TaxTMI 
TaxTMI 
2018 (8) TMI 1985
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....ion 2.1 On 5th April, 2011, secret information was received, by Sh. Surender Singh, Intelligence Officer (IO), Narcotics Control Bureau (NCB), to the effect that a parcel, bearing Airway Bill No.3261394953, containing narcotics, was lying at the office of M/s Aramex Courier (hereinafter referred to as "Aramex"). On the directions of the Superintendent, NCB, Sh. Surender Singh constituted a raiding team, which proceeded to the office of Aramex, where they informed Santosh Kumar Pandey, Operation Manager, about the information, whereupon Sh. Ravikant Thakur (PW-11) and Sh. Ashok Kumar (PW-2) agreed to join as independent witnesses in the search proceedings. 2.2 On being asked, Ashok Kumar (PW-2) produced a parcel, bearing Airway Bill No 3261394953, which was found to be a red fibre bag, to which three copies of the Airway Bill, three copies of an invoice and one copy of a driving licence of the appellant were attached. The parcel was opened, and found to contain two multicoloured lehengas with two chunnis. On tearing open the laces of the lehengas, off-white coloured powder was found concealed within it, in transparent polythene strips. The said powder, when tested with the Field ....
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....he Superintendent, Sh. Y. R. Yadav. 3. Framing of charge 3.1 On 19th October, 2012, charge was framed, against the appellant, of having acquired 330 g of heroin and of attempting to export the heroin to China by concealing it in a courier parcel and having, thereby, committed offences punishable under Sections 21, 23 and 28 of the Act. 3.2 The appellant pleaded not guilty, and sought trial. 4. The Evidence 4.1 Eleven witnesses were examined by the prosecution. Witnesses re. Proceedings at Aramex office 4.2 PW-1 IO Surender Singh deposed regarding the seizure of the parcel at the Aramex office. He confirmed that, on 5th April, 2011, consequent to receipt of secret information about the parcel containing narcotics, he constituted a raid team, which reached the Aramex office and disclosed the facts to S.K. Pandey, Operation Manager, Aramex. He further deposed that Mr. Pandey was requested to arrange two panchas, upon which Ravikant Thakur (PW-11) and Ashok Kumar (PW-2) volunteered. Regarding the particulars of the discovery of the heroin and the sampling and sealing thereof, PW-1 deposed that (i) the parcel, bearing Airway Bill No 3261394953 was produced by Ashok Kumar ....
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....parcel with Student Infoline Courier in April 2011 for onward courier to China. Umesh Madan (PW-10), of Student Infoline Courier, on being confronted with the appellant, recognised him to be the same person who had booked the parcel, with his office, to China on 2 nd April, 2012. PW-1 further deposed that, pursuant to the above investigations, the appellant was arrested, in Court, with the permission of the learned Metropolitan Magistrate (hereinafter referred to as "the learned MM"), on 4th August, 2012 and that, after supplying a copy of the Arrest Memo (Ex. PW-1/P) to Y. R. Yadav (PW-5), he filed the complaint, before the learned MM, wherefrom the present proceedings have emanated. 4.3 In cross-examination, PW-1 Surender Singh deposed that he had collected the seal, for sealing the exhibits, from Y. R. Yadav (PW-5) at 11:15 AM on 5th April, 2011, and deposited the same with him at 4:55 PM. He further asserted that testing, using the Field Testing Kit, was performed, on a small sample recovered from one of the polythene strips found in the lehanga, and denied the suggestion that the said testing was done after the entire quantity of powder was mixed. 4.4 During the cours....
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....aid parcel contained something under their laces and that, on cutting open the lace of one of the lehengas, he found that it contained polythene packets. He further deposed that he cut one of the polythene packets and found that it contained a light brown/off-white/cream-coloured powder. He immediately informed SK Pandey, the Manager of Aramex, who, suspecting the powder to be narcotic, informed the NCB forthwith. Ashok Kumar (PW-2) further confirmed that the parcel had been booked with them in the evening, and that the officials of the NCB had reached at 12 noon the next day. While otherwise corroborating the statement of PW-1 Surender Singh, regarding the packets being found to contain similar powder, which was tested with the Field Testing Kit carried by the officials of the MCD, and found to contain heroin, he deposed that the testing had been done after assimilation of the powder, and that individual packets were not tested. He proved his statement (Ex. PW- 1/J), recorded under Section 67 of the Act and, on being shown Exhibits P-2, P-4 and P-6, identified them as containing the powder which had been recovered from the parcel produced by him to the NCB officials. 4.9 In cro....
