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TMI Blog2014 (12) TMI 988X X X X Extracts X X X X X X X X Extracts X X X X ..... Delhi with a huge quantity of heroin in order to deliver it to some Indian at the Exit gate of ISBT. On 5th December 2007, at 3:05 am, the Intelligence Officer ('IO'), Manoj Kumar (PW-8) collected the seal of NCB, DZU-1 from the Superintendent and proceeded to the spot with his team comprising four more officers. At the spot, an independent witness, Rajiv Chauhan joined them. The informer was also present. The team took position near the Exit gate, Ring Road. 3. At around 5:15 am, the Appellant came out from the Exit gate and started waiting for someone. After 15-20 minutes, when the Appellant moved, the raiding party encircled him. The IO disclosed his identity and briefed the Appellant regarding his right to be searched before a Gazetted Officer or Magistrate. He proceeded to serve upon the Appellant a notice under Section 50 of the NDPS Act. The Appellant is stated to have declined to be searched before a gazetted officer. When the Appellant was searched, he was found to be carrying a rucksack bag in which there were two polythenes containing off-white powder which tested positive for heroin. The consignment weighed 4 kg. Two samples of 5 gm each were taken out from eac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were drawn three years after the incident. The learned trial Court observed "due to change in atmospheric condition and other changes, the purity percentage could go down." It was further observed "If re-sampling is done after a gap of considerable duration, then great variation in percentage of active content can occur due to the reason that (i) natural products are prone to get infected with bacterial and fungal micro organism, which causes a change in chemical composition of organic material by decomposition partly or fully; fast deterioration of a material will occur due to effect of light, high temperature and humidity. It is not the case that the illicit heroin was manufactured in the laboratory. Even on re-examination the sample was found to contain diacetylmorphine. No tampering with the sample/case property at any stage is seen. In the absence of any evidence to the contrary, it cannot be doubted that the recovery was not made in the manner it is alleged to have been made." 8. The trial Court concluded that even if the purity percentage was taken as per the second report then the actual quantity of heroin worked out to 292 gm, which was a commercial quantity. The scale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ked to appear before the NCB at 10:30 am on 4th January 2008. It is not clear whether Ex. PW-8/8 was in fact dispatched to Rajiv Chauhan at his postal address and delivered there. In his testimony PW-8 stated that pursuant to the summons issued to Rajiv Chauhan "he appeared on 04.01.08 and his statement written by me as requested before Shri Ajay Kumar, IO." In his statement, Rajiv Chauhan gave his address as "E-15/2, G.T. Karnal Road, Delhi." Rajiv Chauhan is shown to have appended his left thumb impression on the said statement. 14. During the trial, court summons was issued to Rajiv Chauhan to appear and depose as a Prosecution Witness. The proceedings of the learned Special Judge- NDPS dated 15th July 2009 noted "summons of PW Rajiv Chauhan received with the report that the address given is incomplete. Director, NCB is directed to verify himself about the address and depute an IO for service upon this public witness." The next date was fixed for 14th and 15th September 2009. The noting on the side of the order sheet showed that Rajiv Chauhan was summoned for 15th September 2009. 15. However, the date for 15th September 2009 was cancelled and the date for his examination was c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as again issued to the very same address, knowing fully well that the address was incomplete. The endorsement on the reverse of the summon dated 15th July 2009 said that on "G.T.K. Road, there is an address E-15, but there is one Naresh Jain living there and in the E-Block, E-15/12 is not there". 20. By this time, it was clear that there was no such address as E-15/12, G.T.K. Road, Delhi and yet againon the next date, i.e., 12th January 2010, when the summons dated 14th September 2009 was issued, it was again sent to the same address. Naturally, the endorsement on the reverse of this summon also said that the address was false. The endorsement in English read that "family of Mr. Jain is living in E-15 and no E-15/12 in the E Block of G.T.K." 21. For the hearing on 31st March 2010, summons were addressed to Rajiv Chauhan, this time at E-15/2, G.T.K. Road with an endorsement "through IO, Shri Manoj Kumar." However, as noted in the order dated 31st March 2010, this summons could not be served since the IO was on medical rest. Summons were again issued on 7th May 2010 to Rajiv Chauhan to appear on 21st May 2010. However, the address was the same that was already noted as being incomp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der was passed, on 24th May 2010, the Director, NCB was called upon "to monitor the service and submit action taken report on separate letter addressed to the Court." The said order was not complied with. If only NCB had taken effort of finding out what was written on the reverse of the summons, it would have been obvious that the summons was being sent repeatedly to an address, which was incomplete and not correct. This points to an abject failure on the part of NCB to produce the panch witness for examination in the Court. The responsibility for producing the said witness cannot be shifted to the accused. The prosecution was given at least six opportunities and deliberately failed to take steps to find out the correct address and serve the summons on such correct address. 