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TMI Blog2011 (12) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... n terms of Section 437-A Cr.P.C. However, since the Respondent has not been able to furnish the bond, hence he is in custody. Thus, this appeal was taken up for hearing by this Court. 2. Briefly the case of the prosecution is that on 13th March, 2007 the Respondent was going to Bangkok by flight No. AI-348 from IGI Airport New Delhi carrying one black colour stroller hand bag of ECHOLACE brand with no check-in baggage. The Respondent was wearing an overcoat during summer season which seemed unusual. Due to suspicion he was intercepted at the customs counter. On inquiry, he replied that he was carrying only US $ 2000 and Indian Rs.450/- and denied carrying any Narcotics Drugs. Not being satisfied by the reply of the Respondent, the Air Custom Officer Shri Jarnail Singh, the Complainant decided to examine the hand bag and the person of the Respondent in the presence of panch witnesses. Notices under Section 102 of the Customs Act and Section 50 of the NDPS Act were served on the Respondent apprising him of the legal right available to him. The Respondent did not want to get himself examined by a Gazetted Officer or a Magistrate and thus the Air Custom Officer examined him. The ov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 67 of the NDPS Act vide Ex.PW1/U1, PW1/V1 PW3/B, PW3/D and PW3/E have been proved. Reliance is placed on Ajmer Singh vs. State of Haryana 2008 (3) JCC Narcotics 188; State of Haryana vs. Mai Ram 2009 (3) JCC Narcotics 106. Since as per Section 53-A of the NDPS Act these are relevant statements, the contention of the Respondent that the prosecution failed to prove in whose presence recovery of 77 capsules were effected is untenable. It is contended that the finding of the Learned Trial Court regarding discrepancy in collection of the samples and deposition thereof with the CRCL is erroneous. Learned counsel refers to the testimony of PW1, PW5, PW7 and PW10. Reliance is placed on Siddiqua vs. NCB, 2007 (1) JCC Narcotics 22 Delhi, Gita Lama Tamang v. State of (G.N.C.T.) of Delhi,2006 (3) JCC Narcotics 197. 5. It is contended that the finding of the Learned Special Court that there was discrepancy with regard to marking of the samples in the forwarding letter is erroneous. Three samples were drawn from the first recovery and marked as A1, A2 and A3. Sample mark A1 was sent to CRCL along with test-memo and forwarding letter dated 15th March, 2007. As per the receipt obtained fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very of one capsule from the overcoat is doubtful as the Respondent was not wearing any overcoat at the relevant time. Further, PW1 in his statement has stated that coat was made of leather whereas the coat produced in Court was of cloth fabric and not leather. The alleged contraband recovered from the capsule found in the overcoat was not sent to the CRCL since sample A1 was not sent. Thus, the sole testimony of PW1 in this regard cannot be relied upon. 8. It is further contended that even the recovery of 77 capsules from the Respondent is doubtful. No MLC, X-ray, CT Scan or any medical document has been placed on record. Even the OPD slip does not mention the fact that the capsules were ejected before the Customs Officers. The Doctors in whose presence the capsules were ejected have not been examined. Further the order of the Learned Metropolitan Magistrate under Section 103, Customs Act has also not been complied with. The testimony that samples were drawn from 77 capsules was also doubtful. The only explanation with the Appellant is that there was a typographical error which is not possible. Further the test memos were prepared on the 15th March, 2007 and not on 13th March, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitched by hand and thus, the same was opened. On opening one capsule was found concealed in the inner layer of the beige (khaki) overcoat. On examining the capsule with a machine, it gave positive test for narcotic drug. On cutting of the capsule, white colour substance was recovered which was tested with the help of field testing kit which gave positive result for heroin. The same was weighed and found to be 14 grams. Three samples of 2 grams each were taken from this. The samples were marked as A1, A2 and A3 and the remaining substance was kept in a plastic pouch and sealed with the cloth, stitched and sealed with the custom seal over a paper slip bearing the signatures of the concerned signatories of the panchnama. The overcoat was also taken into possession vide memo Ex. PW1/C. 11. PW1 has further stated that the Respondent was asked whether he had any further substance to which he replied that he had concealed 70-75 more capsules in his body. The currency of US $ 2,000 and Rs.450/- and the hand bag were returned to the accused, however, the travelling documents, that is, the air ticket, boarding pass were seized. Thereafter in view of the disclosure of the Respondent