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...., by PW-2 Ashok Kumar. She further deposed that samples of the "off-white" substance, contained in all the polythene strips found in the laces of the lehangas were tested, with the Field Testing Kit, and that all samples tested positive for heroin. The assimilation of the powder and weighing thereof, according to her statement, took place thereafter. She also acknowledged, in her deposition, having recorded the statement of PW-2 Ashok Kumar on 8th April 2011, as per his dictation. In her cross-examination, she deposed that the parcel, when it was produced before the NCB team, was "partially open". 4.13 Digambar Singh, Sepoy in the NCB, deposing as PW-9, confirmed having carried the samples to the CRCL, handed them over to A. K. Maurya (PW-3) and submitting of the receipt, thereof, to Y R Yadav (PW-5). Nothing substantial emerged from his cross examination. Evidence of Rajesh Kumar (PW-8) 4.14 PW-8 Rajesh Kumar, who was also an IO in the NCB at the relevant time, deposed, during trial, that the appellant had appeared, before him, pursuant to receipt of summons under Section 67 of the Act, at 5:45 PM on 16th April, 2012, when his statement (Ex. PW-8) was recorded. During the co....
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....after which he kept the sample in the strong room. He further deposed that, on 18 th April, 2011, he took the sample out of the strong room and verified the seals, as well as the facsimile of NCB, thereon. Testing of the samples, he deposed, was performed on 27th April, 2011, chemically as well as chromatographically, whereupon the sample tested positive for heroin. He prepared reports Ex. PW-3/B and PW-3/C, in this regard, on 2nd May, 2011, and issued them to the NCB on 4th May, 2011. He was shown the envelope, with the signed paper slips pasted thereon, sealed with the seal of the NCB at all four corners, as well as the contents of the envelope, i.e. one Ziploc pouch containing light brown powder, during trial, and identified the powder to be the remnant of the sample that had been analysed by him. In cross-examination by learned counsel for the appellant, PW-3 A.K. Maurya explained the testing methodology adopted by him. 4.17 The deposition of PW-3 A.K.Maurya was corroborated, in all essential particulars, by V. B. Chaurasiya, Chemical Examiner in the CRCL, deposing as PW-6. Evidence of Umesh Madan 4.18 Umesh Madan, who worked as Supervisor in Student Infoline Couriers,....
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....d to his being able to recognise the appellant, even a year after the incident, to the fact that, owning to the appellant‟s act, he had to face an inquiry in the NCB Office. Statement of appellant under Section 313, Cr PC 4.20 In his statement under Section 313 of the Cr PC, the appellant claimed to be totally innocent, and professed complete ignorance regarding the booking of any parcel, either at the Aramex office or at Blazeflash Couriers. He denied having anything to do with the parcel seized, on 5th April, 2011, from the Aramex office. He denied that the driving licence, a copy of which was found attached to the said parcel, was his driving licence at all, claiming that his driving licence was in his possession on 16th April, 2012, when he was apprehended by the NCB officials, and that the licence had been seized by them, and would be available on the record of the case relating to the seizure of the said 410 g heroin. He suggested the possibility of someone having forged his driving licence and attached a copy thereof to the parcel seized from Aramex. He claimed that Umesh Madan had wrongly identified him and that he had never visited the office of Student Infoline C....
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....s in any manner. (iii) The following evidence established that the appellant was, in fact, the person who had booked the aforementioned parcel at Aramex: (a) The Airway Bill, invoice and driving licence, which were attached to the parcel, were all in the name of the appellant. (b) Umesh Madan (PW-10), the official of Student Infoline Courier, had correctly identified the appellant, in court, as the person who had booked the parcel with him on 2nd April, 2011. He also identified the driving licence (which was part of Ex. PW-1/C), as the document on the basis of which he prepared the Airway Bills, which, he claimed, were in his handwriting. He further confirmed the handing over, by him, of the said parcel at Aramex, and proved his statement, recorded under Section 67 of the Act, as Ex. PW-1/L. He also confirmed that he had identified the appellant, in the office of the NCB, as the person who had booked the parcel with him, and his statement, in that regard, also stood exhibited as Ex.PW- 1/O. He also correctly identified the parcel booked by the appellant when shown to him in court. (c) The appellant had, in his statement under Section 67 of the Ac....
