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TMI Blog2001 (8) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... accused opened with his key Ex. P11. On examination of the contents of the bag, it was found to contain his personal effects. One black coloured half pant was found to be unusually heavy and on its examination the front side pocket was found to contain 56 specially made capsules wrapped with a black adhesive tape which on cutting/removing the said tape, was found to contain small white polythene pouches which contained a light brownish powder. On random selection of one such capsule the light brownish powder contained therein tested positive for narcotic drug. Thereafter, all the 56 capsules were opened and their contents were homogeneously mixed and when tested they tested positive for narcotic drug suspected to be heroin which weighed 470 grams. The accused had been informed that if so desired, his personal search could be conducted before a Gazetted Officer but the accused declined this offer in writing and undertaking to the said effect was given which is Ex. PW1/A. The personal search of the accused was conducted in the presence of two panch witnesses Sh. Kaleram and Sh. Vijender Singh and three hand written documents apart from a camera, purse containing currency notes wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prosecution the appellant was taken into custody, his person searched and from the baggage recovery was allegedly made of 470 gms of Heroin on 9-5-1994. He submits that four samples were separated of five grams each, while remaining was sealed separately. The samples after sealing were kept by PW-1, K.K. Talwar. The remaining substance was sent for safe custody to the customs warehouse. On 10-5-1994 PW-1, prepared a test memo, retrieved the seal which was given for safe custody to PW-2, Sh. S. Yaseen and stamped the same. He submits that not sending the samples along with the CRCL form/test memo on the same day to the warehouse would open the samples drawn to the criticism that the samples sent to the CRCL was not representative of the material seized. He further submits that there has been a violation of Sections 55, 57 as also 53 of the Act and therefore, the conviction based on such violation is hit by various judgments of the Supreme Court. He further submits that the sample sent to the CRCL is not supported with a forwarding letter nor road certificate and interestingly, when received by the CRCL has increased in weight. This itself according to him vitiates the conviction. L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h seal intact under my lock and key at the IGI Airport while deposited the remaining case property and other packets with seal intact in the warehouse on 9-5-1994, one of the four samples with seals intact was handed over by me to ACO R.P. Mittal on 11-5-1994 along with two test memos for depositing in the CRCL. I deposited the remaining 3 samples with seals intact in the warehouse on 17-5-1994. The test memo is Ex. P.W.1/D. It bears my signatures." 6.It is obvious, therefore, that PW-1 kept the four samples with him while depositing the remaining case property in the warehouse on 9-5-1994. It is also in evidence that on the following day on 10-5-1994 PW-1 retrieved the seal from PW-2, Mr. S. Yaseen, ACS (Preventive), IGI Airport, New Delhi, who was required to keep in safe custody the seal used for sealing the samples as also the remaining case property. PW-1 prepared the test memo and along with one of the sealed samples forwarded the same to ACO, R.P. Mittal, for transmission to the CRCL. The samples received by the CRCL were not supported by a forwarding letter although PW-2, S. Yaseen, in the first instance, in his cross-examination deposed to the effect that he had forwarde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich statement per se is admissible into evidence sufficient to base conviction on. Examining this submission, from a perusal of the record, there is no material to show that any of the officers, who took the search, seized the goods and made arrest, were officers duly authorised under Section 42 of the Act. An officer of the specified department is to be authorised by a general or special order, which order has not been placed on record. In the absence of proof of special or general order empowering the officer under Section 42 of the Act, any exercise of power would be without authority of law. PW-1, PW-2 or PW-3 do not make a mention of being empowered under Section 42 of the Act which follows that PW-1 could not have kept the samples of the recovered articles with him but was required to deal with it in accordance with Section 52, namely, to deposit it before an officer incharge of the nearest police station or the officer empowered under Section 53 of the Act. Obviously, in this case, PW-1, who held on to the samples himself, has violated the provisions of Section 52 of the Act. In the event, PW-1 was empowered under Section 42 of the Act, there is no reason why the accused wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed had stated that the drugs were given to him by one Mr. Adams who was also arrested along with the accused. However, Adams was discharged by the Court which order was not challenged and has become final. The statement of the accused under Section 67, therefore, was not relied upon as being a truthful rendition of account. Even otherwise, as I have already held, this statement can at best be equated to an extra judicial confession which cannot be the sole basis of a conviction but can certainly be used to render assurance to other independent material available. 13. Summing up the present case, the seizure was without authority of law, the sample sent is not free from doubt, Sections 52, 53 and 57 have been violated. Therefore, using the statement under Section 67 of the Act, per se is of no consequence. 14.In view of what has been discussed above, I have no hesitation in holding that the prosecution has miserably failed to prove their case. The judgment and order dated 9-12-1996 in Sessions Case No. 170/94 is set aside. The appellant is acquitted of all charges. Criminal Appeal No. 120/97 is allowed. The appellant, if in jail, shall be set at liberty forthwith. - - T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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