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TMI Blog2020 (9) TMI 1296X X X X Extracts X X X X X X X X Extracts X X X X ..... ss, even minor inconsistencies in the evidence of the official witnesses may be considered as material. In the present case, this Court has carefully examined the evidence led by various official witnesses and there is no material inconsistency regarding apprehension of the appellant at the spot. Thus this Court has no doubt that the appellant was apprehended at about 07.55 pm on 19.11.2013, as claimed by the prosecution. Whether the prosecution has established the chain of custody of the samples, beyond any reasonable doubt? - HELD THAT:- Even though the forwarding letter under the cover of which the two samples were forwarded to FSL, Rohini have not been produced; this Court is unable to accept that there is any doubt as to the chain of custody. The prosecution has led evidence of the police official who had sealed the two parcels (that is, SI Rajni Kant, who was examined as PW12). Further, the evidence of the police officials that had carried the parcels to PS Crime Branch and had deposited it into the Malkhana and thereafter, had withdrawn the same from the Malkhana and carried to the FSL, have been brought on record. The Chemical Examination Report (Ex. PX) also clearly r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd is set aside - The appeal is partly allowed. - Vibhu Bakhru, J For the Appellant : Ajay Verma, Advocate For the Respondent: Kusum Dhalla, APP JUDGMENT Vibhu Bakhru, J. 1. The appellant has filed the present appeal impugning the judgment dated 04.07.2016 passed by Special Judge, NDPS-02 (Central), Tis Hazari Courts, Delhi, whereby the appellant was convicted of committing an offence punishable under Section 22(c) of the Narcotics and Psychotropic Substances Act, 1985 (hereafter referred to as the 'NDPS Act'). The appellant was held guilty for being in possession of four hundred grams of Methamphetamine. In addition, the appellant was also convicted of committing an offence punishable under Section 21(b) of the NDPS Act on account of being found in possession of ten grams of cocaine. 2. The appellant also impugns the order on sentence dated 05.07.2016, whereby the Trial Court sentenced the appellant to undergo rigorous imprisonment for ten years with a fine of ₹ 1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a further period of six months for committing an offence punishable under section 22(c) of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s fabricated and is based solely on the testimonies of certain police officials. According to the appellant, he was arrested from his house. The appellant further contends that the prosecution has failed to establish that four hundred grams of methamphetamine was recovered from him. He also contends that the Trial Court had erred in not taking into account that the evidence such as the delay in preparing the arrest memo, the FSL forms and absence of including independent witnesses raised considerable doubts regarding the case set up by the prosecution. Evidence 6. Before proceeding further, it is necessary to analyse the relevant testimonies. 7. SI Rajni Kant was examined as PW12. He testified that on 19.11.2013, at about 6:30 pm, a secret informer came to meet him in his office and informed him that one Nigerian namely Samuel Okeke would come between 7:45 pm and 8:15 pm, beneath the flyover of ISBT, Wazirabad Ring Road to supply Methamphetamine and Cocaine to some other Nigerian for sending the same to Malaysia. He deposed that he produced the secret informer before Inspector Akash Rawat at 6:45 pm. After satisfying himself regarding the information, Inspector Rawat infor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d black colour carton box on which 'Executive Golf Set' was written. He opened the carton box and it was found containing one silver coloured metallic box. He opened the box with the help of a hook and it was found containing two balls, three section golf club and one putting hole along with a case inside the metallic box. There was black coloured foam pasted inside the metallic box. He removed the foam and it was found containing two transparent polythenes, one on each side of the metallic box, containing white crystals. He stated that the two transparent polythene were tied with a brown tape. He opened both the polythene and kept the contents of both the pouches in one transparent polythene. Thereafter, he checked the white crystals on the field testing kit and turned out to be methamphetamine. The substance was weighed on an electronic weighing machine and it weighed four hundred grams. He stated that he took out two samples of five grams each and kept the same in two transparent polythenes. He marked these samples as A and B. The remaining methamphetamine was kept in a separate cloth parcel and was marked as C. The other parts of the original box were kept in the same