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TMI Blog2020 (10) TMI 236X X X X Extracts X X X X X X X X Extracts X X X X ..... he same would vitiate the proceedings. However, the key question to be addressed is whether the provisions of Section 42 are applicable in the given facts. Notwithstanding the averment made in the complaint that the recovery and seizure was done under Section 42 of the NDPS Act, the same is clearly not applicable since the recovery and seizure was done in a public place. The contention that the provisions of Section 42 of the NDPS Act was not complied with, is irrelevant. Testing conducted on the spot and drawing of samples from the charas allegedly recovered from the appellant s trunk - whether the samples drawn were representative of the substance recovered from the appellant s baggage? - HELD THAT:- Although the panchnama refers to a Customs Officer, it is obvious that the Customs Officer in question is Pawan Kumar (PW-4). The print out of the test result would indicate the number of tests conducted. If the contents of each of the packet was tested separately, there would be four such print-outs or one print-out recording the result of four such tests. However, the print out in question has not been brought in evidence, even though it is stated that it was in the possessio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when the pullanda was opened raises considerable doubt whether the substance had been tampered with. Mr. Aggarwala sought to explain this by stating that the case property had been opened while examining PW-2 and the testimony of PW-2 also indicates that a Delhi Duty Free bag was found in the trunk. He submitted that, therefore, it is possible that the Delhi Duty Free bag could have been taken out at that stage. This contention is unpersuasive - Since the seal as well as the recovered contraband continued to be in possession with the Custom Officers, the possibility of the same being opened and re-sealed cannot be ruled out. It is also apparent that the record maintained regarding the movement of case property is not accurate. In this case PW-4 seems to have access to the articles kept in safe custody and could remove them without making any entry in the SDO(A) Register. This is clearly evident as there was no entry made in the Register for removal of the sample A-1. Thus, the contention that there are doubts that the substance recovered could have been tampered, is merited. There are minor inconsistencies in the testimonies of the witnesses including the colour of the substance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -3 of Indira Gandhi International Airport, New Delhi. The baggage in question belonged to the appellant, who is an Italian citizen (holding an Italian Passport No. AA 1955522 issued at Italy). At the material time, the appellant was travelling from Delhi to Bangkok by Flight No. TG 324 and he had been issued a boarding pass for the said flight. He was also issued a boarding pass for Flight No. TG 120 from Bangkok to Chiang Mai. It is stated that while his checked-in baggage was being sent through SOOG-2 belt, the security staff of DIAL (Sh. Anil Kumar) suspected something in his baggage during its screening. He informed the Customs Officer at the Departure Hall regarding the same. The appellant was asked certain questions by the said Customs Officer but he could not answer them. Thereafter, the said Customs Officer took him to the Customs Counter for further examination. 3. The appellant was questioned. Thereafter, Sh. Pawan Kumar (the Customs Officer) served him a notice under Section 50 of the NDPS Act and the contents of the same were also read and explained to him. In addition, a notice under Section 102 of the Customs Act, 1962 was also served on the appellant and the conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te transparent plastic pouches, which were kept in envelopes marked as A-1, A-2 and A-3. All the envelopes were sealed with the Customs Seal No. 6. The panch witnesses, the concerned Customs Officer (who is also the complainant) along with the accused signed the said envelope. 8. The remnant substance (4.1 kgs of charas) was also seized and placed in a polythene bag. Carbon papers and newspapers used by the accused to conceal the said substance were also seized along with the metal trunk used to conceal the illicit substance. 4.1 kgs of the substance (remaining substance) was repacked in a transparent polythene bag and the said polythene bag was packed in a Delhi Duty Free polythene bag which was, thereafter, wrapped with a brown adhesive tape. This was wrapped in a white cloth and stitched and sealed with Customs Seal No.06 along with a slip bearing the signature of the panch witnesses, the accused as well as the Customs Officer. The clothes and personal effects of the accused were separately packed in a black colour polythene bag, which was then wrapped in a white cloth, which was sealed with the Customs Seal No. 6 over a slip containing the signatures of the panch witnesses, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was remanded to judicial custody. 