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....ecution. (vi) Though there was some substance, in the objection of the appellant, to the conducting of Test Identification in the office of the NCB, this did not erode the case of the prosecution, as even in the absence of Test Identification, identification of the appellant in Court could be relied upon, as held in Ashok Debbarama v. State of Tripura, (2014) 4 SCC 747 and Satwantin Bai v. Sunil Kumar, (2015) (V) ADSC 114. (vii) Finally, it was urged, on behalf of the appellant, that the conviction of an accused, under the Act, solely on the basis of his statement under Section 67, was not permissible, for which reliance was placed in U.O.I. v. Bal Mukund, (2009) 12 SCC 161. The said decision was found, by the learned Special Judge, to be distinguishable on facts. Following on the above reasoning, the learned Special Judge convicted the appellant for having committed the offences contemplated by Sections 21(c) and 23(c), read with Section 28 of the Act. 5.2 Vide subsequent order, dated 13th October, 2015, the learned Special Judge, as already been noted hereinabove, sentenced the appellant to ten years‟ rigorous imprisonment and fine of Rs. 1 lakh, ....
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....er in which search and seizure had been effected, stating that it was entirely in accordance with the stipulations contained in the Act. 6.6 Mr. Bansal also contended that the mere fact that the statement of the appellant, under Section 67 of the Act, had been recorded in another case, relating to seizure of 410 grams heroin did not divest the statement from its applicability to the present case. 6.7 Mr. Bansal further relied upon Sections 35 and 54 of the Act, which created a statutory presumption of culpable mental state. He also relied on Section 106 of the Indian Evidence Act, 1872 to contend that the onus was on the appellant to explain how documents, bearing his name, were found attached to the parcel booked at Aramex. Regarding the retraction by the appellant, of his statement, Mr. Bansal submitted that the retraction was both belated as well as omnibus in nature, and did not merit any serious consideration. 6.8 Arguing in rejoinder, Ms. Khiyungdzuzu contended, relying on Bal Mukund (supra), that it was not permissible to convict an accused, under the Act, solely on the basis of his confessional statement under Section 67 thereof. She also relied upon Article 20(3) ....
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....covery, in duplicate, in the presence of search (Panch) witnesses and the person from whose possession the drug is recovered, and mention to this effect should invariably be made in the panchnama drawn on the spot. 1.6 Quantity of different drugs required in the sample. -The quantity to be drawn in each sample for chemical test should be 5 grams in respect of all narcotic drugs and psychotropic substances except in the cases of Opium, Ganja and Charas/Hashish where a quantity of 24 grams in each case is required for chemical test. The same quantities should be taken for the duplicate sample also. The seized drugs in the packages/containers should be well mixed to make it homogeneous and representative before the sample in duplicate is drawn. 1.7 Number of samples to be drawn in each seizure case. - (a) In the case of seizure of single package/container one sample in duplicate is to be drawn. Normally it is advisable to draw one sample in duplicate from each package/container in case of seizure of more than one package/container. (b) However, when the package/container seized together are of identical size and weight, bearing identical markings....
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....ility of the evidence collected likely to have been tampered with or interpolated during the course of such search or seizure, then, it could be said that the evidence is not liable to be admissible in evidence." (Emphasis supplied) 7.5 The following principles may be culled out, from this pronouncement: (i) Instructions issued by the NCB are to be followed by the officers, though they do not have the force of law. (ii) Such instructions are meant to operate as guidelines, to ensure fairness. (iii) Non-compliance with the stipulations contained in such guidelines would not render the evidence, collected thereby, inadmissible. (iv) In such cases, the court would examine all the circumstances, in order to ascertain whether any prejudice had resulted, to the accused, or not. (v) If, however, (a) the search and seizure was in complete defiance of the law and procedure, or (b) there was possibility of the evidence having been tampered with, or interpolated during the course of search and seizure, then the evidence would be rendered inadmissible. 7.6 Khet Singh (supra) was followed in State of Punjab v. Makhan Chand,....
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....les as there could be circumstances in which it may not be possible for the seizing officer to prepare the mahazar at the spot, if it is a chance recovery, where the officer may not have the facility to prepare the seizure mahazar at the spot itself. Hence, we do not find any substance in this contention." (Emphasis supplied) 7.7 On reading Section 52A of the Act, the view expressed in para 10 of Makhan Chand (supra) appears to be unexceptionable; it does appear that Section 52A does not, expressly or by necessary implication, authorize issuance of instructions, by any authority or officer. However, it is seen that, subsequent to the judgements in Khet Singh (supra) and Makhan Chand (supra), both of which were rendered by benches of two Hon‟ble judges, a bench of three Hon‟ble judges, in Bal Mukund (supra), holds Standing Order 1/88 supra to be a "requirement in law". Paras 7 and 36 of the report may, for ready reference, be reproduced thus: "7. The manner in which a sample of narcotic is required to be taken has been laid down by Standing Instruction 1/88, the relevant portion where of reads as under: "(e) While drawing one sample in duplicate f....