g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 57 of the NDPS Act regarding seizure of Methamphetamine and Cocaine (Ex. PW 2/A) and forwarded the same to ACP through Inspector Narcotics Cell. 14. In his cross examination, PW12 stated that at the time of the raid, he was not carrying his mobile. He also stated that no other raiding party member was carrying a mobile phone. They were also not carrying any wireless set. PW12 also agreed with the suggestion that buses leaving the ISBT have to give a receipt to the officials present at the out gate. He stated that he did not call any such official to join the raiding team or investigation of this case. 15. HC Bharat Singh was examined as PW8 and he stated that he had taken the tehrir for the registration of the FIR. He was part of the raiding party and his narration of the events leading to the apprehension of the accused and proceedings thereafter is consistent with the testimony of PW12. He testified that he had left the spot at around 11:10 pm and reached the PS Crime Branch at 12:05 am. He had handed over the original tehrir to the duty officer and handed over the sealed parcels, FSL form and carbon copy of the seizure memo to the SHO. He testified that SHO Inspector ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interrogated the accused; recorded his disclosure statement; arrested him; and prepared arrest memo (Ex. PW 6/C). He conducted a personal search of the accused (Ex. PW6/D). Thereafter, he along with the other officials went to the Narcotics Cell, Shakarpur. He deposed that he produced the accused before Inspector Aakash Rawat. PW6 stated that he recorded the statement of Aakash Rawat, SI Rajni Kant, HC Sunil Dutt and HC Bharat Singh. He deposed that he prepared a report under Section 57 of the NDPS Act (Ex. PW 6/E) and produced the report before Inspector Aakash Rawat. He stated that the accused was medically examined. Thereafter, he was produced before the concerned court and was sent to judicial custody. 20. Inspector Aakash Rawat deposed as PW7. He stated that about 6.45 p.m., SI Rajnikant informed him that he had received secret information regarding a Nigerian dealing in party drugs. After having satisfied himself regarding the information and making inquiries from the secret informer, he informed the ACP, N CP, Sh. Zile Singh in his office. He also forwarded DD No. 17 as prepared by SI Rajnikant to ACP Zile Singh. He deposed that on 20.11.2013, at about 7:30 am, SI Sumit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... put his signatures in the relevant column. He testified that at about 12:50 am he recorded DD No. 3 (Ex. PW/A). Thereafter at about 05:50 a.m., SI Sumit Malik arrived in his office and recorded his statement. On 22.11.2013, he instructed the MHC (M) to deposit the pullandas containing the samples along with FSL form, at FSL, Rohini. 24. HC Jag Narain deposed as PW5 and stated that on 20.11.2013, Inspector Virender Singh, SHO called him in his office along with Register No. 19. He handed over seven pullandas and FSL form duly sealed with the seal of 5APS NB Delhi and VSS and the carbon copy of the seizure memo. He proved the photocopy of the entry in Register 19 at serial no. 2011 (Ex. PW 5/A). He testified that on 20.11.2013, SI Sumit Kumar produced the personal search items of the accused, carbon copy of notice under Section 50 of the NDPS and ₹ 256/-, for which he made an entry in register No. 19 at Serial No. 2012 (Ex. PW 5/B). He deposed that on 22.11.2013, two sealed parcels of this case were sent to FSL Rohini through Ct Sunny (apparently a typographical mistake should be Ct Shani Kumar) vide RC no. 374/21/13. 25. In his cross examination, PW5 stated that it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ained in the duty roster. He also sought information whether any foreign national was arrested near ISBT on 19th-20th November, 2013. The reply dated 19.04.2013 (Ex. DW3/B) stated that no foreigner had been found arrested on 19th and 20th November, 2013 in the area of ISBT, Delhi. 31. SI Sanjay Kumar deposed as DW1. He stated that he was posted as Incharge PP ISBT under the jurisdiction of Kashmere Gate. He deposed that there was always night patrolling on the road from ISBT to Tis Hazari. In his cross examination he stated that it is correct that the night patrolling staff used to patrol the area but since the area was quite large, the night area patrolling staff could not be available at a given time in the entire area. SI Ravi Kumar deposed as DW2 and he deposed that on 19.11.2013, he was posted at PS Kashmere Gate and was on emergency duty. Submissions 32. Mr. Verma, learned counsel for the appellant contended that the case regarding the raid proceedings put forth by the prosecution is completely fabricated and the appellant was lifted from his house in Uttam Nagar. He contended that the fabrication of false evidence was substantiated by the fact that the appellant was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, it was also contended that the appellant had procured information pursuant to Right to Information Act, 2005, wherein it was confirmed by the police authorities that no foreigner had been arrested during the period as claimed by the prosecution. 