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2020 (10) TMI 236 - HC - CustomsSmuggling - charas - attempt to export illicit substance - whether the provisions of Section 42 of the NDPS Act have been violated? - HELD THAT - Undisputedly, the provisions of Section 42 of the NDPS Act are mandatory. It is also not disputed that none of the Customs Officers had recorded any reasons for believing that an offence punishable under Chapter IV of the NDPS Act has been committed or that a search warrant or authorization cannot be obtained without affording an opportunity for concealment of the evidence or facility for the escape of an offender. It is also relevant to note that the complaint filed by the respondent also expressly indicates that proceedings were undertaken under Section 42 of the NDPS Act. It is also mentioned in the panchnama (Ex.PW4/E) that the substance was recovered and seized under Section 42 of the NDPS Act - Indisputably, if the provisions of Section 42 of the NDPS Act are applicable then it is apparent that the same have not been complied with. As stated above, the provisions of Section 42 of the NDPS Act are mandatory and therefore, non-compliance of the same would vitiate the proceedings. However, the key question to be addressed is whether the provisions of Section 42 are applicable in the given facts. Notwithstanding the averment made in the complaint that the recovery and seizure was done under Section 42 of the NDPS Act, the same is clearly not applicable since the recovery and seizure was done in a public place. The contention that the provisions of Section 42 of the NDPS Act was not complied with, is irrelevant. Testing conducted on the spot and drawing of samples from the charas allegedly recovered from the appellant s trunk - whether the samples drawn were representative of the substance recovered from the appellant s baggage? - HELD THAT - Although the panchnama refers to a Customs Officer, it is obvious that the Customs Officer in question is Pawan Kumar (PW-4). The print out of the test result would indicate the number of tests conducted. If the contents of each of the packet was tested separately, there would be four such print-outs or one print-out recording the result of four such tests. However, the print out in question has not been brought in evidence, even though it is stated that it was in the possession of PW-4. It is also material to note that it is not the prosecution s case that any heroin was recovered from the appellant. The CRCL test result also does not disclose any presence of heroin in the sample sent for analysis. But the alleged test had also returned a positive result for heroin - this Court is unable to accept that the prosecution has established that the contents of each of the four packets that were allegedly recovered, were tested and found to be charas prior to the contents of the said packets being placed together. This Court is unable to accept that the prosecution was not required to lead any evidence to establish that the substance recovered from the appellant was charas - Since the prosecution has failed to establish that the sample drawn by PW-4, which was sent for chemical examination, is a true representative of the entire substance recovered, it has failed to establish that the substance allegedly recovered was charas. The appellant is, therefore, liable to be acquitted for the offence for which he was charged and convicted by the Trial Court. Whether the prosecution has failed to establish that the sample sent to CRCL and/or the remnant substance recovered from the appellant s trunk, was not tampered with? - HELD THAT - Whether the prosecution has failed to establish that the sample sent to CRCL and/or the remnant substance recovered from the appellant s trunk, was not tampered with - it is the prosecution s case in the complaint that he had withdrawn the same by acknowledging its receipt on the detention receipt bearing No. 66564. However, the detention receipt bearing that number (that is, 66564) which has been exhibited as Ex.PW4/C does not mention any such acknowledgment. There is yet another copy of the said receipt, which records the noting that AI sample was received from SDO(A) and handed over to Sh. Prabodh Kumar, Inspector Customs however, that document has not been exhibited. Further, there is no explanation as to how two detention receipts bearing the same number have been placed on record. It is material to note that since the receipt bearing the said acknowledgement has not been exhibited, it is not in evidence - the prosecution has failed to establish the chain of custody of the samples in question. The fact that the polythene bag containing the substance was not packed in a Delhi Duty Free polythene when the pullanda was opened raises considerable doubt whether the substance had been tampered with. Mr. Aggarwala sought to explain this by stating that the case property had been opened while examining PW-2 and the testimony of PW-2 also indicates that a Delhi Duty Free bag was found in the trunk. He submitted that, therefore, it is possible that the Delhi Duty Free bag could have been taken out at that stage. This contention is unpersuasive - Since the seal as well as the recovered contraband continued to be in possession with the Custom Officers, the possibility of the same being opened and re-sealed cannot be ruled out. It is also apparent that the record maintained regarding the movement of case property is not accurate. In this case PW-4 seems to have access to the articles kept in safe custody and could remove them without making any entry in the SDO(A) Register. This is clearly evident as there was no entry made in the Register for removal of the sample A-1. Thus, the contention that there are doubts that the substance recovered could have been tampered, is merited. There are minor inconsistencies in the testimonies of the witnesses including the colour of the substance recovered; however, the same are not material. The appellant is acquitted of the offences punishable under Sections 20(b)(ii)(C) and 23(c) of the NDPS Act. The appellant has been in custody for over eight years and six months. He shall be released immediately if not wanted any other case - Appeal allowed.
Issues Involved:
1. Applicability of Section 42 of the NDPS Act. 2. Procedure for drawing and testing samples. 3. Chain of custody and potential tampering of evidence. 4. Admissibility and validity of confessional statements under Section 67 of the NDPS Act. Issue-wise Detailed Analysis: 1. Applicability of Section 42 of the NDPS Act: The court addressed whether the provisions of Section 42 of the NDPS Act were violated. It was undisputed that the provisions of Section 42 are mandatory and were not complied with, as no reasons for belief or written information were recorded by the Customs Officers. The key question was whether Section 42 was applicable since the search took place in a public place. The court concluded that the airport, including the Customs area, is a public place as defined under Section 43 of the NDPS Act. Therefore, the provisions of Section 42 were not applicable, and non-compliance with Section 42 was irrelevant. 2. Procedure for Drawing and Testing Samples: The court examined whether the samples drawn were representative of the substance recovered. It was noted that the procedure followed was not in accordance with the Standing Order 1/1989 issued by the Department of Revenue. The court highlighted inconsistencies in the testimony of PW-4 (the Investigating Officer) regarding the testing and mixing of the substance. The court found that the prosecution failed to establish that the contents of each packet were tested separately and that the substance was homogeneously mixed before drawing samples. Therefore, the samples could not be considered representative of the entire substance recovered. 3. Chain of Custody and Potential Tampering of Evidence: The court scrutinized the chain of custody of the samples and the remnant substance. It was found that the prosecution failed to establish a clear chain of custody. There was no evidence showing how PW-4 came into possession of the sample on 28.02.2012 after depositing it in safe custody on 27.02.2012. Additionally, the absence of the Delhi Duty Free bag, in which the substance was initially packed, raised doubts about tampering. The court concluded that the chain of custody was not properly established, and there were significant doubts regarding the integrity of the evidence. 4. Admissibility and Validity of Confessional Statements under Section 67 of the NDPS Act: The court addressed the contention that the appellant's confessional statement under Section 67 of the NDPS Act should be considered an admission of guilt. The appellant had retracted his statement, and the court noted that a confessional statement is weak evidence and can only be used to corroborate other evidence. The court also acknowledged that the admissibility of such statements is under consideration by a Larger Bench of the Supreme Court. Given the retraction and the lack of corroborative evidence, the court did not accept the confessional statement as conclusive proof of the appellant's guilt. Conclusion: The court concluded that the prosecution failed to establish that the substance recovered was charas due to the improper procedure for drawing samples, lack of testing of each packet, and failure to establish a clear chain of custody. The appellant was acquitted of the charges under Sections 20(b)(ii)(C) and 23(c) of the NDPS Act. The appellant, who had been in custody for over eight years and six months, was ordered to be released immediately if not wanted in any other case.
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