TaxTMI 
TaxTMI 
2020 (7) TMI 354
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....hani Express, Train no. 2134 and that he is suspected to be carrying a huge quantity of heroin. (i) The information was reduced into writing and was put up by I0 G.S. Bhinder before Sh. Ajay Kumar, Superintendent, NCB and on his instructions a raiding team consisting of Intelligence Officers of NCB namely, Sh. G.S. Bhinder, Sh. Nirbhay Singh, Sh. Pankaj Dwivedi, Sh. Sanjay Rawat, Sh. Vikas Kumar, Smt. Jaswani, Babu Lal and Om Prakash along with driver Rajbir Singh proceeded from NCB office on 01/02/2010 at about 1515 hours in official vehicle and reached railway Station platform no. 12 at about 1600 hours.I0 took along with him I0 kit and field testing kit. G) On reaching the platform, 10 Sh. G.S. Bhinder introduced himself and the team members to a few public persons and requested them to join the raiding party and on his request, two persons namely Sh. Pinkesh Kumar and Sh. Sher Singh voluntarily agreed to join as independent witnesses to the proceedings. At about 1625 hours while Sh. G.S. Bhinder, I0 along with Sh. Nirbhay Singh were waiting at the platform no. 12 near the staircase along with independent witnesses, they noticed one African approaching towards the Rajdhani E....
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.... in a white synthetic bag mouth of which was tied and was given marked B. All the parcels and the samples were duly sealed and paper slips having dated signature of the I0 and both witnesses were pasted on the parcels and the samples. A test memo in triplicate was also prepared at the spot. All the case property was taken into possession and a panchnama was drawn. Railway ticket was also taken into possession. (m) Summon u/s 67 NDPS Act were then issued to the accused and in pursuance of the same, he accompanied the NCB officials to their office and tendered his statement before them admitting his complicity in the present case and further disclosed that the recovered heroin and door machine were procured by him from his girlfriend Ms. Savita and that he himself concealed, sealed and welded the recovered heroin in the cavity of the machine seized from him at his room. He further disclosed that he had sent the drugs earlier outside India three times and that one Sh. Subrato from Kolkata assisted them in sending parcels and also gave telephone numbers of Ms. Savita and Sh. Subrato. One photocopy of an airway bill bearing no. 3168304484 was also recovered from his wallet and he conf....
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.... they had disclosed their names as Neha Rai and Nerisa Gurung and the photograph being shown to her is of the lady who had represented herself to be Neha Rai. Ms. Jaya Kladius has also disclosed that the other lady had represented herself to be Nerisa Gurang and had submitted the photocopy of her voter I card as ID document proof alongwith the booked parcel. Ms. Jaya Cladius also produced a photocopy of election I card of Nerisa Gurung that had been handed over to her at the time of booking of the parcel. She was also shown the proforma invoice and airway bill and she confirmed the same to be the documents that had been prepared by her at the time of booking the parcel. Summons were also issued to the independent witnesses and in pursuance of the same, all of them appeared in the NCB office and tendered their voluntary statements. (r) Both the samples (mark A1) i.e. one pertaining to the parcel searched at the office of Aramex India Pvt. Ltd. and second pertaining to parcel which was recovered from accused at railway station along with test memos were sent to the CRCL, New Delhi for testing and as per report of the Chemical Examiner, both the samples gave positive for diacetylmor....
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....ny namely Aramex India Pvt. Ltd. however, the same was disbelieved by the trial court as the recovery of airway bill from the appellant was held to be doubtful. The prosecution has not challenged the aforesaid finding. 8. The second recovery was dated 01.02.2010 when the appellant was apprehended at Platform No.12, New Delhi Railway Station and from the search of his 'stroller bag', recovery of 1.5 kg of heroin was made. Subsequently, the appellant also got recovered a welding machine of make 'Bajaj' and one pack of welding rods from the kitchen of his house which was used to conceal the contraband in the door spring machines found hidden in the appellant's 'stroller bag'. 9. To prove the second recovery, the prosecution had examined Ajay Kumar (PW3), G.S. Bhinder (PW2), Sanjay Rawat (PW5), Pankaj Kumar Dwivedi (PW7) and Babulal (PW6). The statement of the accused recorded under Section 67 NDPS Act was proved by G.S. Bhinder and Pankaj Kumar Dwivedi. The chemical analysis reports with respect to the samples were proved by R.P. Singh (PW10) and Dr. Raj Kumar (PW13). To prove the recovery of the welding machine from the house of the appellant, the prosecution examined Pankaj Kumar ....