37. The appellant was arrested by the raiding party, which was headed by SI Rajni Kant (PW12). PW12 had deposed that he had received secret information on 19.11.2013 and he had recorded the same at about 06:55 pm vide DD No. 17 (Ex. PW2/C). The same was presented before Inspector Aakash Rawat for onward transmission to the ACP in compliance with the NDPS Act. PW12 had produced the secret informer before Inspector Aakash Rawat at about 06:45 pm. Inspector Aakash Rawat (who deposed as PW7) also confirmed in his testimony that SI Rajni Kant had produced the secret informer before him and he had made the necessary inquiries from him. He further testified that after being satisfied regarding the information, he had informed the same to ACP Sh. Zile Singh and he had instructed him to take steps for conducting a raid. Inspector Aakash Rawat, PW7, further testified that he had directed SI Rajni Kant (PW12) to constitute a raiding team and p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loured carton box on which Executive Golf Set was written. The said carton box was opened and it was found that it contained a metallic box. The said box was opened and it was found that it contained two balls, three section gold club and one putting hole. There was black coloured foam pasted inside the metal box. On removal of the foam, it was found that it contained two polythene on each side of the metal box. The said polythene were taped with a brown tape and contained white crystals. SI Rajni Kant (PW12) had kept the said crystals in a polythene and drawn samples after testing the said substance. He had then made parcels of the case property. PW12 had also searched the accused and he testified that a white coloured transparent polythene was recovered from the rear pocket of the lower garment worn by the accused. The said white coloured powder was also tested and weighed. Two samples were also drawn from the substance and kept in a separate transparent polythene tied with a rubber band. Separate cloth parcels were made of the case properties and the samples. They were sealed. PW12 further stated that he prepared the FSL Form at the spot and had put a seal on the FSL Form. The s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consistent in material aspects. Although, delaying the arrest of the accused for eight and a half hours after he was apprehended, cannot be countenanced; but this delay has been sufficiently explained by the witnesses for the prosecution. Thus, the delay in his arrest does not raise any doubt as to his apprehension at the spot near ISBT and the recovery of illicit substance from his possession. The testimonies of the officials comprising of the raiding team and the testimony of SI Sumit Malik (PW6) establish the time frame of the proceedings leading to the formal arrest of the appellant at 04:30 am on 20.11.2013. 43. It is the appellant's case-as discernable from his statement recorded under Section 313 Cr.P.C.-that he was picked up from his house in Uttam Nagar and the case property was planted on him. He had also alleged that the police officials had taken his mobile as well. The appellant had also led evidence in his defence and had examined three witnesses. However, there is no evidence to establish that the appellant had been picked up from his residence and the case property had been planted on him. 44. In the present case, the police officials did not include any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther testified that he had drawn two samples of 2 grams each from the 10 grams of cocaine that were recovered from the rear trouser pocket of the accused and the said samples had been marked as Mark E Mark F. He had testified that he had affixed his seal of 5APSNB Delhi and had prepared the FSL Form at the spot and had also put the same seal on the FSL Form. He testified that the seal was handed over to HC Sunil Dutt. The seizure memo was exhibited as Ex. PW8/C. He stated that he had given the sealed parcels, FSL Form and the carbon copy of the seizure memo to HC Bharat with the direction to hand over the same to the SHO. HC Bharat had testified that he had received the said case property from SI Rajni Kant and as per his instructions, handed it over to the Inspector Virender Singh, who was the SHO of the PS Crime Branch at the material time. He was examined as PW4. He testified that HC Bharat Singh had handed him over seven pullandas marked as A, B, C, D, E, F G. The said pullandas were sealed and were bearing the seal of 5APS NB Delhi. He stated that he had, thereafter, put his seal of VSS on all the seven pullandas and had called HC Jag Narain (who was the MHCM) along wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve been brought on record. The Chemical Examination Report (Ex. PX) also clearly records that the seals on the parcels when received were intact and it also confirms that the parcels were bearing the seals 5APSNB Delhi and VSS . 