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TMI Blog2014 (4) TMI 151X X X X Extracts X X X X X X X X Extracts X X X X ..... by field kit and the statement made by the appellants under Section 67 of the NDPS Act is sufficient to prove beyond reasonable doubt that there was no reasonable possibility of the samples having been tampered with at any time before they were examined in the CRCL. Different weight of the samples - Held That:- Judgment in CBI Vs. Dilbagh [2003 (1) TMI 689 - SUPREME COURT] followed - The case of the complainant is that eight (8) samples weighing 5 gms each were drawn - It is not known whether the balance used by PW1 for weighing the samples was a manual balance or electric balance - Even if it was an electric balance, the accuracy of the balance would not be the same since the extent of accuracy of the balance would depend upon the quality and sensitivity of the balance used for the purpose of weighing - The excess weight was not more than 1.59 gms and the short weight was not more than 2.5 gms - The variation of 2-3 gms can be easily attributed to the fact that the balance used in CRCL would not be the same which the seizing officer had used at the time of seizure of the narcotic drug. An IO need not have a balance of a high accuracy in order to draw the samples - He can dr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants were then brought. It was found that the baggage bearing tag No. 0485452 was booked by the appellant Obi Basi Chuks. Baggage bearing tag No. 486618 had been booked by the appellant Akabuogu Godwin Ojimba, whereas the baggage against tag No. 486619 had been booked by the appellant Edward Chukwudile. The appellants identified their respective baggage. The appellants on being asked to produce their respective tickets for travelling from Kabul to Delhi, appellant Obi Basi Chuks and appellant Edward Chukwudile produced their respective boarding tickets. Akabuogu Godwin Ojimba, however, was unable to produce any ticket or boarding pass. On being asked as to whether they were carrying any contraband goods and/or narcotic or psychotropic substance, either in their baggage or in person, the appellants replied in the negative. The complainant then served notice under Section 50 of NDPS Act on the appellants who, however, had no objection to them as well as their package being examined by any custom officer. 2. Obi Basil Chuks identified his baggage bearing tag No. As 485452 and opened the said baggage from the key which he took out from his pocket. After removing all the artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... substance which also got broken in the small pieces while removing it. Those pieces were also collected in the same polythene bag. A brown colour envelope folder on being examined gave suspicion of concealment. On cutting the sides, it was found to contain a layer of off white which also got broken into small pieces, while removing and was collected in the same bag. A small quantity was drawn as sample and on being tested, it also gave positive indication of being heroin. 3. The zipper bag bearing tag No.486619 which Edward Chukwudile had identified as his bag was opened by him from the key which he took out from his pocket and it was also found to contain various pairs of sandals, books, folders and clothes. All the aforesaid articles were taken out of the bag. On being checked, one pair of coffee colour sandal having a mark Urban Sole Free Walk with mark No.43 was found to be inexplicably heavy, giving suspicion of concealment. On cutting the bottom of the said sandal, a cavity concealing dummy sole of silver colour was found. The concealment from the said sandal, which also was in the shape of a sole covered with silver colour foil contained off white powder, which was colle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he off white powdery substance recovered from the concealment of four pairs which were found in the checked in baggage of Obi Basi Chuks and had been collected in a polythene bag on being weighed was found to be 1.365 kgs and was marked as A3. Thus, according to the complainant, Obi Basi Chuks was found in possession of 6.945 kgs of heroin. 6. The off white powder which was recovered from the checked in baggage of Edward Chukwudile, on being weighed, was found to be 4.215 kgs and marked as B1. The off white powder recovered from the concealment of folders and books which were found in the checked in baggage of Edward Chukwudile and had been collected in a polythene bag, on being weighed was found to be 2.015 kgs and marked as B2. Thus, the appellant Edward Chukwudile was found to be in possession of 6.230 kgs of heroin. 7. The powdery substance which was recovered from the checked-in baggage of Akabuogu Godwin Ojimba and had been collected in a bag, on being weighed, was found to be 1.765 kgs and was marked as C-1. The off white powdery substance recovered from the concealment of three ladies purses and one brown folder recovered from the checked-in baggage of appellant Akabuogu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th Shri Ashok Kumar Gulia, Incharge Valuable Godown at IGI Airport on 14.09.2005 in intact condition. The packing material was also deposited with him. The samples were also deposited with Mr Gulia on the same date. On being analysed in the laboratory, the samples of the substance seized from the appellants were found to be diacetylmorphine (heroin). All the three appellants were prosecuted under Section 21,23 and 29 of NDPS Act. 10. The appellants were charged under Section 21(c) of the aforesaid Act read with Section 8 thereof as well as under Sections 23 and 29 read with Section 21 of the NDPS Act. Since they pleaded not guilty and claimed trial, as many as nine witnesses were examined by the complainant. No witness, however, was examined in defence. 