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TMI Blog2021 (2) TMI 1047X X X X Extracts X X X X X X X X Extracts X X X X ..... d informed him that he would come on the next day, that is, on 08.06.2011 to fill up the same. However, no such explanation was given by any witness in their examination-in-chief. There is also no plausible explanation of why the appellant would not have filled up the Proforma Invoice on 07.06.2011. It is NCB s case that the accused had only come to make enquiries about his parcel. In his examination-in-chief, PW-11 had stated that the accused had come at around 4:00 PM and had enquired from him and Sh. Rajesh about the parcel that he had booked on 07.06.2011 for USA. PW-12 had also stated in his examination-in-chief, that a Nigerian had come to their office at about 4-4:30 PM and, had confirmed about the parcel from Sh. Rajeev Sharma - There is no evidence that these independent witnesses shared any information with the NCB officials. According to NCB, these witnesses were independent witnesses and were joined to witness the proceedings. Name of the appellant as mentioned in the Airway Bill - HELD THAT:- The said Airway Bill has not been filled in by the appellant. It is also relevant to note that none of the witnesses that testified had stated in their examination-in-chief, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch the said premises (B-75, Hardev Nagar, Second Floor, Burari) on the basis of the secret information placed before the Superintendent, Sh. Yadav. This Court is unable to accept that there are no doubts as to the recovery of 180 grams of Heroin from the premises in question as asserted by NCB. This Court is of the view that NCB has failed to meet the standard of proof for convicting the appellant for the offence for which he was charged. The appellant is acquitted of the offence for which he was charged. He is directed to be released forthwith, if not wanted in any other case - Appeal allowed - decided in favor of appellant. - CRL. A. 220/2016, CRL. M. (BAIL) 1664/2017 & CRL. M. (BAIL) 7725/2020 - - - Dated:- 22-2-2021 - HON BLE MR JUSTICE VIBHU BAKHRU For the Appellant: Mr Harsh Prabhakar, Advocate. For the Respondent: Mr Rajesh Manchanda, SPP. JUDGMENT VIBHU BAKHRU, J 1. The appellant has filed the present appeal, inter alia, impugning a judgment dated 27.01.2016 whereby he was convicted of committing an offence punishable under Sections 21(c) and 23(c) read with Section 28 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereafter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efused to search the raiding party and declined to be searched in the presence of a Gazetted Officer/Magistrate. 4. The parcel bearing Airway Bill No. 9473329 was produced and was found to contain three cardboard boxes marked as Tata Genuine Parts and a photocopy of a Passport bearing no. N1033214 issued by Republic of Botswana was appended to it. The parcel bore the name of the shipper as Mosike, New Delhi, P No. N1033214 and the name of consignee as Francis William, USA. The box bearing Airway Bill No. No. 9473329/A contained thirty-seven boxes of Tower Signal Light (TSL) and seventeen boxes of Premier Filter. On close inspection, it was found that the weight of the TSLs was unusually heavy. One TSL was broken and was found to contain suspicious white coloured powder. The same was tested with the help of the Field Testing Kit and it tested positive for Heroin. All TSLs were broken and each was found to contain four pouches wrapped with black tape (totaling one hundred and forty eight pouches). Two representative samples of five grams each were drawn and marked as A-1 and A-2. The remaining off white powder was packed and converted into a parcel and the same was marked as A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prosecution, currency notes of $15,000 and ₹230/- were also recovered from underneath the mattress which was kept in the third room. The said currency notes were also seized. Thereafter, the accused was arrested. Charges were framed by the Trial Court against him, to which he pleaded not guilty and the matter was, accordingly, set down for trial. 6. Two of the samples drawn by the raiding team were sent to CRCL and the Chemical Examiner s Report confirmed that the said substance was Diacetylmorphine. 7. NCB examined nineteen witnesses to establish its case. The Trial Court concluded that the NCB had established the allegations made in the complaint and accordingly, convicted the appellant. Submissions 8. Mr. Prabhakar, learned counsel appearing for the appellant has assailed the impugned judgment convicting the appellant on several fronts. First, he submitted that the prosecution had failed to establish that each of the pouches recovered during the raid at the premises of the courier agency contained Heroin. He submitted that although, one hundred and forty-eight pouches were allegedly recovered, the substance in each of the individual pouches was not tested. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the malkhana Register, which was produced before the Trial Court, was in a dismal condition. He stated that the evidence on record establishes that the malkhana Register was in a torn condition. It was not paginated and was in fact, only a sheaf of papers. He stated that such a document could not be relied upon to establish that the samples and case property that had been deposited with the malkhana and had been safekept. 