13. The search of the luggage room at T-302, General Market, Main Bazar, Pahar Ganj, New Delhi was conducted, however, nothing incriminating was found. 14. The summons were issued to Sh. Anil Kumar and his voluntary statement was recorded on 27.02.2012. Similarly, summons were also issued to the panch witness, namely, Sh. Vishal Chettri and Sh. Dharmender Singh and their statements were also recorded on the same date, that is, on 27.02.2012. 15. On 28.02.2012, the Assistant Commissioner, Customs, IGI Airport authorized Sh. Prabodh Kumar, ACO to deposit the samples with Central Revenue Control Laboratory (CRCL). On the basis of the said authorization, he received the samples marked A-1 from the IO (Pawan Kumar), who in turn had received the same from Sh. Pankaj Kumar; SDO(A) in intact condition against acknowledgement on the detention receipt. 16. Sh. Prabodh Kumar took the sample marked A-1 along with the test memo in duplicate to the Chemical Examiner, CRCL and had handed it over to Sh. Rajeev Anand. 17. The Chemical Examiner, CRCL furnished a report confirming that the said sample was charas. Evidence 18. To establish its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egarding the said items and it was decided to break open the trunk. He stated that four plastic pouches containing some substance were packed in the paper and carbon papers and were concealed in the bottom of the said trunk. The substance recovered from the four packets (sic pockets) was weighed and it was found to be 4.235 kgs. He testified that on being asked, the accused disclosed that the substance was charas. He stated that the substance recovered from each packet was tested separately and found positive for charas and the substance of all four packets was similar in nature, colour and texture. He stated that three samples of 45 grams each were drawn from the recovered substance and were given Mark A-1, A-2 and A-3. Each sample was first kept in a plastic pouch and then kept in a paper envelope separately and sealed with Customs Seal No.6. The sample envelopes were duly signed by him, the accused and both the public witnesses. The remaining charas, packing material and personal effects of the said trunk were also sealed with the Customs Seal No.6. The trunk in question was also sealed after converting it into a cloth pullanda, with Customs Seal No.6 and a paper slip duly sig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same had been put up before Sh. Kulwinder Singh, Superintendent Customs. He also testified as to the other documents collected by him during the course of the investigation. He stated that thereafter, he filed the complaint (Ex.PW4/W). 21. Sh. Kulwendra Singh, Supdt. Customs, IGI Airport, New Delhi deposed as PW-1. He stated that he was informed about the interception of the appellant by Pawan Kumar, Customs Officer (PW4). He further stated that enquiries were conducted from the appellant and his voluntary statement under Section 67 of NDPS Act dated 27.02.2012 was recorded before him (Ex. PW-l/A). He stated that in the recorded statement, the appellant had disclosed the discovery of the concealed illicit substance from the false bottom of his steel trunk. He further affirmed that the statement is in the handwriting of the appellant. He stated that he had summoned Sh. Anil Kumar (PW-2) and Sh. Vishal Chettri and Sh. Dharmender Singh (PW-8) to tender their voluntary statements under Section 67 of the NDPS Act (Ex PW1/C, PW-1/E, PW-1/G). On being cross-examined, he affirmed that the recovery of the illicit substance was not done in his presence. He stated that the ION Scan repo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IGI Airport deposed as PW-3. He deposed that Sh. Pawan Kumar (PW-4) handed him one sample marked as A1 in intact condition and sealed with the Custom s seal. He stated that he visited CRCL and deposited the sample with the test memo in duplicate and forwarding letter. On cross examination, he declined that the sample in question was tampered. 25. Sh. Rajeev Anand, Chemical Examiner, CRCL deposed as PW14. He deposed that on 27.02.2012, he had received the sample in question along with forwarding letter and test memo by Sh. Pramod Kumar (PW-3) in intact condition. He further stated that the said sample was tested on 12.03.2012 under the supervision of Sh. Bhuwan Ram (PW-7). He further stated that before the sample in question was tested, the particulars of the sample were checked to make sure that the same is intact. He affirmed that the sample so tested was found positive for charas. 26. Sh. Bhuwan Ram, Chemical Examiner, Gr-1, CRCL deposed as PW-7. He deposed that he tested the said sample qualitatively on 12.03.2012 and the same was found positive for charas. In his cross examination, he stated that he could not tell the condition of the samples received by CRCL on 27.02.