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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 ..... and this group has a member namely Edward resident of Uttam Nagar who books parcels containing drugs through courier in Delhi. It was further informed that he would come to DTDC office at 1666-C, first floor, Govind Puri Extension on the night of 05.02.2009 to book a parcel in which drug has been concealed. This information was reduced into writing and was put up before the Superintendent Sh.Ajay Kumar who issued search authorization in his favour and directed him to organize raid. Sh.P.C.Khanduri alongwith Sh.Ajay Kumar, Sh.Manoj Kumar, Sh.Vikas Kumar and the informer went to the DTDC Franchise office in a government vehicle bearing no. DL-9CC-3009 and reached there at about 8.30 pm and waited for Edward to come. At about 8.45 pm hours the accused came on a cycle rickshaw. He was carrying a cardboard box in his hand with which he went to the office of DTDC. On the identification of the informer, he was intercepted at the counter of DTDC office. Sh.P.C.Khanduri gave his introduction and told him about the information. Sh.Arvind Kumar, In-charge of DTDC office was joined to witness the proceedings. The accused was served with a notice under Section 50 of NDPS Act apprising of his le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heard learned counsels for the parties and have also perused the written submissions filed by them. The impugned judgment has been challenged by learned counsel for the appellant inter alia on the following grounds: (i) Receipt of information from informer is doubtful and Section 42 of NDPS Act was not complied with; (ii) Presence of the accused at DTDC office and his arrest is doubtful; (iii) The accused was not searched in the presence of a Gazetted Officer or a Magistrate hence Section 50 of the NDPS has been violated; (iv) Accused is not the owner of the alleged parcel/packets and the same is planted by NCB after failing to locate the actual owner of the consignment; (v) Prosecution did not join at least two independent witnesses in the seizure and search of the alleged recovery and testimony of PW-3 is not reliable; (vi) The samples were not drawn as per the guidelines laid by Supreme Court and were not drawn on the spot; (vii) There is evidence of tampering with the case property; (viii) Statement of accused under Section 67 of NDPS Act is not proved and was retracted; (ix) The documents are fabricated and it is even doubtful that the panchanama was prepared on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from each of the 8 slabs the samples were sent to FSL and it found to be charas. Reliance was placed on Gaunter Edwin Kircher vs. State of Goa 1993(3) SCC 145 where in similar factual matrix their Lordship held as under:- "5. We shall first consider whether the prosecution has established beyond all reasonable doubt that the accused had in his possession two pieces of Charas weighing 7 gms. and 5 gms. respectively. As already mentioned only one piece was sent for chemical analysis and P.W.1 the Junior Scientific Officer who examined the same found it to contain Charas but it was less than 5 gms from this report alone it cannot be presumed or inferred that the substance in other piece weighing 7 gms also contained Charas. It has to be borne in mind that the act applies to certain narcotic drugs and psychotropic substances and not all other kinds of intoxicating substances. In any event in the absence of positive proof that both the pieces recovered from the accused contained Charas only, it is not safe to hold that 12 gms. of Charas was recovered from the accused. In view of the evidence of P.W.1 it must be held that the prosecution has proved positively that Charas weighing about ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per the prosecution case, the appellant was also carrying a paper Ex.PW3/DA containing the details of the consigner and consignee according to which the parcel was to be consigned at USA and name of the consigner was shown as Pinto Deep C-33, Kalkaji, New Delhi-17 India. Admittedly no enquiry regarding Pinto Deep or the consignee was made by the prosecution. Moreover, as per the testimony of PW-3 Arvind Kumar the accused was carrying the photocopy of passport in the name of Pinto Deep and also one invoice in his hand. He had seen invoice wherein the address was mentioned and also the passport which was in the name of Pinto Deep. According to him, accused informed him that Pinto Deep was his boss who was not in Delhi. Admittedly, neither the invoice nor the copy of 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. As per the information, the parcel was destined for South Africa and according to PW-3, the accused had also told him that the parcel was to be sent to South Africa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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