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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 ..... 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. There is no independent corroboration of the arrest of the Appellant, the seizure from him of the contraband and the recording of his statement under Section 67 of the NDPS Act. Appellant did not write the statement himself. Although he appears to have written the first paragraph and the last line, in the one paragraph written by him he stated "I am not in a position to write my statement. So, I request Ajay Kumar to write my statement on my dictation." The MLC of the Appellant also showed that he had received an abrasion behind the right ear. He also mentioned his being tortured in the retraction statement at page 349 of the trial Court record. As regards the purity of the samples taken by the NCB from the seized contraband, it was noticed e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 21(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS Act') for being found in possession of 292 gms. of heroin as well as the judgment on sentence dated 6th October 2010 whereby he was sentenced to rigorous imprisonment (RI) for ten years along with a fine of ₹ 1,00,000 and in default, to undergo simple imprisonment (SI) for six months. The case of the prosecution 2. The case of the Respondent, Narcotics Control Bureau ('NCB') is that a secret information was received by them that the Appellant would come from Chandigarh by bus on 5th December 2007 at around 5 am at the Inter State Bus Terminal ('ISBT'), Kashmere Gate, 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 Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property, although there was overwriting on the seal movement register, PW-9 had stated that the overwriting was made in the presence of PW-8. A perusal of the record showed that there was nothing to infer that the entry was tampered with. The time of issue of seal and return of seal was mentioned in the register (Ex. PW-7/1) and this was duly corroborated by PW-8. 7. The learned trial Court next dealt with the differences in purity percentages of DAM in the two samples. During the trial, since there was a discrepancy in colour and texture, fresh samples were drawn and sent to CRCL for re-analysis. The second report disclosed the DAM percentages as 7.2% and 7.4% respectively. The second samples 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd sentenced as mentioned hereinbefore. The failure to examine the panch witness 12. There were three grounds urged by Mr. Rahul Tyagi, learned counsel for the Appellant, the first of which concerned the non-examination of the panch witness, Rajiv Chauhan. According to the prosecution, Rajiv Chauhan was present with them at the time of the arrest of the Appellant, on 5th December 2007. His left thumb impression was found on the seizure memo (Ex.PW-8/3). 13. Ten days after the arrest of the Appellant, summons dated 15th December 2007 were issued to Rajiv Chauhan (Ex.PW-8/8), with the address in the summons written as Rajiv Chauhan, s/o Harpal Chauhan, resident of E-15/12, G.T.K. Road, Delhi. He was asked 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Rajiv Chauhan and to the Director, NCB to monitor the effecting of service and file a report, the directions were not complied with by the NCB. 19. Copies of the summons prepared for Rajiv Chauhan on different dates are on the judicial record. The first of the summons issued to Rajiv Chauhan from the learned trial Court was dated 17th April 2009. The address was the same as that in the summons issued to him under Section 67 NDPS Act, i.e., E-15/12, G.T.K. Road, Delhi. On the reverse of the said summons was an endorsement of Rajesh Kumar, Driver Grade-II,NCB that the summons could not be served since the address was incomplete. A similar report was given for the next date, i.e., 15th July 2009, for which date summons was 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... furnished by the NCB was incomplete, there was no justification in getting summons prepared for the two subsequent dates for the address at E-15/12 G.T.K Road. The process server had noted that one Mr. Jain was residing in E-15, G.T.K. Road, Delhi and that there was no E-15/12. In the circumstances, it was incumbent on the NCB to ascertain the correct address of Rajiv Chauhan. Further, on two occasions, the trial Court directed the service of summons to the said witness through the IO, since he was the only public witness. On the first occasion, when such an order was passed on 13th January 2010, the trial Court was informed that the direction could not be complied with since the IO was unwell. On the second occasion, when such an order 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stating that the address given for Rajiv Chauhan was either incomplete or false. The first line of Rajiv Chauhan's statement under Section 67 NDPS Act recorded that he appeared pursuant to the summons issued to him. If the address given on the summons was false or incomplete, then the onus of proving how Rajiv Chauhan appeared on his own before the NCB on 4th