11. The complainant came in the witness box as PW1 and inter alia stated that on 13.9.2005, he was posted as Air Custom Officer at IGI Airport, New Delhi. On the abovesaid date, the accused present in the court arrived from Kabul on flight No.IC 844. When they were in the transit lounge to board a flight to Addis Ababa they had some apprehension that the accused were carrying some narcotic drugs in the checked in baggage. They ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e powder was collected in a polythene bag. The powder recovered from the baggage of the accused Basil Chuks was found to be 6.945 kgs in total, which included the recovery from the shoes, folders and books marked as A1, A2 A3. Thereafter the white powder purporting to be heroin was collected from the concealment of the checked in baggage of Edward Chukwudile. On being weighed, it was found to be 6.23 kg of heroin and the packets marked as B1, B2.. He further stated that the white powder substance recovered from the shoes marked A1 weighed 4.315 kg, whereas the powder from the folders which was marked as A2 weighed 1.265 kg and the recovery from books weighed 1.365 kg., which was marked A3. The powder substance recovered from sandals, folders and books weighed 4.215 kg and marked as B1, whereas the recovery from the folder weighed 2.015 kg and was marked as B2. The substance recovered from sandal weighed 1.765 kg and was numbered as C1, the recovery from purse C2 weighed 2.015 kg and recovery from books weighed 0.665 kg, which was marked as C3. According to the witness, three (3) representative samples of 5 gram each were drawn from packets A1, A2 A3 which contained the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , some white colour material was lying in the container and those articles were seized in his presence. 13. PW3 Shri Ashok Kumar Gulia inter alia stated that in the night intervening 14/15.9.2005, he had taken charge of SDO (Arrival) since regular SDO was on leave on that day and Shri S.P. Singh had deposited with him the goods as mentioned in the detention receipts in intact condition. He identified his signatures on the detention receipts Ex.PW1/V to PW1/Y and stated that the goods were duly sealed with custom seal No.6 which Shri S.P. Singh returned to him on the same day during his duty hours. He further stated that the entire goods mentioned in the detention receipts were handed over by him to the SDO (Arrival) who joined duty on 15.9.2005. 14. PW4 Shri R.K. Soni inter alia stated that on 15.9.2005, he had taken eight (8) packets of samples along with three sets of test memos in duplicate to the office of CRCL for analysis. The aforesaid samples were sealed with custom seal No.6 and were taken by him from Mr. Kamal Gautam. The aforesaid goods were handed over by him to Shri R.P. Meena, Assistant Chemical Examiner, CRCL in intact condition and Mr. Meena gave him an acknow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wed the transit slip Ex.PW2/J to them. He also admitted his statement Ex.PW2/I, which he had made to the Custom officers. 18. In their respective statements under Section 313 of Cr.P.C., the appellants admitted that they had arrived from Kabul to IGI Airport on 13.9.2005 on flight No.KB44 and had thereafter gone to transit area to take a flight to Adis Ababa. They claimed that from the transit area, Custom officials forcibly took them to their office. They also claimed that the bags in question did not belong to them and were never identified by them. They, however, admitted that the Custom officers had seized their air tickets and boarding passes. They also claimed that the Custom officers had forcibly taken their signatures on several papers. They also denied the alleged recovery of heroin, as stated by PW1. 19. Vide impugned judgement dated 30.4.2010, all the appellants were held guilty under Section 21(c) read with Section 29 and Section 23(c) read with Section 28 of the NDPS Act. Vide impugned Order on Sentence dated 10.5.2010, they were sentenced to undergo RI for fourteen (14) years each and to pay fine of Rs.1.50 lakh each or to undergo SI for six months each in defau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umber noted against his name is not correct, his correct passport number being A1064602. It is inconceivable that some passenger other than Edward Chukwudile would have given his name as Edward Chukwudile, his passport number as 3010222 and tag No. as 486619. There is no way some other person could have known that another person by the name of Edward Chukwudile was to travel on flight No.E 629 to Ethiopia on that day. Moreover this is not the case of the appellant that there was some other person by the name Edward Chukwudile holding passport No.3010222 who had to travel on flight No.EI 629 to Ethiopia on that date. Therefore, I am quite satisfied that the persons whom PW8 had met in the transit area on that date had booked check in luggage vide tag Nos.485452, 486199 486618. A perusal of the deposition of PW8 Somnath Bhattacharjee would show that three (3) Nigerians who were to travel to Adis Ababa and from whom inquiry was made by him were the same persons whom he later found facing inquiry from the Custom officials. He also identified all the three (3) appellants present in the court as the above-referred three (3) Nigerian persons. Thus, this independent witness clearly id ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lants before this Court. 