26. The lapse of the NCB points to another difficulty. The summons issued to the panch witness in the very first instance by the NCB during investigation, gave the address as E-15/12, G.T.K. Road, Delhi. The summons was dated 15th December 2007. Rajiv Chauhan was asked to appear before the NCB on 4th January 2008. He is stated to have appeared pursuant to the said summons. The NCB failed to explain how it manag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raid. The latter explanation has been accepted by some Courts by taking judicial notice of the fact that the members of the public are generally reluctant to be involved in criminal cases as witnesses. However, in a case where the NCB specifically names a public witness as being associated in the arrest and seizure, its failure to produce such person for cross-examination must be specifically explained by it. 31. In the present case the failure to produce the public witness was attributable to a false address given for the witness. This raises serious doubts as to whether such a witness existed at all. It will amount to falsification of the trial Court record if the thumb impression on the arrest and seizure memo is attributed to a witness who is not able to be produced and it is shown that the address given for him, even in the first instance in the summons issued by NCB, was false. This casts serious doubts on the trustworthiness of the prosecution version and in that circumstance the benefit of doubt should certainly go to the accused. Retracted statement of the Appellant under Section 67 NDPS Act 32. The other conclusion, on an analysis of the above evidence concerning the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the samples 36. As regards the purity of the samples taken by the NCB from the seized contraband, it was noticed earlier in the trial Court proceedings itself that a second set of samples had been sent for testing and that there was a considerable difference in the purity percentage. While in the first set of samples the purity of DAM was 51.7% and 61.4%, the purity of DAM in the second testing of the samples was 7.2% and 7.4%. The learned trial Court held that this was due to change in atmospheric conditions "and other conditions." 37. During the pendency of the present appeal, this Court heard extensive arguments on the above aspect and passed the following order on 6th January 2014: "Arguments heard. During the course of arguments, it is pointed out by the learned counsel for the appellant that the samples sent to CRCL for analysis were found to contain heroin (diacetylmorphine) having purity percentage of 57.1 per cent in one sample and 61.4 per cent in the other, whereas when the samples drawn in the Court on 9.8.2010 were analysed, the purity percentage in one sample was found to be 7.2 per cent and in the other sample it was found to be 7.4 per cent. The learned trial Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property which was produced before the court, meaning thereby that there has been tampering with the case property. The request made by the learned counsel for the appellant is to remand the matter back to the trial court to summon the author of the second report, namely Ms. Meenakshi Gupta, and examine her on the question as to whether the purity percentage can vary with the passage of time and if so to what extent and under what conditions. He further submits that in case the author of the report is not available, the Director, CRCL or any other expert deputed by him can be examined on this aspect of the case. Of course, according to him, the appellant will have to be given an opportunity to examine the expert as and when he/she is examined by the trial court. The learned Special PP seeks an adjournment to take instructions on the request made by the learned counsel for the appellant, hence, renotify on 9.1.2014. Dasti under the signature of the Court Master to Mr. Rajesh Manchanda, Special PP." 38. Pursuant to the above directions, the learned trial Court summoned Dr. Mahesh Kumar for recording his statement. This witness was examined over three dates. What was significant i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cifically confronted with this question, the expert avoided answering it. However, the cross-examination at this stage was deferred and resumed in the afternoon of 31st January 2014, reproducing the earlier question. The learned counsel for the Appellant now asked him: "Q. The samples in the first set of test were of off white colour, they had five constituents. The second of samples were brown in colour, they had only three constituents. The chromatograms of the first set and the second set of samples are also very different. Would I not be correct in saying that it is possible that the second sample is not of the same origin as that of the first sample? (objected to) A. The difference in colour in two samples does not lead to the necessary inference that they are from two different sources. The difference in the minor peaks in the chromatograms may be due to the different sensitivities of the instruments used for analysis. Some major peaks may also get generated due to some chemical changes. In my opinion therefore there is no possibility that the two set of samples would have come from two different sources. It is wrong to suggest that I have right now completely lied on oath ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... less severe cases, hydrolysis may not be obvious until the impurity profile data have been examined" It was further observed: "However, for high-purity illicit heroin samples the rate of degradation (hydrolysis) is so slow that it can be dificult to measure from year-to-year." In the "Studies on the degradation of heroin" by A.R.L. Wijesekera published in the Forensic Science International in 1994, it has been noted that under refrigerated conditions, the degradation of heroin during a five week period could result in an overall decrease in its heroin content by 17%. One sample showed decrease of average 15%. However, in all instances, the increase in MAM contents were observed to be corresponding to the decrease in their respective heroin (DAM) contents. 45. While the above literature shows that even in the same set of samples from the same source, there is possibility of differences in percentages on account of hydrolysis of DAM into MAM, they do not explain the possibility of total absence of constituents in the second set of samples. In the instant case, this raises a doubt to whether both the set of samples were from the same source. 46. The Supreme Court in State of Himacha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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