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 42 of the NDPS Act were mandatory. 29. Second, he contended that the procedure adopted by the concerned officials for drawing the samples was improper and the samples drawn could not be stated to be representative of the substance allegedly found in possession of the appellant. He pointed out that PW-4 (Sh. Pawan Kumar) had admitted in his cross-examination that he had mixed the contents of all the four packets allegedly recovered before drawing any samples. Mr. Bhandari submitted that the said procedure was improper. He submitted that if the contents of all the packets are mixed and a sample is drawn, it would give a positive result for a contraband, even if only one packet contained the same. He submitted that this would not correctly represent the quantity of contraband recovered. He referred to the decisions of a Coordinate Bench of this Court in Amani Fidel Chris v. Narcotics Control Bureau: CRL.A. 1027/2015, decided on 13.03.2020; Charlse Howell @ Abel Kom v. NCB: CRL.A. 755/2016, decided on 13.08.2018; Edward Khimani Kamau v. The Narcotics Control Bureau: CRL.A. 1113/2011, decided on 28.05.2015 and Basant Rai v. State: CRL.A. 909/2005, decided on 02.07.2012. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case property 4.1 kgs of charas was wrapped in two polythene bags: one plastic polythene, which was then put into a polythene bag of Delhi Duty Free. This was also mentioned on the detention receipt, pertaining to the said substance. However, when the pullanda containing the said case property was produced in Court, it was wrapped in only one polythene and there was no second polythene bag marked as Delhi Duty Free. He submitted that this clearly established that the case property had been tampered with. In addition, the seals on sample A-2 and A-3, when produced in Court, were broken. He further stated that all samples A-1, A-2 and A-3, when produced in Court were in zip pouch polythenes. However, it was not the case of the prosecution that they had been placed in any zip pouchs when the same were seized. 32. Mr. Satish Aggarwala, learned counsel appearing for the Department of Customs (the prosecution) countered the submissions made by Mr. Bhandari. He submitted that Section 42 of the NDPS Act would not be applicable to search conducted in public places. He referred to the decisions in Narayanaswamy Ravishankar v. Asstt. Director, Directorate of Revenue Intelligence: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ples sealed with the Customs Seal in intact condition along with the test memo in duplicate to him and he also denied the suggestion that the samples were tampered with. He referred to the decision of the Supreme Court in Hardip Singh v. State of Punjab: (2008) 8 SCC 557 and State of Rajasthan v. Sahi Ram: (2019) 10 SCC 649 and contended that the prosecution was required to establish that the samples of the recovered substance had been sealed at the spot and were in intact condition, when they reached the laboratory. He submitted that in the present case, there could be no doubt that the sample was properly sealed and had been received at CRCL with the seal intact. He also referred to certain other decisions which had followed the decision of the Supreme Court in Hardip Singh (supra). 36. Next, he submitted that there was no difference in the color of the material seized; the color of the samples; and the color of the material as produced in Court. The testimonies of witnesses indicating different shades of the same were not significant and could be explained on account of difference in their perception. He referred to the decision of this Court in Siddiqua v. NCB: (20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be addressed is whether the provisions of Section 42 are applicable in the given facts. 42. It was contended on behalf of the appellant that since the complainant has expressly stated in the complaint as well as in the panchnama that the proceedings were conducted under Section 42 of the NDPS Act, it is not open for the prosecution now to contend the contrary. However, the said contention is unpersuasive. It is well settled that merely mentioning a provision or a certain section of an enactment in the pleadings or in documents, would not necessarily preclude any party from raising any question of law in that regard. The question whether Section 42 of the NDPS Act is applicable or not is a question of law and this question can be raised at any stage. 