of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orded the statement of the Respondent on 13th March, 2007 and 15th March, 2007. The Respondent was formally arrested. The report under Section 57 NDPS Act Ex. PW1/O was sent to senior officers. Thereafter the entire case property, jamatalashi, packing material and personal belongings were deposited through DR Nos. Ex. PW1/P to Ex.PW1/T respectively. The goods were received by Shri K.C. Gupta, ACO (SDO) which were sealed. The samples were sent to CRCL by Shri Rajiv Kumar, ACO. The statements of panch witnesses were recorded under Section 67 of the NDPS Act, which were duly exhibited. The test memos were prepared in triplicate on 15th March, 2007 for the recoveries effected on 13th March, 2007 and 14th March, 2007. The two tests reports were duly received and exhibited as Ex.PW10/A and Ex.PW10/B along with their remnant samples. All these articles were duly exhibited during the evidence of this witness and marked as Ex. P1 to P36. The statements of the doctors were also recorded under Section 67 of the NDPS Act. 12. A perusal of the testimony of PW1 and Exhibit PW1/B shows that the Respondent was duly informed about his legal right to be searched before a Gazette Officer or a Mag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent. 14. The primary reasons for acquittal by the learned Special Judge were that the samples sent to CRCL were marked as A and not A1 and B1 in view of the covering letters Exhibit PW4/D and PW4/A and that the same samples which were duly recovered and sealed were sent have not been proved by the prosecution i.e. the link evidence has not been proved. The mentioning of sample A in the covering letter was inadvertent due to typing mistake and is not an error which goes to the root of the matter especially in view of the fact that the Respondent has not cross-examined PW-1 on this aspect. Further a perusal of Exhibits PW4/B, 4/C, 4/E and 4/F shows that it was the samples marked A1 and B1 which were sent to the CRCL. This testimony of PW1 is corroborated by PW10 Shri S.K. Mittal, Chemical Examiner. He states that he had received sample packets marked A1 and B1 with seals intact. There is no doubt that there is an error in the forwarding letter which states that sample A is being sent, however the CRCL form annexed thereto clearly states that the samples sent to the laboratory were A1 and B1. The finding of the Learned Trial Court that there is no cogent evidence on record that sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearly stated that sample mark B1 was being sent. PW4 Rajeev Kumar had further brought the register of the SDO(A) which contained the entry No. 3027 dated 16th March, 2007. According to Ex.PW4/H, PW4 received the sample mark B1 for onward transmission to CRCL. Further PW10 Sh. S.K.Mittal, Chemical Examiner from the CRCL has stated that he received the sample mark A1 and B1 which were found to be positive for heroine (diacetylmorphine) and reports regarding the same were Ex.PW10/A and PW10/B . 17. Much emphasis has been laid by the Learned Trial Court on the fact that the representative samples mark A1, A2 and A3 and the remaining case property were not deposited with the Malkhana on 13th March, 2007 itself and was kept by PW1 in his own custody till 15th March, 2007. It may be noted that the facts of each case have to be looked on the basis of their peculiar circumstances. Learned Special Judge has held that PW1 in his cross-examination has stated that Panchnama proceedings were over on 13th March, 2007 at 6.00 PM and then he reached the house of Duty Magistrate at 8.30 PM but still he failed to explain why the case property and the samples were not deposited. PW1 was put this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the sample B1 could not be sent to CRCL on that day i.e. 15th March, 2007 as the proceedings relating to the aforesaid recovery continued till late hours in the evening. He has further stated that on 15th March, 2007 the proceedings started at 9.30 AM and were concluded at 12.40 PM. On this basis, the learned Trial Court has assumed that the seal was taken by PW1 after 12.40 PM. From the evidence of the PW1 it is evident that he took the customs seal No.6 on the 13th and 15th March, 2007 and returned the same on the same day after conclusion of proceedings. 20. The statements of the PW1 is corroborated by the statement of the Respondent recorded under Section 67 of the NDPS Act by PW2. The Respondent has retracted the said statement on 28th March, 2007 and has stated that the same was taken from him under duress, by beating and torturing physically and mentally. It may be noted that the Respondent was taken to Hospital immediately after his apprehension and admitted therein. A perusal of the OPD cards of the Respondent being Exhibits PW1/J and PW1/K do not show that the Respondent had received any injury. Further the statement was recorded on 15th March, 2007 and the Responden ..... X X X X Extracts X X X X X X X X Extracts X X X X
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