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TMI Blog2014 (4) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... n admit either that he was driving the aforesaid truck or that the said truck was stopped and seized by NCB officials at Kapashera border - The deposition of PW5 with respect to seizure of the opium from the truck being driven by the appellant finds full corroboration from PW6 Vikas Kumar in whose presence the seizure was effected - Therefore, the respondent NCB has proved beyond reasonable doubt that the appellant was driving the truck from which the substance in question was recovered by its officials, in the morning of 4.3.2006, at Kapashera border. Whether statement u/s 67 of the NDPS Act can be basis of conviction when it was denied u/s 313 Cr.P.C. Held that:- The seizure of the drug from the truck being driven by the appellant finds corroboration from the statement which he made under Section 67 of the NDPS Act - Though the aforesaid statement was denied by him in his statement u/s 313 Cr.P.C., the statement has been duly proved by PW5 who had recorded the same, and this is not the case of the appellant that it is not signed by him - The appellant does not even claim that the aforesaid statement was obtained from him by subjecting him to any kind of duress or inducement - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... awla Village and Shri Mahender Singh resident of Village Rangpuri agreed to remain present during the search and seizure. At about 8:00 a.m. truck bearing No.PB-08P-9805, which was coming towards Delhi was made to stop. The appellant Satpal @ Gogi was found driving the said vehicle. Another person, namely Aman, was the cleaner on the truck. The appellant Satpal was apprised of the information, NCB officials had with them and was told that the search of his person and the truck could be conducted in the presence of a Magistrate. The appellant Satpal, however, declined and stated that any officer could search him. After serving notice under Section 50 of the NDPS Act on him and explaining its contents to him, the truck was searched in the presence of the appellant as well as his cleaner and the public witnesses. During the aforesaid search, a plastic bag was found amongst the items loaded in the truck. On the bag being opened, black coloured substance kept in a white plastic was found in it. A small quantity of the aforesaid substance, when tested with field testing kit, gave positive result for opium. On being weighed, the opium inside the bag was found to be weighed 12.500 kg. Two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be searched by NCB officers. On searching the truck a plastic bag was recovered from it. On opening the bag, semi solid black substance was found in the aforesaid bag, which, on testing, gave positive result for opium and, therefore, two (2) samples of 25 gram each were drawn from it. The samples were kept first in two (2) separate white polythenes and in two (2) separate envelopes and sealed with the seal of NCB, DZU-3. The substance, on being weighed, was found to be 12.500 kg. The paper slip signed by the appellant Satpal, his cleaner, the public witnesses and by him (PW5) was pasted on both the samples before they were sealed. The remaining material was also sealed in the same manner, using the same seal. Summons under Section 67 of the NDPS Act were served upon the appellant as well as his cleaner Aman requiring them to appear in NCB office at 2:00 p.m. on the same day. He also stated that the seal used by him for the purpose of sealing had been taken from Shri R.R. Kumar, Superintendent vide entry Ex.PW9/A made in the movement register and the case property was deposited by him in the malkhana vide entry made in the register Ex.PW4/A. He also stated that on 4.3.2006, the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kept in strong room under lock and key and was taken out from there on 12.6.2006, under his supervisions with the help of Shri P.R. Meena, Chemical Assistant. According to the witness the seals were found intact on the sample at that time and a paper slip was also found pasted over it. The facsimile of the seal tallied with the seal impression on the test memo. He further stated that on being examined the sample was found to be opium with the percentage of morphine at 7 per cent. PW4 Shri P.C. Khanduri is the official with whom the case property including the samples in envelopes marked as A1 A2 was deposited by PW5 Shri Avnesh Kumar at about 1:00 p.m. on 4.3.2006. He inter alia stated that all the parcels were sealed with the seal of NARCOTICS CONTROL BUREAU DZU-3 and an entry in this regard was made by him in the malkhana register which is Ex.PW4/A. He further stated that on 6.3.2006, the sample marked as A1 and its memo in duplicate were sent to CRCL through Constable Babulal vide entry Ex.PW4/B. The remnant sample was received from CRCL and an entry Ex.PW4/C was made in this regard. He also stated that there was no tampering with the sample or the test memos. PW2 Babul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses with the search of the truck in which the contraband was found. 9. The search was carried out by NCB officials in exercise of their official duty as public servant. The appellant does not claim any previous animosity between him and NCB officials. Therefore, they had no reason to implicate him in a false case of possession of narcotic drug. In fact, the appellant in his statement under Section 313 Cr.P.C. did not even admit either that he was driving the aforesaid truck or that the said truck was stopped and seized by NCB officials at Kapashera border on 4.3.2006. The deposition of PW5 with respect to seizure of the opium from the truck being driven by the appellant finds full corroboration from PW6 Vikas Kumar in whose presence the seizure was effected. Therefore, the respondent NCB has proved beyond reasonable doubt that the appellant was driving the truck from which the substance in question was recovered by its officials, in the morning of 4.3.2006, at Kapashera border. 10. The complainant/respondent has produced the entire oral as well as documentary link evidence to rule out any reasonable possibility of the sample having been tampered with before it was analyzed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 313 Cr.P.C. did not offer any explanation at all for the aforesaid opium being found in his truck. The plea taken by him was of a total denial. Thus, the complainant has been able to prove that the appellant contravened the provisions of Section 8 read with Section 18 of the NDPS Act by possessing, in the truck driven by him, opium weighing about 12.500 kg. 11. Section 54 of NDPS Act, to the extent it is relevant, provides that until and unless the contrary is proved, the Court can presume that the accused has committed an offence under the provisions of the Act in respect of any narcotic drug or psychotropic substance or substance for the possession of which he fails to account satisfactorily. 12. The seizure of the drug from the truck being driven by the appellant finds corroboration from the statement which he made under Section 67 of the NDPS Act. Though the aforesaid statement was denied by him in his statement under Section 313 Cr.P.C., the statement has been duly proved by PW5 who had recorded the same, and this is not the case of the appellant that it is not signed by him. The appellant does not even claim that the aforesaid statement was obtained from him by su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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