43. The appellant s contention that Section 42 of the NDPS Act is applicable is premised on the assumption that the search had not taken place in a public place. According to the appellant, the baggage hold area of T-3 was not a public place, as it was accessible to any member of the public. It was contended that the entry to the said area is restricted and cannot be accessed without authorisation/permission. The Customs Offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is defined in wide terms. In Utpal Mishra Air Customs Officer, I.G.I (supra), the Court had noted the above and held as under: 5. A reading of the aforesaid provisions, inter alia, shows that for seizure of any narcotic drug or psychotropic substance in any public place and for detention and search of any person whom the officer has reason to believe to have committed an offence punishable under Chapter IV and for his arrest, it is not necessary to take down the information in writing or to send a copy thereof to his immediate official superior. The restrictions of Section 42 about the search, seizure, detention or arrest between sunrise and sunset is also not applicable where search, seizure, detention and arrest in relation to offence punishable under Chapter IV is committed at a public place. The explanation to Section 43 sets out inclusive definition of the expression public place to include any public conveyance, hotel, shop or other place intended for use by, or accessible to the public. The definition of the expression public place is very wide. For deciding whether a particular area/place is or is not a public place the determining factor is whether the same is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not applicable in the present case, the seizure having been effected in a public place, the question of non-compliance, if any, of the provisions of Section 42 of the NDPS Act is wholly irrelevant. Furthermore, in the mahazar which was prepared, it is clearly stated that the seizure was made by PW 1. The mahazar was no doubt drawn by one S. Jayanth. But, the contention of the learned Senior Counsel that the prosecution version is vulnerable, because Jayanth has not been examined, is of no consequence because it is PW 1 who has conducted the seizure. With regard to the alleged noncompliance of Section 57 of the NDPS Act, the High Court has rightly noted that PW 3 has stated that the arrest of the accused was revealed to his immediate superior officer, namely, the Deputy Director. 50. In Joseph Henry, Rukmani (supra), the Madras High Court after referring to the decision of the Division Bench of this Court in Utpal Mishra (supra) held that an airport could not be considered as a public place, as referred to under Section 42 of the NDPS Act. 51. Admittedly, there is a material difference in Section 42 and 43 of the NDPS Act. Whereas Section 42 of the NDPS Act requires record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... baggage. The controversy to be addressed is, essentially, three-fold. The first relates to whether the procedure for drawing samples allegedly followed by the complainant is permissible. Second, whether the substance in all the four pouches was tested prior to it being kept together. Third, whether the contents of the four packets were properly mixed to form a homogeneous mixture and the samples were drawn from the same. 55. Before proceeding further, it would be relevant to refer to certain decisions, where the courts have examined the procedure for drawing samples. 56. In Gaunter Edwin Kircher v. State of Goa: Secretariat Panaji, Goa: (1993) 3 SCC 145 , two cylindrical pieces of charas weighing 7 grams and 5 grams each were allegedly recovered by the concerned enforcement agency. One piece weighing 5 grams was sent for chemical analysis. The Supreme Court did not sustain the appellant s conviction for possessing 12 grams of charas and held that he could be convicted only for possessing 5 grams of charas which was sent for chemical analysis. The relevant extract of the said judgment is set out below: 5. The next and most important submission of Shri Lalit Chari, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fe to hold that 12 gms of Charas were recovered from the accused. In view of the evidence of PW 1 it must be held that the prosecution has proved positively that Charas weighing about 4.570 gms was recovered from the accused. The failure to send the other piece has given rise to this inference. We have to observe that to obviate this difficulty, the concerned authorities would do better if they send the entire quantity seized for chemical analysis so that there may not be any dispute of this nature regarding the quantity seized. If it is not practicable, in a given case, to send the entire quantity then sufficient quantity by way of samples from each of the packets or pieces recovered should be sent for chemical examination under a regular panchnama and as per the provisions of law. 57. In Sumit Tomar v. State of Punjab: (2013) 1 SCC 395 , the Court was examining the case where according to the prosecution, two plastic bags containing bhooki opium powder were recovered from the dickey of the car. The contents of both the bags were mixed and two samples of 250 grams each were taken out. The remaining contraband weighing 69.5 kgs were sealed in two bags and the samples were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tigating Officer had taken small pieces from each packet and mixed the same and thereafter, drawn two samples which were sent to FSL for analysis. The Court found fault with the said procedure and allowed the appeal. The Court held as under: 25. After hearing both the learned counsel for parties and going through the Trial Court Record, I find force in the submission of learned counsel for appellant. Admittedly, the samples were drawn after breaking small pieces from 08 of the polythene bags which were allegedly kept in a green coloured bag by the appellant in his right hand. The IO prepared two samples of 25 grams each after taking a small quantity from each of the slabs. 