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TMI Blog2007 (12) TMI 465X X X X Extracts X X X X X X X X Extracts X X X X ..... ell as his two suitcases were searched. Nothing incriminating was found in the hand bag. However, on search of one of his suitcases, nine cans of foodstuff were found having paper wrappers. These cans were opened and they were found containing nine packets of fine powdery substance. A pinch of powder from each of these packets was tested with the help of Field Testing Kit and they gave positive test for presence of heroin. Personal search of the accused was also conducted but nothing incriminating was found. The air ticket, boarding pass and baggage tags were seized along with recovered powder which weighed 2.456 kgs. Two representative samples of 5 gms each were drawn from each of the nine packets and sample parcels were prepared. Rest of the powder was sealed separately. Panchnama was drawn and the accused was arrested. The case property was deposited in Customs Warehouse on 17th November, 1998. Samples were sent to CRCL and the report of the CRCL gave positive result for heroin. Report under Section 57 NDPS Act was sent to the superior officers. The accused was sent to face trial and after trial of the accused, he was convicted and sentenced as stated above. The accused has assa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mony of PW 5 was not credible and valuable. The appellant could not have been convicted on the testimony of PW 1 which was not corroborated by testimony of PW 5. 7. It was also submitted that the appellant has been convicted on the basis of conjectures, there were inconsistencies in the statements of the witnesses and the appellant should have been given benefit of doubt. The NDPS Act was estranged law and the proof required to convict the appellant would be equally estranged. The discrepancies in the evidence of the witnesses would show that the case against the appellant was not beyond doubt. 8. A perusal of statement under Section 313 Cr.P.C. of the appellant whereunder the entire evidence was put to the appellant, would show that the appellant except denying the evidence has not taken any stand. His only stand is that he was innocent. He even denied his presence on the airport. Seizure of his tickets, baggage tags, the fact of his having checked in at the airport for catching flight No. ET 619 were all denied. He was also asked if he had to say anything he did not say a word as to how he was falsely implicated in the case except saying that he was innocent. 9. In his t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very of substance which gave positive test for heroin on testing by Field Test Kit stands proved beyond reasonable doubt. Inability of the witnesses to answer the irrelevant details does not throw the testimony of witnesses in doubt. PW-5 was called to be a witness of the recovery. His attention has to be on the events regarding recovery. Such a witness is not supposed to concentrate on details like colour of the walls, number of persons present in the hall, furniture in the room, etc. The witness was not supposed to bring his attendance record along with him when he came to appear in the witness box. If the accused had any doubt about the attendance, he should have requested the Court that the record of attendance of the witness should be summoned from his office. In absence of any request made by the accused beforehand to summon the record of presence, the witness is not supposed to carry with him his attendance record when he comes to appear in the witness box. No adverse inference can be drawn against the witness on this count. The plea taken by the appellant that there were contradictions and he has been convicted on conjectures is a baseless plea. Both the witnesses PW 1 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he investigating officer cannot give directions to any of his supporting staff for preparing any document. Neither it is an illegality, if the Investigating Officer had a slip of mind and forgot to prepare test memo on the same day and gave directions for preparing test memo on next day or if he asked the other officer to lend the seal so that it could be put on test memo. There is no presumption that if a seal is taken back for putting on test memo, it amounts to tampering of the sample or of the recovered substance. If an accused alleges tampering of the sample, he has to put specific question to witnesses about tampering as to when and how tampering was done. It is to be demonstrated to Court as to how tampering was possible. Without specifying as to how the tampering could have been done or was possible, no inference can be drawn that sample had been tampered with or the substance recovered from the accused has been tampered with. Moreover, in the present case, the substance recovered from the accused was sealed on the same very day after it tested positive with the Field Testing Kit and no suggestion was given to the witness that it was not so sealed. 12. The other ground o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dinary 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 weight is the same on accurate balance used in CRCL but one cannot doubt if the weight difference is found as in these cases. Such difference in weight is natural. No malafide can be drawn by the appellant by this difference of weight. 14. The argument has been raised by the appellant regarding his statement under Section 67. Conviction of the appellant is not based on his statement recorded under Section 67 neither any or reliance is placed by the Trial Court for convicting the accused on his statement under Section 67 of NDPS Act. However, it is to be noted that the appellant had not retracted, at any stage during trial, his statement under Section 67 made before the PW2. 15. As a result of my above discussion, I find no infirmity in the judgment of the Trial Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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