January 2008 was squarely on the prosecution and that burden was not discharged by it. 30. In a large number of cases involving the NCB, there is a failure to produce the panch witness named. There are cases where panch witnesses are not associated at all and it is sought to be explained by the prosecution that despite its request no person from the public came forward to join in the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved that if accused persons are interrogated while they are in custody, it cannot be said that they have made a voluntary statement which satisfy the conditions precedent laid down in Section 67 of the Act. Even in that case, the Supreme Court found it difficult to accept that the confessional statement was voluntary although they had not been put under arrest. As the authorities under the Act can always show that they had not been formally arrested before the said statements were recorded, a holistic approach for the aforementioned purpose is necessary to be taken. Therefore, the second ground on which the Court is inclined to give benefit of doubt to the Respondent is that the confessional statement made by him is not shown to be voluntary. Purity of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the bail application and not on the merits of the case. Even otherwise in the present scenario, the second report would be considered for calculating the purity percentage with which the actual quantity of heroin comes to 282 grams.' The learned counsel for the appellant submitted that the view taken by the learned trial Judge was not based either on the deposition of the expert or upon any scientific study undertaken in this regard. He also submits that since the purity percentage cannot go down to the extent it has gone down in the present case, even after three (3) years between the analysis of the first sample and the analysis of the second sample, the natural inference would be that the sample which was initially sent to CRCL was not drawn from the same case 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 exte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated that Peak 4 in this report could be MAM because, as per the literature in case of heroin, MAM comes before DAM. 41. A specific question put to the witness by learned counsel for the Appellant and the answer given by him reads as under: Q. There are two chromatograms shown to you of the same seized sample of street heroin - one taken today and one taken two years after that and the subsequent chromatogram show presence of decreased number of constituents (peaks) and relative decrease in MAM percentage and relative increase in DAM percentage. What would it indicate? A. I do not wish to say anything with respect to this question as I have not come across such a possibility happening nor have I come across any literature in this regard. 42. In other words, when he was specifically 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roin when it is in crystallized form. 44. According to an article published in the European Journal of Pharmacology in 2002, by Mark R. Hutchinson and Andrew A. Somogyi on the issue of degradation of DAM to MAM for in vitro studies, DAM degradation is dependent on the conditions of the cell culture and not on the presence of cells. In another study, titled as Methods for Impurity Profiling of Heroin and Cocaine which is a part of the United Nations Manual for Use by Drug Testing Laboratories, 2005, it was noticed that Post processing hydrolysis can occur readily for those samples containing non-bound water or excess acid. In those cases where both the alkaloidal content and the extent of hydrolysis are significant, the sample may become dark brown (almost black) and will finally become tar-like. In 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 Int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the data and materials furnished which form the basis of his conclusions. 19. The report submitted by an expert does not go in evidence automatically. He is to be examined as a witness in Court and has to face cross-examination. This Court in the case of Hazi Mohammed Ikramul Haque v. State of West Bengal AIR 1959 SC 488 concurred with the finding of the High Court in not placing any reliance upon the evidence of an expert witness on the ground that his evidence was merely an opinion unsupported by any reasons. 47. In Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra AIR 2005 SC 2277, in the context of the brain mapping test, the Supreme Court discussed the principles governing acceptance of expert evidence. The Court referred to the principles highlighted by the United States Supreme Court in Daubert v. Merryll Dow Pharmaceauticals Inc., 113 Sct 2786 (1993). The Supreme Court emphasised the need for trial courts to assume the gate keeper's role in screening such evidence to ensure that it is not only relevant but also reliable. 48. The Court, on a careful perusal of the evidence of the expert evidence in the present case is not satisfied that the prosec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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