26. Though the settled law is that if it is not practicable to send the entire quantity then sufficient quantity by way of samples from each of the packets of pieces recovered should be sent for chemical examination. Otherwise, result thereon, may be doubted. 27. For example, if the 08 packets were allegedly recovered from the appellant and only two packets were having contraband substance and rest 6 packets did not have any contraband; though all maybe of the same colour, when we mix the substance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he quantity to be drawn in each sample for chemical test shall not be less than 5 grams in respect of all narcotic drugs and psychotropic substances save in cases of opium, ganja and charas (hasish) where a quantity of 24 grams in each case is required for chemical test. The same quantities shall be taken for the duplicate sample also. The seized drugs in the packages /containers shall be well mixed to make it homogeneous and representative before the sample (in duplicate) is drawn. 2.4 In the case of Seizure of a single package/container, one sample (in duplicate) shall be drawn. Normally, it is advisable to draw one sample (in duplicate) from each package/container in case of seizure of more than one package/container. 2.5 However, when the packages/containers seized together are of identical size and weight, bearing identical markings and the content of each package given identical results on color test by the drug identification kit, conclusively indicating that the packages are identical in all respects, the packages/containers may be carefully bunched in lots of 10 packages/ containers/ except in the case of ganja and hashish (charas), where it may be bunched in lot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court on 31.03.2009, in Union of India v. Bal Mukund (supra), the Supreme Court observed that Standing Instructions No. 1/88, which required samples of adequate quantity be drawn, had not been followed and the same was referred to as a requirement in law . 66. The decision in the case of Bal Mukund (supra) which was rendered by a Bench of three Judges, is binding. It also cannot be disputed that even if the said instructions are not considered as binding, they lay down a procedure which the Investigation Officers are required to follow in the interest of ensuring that the samples drawn truly represent the composition of the substance recovered. 67. The entire purpose of drawing a sample and testing the same is to establish the composition of the substance from which the sample is drawn. Keeping this object in view, it must be ensured that the sample is a true representative of the substance recovered, before it can be assumed that the composition of the sample is the same as that of the recovered substances. 68. Bearing the aforesaid in mind, this Court may proceed to examine the evidence obtaining in this case. 69. At the outset, it is necessary to observe th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rely deposed that the substance was ball shaped. There is no clarity whether each pouch had a single sphere of the substance or each pouch comprised of multiple spheres of the substance. However, it is apparent that he did not draw samples from each of the packets or tested the contents of each of the packets. According to him, he only checked one or two ball shaped substance . 71. Although in his examination-in-chief, PW 4 had testified that he had tested the contents of each packet separately, the same cannot be believed for several reasons. First of all, for the reason that it is not consistent with his statements made in the cross-examination, where he had stated that he had only checked one or two ball shaped substances. If his testimony is accepted, then either all the four pouches contained substance in the form of a single spheres each or each packet contained the substance in the form of several spheres. In either case, he had only checked one or two of them. Secondly, this is also not consistent with the panchnama (Ex.PW4/E). The panchnama states that On breaking open the false bottom and side wall of the Metal trunk, some hardened substance in dark brown colour in s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial to note that it is not the prosecution s case that any heroin was recovered from the appellant. The CRCL test result also does not disclose any presence of heroin in the sample sent for analysis. But the alleged test had also returned a positive result for heroin. 