2014 (4) TMI 151 - HC - Customs

Conviction upheld under NDPS Act, sentence reduced to 10 years, fine lowered. Default sentence 3 months.

The court upheld the conviction of the appellants under the NDPS Act but reduced their sentence to ten years and the fine to Rs.1.00 lakh. The default ... Validity of Judgment & sentence - Conviction and sentence - Tampering with samples – prove beyond reasonable doubt - Section 21(c) r/w Section 29 and Section 23(c) r/w Section 28 of the NDPS Act - Held that:- A perusal of the reports of CRCL PW5/A, that the sample marked B1/S1 had four intact seals of Custom seal No.6 on them whereas the sample marked B2/S1 had three such intact seals - The report Ex.PW5/B would show that the sample C1/S1 had four intact seals on it, samples C2/S1 & C3/S1 had five and report Ex.PW5/C shows that the samples A1/S1, A2/S1 and A3/S1 had three intact seals on each of them - It is quite evident that there was no possibility of the samples having been tampered with - According to PW4 had collected the samples from PW2 on 15.9.2005 and at that time the seals were intact on all the samples - The seals were intact on the samples when they were received in CRCL on 15.9.2005 - When PW3 received the samples from Shri Surender Pal Singh, the seals were intact on them - Considering the above referred evidence coupled with the report of testing by field kit and the statement made by the appellants under Section 67 of the NDPS Act is sufficient to prove beyond reasonable doubt that there was no reasonable possibility of the samples having been tampered with at any time before they were examined in the CRCL. Different weight of the samples - Held That:- Judgment in CBI Vs. Dilbagh [2003 (1) TMI 689 - SUPREME COURT] followed - The case of the complainant is that eight (8) samples weighing 5 gms each were drawn - It is not known whether the balance used by PW1 for weighing the samples was a manual balance or electric balance - Even if it was an electric balance, the accuracy of the balance would not be the same since the extent of accuracy of the balance would depend upon the quality and sensitivity of the balance used for the purpose of weighing - The excess weight was not more than 1.59 gms and the short weight was not more than 2.5 gms - The variation of 2-3 gms can be easily attributed to the fact that the balance used in CRCL would not be the same which the seizing officer had used at the time of seizure of the narcotic drug. An IO need not have a balance of a high accuracy in order to draw the samples - He can draw sample weighing approximately 05 gm using ordinary 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 - Such difference in weight is natural - No malafide can be drawn by the appellant by this difference of weight - Thus the weight difference in the sample cannot be considered as a ground for acquittal - Moreover, though an unexplained variation in the weight of the sample, along with other shortcomings and discrepancies in the case of the prosecution may lead to acquittal of the accused, it cannot be made the sole basis of acquittal in a case where the prosecution produced the entire link evidence to rule out any reasonable possibility of the sample having been tampered with before it is examined in the laboratory - The learned counsel for the appellant has not drawn my attention even to a single case where discrepancy in the weight of the sample was the sole ground for acquittal of the accused in a case under NDPS Act - No good ground to interfere with the conviction of the appellants - However, sentence is reduced to ten (10) years each and fine is reduced to Rs.1.00 lakh each - The appeals stand disposed of – Decided against Appellants. Issues Involved:1. Identification and ownership of the checked-in baggage.2. Safe custody and potential tampering of the samples.3. Discrepancy in the weight of the samples.Issue-Wise Detailed Analysis:1. Identification and Ownership of the Checked-In Baggage:The appellants were intercepted at IGI Airport, New Delhi, and their respective checked-in baggage was identified and searched. The baggage tags and passport numbers were verified, establishing that the luggage belonged to the appellants. PW1, the complainant, testified that the appellants identified their baggage, which was corroborated by PW8, who noted the tag and passport numbers. The court found no reason to disbelieve PW1's testimony, as it was supported by documentary evidence (Ex.PW2/J). The court concluded that the checked-in luggage from which heroin was seized belonged to the appellants.2. Safe Custody and Potential Tampering of the Samples:The complainant's testimony and the CRCL reports indicated that the samples were sealed with Custom seal No.6 and remained intact until they were analyzed. PW1, PW3, and PW4 confirmed the chain of custody, and the seals on the samples were found intact at CRCL. The court noted that the appellants' confessional statements under Section 67 of the NDPS Act, admitting possession of heroin, were not retracted until later and lacked evidence of coercion. The court found no reasonable possibility of tampering with the samples, given the intact seals and corroborative evidence.3. Discrepancy in the Weight of the Samples:The court addressed the variation in sample weights, attributing it to differences in the accuracy of weighing balances used by the seizing officer and CRCL. The court referenced previous judgments, stating that minor discrepancies in weight do not vitiate the trial if the chain of custody is intact and there is no evidence of tampering. The court found the discrepancy in weight to be within acceptable limits and not indicative of tampering.Judgment:The court upheld the conviction of the appellants under Section 21(c) read with Section 29 and Section 23(c) read with Section 28 of the NDPS Act. However, considering the facts and circumstances, the court reduced the substantive sentence from fourteen years to ten years and the fine from Rs.1.50 lakh to Rs.1.00 lakh, with a default sentence of three months' simple imprisonment. The appeals were disposed of accordingly, and the order was communicated to the concerned Jail Superintendent for necessary action.