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TMI Blog2015 (6) TMI 817X X X X Extracts X X X X X X X X Extracts X X X X ..... the passport in the name of Pinto Deep were seized nor placed on the judicial file. Moreover, no enquiry was made by the NCB officials as to who had handed over the cardboard box containing the narcotic drug to the appellant and where the same was to be sent. Burden to prove the case beyond reasonable doubt was upon the prosecution. The provisions of the Act and the punishment prescribed therein being indisputably stringent, the extent of burden to prove the foundational facts on the prosecution i.e., proved beyond reasonable doubt would be very onerous. A heightened scrutiny test would be necessary to be invoked. It is also a settled principle of criminal jurisprudence that more serious the offence, the stricter the degree of proof. - prosecution has failed to establish the case beyond reasonable doubt as such, accused is entitled to benefit of doubt. The impugned judgment cannot be sustained and is set aside - Decided in favour of appellant. - CRL.A. No. 1113/2011 - - - Dated:- 28-5-2015 - Sunita Gupta, J. For the Appellant : Mr. Vikas Gautam, Adv For the Respondent : Mr. Mukesh Malik, Adv JUDGMENT Sunita Gupta,J. 1. Edward Khimani Kamau impugns the j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s concealed inside the layers of the cardboard box containing off white powder were recovered which on testing gave positive for heroin weighing 770 grams. Two samples of 5 grams each were taken out from the powder. The remaining substance and the nine empty packets were kept in a cloth. Torn pieces of cardboard box and six sarees were also kept in a cloth. All the parcels were sealed with the seal of Narcotics Control Bureau DZU 2. The accused was also carrying a paper containing the consignor and consignee details which was taken into possession vide Ex.PW3/DA. Summons under Section 67 NDPS Act was served upon the accused to appear in the NCB office where he tendered his statement admitting his complicity in the business of drug trafficking. He was thereafter arrested. The seizing officer and the arresting officer submitted their reports under Section 57 NDPS Act to the Superintendent. The case property was deposited in the Malkhana. The sample alongwith the forwarding letter and the test memo was sent to CRCL through Shiv Ratan, Hawaldar. As per report Ex.PW4/A dated 23.03.2009, the sample mark A1 was found to contain diacetylmorphine with its purity 77.0%. After the investigati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt was made by him to the Court when he was produced for the first time that he was forced to write the statement. No allegation of any torture was made by the appellant and only bald and vague allegations were made that he was mistreated and threatened. There was no injury on his person during medical examination. There is substantial compliance of Sections 42, 50, 55 and 57 of NDPS Act. Independent witness PW-3 Arvind Kumar supported the case of prosecution. All the link witnesses were examined to rule out the possibility of tampering with the case property. The learned Trial Court had rightly convicted the appellant and the appeal has no merit and is liable to be dismissed. 7. Heard and considered the arguments advanced at the Bar and the written submissions filed by the parties. 8. Although the impugned judgment has been challenged by learned counsel for the appellant on number of grounds, however, the appeal filed by the appellant can be decided on the ground (vi) alone. It is the case of prosecution as reiterated from the seizure memo Ex.PW3/A and the testimony of PW-2, PW-3, PW-6 and PW-7 that on checking the cardboard box nine long polythene boxes were recovered. On c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he quantity seized. If it is not practicable in a given case, to sent the entire quantity then sufficient quantity by way of samples from each of the packets of pieces recovered should be sent for chemical examination under a regular panchnama and as per the provisions of law. 9. Following this judgment, it was held by a single Judge of this Court that a wrong process of taking samples was adopted by the police. The police should have taken the samples from each packet instead of mixing all samples into two representative samples. This is precisely for the reasons that if the 8 packets were allegedly recovered from the appellant and two packets have contraband substance and rest 6 packets did not contain contraband, though all may be of the same colour but when the contraband substances of all 8 packets are mixed into one or two then definitely the result would be of the total quantity and not of the two pieces. Therefore, the process adopted by the prosecution creates suspicion. In such a situation, the benefit thereof should go in favour of the accused. Substantially similar question arose in Netram vs. State of Rajasthan 2014 (2) WLN 394 (Raj.) wherein also the recovered mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... witnesses. As per the prosecution case, two samples were drawn one was sent to CRCL and the other sample was kept in the malkhana alongwith the case property but that sample was never produced in the Court during the course of trial. PW-4 S.C.Mathur, the chemical examiner on 10.02.2010 had deposed that the colour of the alleged contraband was light brown. The polythene pouch containing the alleged recovered substance was having a small hole in the middle. On 11.02.2010 PW-3 deposed that the substance was of off white colour. On 19.05.2010 PW-6 P.C.Khanduri, the Additional SHO deposed that colour of the alleged contraband was yellowish while PW-8 Budwan Ram, the Chemical Examiner mentioned that colour was dark brown. Furthermore, there was difference in weight of the sample in the test memo. The net weight of the sample sent for analysis was given as 5 gms while the sample received at the laboratory was 5.7 gms. Furthermore, it is not clear as to what was the texture of the sample allegedly recovered from the possession of the accused whether it was powder or tikiya or pebbles. 13. In view of above mentioned discrepancies appearing in the prosecution case, it is not necessary to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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