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....aces were found stitched on it. On cutting the laces, it was found to contain off white powder. Like this, other laces were opened and the powder was collected. On weighing, it came out to be 330 g. It was checked by Field Testing Kit by IO Surender Singh which tested positive for heroin." (Emphasis supplied) In the sequence of depositions, PW-7 Kiran Bala was the first to suggest, in her deposition, that testing of the powder, using the Field Testing Kit, was performed on all the strips found concealed in the lehengas: "The parcel was cut open and found to contain three lehanga chunni. The lehenga chunni was minutely checked by IO Surender Singh. The laces of the lehenga were cut open and were found to contain scripts having transparent polythene filled with off white substance. The off white substance was checked by Sh. Surender Singh with the help of Field testing Kit which gave positive test for heroin. All the polythenes from the strips were taken out and off white substance was checked from all the strips with the help of Field testing Kit. All of them gave positive test for heroin. The substance from all the polythenes were collected and mixed together and the....
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.... in view of the admission, of PW-2 Ashok Kumar, that he had, before the arrival of the NCB team, opened one of the polythene strips and extracted powder therefrom. There is substance in the objection, of Ms. Khiyungdzuzu, that, in view of the said act of Ashok Kumar, the possibility of tampering, of the sample in polythene strip, could not be ruled out. No doubt, such tampering, if at all, could have taken place only with respect to the powder found in the polythene strip which had earlier been opened by Ashok Kumar, and in no other slip. If, however, it were to be assumed that testing, using the Field Testing Kit, was performed, by PW-1 Surender Singh, only on the powder retrieved from one of the polythene strips, it cannot be stated, with any degree of certainty, that the said slip was not the slip which had earlier been opened by PW-2 Ashok Kumar. In that view of the matter, it would be extremely unsafe to rely on the testing, using the Field Testing Kit, to hold against the appellant. 7.13 The learned Special Judge has brushed aside this objection by observing that there was no reason for Ashok Kumar - or, for that matter, any other person in the office of Aramex - to tinker....
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....State, 2012 (130) DRJ 471. 7.18 The appellant, in Basant Rai (supra), was caught with 3.5 kg charas "heroin" in eight small packets, contained in a green polythene bag. Small pieces of heroin were taken out of each packet, and made into two sample parcels, which were tested by the FSL and found to be heroin. After taking into consideration, inter alia, the judgment of the Supreme Court in Gaunter Edwin Kircher v. State of Goa, 1993 (3) SCC 145, this Court went on, in paras 25 to 27 of the report, to hold thus: "25. After hearing both the learned counsel for parties and going through the Trial Court Record, I find 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. Other....
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....ing about 4.570 gms was recovered from the accused. The failure to send the other piece has given rise to this inference. We have to observe that to obviate this difficulty, the concerned authorities would do better if they send the entire quantity seized for chemical analysis so that there may not be any dispute of this nature regarding the quantity seized. If it is not practicable in a given case, 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 under a regular panchnama and as per the provisions of law." (Emphasis supplied) 7.20 This Court, thereafter, went on, to hold thus:- "9. Following this judgment, it was held by a single Judge of this Court that a wrong process of taking samples was adopted by the police. The police should have taken the samples from each packet instead of mixing all samples into two representative samples. This is precisely for the reasons that if the 8 packets were allegedly recovered from the appellant and two packets have contracted substance and rest 6 packets did not contain contraband, though all may be of the same colour but wh....
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....o him, during the recording of his statement, under Section 67 of the Act, on 17 th April, 2012, the appellant did state that he had booked a parcel, containing heroin, at Student Infoline Courier in April 2011, the fact of the parcel containing heroin figured only in the suggestion contained in the leading question put to him in that regard. That apart, the said statement was retracted, by the appellant, by way of a written retraction, placed in the file of the case relating to the recovery of 410 g heroin from the appellant, as recorded by the learned Special Judge in the statement, of the appellant, under Section 313 of the Cr PC on 18th February, 2014. 7.24 Given the principles enunciated in Bal Mukund (supra), I am of the view that, the statement of the appellant, under Section 67 of the Act, having been recorded in the office of the NCB, and having been retracted by the appellant subsequently, it cannot be safely said that the statement was voluntary, especially in respect of an entirely different consignment, being investigated in an altogether different case. In the absence of any other corroborative evidence, I am not convinced that a case of attempt to export heroin fr....