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....inkesh Kumar and LTI of Sher Singh. The paper slip was pasted on both the envelopes and sealed with the seal of NARCOTICS CONTROL BUREAU DZU 1. The remaining recovered substance was kept in white marking cloth which was stitched and sealed after affixing paper slip signed by the appellant, G.S. Bhinder, Pinkesh Kumar and LTI of Sher Singh. It was further sealed with the wax seal of NARCOTICS CONTROL BUREAU DZU 1. The case property along with samples, test memo forms and contraband were deposited with the Store Keeper and seal was handed over to Seal Incharge. Ajay Kumar, Superintendent. put his signatures on the seal movement register in presence of the aforesaid witnesses. A report under Section 57 of NDPS Act (Ex. PW3/5) was submitted. 12. To the similar effect are the testimonies of other members of the raiding team. 13. The manner of drawing a sample of narcotics has been laid down in Standing Order 1/88 dated 15.03.1988 issued by the Narcotics Control Bureau. The relevant paras of the Standing Order are reproduced as under :- "1.5 Place and time of drawal of sample. - Samples from the Narcotic Drugs and Psychotropic Substances seized, must be drawn on the spot of recovery,....
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.... NDPS Act by the Department of Revenue, Ministry of Finance, Government of India. Section (II) provides for general procedure for sampling, storage and reads as under:- "SECTION II- GENERAL PROCEDURE FOR SAMPLING, STORAGE ETC. 2.1 All drugs shall be properly classified, carefully, weighed and sampled on the spot of seizure. 2.2 All the packages/containers shall be serially numbered and kept in lots for sampling. Samples from the narcotic drugs and psychotropic substances seized, shall be drawn on the spot of recovery, in duplicate, in the presence of search witness (Panchas) and the person from whose possession the drug is recovered, and a mention to this effect should invariably be made in the panchanama drawn on the spot. 2.3 The 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 t....
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....hould dispatch samples of the seized drugs to one of the Laboratories of the Central Revenues Control Laboratory nearest to their office depending upon the availability of test facilities. The other Central Agencies like BSF, CBI and other Central Police Organizations may send such sample to the Director, Central Forensic Laboratory, New Delhi. All State Enforcement Agencies may send samples of seized drugs to the Director/Deputy Director/Assistant Director of their respective State Forensic Science Laboratory. 3.1 After sampling, detailed inventory of such packages /containers shall be prepared for being enclosed to the panchanama. Original wrappers shall also be preserved for evidentiary purposes." (emphasis added) 15. In view of the stringent provisions of the NDPS Act, the issue to be considered is whether the procedure specified under the Standing Orders can be flouted. 16. A combined reading of paras of the Standing Orders would show that where more than one container/package is found, the respondent is required to draw a sample from each of the individual container/package and test each of the sample with the 'field testing kit'. It is further provided that if the conta....
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....rs shall be prepared for being enclosed to the panchnama". 22. The sanctity of the Standing Order 1/89 came for consideration before the Supreme Court in Noor Aga v. State of Punjab reported as (2008) 16 SCC 417, where the facts before the Court were that 1.4 kg heroin was found concealed in a cardboard container carrying grapes. It was held as under:- "87. Perseverance of original wrappers, thus, comes within the purview of the direction issued in terms of Section 3.1 of the Standing Order No. 1 of 1989. Contravention of such guidelines could not be said to be an error which in a case of this nature can conveniently be overlooked by the Court.We are not oblivious of a decision of this Court in Chief Commercial Manager, South Central Railway, Secunderabad and Ors. v. G. Ratnam and Ors (2007) 8 SCC 212 relating to disciplinary proceeding, wherein such guidelines were held not necessary to be complied with but therein also this Court stated: (SCC p.222,para 23) 23. In the cases on hand, no proceedings for commission of penal offences were proposed to be lodged against the respondents by the investigating officers. 88. In Moni Shankar v. Union of India and Anr. (2008) 3 SCC 484....
