2014 (12) TMI 988 - HC - Customs

Conviction for offence under Section 21(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 - Variation in test results of first and second set of samples - Failure to examine the panch witness - Held that - In a large number of cases involving the NCB, there is a failure to produce the panch witness named. There are cases where panch witnesses are not associated at all and it is sought to be explained by the prosecution that despite its request no person from the public came forward to join in the raid. The latter explanation has been accepted by some Courts by taking judicial notice of the fact that the members of the public are generally reluctant to be involved in criminal cases as witnesses. However, in a case where the NCB specifically names a public witness as being associated in the arrest and seizure, its failure to produce such person for cross-examination must be specifically explained by it. Failure to produce the public witness was attributable to a false address given for the witness. This raises serious doubts as to whether such a witness existed at all. It will amount to falsification of the trial Court record if the thumb impression on the arrest and seizure memo is attributed to a witness who is not able to be produced and it is shown that the address given for him, even in the first instance in the summons issued by NCB, was false. This casts serious doubts on the trustworthiness of the prosecution version and in that circumstance the benefit of doubt should certainly go to the accused. There is no independent corroboration of the arrest of the Appellant, the seizure from him of the contraband and the recording of his statement under Section 67 of the NDPS Act. Appellant did not write the statement himself. Although he appears to have written the first paragraph and the last line, in the one paragraph written by him he stated I am not in a position to write my statement. So, I request Ajay Kumar to write my statement on my dictation. The MLC of the Appellant also showed that he had received an abrasion behind the right ear. He also mentioned his being tortured in the retraction statement at page 349 of the trial Court record. As regards the purity of the samples taken by the NCB from the seized contraband, it was noticed earlier in the trial Court proceedings itself that a second set of samples had been sent for testing and that there was a considerable difference in the purity percentage. While in the first set of samples the purity of DAM was 51.7% and 61.4%, the purity of DAM in the second testing of the samples was 7.2% and 7.4%. The learned trial Court held that this was due to change in atmospheric conditions and other conditions. Witness Mahesh Kumar was presuming that there was no possibility of the second set of samples coming from a different source only because the records in the case available with the laboratory showed that on both the occasions the samples had come properly sealed. It appears to the Court that the above answer was not a scientific one but a practical one which does not explain the considerable variation in the purity percentage of DAM and also the absence of two constituents in the second set of samples. The expert failed to explain how when the first set of samples showed seven constituents, even accounting for hydrolysis, there was a complete absence of two constituents in the second set of samples. The literature produced by both the parties points to the possibility of degradation of DAM to MAM and not the heroin when it is in crystallized form. Even in the same set of samples from the same source, there is possibility of differences in percentages on account of hydrolysis of DAM into MAM, they do not explain the possibility of total absence of constituents in the second set of samples. In the instant case, this raises a doubt to whether both the set of samples were from the same source. - The Court, on a careful perusal of the evidence of the expert evidence in the present case is not satisfied that the prosecution has been able to explain the considerable variation in the purity percentages of DAM in the two samples sent for testing. Even on this score, the Court is inclined to grant benefit of doubt to the Appellant. - Decided in favour of assesse.

Summary

Issues Involved:
1. Non-examination of the panch witness.
2. Retracted statement of the Appellant under Section 67 NDPS Act.
3. Purity of the samples.

Issue-wise Detailed Analysis:

1. Non-examination of the Panch Witness:

The Appellant's counsel argued that the prosecution failed to examine the panch witness, Rajiv Chauhan, whose presence was crucial during the arrest and seizure. Despite multiple attempts to serve summons to Rajiv Chauhan, the address provided was found to be false or incomplete. The trial court noted that the summons were repeatedly sent to an incorrect address, leading to the non-appearance of the witness. The prosecution's failure to ascertain the correct address and produce the witness raised doubts about the existence of Rajiv Chauhan. The court concluded that without the testimony of the independent witness, the evidence provided by the NCB officers was self-serving and not sufficiently reliable.

2. Retracted Statement of the Appellant under Section 67 NDPS Act:

The Appellant retracted his confession made under Section 67 of the NDPS Act, claiming it was not voluntary and was made under duress while in custody. The Appellant's medical examination revealed an abrasion, supporting his claim of being tortured. The court referred to the Supreme Court's observation in Union of India v. Bal Mukund, which emphasized that statements made while in custody are not voluntary. The court found that the Appellant's statement was not shown to be voluntary and thus could not be relied upon.

3. Purity of the Samples:

The purity of the samples taken from the seized contraband showed significant variation between the initial and subsequent tests. The first test reported a purity of 57.1% and 61.4%, while the second test, conducted three years later, reported a purity of 7.2% and 7.4%. The trial court attributed this variation to atmospheric conditions and other factors. However, the court, upon further examination, found that the expert witness could not satisfactorily explain the considerable variation in purity or the absence of certain constituents in the second set of samples. The literature presented indicated that while degradation of DAM to MAM is possible, the total absence of constituents in the second set raised doubts about whether both sets of samples were from the same source.

Conclusion:

The court found that the prosecution failed to produce the panch witness, casting doubt on the reliability of the NCB officers' testimonies. The retracted statement of the Appellant was not shown to be voluntary. The significant variation in the purity of the samples was not satisfactorily explained, raising doubts about the integrity of the samples. Consequently, the court set aside the conviction and sentence, allowing the appeal and ordering the release of the Appellant. The trial court record was directed to be sent back along with a certified copy of the judgment, and the Appellant was instructed to furnish bail and surety bonds for a period of three months.