74. In view of the above, this Court is unable to accept that the prosecution has established that the contents of each of the four packets that were allegedly recovered, were tested and found to be charas prior to the contents of the said packets being placed together. 75. Although PW-4 had stated in his cross-examination that the representative samples were drawn from the recovered substance after homogeneously mixing the same, it is obvious that no such homogeneous mixture was made. The substance in each of the four packets was allegedly a hardened substance . It also appears that the same was in the form of a spherical balls. There is no evidence to indicate that the said hardened substance from each of the four packets was crushed and then mixed together. 76. As observed earlier, it is difficult to accept that each packet contained multiple spheres individually packed in polythene, as this is not the te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bstance, which he claimed weighed more than 5 kgs. His further examination-in-chief was deferred and it was resumed on 03.12.2014. On this day, he stated that he was called by Sh. Pawan Kumar, Customs Inspector through Sh. Anil Kumar at about 10.00 am and he reached the SOG-2 Counter/Customs Office in the Departure Area. He testified that three samples were drawn from the recovered substance and were kept separately in polythene pouches and further kept in an envelope. His examination-in-chief remained incomplete and it was resumed on 27.08.2015. On this date, he commenced his examination by affirming that the weight of the substance recovered was 4.235 kgs. During the course of his examination-in-chief, he affirmed that he had signed the panchnama after reading it. He also affirmed that he had recorded his statement under Section 67 of the NDPS Act. A plain reading of the said statement under section 67 of the NDPS Act indicates that it merely incorporates the contents of the panchnama. His examination-in-chief was finally completed on 03.10.2015. 80. In his cross-examination, he stated that Mr. Vishal Chettri had also accompanied him to SOOG-2. He had proceeded to the said cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the result and did not have personal knowledge of the amount of the substance withdrawn for conducting the said test and the result of the said test. 82. Given the testimony of PW-8, little reliance can be placed on the panchnama. His testimony (examination-in-chief) is also inconsistent with the facts, as recorded in the panchnama. Whereas, it is recorded in the panchnama that the appellant s trunk was opened in his presence with the keys handed over by the appellant; he had testified that when he arrived at the spot, the trunk was already opened and was empty. Thus, he could have no knowledge of whether the trunk was opened from the keys provided by the appellant or the contents that were recovered from the trunk before it was broken. The testimony of PW 8 raises a doubt, as to the manner, in which the panchnama was recorded. PW 8 also did not appear to have any idea, as to the manner, in which the samples were tested. 83. In view of the above analysis of the evidence obtaining in this case, it is concluded that the prosecution has failed to establish that (a) the contents of each of the packets were separately tested (probably a small quantity equivalent to the head ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the given facts of that case, not accepted that the statement given was not voluntary and also found that the defense indicated in Section 313 CrPC was in variance with the reasons for retraction. The facts in this case are materially different. 89. In view of the above, this Court is unable to accept that the prosecution was not required to lead any evidence to establish that the substance recovered from the appellant was charas. 90. Mr. Aggarwala had further contended that even if the sample drawn cannot be considered as a representative of the entire substance, it should be considered as a representative of at least one packet of the substance recovered, which would amount to 1 kg and therefore, the appellant ought to be convicted for possessing an intermediate quantity of charas. Although this contention appears to be attractive at the first blush, the same is also unmerited. This is because there is no evidence as to whether the four packets allegedly recovered from the trunk of the appellant contained an identical quantity of substance. Therefore, the very assumption that one packet contained one kg of the illicit substance cannot be accepted. 