52. In view of the above, the contention that the accused is liable to be acquitted only on the ground that the chain of custody of the samples allegedly drawn has not been established, is unmerited. 53. The next question to be examined is whether the procedure adopted by the concerned police official (SI Rajni Kant) in drawing the samples of the illicit substance was faulty and whether the prosecution has established beyond reasonable doubt that four hundred grams of methamphetamine and ten grams of cocaine was recovered from the possession of the appellant. 54. PW12 had deposed that he had given notice under Section 50 of the NDPS Act (Ex. PW8/A) to the accused. The accused had gone through the contents of the notice and had penned down the reply in his own handwriting. He did not want to be searched before a Gazetted Officer/Magistrate and therefore, PW12 had conducted his search. He testified that he had taken the light green coloured bag fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lythene and thereafter, tested the substance. It is clear that he had drawn the samples after he had kept the contents of both the polythene packets together. 56. The testimony of PW8 (HC Bharat Singh) is also consistent with the testimony of PW12 and establishes that the contents of the two polythenes packets found underneath the foam inside the metallic box, were removed and put into a transparent polythene and then weighed. Thereafter, two samples of five grams each were drawn. The relevant extract of his testimony is set out below:- ..... IO opened the box with the help of hook and it was found containing two balls, three section gold club and one putting gold inside that metallic box. There was black colour foam pasting inside the metallic box. IO removed the form and it was found containing two transparent polythene having white crystals. These two transparent polythenes were tied with brown tape. IO checked those white crystals on the field testing kit and it came to be methamphetamine. The white crystals from both the plastic polythenes were taken out and then it was kept in a separate polythenes and then it was weighed on electronic weighing machine and it came to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ensure that the samples drawn are of the same composition as the substance recovered from the accused. It is obvious, that if a sample is drawn after the contents of two or more packets have been mixed together, then the sample of the mixture would not be a true representative of the contents of each of the packets. 60. It is relevant to note that in E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau: (2008) 5 SCC 161, the Supreme Court had held that when a narcotic drug or psychotropic substance is found, mixed with other neutral substances only, the content of the narcotic drug or psychotropic substance is to be taken into consideration for the purposes of imposition of punishment and the neutral substances have to be ignored. However, the said decision has been overruled in Hira Singh and Anr. v. Union of India and Anr.: Crl.A. No. 722/2017, decided on 22.04.2020. 61. If the decision in E. Micheal Raj (supra) was to be followed, then it would not make any difference if contents of two or more packets, which were suspected to contain illicit substance, were mixed and a sample was drawn from the mixture provide the substances were missed to an even consistency ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort also does not indicate the percentage of the offending drug in the sample. It merely states. Ex. A was found to contain methamphetamine . It is thus not possible to accept that the prosecution has established that both of the pouches, concealed in the metallic box contained methamphetamine. Consequently, it is also not possible to ascertain the total quantity of methamphetamine recovered from the appellant. 65. In view of the above, the appellant's conviction for committing an offence punishable under Section 22(c) of the NDPS Act, cannot be sustained. 66. The appellant has also been convicted for committing an offence punishable under Section 21(b) of the Act on account of ten grams of cocaine recovered from the rear pocket of the lower apparel worn by the accused. The evidence led by the prosecution (testimony of PW12, PW10 and PW8) clearly established the recovery of cocaine from the appellant. 67. PW12 had drawn two samples of two grams each from the ten gram of white powder recovered from a transparent polythene kept in the rear pocket of the lower apparel worn by the appellant at the material time. The said samples were sealed in two separate pullandas. One ..... X X X X Extracts X X X X X X X X Extracts X X X X
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