23. Coming to the contention that the complainant has failed to prove that there was no possibility of the samples having been tampered with, I find from a perusal of the reports of CRCL PW5/A, that the sample marked B1/S1 had four intact seals of Custom seal No.6 on them whereas the sample marked B2/S1 had three such intact seals. The report Ex.PW5/B would show that the sample C1/S1 had four intact seals on it, samples C2/S1 C3/S1 had five intact seals each on them and report Ex.PW5/C shows that the samples A1/S1, A2/S1 and A3/S1 had three intact seals on each of them. It is, thus, quite evident that there was no possibility of the samples having been tampered with except by or in connivance with the person who had Custom seal No.6 with him. It has come in the deposition of PW1 that the aforesaid seal belonged to PW3 Shri Ashok Kumar Gulia and was taken from him. The seal was returned to Mr. Ashok Kumar Gulia at the time, the eight (8) samples A1/S1, A2/S1, A3/S1, B1/S1, B2/S1, C1/S1, C2/S1 and C3/S1 were deposited with him. According to Mr. Ashok Kumar Gulia in the morning of 15.9.2005, he had handed over the samples to the SDO (Arrival) who joine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rced by Custom officers to sign on blank papers and write down dictated statement. He also alleged that third degree methods were used on him by the Custom officers. The appellant Obi Basil Chuks also alleged that he was badly beaten during interrogation and forced to sign blank sheets. However, there is absolutely no evidence of any of the appellants having actually been beaten, tortured or subjected to any third degree methods. None of the appellants chose to come in the witness box to substantiate the plea taken in their respective applications. Moreover, had they been subjected to torture and use of third degree methods as is alleged by them, they would have complained to the Magistrate at the time they were produced before him for the first time on 15.9.2005. A perusal of the MLCs of the appellants Akabuogu Godwinn Ojimba, Obi Basil Chuks and Edward Chukwudile, which are available on the judicial file would show that when they were examined in Dr. Ram Manohar Lohia Hospital on 15.9.2005, no external mark of injury was found on their person. The MLCs do not indicate any complaint of torture or beating by the aforesaid appellants. Therefore, neither the appellants have led an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact that the balance used in CRCL would not be the same which the seizing officer had used at the time of seizure of the narcotic drug. This issue came up for consideration before this Court in Sunil Kumar Yadav @ Soni v. N.C.B [Cri. Appeal No.944/2010 decided on 18.03.2014] and the following view was taken: 21. Coming to the discrepancy in the weight of the samples which was sent to CRCL for the purpose of analysis, a perusal of the report would show that three samples were sent to the laboratory, out of which, one weighed 40.8 gram, one weighed 43.3 gram and one weighed 42.9 gram. Thus, the excess weight was almost uniform in all the three samples. In Rajesh Jagdamba Avasthi Vs. State of Goa (2005) 9 SCC 773, the contraband found with the accused was 100 gram in the right foot and 115 gram in the left foot. However, when weighed in the laboratory, the quantity of the substance alleged to have been recovered from the right foot was found to be 98.16 gram, whereas the quantity of the substance alleged to have been recovered from the left foot was found to be 82.54 gram. The Apex Court was of the view that the prosecution had not been able to explain the discrepancy whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t discrepancy in weight individually may not be fatal. It was also noted that in Rajesh Jagdamba Avasthi (supra), the recovery proceedings were found to be suspicious and there was every possibility of the seized substance being tampered with and it were those infirmities which had led the Court to doubt the truthfulness of the prosecution case. In Mahender Singh (supra), 21 samples of 50 gram each were drawn at the time of seizure. However, when weighed in the laboratory, the weight of the samples varied from 21 grams (lowest) to 84 grams (highest). Thus, the difference in the weight was not uniform, in some samples it being less than the quantity stated to have been drawn as sample and in another cases it being much more than the stated quantity. Moreover, the discrepancy in the weight of samples was not the only ground for acquittal of the accused, the other discrepancies being a) material contradiction in the deposition of witnesses; b) the accused did not try to run away despite seeing police officials in uniform; c) keys of the motorcycle of the accused had not been seized; d) the seal was never given to an independent witness and retained by IO; e) samples were sent for a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Investigating Officer, who draws sample for testing, need not have a balance of a high accuracy in order to draw the samples. He can draw sample weighing approximately 05 gm using ordinary balance. If the same sample is weighed at an accurate scientific balance used in CRCL, the weight of each sample is bound to differ. The difference in weights of samples rather shows the genuineness of the case. If the case had been a made up or a false case, the IO might have used more accurate balance and weighed the samples with accuracy. One may have doubt on the genuineness of the case if the each sample weigh the same on accurate balance used in CRCL, but one cannot doubt if the weight difference is found as in this case. Such difference in weight is natural. No malafide can be drawn by the appellant by this difference of weight. Thus the weight difference in the sample cannot be considered as a ground for acquittal. In Sunday Emegha Vs. State (2012) 194 DLT 3, the case of the prosecution was that two samples of contraband, each weighing five grams were drawn. In the laboratory the weight of one sample was found to be 6.5 grams whereas the weight of the other sample was found to be 5.5 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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