12. Fifth, he submitted that the testimonies of the independent witnesses were inconsistent and thus, the testimony of the said witnesses could not be relied upon. He pointed out that PW12 (Rajesh Kashyap) had failed to identity the appellant in the dock during his examination-in-chief. Further, during the course of his cross-examination, it was discovered that he had scribbled the details of his case including the Airway Bill Number, weight of the substance allegedly recovered on the sleeve of his white shirt. He had also noted down certain details on the palm of his left hand. He further testified that NCB had furnished a copy of his statement a day before and he had read the same. He submitted that PW12 also appeared to be a regular witness in NCB cases and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the sampling was flawed. However, he submitted that the sampling procedure did not cause any disadvantage to the appellant. He relied on the decision of the Supreme Court in Sumit Tomar v. State of Punjab: (2013) 1 SCC 395, in support of his contention. He also referred to the decision of the Supreme Court in State of Himachal Pradesh v. Pirthi Chand and Anr.: (1996) 2 SCC 37 and submitted that every deviation in the procedure does not necessarily lead to the conclusion that the recovery of articles pursuant to an illegal search, is not relevant. He submitted that in Radha Kishan v. State of Uttar Pradesh: AIR 1963 SC 822 , the Supreme Court had further held that evidence obtained by illegal search and seizure could not be rejected. He also relied on the decision of the Supreme Court in Khet Singh v. Union of India: (2002) 4 SCC 380 and submitted that even if there is a procedural irregularity in conducting the search and seizure, it does not necessarily become inadmissible. 16. Next, Mr. Manchanda submitted that even if there was any doubt as to the substance recovered from the office of the courier agency, there could be no doubt as to the substance recovere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt vehicle bearing no. DL-9C-0125. The team reached the office of the said courier agency at about 10:00 AM. PW8 testified that on reaching the said office, he met Sh. Virender Nautiyal, CEO, Dart Air and they (the raiding team) introduced themselves to him. He stated that he also requested that two independent witnesses be arranged to be present during the search and seizure proceedings. On his request, Sh. Rajiv Sharma and Sh. Rajesh Kashyap agreed to remain present as independent witnesses. PW 8 testified that thereafter, they kept surveillance at the said courier company. At about 4:00 PM, one person came to the agency who appeared to be an African national. He started making enquiries from the reception of the courier agency and at that stage, they intercepted him. He testified that he asked the said person (the appellant) his name and the purpose of his visit. The appellant identified himself as Mokibe Mr. Leepile Moses @ Mosike and, also informed him that he had come to enquire about the status of his parcel bearing Airway Bill No. 9473329 which he had booked on 07.06.2011. PW8 also identified the appellant in the Trial Court during his examination-in-chief. He further testi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... found in each of those pouches. He stated that the entire white powder was collected in a polythene and was properly mixed. Thereafter, a small pinch of the said powder was tested on the Field Testing Kit and yielded positive result for Heroin. The entire powder weighed 2.850 kilograms. Thereafter, two samples of 5 grams each were drawn from the said material and, the same were kept in a transparent zip lock polythene pouch and, then kept in two separate white envelopes which were marked as A1 and A2. The remaining recovered Heroin was wrapped and stitched in an off-white marking cloth. The said parcel (pullanda) was marked as A. The set of broken TSLs, two indicators, relay and empty pouches was kept packed in the same box from which it was retrieved. The said boxes were then kept in the cardboard box with the Airway Bill No. 9473329/A and that box was kept in a white coloured polythene bag marked as B. 22. The remaining two cardboard boxes box no. 9473329/B and 9473329/C were opened. The first box (bearing no. 9473329/B) contained ninety-six Premier Filters and each box contained two filters. However, nothing incriminating was found in the said boxes. The contents of the se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s informed that the shipper of the parcel in question had come to the office and was caught by the NCB officials. In his cross examination, he confirmed that the Department of Customs had issued rules, which are applicable to courier companies. He accepted that the rules required that each and every packet that is booked for shipment to be opened and checked. However, he stated that they did not follow the said procedure. He stated that the according to the rules, a copy of the invoice is to be obtained, which is supplied by the customer. He stated that they did not prepare the same but they obtained it from the consignor. He was not sure whether the invoice had accompanied the Airway Bill in question but he confirmed that no invoices were placed on Judicial Record. 