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....s those present in the Standing Order cannot be blatantly flouted and substantial compliance therewith must be insisted upon for so that sanctity of physical evidence in such cases remains intact. Clearly, there has been no substantial compliance of these guidelines by the investigating authority which leads to drawing of an adverse inference against them to the effect that had such evidence been produced, the same would have gone against the prosecution." (emphasis added) 23. In Union of India & Ors. v. Bal Mukund & Ors. reported as (2009) 12 SCC 161, the Supreme Court while referring to the Standing Instruction 1/88, held as follows :- "36. There is another aspect of the matter which cannot also be lost sight of. Standing Instruction No. 1/88, which had been issued under the Act, lays down the procedure for taking samples. The High Court has noticed that PW-7 had taken samples of 25 grams each from all the five bags and then mixed them and sent to the laboratory. There is nothing to show that adequate quantity from each bag had been taken. It was a requirement in law." (emphasis added) 24. Earlier, in Gaunter Edwin Kircher v. State of Goa, Secretariat Panaji, Goa reported a....
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....ind 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 10 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 may be of the same colour, when we mix the substances of all 8 packets into one or two; then definitely, the result would be of the total quantity and not of the two pieces. Therefore, the process adopted by the prosecution creates suspicion. In such a situation, as per settled law, the benefit thereof should go in favour of the accused. It does not matter the quantity. Proper procedure has to be fol....
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....t may, having regard to the hazardous nature of any narcotic drugs or psychotropic substance, their vulnerability to theft substitution, constraints of proper storage space or any other relevant considerations, by notification published in the Official, Gazette, specify such narcotic drugs or psychotropic substance or class of narcotic drugs or class of psychotropic substances which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified. (2) Where any narcotic drugs or psychotropic substances has been seized and forwarded to the officer in charge of the nearest police station or to the officer empowered under Section 53, the officer referred to in subsection (1) shall prepare an inventory of such narcotic drugs or, psychotropic substances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and other particulars as the officer referred to in....
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....nder Section 57 of the NDPS Act of making full report of all particulars of arrest and seizure to his immediate superior officer. The conduct of panch witness is unusual as he offered himself to be a witness for search and seizure despite being not asked by the IO, particularly when he did not know that the substance was poppy husk, but came to know about it only after being informed by the police. Further, it is the say of the Panch witness that muddamal seal used by the PSI was a wooden seal. As against this, it is the say of PW 2 SI/IO that it was a brass seal. On the basis of the aforesaid evidence and faulty investigation by the prosecution, in our view, it would not be safe to convict the appellant for a serious offence of possessing poppy husk." 31. The apparent conflict in the manner of drawing a sample as provided in Section 52A(2)(c) of NDPS Act on one hand and the Standing Order 1/89 on the other hand came to be considered by the Supreme Court in Union of India (UOI) v. Mohanlal and Ors, reported as (2016) 3 SCC 379 where it was held as under: "Seizure and sampling: 12. Section 52-A(1) of the NDPS Act, 1985 empowers the Central Government to prescribe by a notificat....
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.... Magistrate as true and (c) to draw representative samples in the presence of the Magistrate and certifying the correctness of the list of samples so drawn. 16. Sub-section (3) of Section 52-A requires that the Magistrate shall as soon as may be allow the application. This implies that no sooner the seizure is effected and the contraband forwarded to the officer in charge of the Police Station or the officer empowered, the officer concerned is in law duty bound to approach the Magistrate for the purposes mentioned above including grant of permission to draw representative samples in his presence, which samples will then be enlisted and the correctness of the list of samples so drawn certified by the Magistrate. In other words, the process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct. 17. The question of drawing of samples at the time of seizure which, more often than not, takes place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Section 52-A(4) of the Act, samples drawn and certified by the Magis....
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....l be allowed by the Magistrate as soon as may be required under sub-section (3) of Section 52-A, as discussed by us in the body of this judgment under the heading "seizure and sampling". The sampling shall be done under the supervision of the Magistrate as discussed in Paras 15 to 19 of this order..." (emphasis added) 32. In the opinion of this court, the procedure adopted by the respondent in the present case for drawing samples neither conforms to the procedure prescribed under Section 52A of NDPS Act nor under the Standing Orders. At the cost of repetition, the respondent neither filed any application before the Magistrate for drawing the samples under his supervision nor followed the procedure of drawing a representative sample outlined in paras 2.4 or 2.5 read with 2.8 of the Standing Order 1/89. 33. Resultantly, this court is of the view that the samples sent to the CRCL were not the representative samples. Besides, by mixing the contents of all the 4 packets before drawing any sample not only the sanctity of the case property in the individual packet was lost but also the evidence as to how much each individual packet weighed. In reaching the aforesaid conclusion, I also ....