2015 (6) TMI 817 - HC - Customs

Conviction under Section 21(C) read with Section 23 read with Section 28 of NDPS Act - Held that - 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. - appellant was also carrying a paper Ex.PW3/DA containing the details of the consigner and consignee according to which the parcel was to be consigned at USA and name of the consigner was shown as Pinto Deep C-33, Kalkaji, New Delhi-17 India. Admittedly no enquiry regarding Pinto Deep or the consignee was made by the prosecution. Moreover, as per the testimony of PW-3 Arvind Kumar the accused was carrying the photocopy of passport in the name of Pinto Deep and also one invoice in his hand. He had seen invoice wherein the address was mentioned and also the passport which was in the name of Pinto Deep. According to him, accused informed him that Pinto Deep was his boss who was not in Delhi. Admittedly, neither the invoice nor the copy of the passport in the name of Pinto Deep were seized nor placed on the judicial file. Moreover, no enquiry was made by the NCB officials as to who had handed over the cardboard box containing the narcotic drug to the appellant and where the same was to be sent. Burden to prove the case beyond reasonable doubt was upon the prosecution. The provisions of the Act and the punishment prescribed therein being indisputably stringent, the extent of burden to prove the foundational facts on the prosecution i.e., proved beyond reasonable doubt would be very onerous. A heightened scrutiny test would be necessary to be invoked. It is also a settled principle of criminal jurisprudence that more serious the offence, the stricter the degree of proof. - prosecution has failed to establish the case beyond reasonable doubt as such, accused is entitled to benefit of doubt. The impugned judgment cannot be sustained and is set aside - Decided in favour of appellant.

Issues Involved:
1. Receipt of information and compliance with Section 42 of NDPS Act.
2. Presence and arrest of the accused at DTDC office.
3. Compliance with Section 50 of NDPS Act regarding search before a Gazetted Officer or Magistrate.
4. Ownership and planting of the alleged parcel/packets.
5. Inclusion of independent witnesses during seizure and search.
6. Procedure for drawing samples and compliance with guidelines.
7. Evidence of tampering with the case property.
8. Validity and retraction of the accused's statement under Section 67 of NDPS Act.
9. Fabrication of documents and preparation of panchanama.

Detailed Analysis:

1. Receipt of Information and Compliance with Section 42 of NDPS Act:
The appellant's counsel questioned the receipt of information from the informer and the compliance with Section 42 of the NDPS Act. The prosecution maintained that the information was credible and properly documented, leading to the issuance of search authorization and the subsequent raid.

2. Presence and Arrest of the Accused at DTDC Office:
The appellant's counsel argued that the presence of the accused at the DTDC office and his arrest were doubtful. The prosecution provided testimony from witnesses and documentation to support the claim that the accused was apprehended at the DTDC office with a cardboard box containing heroin.

3. Compliance with Section 50 of NDPS Act:
The appellant's counsel contended that the accused was not searched in the presence of a Gazetted Officer or Magistrate, violating Section 50 of the NDPS Act. The prosecution countered that the accused was informed of his rights and declined the offer to be searched before such an officer.

4. Ownership and Planting of the Alleged Parcel/Packets:
The appellant's counsel argued that the accused was not the owner of the parcel and that it was planted by the NCB. The prosecution presented evidence, including the accused's statement and the consigner and consignee details found with him, to establish his involvement.

5. Inclusion of Independent Witnesses:
The appellant's counsel highlighted the lack of independent witnesses during the seizure and search, questioning the reliability of the testimony of PW-3. The prosecution asserted that independent witness PW-3 Arvind Kumar supported their case.

6. Procedure for Drawing Samples:
The appellant's counsel argued that the samples were not drawn as per Supreme Court guidelines and were not taken on the spot. The prosecution's method of mixing the powder from all nine packets into one polythene and then drawing samples was criticized. The court found this process prejudicial to the accused, as it could not be ascertained whether all packets contained heroin.

7. Evidence of Tampering with Case Property:
The appellant's counsel pointed out discrepancies in the testimony regarding the color, smell, and texture of the contraband, suggesting tampering. The prosecution failed to produce the second sample in court, and there were inconsistencies in the weight and description of the samples.

8. Validity and Retraction of Statement under Section 67 of NDPS Act:
The appellant's counsel questioned the validity of the statement under Section 67 of the NDPS Act, which was retracted by the accused. The prosecution maintained that the statement was voluntarily given and not retracted during the initial court appearance.

9. Fabrication of Documents and Panchanama:
The appellant's counsel argued that the documents were fabricated and the panchanama was not prepared at the alleged spot. The prosecution's failure to seize and present the invoice and passport copy in the name of Pinto Deep further cast doubt on their case.

Conclusion:
The court found significant discrepancies and procedural lapses in the prosecution's case, particularly in the method of drawing samples and the inconsistencies in the evidence. These issues created reasonable doubt about the accused's guilt. Consequently, the court set aside the impugned judgment, acquitted the accused, and ordered his release. All pending applications were disposed of, and the trial court record was sent back along with a copy of the order.

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