26. PW4 s testimony is important as according to him the invoices had been seized by PW8, IO Surender Singh. Since the invoices are obtained from the consignor, they would indicate whether the parcel was booked by the appellant or not. However, no invoices were produced by the prosecution, even though PW-4 testified that they were seized and PW-10 had testified that it was mandatory for them to take a copy of the inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iries with regard to the packets booked by a Nigerian. He stated that Sh. Rajeev Sharma confirmed that the Airway Bill that they were referring to was in respect of a parcel booked by a Nigerian. He stated that at about 4-4:30 PM, one Nigerian had come to their office. He could identify the said Nigerian. However, he stated that the accused present in court (the appellant) did not appear to be that Nigerien because that Nigerian was heavily built and his facial description was also different from the accused. He stated that from the three cardboard boxes, some lights and other electrical parts were recovered. The lights were heavier than what was mentioned and therefore, the NCB officials became suspicious. He testified that they dropped one of the lights on the ground so that they could open it. On breaking the said light, it was found that it contained pouches which, in turn, contained some white powder. 29. It is important to note that PW2 testified that all the lights (TSLs) were not broken but one or two lights were broken and thereafter, the powder was taken out from the lights and was sealed. He stated that the remaining lights (without breaking them) were sealed in a sim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as it necessary for the appellant to physically come to the courier agency to make an enquiry regarding his parcel that was accepted a day earlier, would certainly be a matter that would tie up the case of the prosecution. But, as is apparent, it does not appear that any evidence was led in this regard. 33. It is also material to note that in his cross examination, Sh. Rajeev Sharma (PW-11) had stated that the accused did not fill the Proforma Invoice on 07.06.2011 and, had informed him that he would come on the next day, that is, on 08.06.2011 to fill up the same. However, no such explanation was given by any witness in their examination-in-chief. There is also no plausible explanation of why the appellant would not have filled up the Proforma Invoice on 07.06.2011. It is NCB s case that the accused had only come to make enquiries about his parcel. In his examination-in-chief, PW-11 had stated that the accused had come at around 4:00 PM and had enquired from him and Sh. Rajesh about the parcel that he had booked on 07.06.2011 for USA. PW-12 had also stated in his examination-in-chief, that a Nigerian had come to their office at about 4-4:30 PM and, had confirmed about the parce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the signatures of the appellant. 35. It is important to note that the contraband allegedly recovered from the parcel at the office of the courier agency cannot be stated to be in the possession of the appellant. He has thus, been convicted solely on the basis that he had booked a parcel through Dart Air and that parcel had the contraband concealed in it. It was thus, necessary for the prosecution to establish beyond any reasonable doubt that the appellant had booked the said parcels. This would have to be established by NCB beyond any reasonable doubt. However, the evidence led by the prosecution has several loose ends. There does not appear any other credible evidence, apart from the fact that the appellant is stated to have walked into the office of Dart Air to enquire about a parcel booked by him a day earlier. The name as entered by him in the Airway Bill does not match with his identification documents. The independent witness had declined to identify the appellant as a person who had walked into the office of Dart Air on the date in question. There is no evidence as to from where the automobile parts (TSL) had been purchased. Although, two of the witnesses have testified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ics Control Bureau. The Court held that in circumstances where there is more than one container or package containing contraband, samples are required to be drawn from each container separately and then required to be tested the same on a Field Testing Kit. However, if the packages are identical in shape, size and weight then several of ten or forty packages may be prepared and thereafter, representative samples from each container/package in a particular lot be drawn and then sent for testing. 40. It is incumbent upon NCB to have at least tested and ensured that the contents of each of the pouches are tested on a Field Testing Kit and further, ascertain that each of the one hundred and forty eight packages were identical in volume, weight and size. However, the NCB officials had failed and neglected to do the same. On mixing the substance from each of the pouches, the identity of the substances in each pouch was lost and a sample drawn from the mixture did not establish that the content of the sample was identical to the substance in each of the pouches. 41. In Edward Khimani Kamau v. The Narcotics Control Bureau (supra), the contraband was allegedly found in nine packet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overed from each of the three cardboard boxes. However, it is not the prosecution s case that each cardboard box contained TSLs. Only one cardboard box is stated to contain TSLs. The other two boxes contained Filters and nothing incriminating was found in those boxes. The said suggestion was made to PW-12 in the light of his testimony that all the TSLs had not been broken and the contraband allegedly concealed in the TSLs had been removed and mixed together. 48. In view of the above, this Court is unable to accept that NCB had established beyond any reasonable doubt that the appellant had booked a parcel with Dart Air that contained Heroin weighing 2.850 kilograms. Re: Alleged Recovery of 180 grams of Heroin from the Premises of the Appellant. 