case - Appeal allowed - decided in favor of appellant.
Issues Involved:
1. Legality of the conviction under Sections 21(c) and 23(c) read with Section 28 of the NDPS Act. 2. Validity of the sampling and testing procedure. 3. Credibility of the search and seizure process. 4. Reliability of independent witnesses. 5. Admissibility of the appellant's statement under Section 67 of the NDPS Act. 6. Evidence of the appellant's presence and involvement. 7. Alleged recovery of heroin from the appellant’s residence. Issue-wise Analysis: 1. Legality of the Conviction: The appellant was convicted under Sections 21(c) and 23(c) read with Section 28 of the NDPS Act and sentenced to ten years of rigorous imprisonment along with fines. The prosecution alleged that 2.850 kilograms of heroin were recovered from a parcel booked by the appellant and 180 grams of heroin were found at his residence. 2. Validity of the Sampling and Testing Procedure: The defense argued that the prosecution failed to establish that each of the 148 pouches contained heroin, as the substances from all pouches were mixed before testing. This procedure was found flawed as per Supreme Court precedents, which require each container to be tested separately. The court noted that the procedure adopted did not establish that the entire substance was heroin, aligning with the decisions in Gaunter Edwin Kircher v. State of Goa and Amani Fidel Chris v. Narcotics Control Bureau. 3. Credibility of the Search and Seizure Process: The defense highlighted that the search was not video recorded, and the malkhana register was in poor condition, raising doubts about the integrity of the samples. The court found inconsistencies in the testimonies of the NCB officials and independent witnesses, and noted procedural lapses, such as the failure to video record the search, which is recommended to prevent allegations of foul play. 4. Reliability of Independent Witnesses: The testimonies of independent witnesses were inconsistent. One witness failed to identify the appellant and had noted details on his shirt sleeve and palm, which raised questions about his reliability. The court found that the testimonies of the independent witnesses were not consistent with each other or with the NCB officials' accounts. 5. Admissibility of the Appellant's Statement under Section 67 of the NDPS Act: The trial court relied heavily on the appellant's confession under Section 67 of the NDPS Act. However, the Supreme Court in Tofan Singh v. State of Tamil Nadu ruled that such statements are not admissible as evidence. Consequently, the court found that the appellant's confession could not be used to substantiate the charges. 6. Evidence of the Appellant's Presence and Involvement: The defense questioned why the appellant would physically visit the courier agency to inquire about a parcel, which could be done telephonically. The court noted the lack of evidence explaining the necessity of the appellant's visit and found no credible evidence linking the appellant to the booking of the parcel, as the name on the Airway Bill did not match his identification documents. 7. Alleged Recovery of Heroin from the Appellant’s Residence: The court found several inconsistencies in the testimonies regarding the recovery of 180 grams of heroin from the appellant’s residence. The raiding team members were not all examined, and there were discrepancies in the location and description of the recovered substance. Additionally, the court found issues with the alleged secret information leading to the search and the presence of independent witnesses at the scene. Conclusion: The court concluded that the prosecution failed to establish beyond a reasonable doubt that the appellant had booked the parcel containing heroin or that 180 grams of heroin were recovered from his residence. The appeal was allowed, and the appellant was acquitted of all charges. The court ordered the appellant's immediate release if not wanted in any other case.
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