91. Since the prose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kumar, SDO(A) in intact condition against acknowledgement on the Detention Receipt No. 66564. The said letter dated 28.02.2012 has been placed on record. However, the same was not exhibited. Neither the Assistant Commissioner who had issued the letter nor the addressee of the said letter (The Chemical Examiner, CRCL, Pusa, New Delhi) testified to the issue or receipt of the said letter. PW-4, the Investigating Officer, had testified that he had prepared seven detention receipts, whereby the case property, samples, personal effects, jamatalashi etc. were deposited with SDO(A) in intact condition. The said detention receipts were also placed on record as Ex.PW4/C. One of the seven detention receipts bearing No. 66564 pertains to three representative samples of charas marked as A-1, A-2 and A-3. The goods detained under the said detention receipt are described as: three representative sample of charas marked as A-1, A-2 A-3 placed in transparent polybags then in white envelope sealed with Custom Seal No. 6 . Inspector Pankaj Kumar (who was examined as PW-10), testified that on 27.02.2012, he was posted at IGI Airport as SDO in Night Shift and had joined the duty at about 09:00 pm. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame custody nor does the relevant register record the withdrawal of the said sample from SDO(A). PW-3 testified that he had been handed over the said samples by PW-4 and he had then deposited the said sample with CRCL. 97. It is apparent from the above that the prosecution has failed to establish the chain of custody of the samples in question. 98. Although PW-4 had testified that he had prepared the test memos at the relevant time and a copy of the same (Ex.PW4/D) has also been brought in evidence. However, Ex.PW4/D does not contain any impression of seal and the entry regarding facsimile of the seal is blank. However, copy of the said test memo, which has been brought in evidence by PW-7 (Sh. Bhuwan Kumar, Chemical Examiner) bears an impression of a seal. PW-7 had also testified that Sh. Prabodh Kumar, ACOP had brought the sample to CRCL along with the test memo (Ex.PW7/A). He also testified that after receiving the sample, a receipt was issued to Sh. Prabodh Kumar and the sample was kept in the store room. He stated that the sample was sealed with seven seals and all of them were intact. This raises a question as to who had put the seal on the test memo that had been forwa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toms Seal No.6 over a paper slip, produced by the case property in charge was in intact condition. The pullanda could not be opened without disturbing the seals. The paper slip was directed to be removed. It mentioned the particulars of DR No.66563. The said paper slip was exhibited as Ex.PW4/X1. Thereafter, the cloth pullanda was opened and it was found to contain one polythene wrapped with adhesive tape. The polythene was opened and it was found to contain blackish brown substance. 101. It is noteworthy that the substance wrapped in polythene with an adhesive tape had been produced. However, the polythene was not kept in a Delhi Duty Free bag. The said Duty Free bag was absent. The detention slip bearing No.66563 which pertain to the said substance described the goods as under:- Chocolate brown substance said to be CHARAS placed in transparent polybag then in duty free poly bag then covered with white cloth and sealed with seal no.6. 102. It is also relevant to note that the panchnama (Ex.PW4/E) also records that: the remnant substance weighing 4.1 kgs was repacked in transparent polythene bag and this polythene bag was packed in Delhi Duty Free polythene bag and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ked or that the pullanda had been opened and resealed. Since the seal as well as the recovered contraband continued to be in possession with the Custom Officers, the possibility of the same being opened and re-sealed cannot be ruled out. It is also apparent that the record maintained regarding the movement of case property is not accurate. In this case PW-4 seems to have access to the articles kept in safe custody and could remove them without making any entry in the SDO(A) Register. This is clearly evident as there was no entry made in the Register for removal of the sample A-1. Thus, the contention that there are doubts that the substance recovered could have been tampered, is merited. 104. The decision of the Supreme Court in Hardip Singh v. State of Punjab (supra) is of little assistance to the respondent. In that case, it had been brought in evidence that the case property had been kept by Inspector Baldev Singh till it was deposited in the office of the Chemical Examiner and the fact that the seals put in the parcels were intact, established that there was no tampering with the aforesaid seals at any stage and the sample was received by the Analyst contained the same opium ..... X X X X Extracts X X X X X X X X Extracts X X X X
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