49. According to the prosecution, the appellant's statement under Section 67 of the NDPS Act was recorded on 09.06.2011. PW4 (Rakesh Kumar, Intelligence Officer) had testified that the said statement was recorded at about 6:00-6:15 a.m. The same had been partly written in his own handwriting and the remaining part was written by one Sh. S.K. Sharma. In his statement, he had disclosed that he was residing at B-75, Hardev Nagar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them about the purpose of his visit. On his request, the owner of the house and one other person, named, Shankar voluntarily agreed to join the proceedings. He testified that he introduced both the independent witnesses to the appellant and thereafter, the owner of the house took the key from the appellant and opened the same. He stated that the entire flat consisted of three rooms, a kitchen and a toilet. The first room was being used as a sitting room with some plastic chairs and a plastic table. In the middle room, there were various types of spare parts of motor vehicles. He testified that the NCB team searched the middle room and found a white coloured synthetic bag. On opening the said synthetic bag, they found a black coloured polythene containing off white coloured suspicious substance. The said substance was tested on a Field Testing Kit and yielded a positive result for Heroin. He further testified that from the third room, $1500 and ₹230 were found under the mattresses and the same were also seized by him. The said currency was kept in a brown coloured envelope, which was sealed with the seal of Narcotic Control Bureau, DZU-I . 52. It is important to note that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... room where they found one gadda on the floor and from underneath the gadda, NCB officials recovered $15,000 and ₹230. The same were put in a brown coloured envelope. He also clarified that the tenanted premises were in the name of his wife (Mrs Hardeep Kaur). 55. During PW13 s testimony, one white coloured pullanda bearing the Mark AA was produced. It was opened and was found to contain one black coloured polythene. PW13 identified the said polythene as the one that was recovered from the premises of the accused. On opening the same, some light brown coloured powder, which was in small lumps was found. PW13 categorically stated that the powder recovered during the proceedings was off white and it was not of the colour of the powder that was produced in court. He was cross-examined by the learned SPP and in his cross-examination, he stated that he got confused and had now recalled that, he had signed the paper slips, which were attached to the sealed packages containing the alleged contraband and the samples. But, he remains steadfast in his testimony that the powder produced in court was not of the same colour as recovered from the premises. 56. PW13 was cross-examined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent. He stated that he agreed to that request and accompanied the NCB officer, Nigerian and the other Sardarji along with two other NCB Sepoys to the second floor of the house, which was on the left side of the chowk. 58. He testified that the premises were opened by the Sardarji using the key given by the Nigerian. He stated that on opening the door, they entered the premises, which had plastic chairs and tables. He stated that they saw a white plastic bag kept near one of the said chairs and on opening of the white plastic bag it was found to contain a black polythene bag and the same in turn was found to contain a white powder. He stated that NCB officials tested the said powder using a kit which had some small bottles and the NCB officials told them that the said powder was Heroin. He stated that thereafter, the said powder was weighed and it found to weigh 180 grams. Thereafter, two samples of five grams each were drawn from the said powder and kept separately in the envelopes. He stated that the envelopes were sealed using hot wax and he had put his signatures on the same. He stated that the signatures of the Nigerian and the Sardarji (the witness) were also taken on a pap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect. Yet, secret information had been recorded on a slip and put up before the Superintendent, who accepted the same and issued the authorisation for the search. 64. There is also an issue as to how PW13 came to be present at the location. According to the prosecution, he was present there by coincidence. However, according to his testimony, it was not so. He had stated that he was informed by somebody that some event had happened and he had then proceeded to meet that person at GTB Nagar and thereafter, reached the spot. It is, thus, apparent that he had some information which had led him to come to the spot. However, PW13 concealed the name of the person who had called him to GTB Nagar. He also did not disclose the information received by him despite being cross-examined in that regard. His testimony in this regard is quite vague. It does appear from the above that he was asked to come to the spot. This raises serious doubts whether he is an independent witness who coincidently happened to be present at the spot as claimed by NCB. The witnesses had testified that a number of persons had collected at the spot however, the reason as to why large number of persons would have coll ..... X X X X Extracts X X X X X X X X Extracts X X X X
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