TaxTMI 
TaxTMI 
2021 (2) TMI 1047
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....long with a fine of Rs.1 lakh and in default of which, to undergo simple imprisonment for two months; and (iii) five years of rigorous imprisonment for the offence punishable under Section 21(b) of the NDPS Act along with a fine of Rs.50,000 and in default of which, to undergo simple imprisonment for one month. All the sentences were directed to run concurrently and his period in custody as an undertrial was directed to be set off against the sentence awarded to him. 3. The case of the prosecution is that on 08.06.2011, the Intelligence Officer, NCB, DZU, received information that one parcel pertaining to Airway Bill No. 9473329 lying at Dart Air Services Pvt Ltd (Express Tower, A-50/4, Mayapuri Phase - 1, New Delhi-110064) contains Heroin. The same was booked by 'Mr. Mokibe Leepile Moses or Mr. Mosike' and he may come to the office of Dart Air Services Pvt. Ltd. (hereafter 'Dart Air') on 08.06.2011 to inquire about the parcel. The said information was reduced to writing at 08:30 AM and was forwarded to Sh. YR Yadav, Superintendent, NCB, who directed that a team be constituted to take action necessary under law. Thereafter, a team consisting of Sh. Surender Singh, Sh. Rajesh Kum....
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.... 5. According to the prosecution, the appellant disclosed his residential address as B-75, Hardev Nagar, Burari. He confessed that the drugs were packed at his residence and some drugs and packing material remained at his residence. On 09.06.2011, Rajesh Kumar, IO, disclosed the said information to Mr. Yadav, Superintendent NCB, who issued the authorization for searching the said residential premises. On his instructions, a raiding team consisting of two officers (G.S. Bhinder and Ms. Kiran Bala) and two Sepoys (Narender and Ved Prakash) was constituted. They were driven in an official vehicle by the driver Babu Lal to the location, that is, B-75, Hardev Nagar, Burari. The appellant also accompanied them. Two independent witnesses present at the location, were included in the proceedings. The door of the house was opened by one of the independent witness (who was also the husband of the owner of the said premises) with a key provided by the appellant. The said residential flat consisted of three rooms. According to the prosecution, a white colour synthetic bag was recovered from the room in the middle. It contained a black coloured polythene, which contained off-white coloured sub....
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....tics) 153; Amani Fidel Chris v. Narcotics Control Bureau: CRL. A. 1027 of 2015, decided on 13.03.2020; Santini Simone v. Department of Customs: CRL. A. 1088 of 2017, decided on 05.10.2020; and Edward Khimani Kamau v. The Narcotic Control Bureau: CRL.A. 1113/2011, decided on 28.05.2015 in support of his contention that the procedure followed by the officials of NCB in testing the alleged contraband was flawed and did not establish the substance recovered was Heroin. 9. Second, he submitted that the manner in which the samples were drawn was also in violation of the provisions of Section 52A of the NDPS Act. He referred to the decision of the Supreme Court in Union of India v. Mohan Lal and Anr.: CRL.A. 652/2012, decided on 28.01.2016 and on the strength of the said decision, submitted that the samples drawn were not in conformity with the provisions of Section 52A of the NDPS Act. 10. Third, he submitted that the search proceedings were not video graphed. Even though the "Drug Law Enforcement Field Officers Handbook" required that the search and seizure ought to be video recorded to obviate any allegations of foul play. He submitted that this Court had also made observations i....
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..... He stated that there was no reason for a person who had booked a parcel with the courier agency to come back the next day to inquire about it. Further, in any event, there was no reason how any person could have predicted the same. He stated that the status of the consignment could easily be ascertained, either telephonically or online. He submitted that the conduct of the personnel of Dart Air was also suspicious. Admittedly, the said persons are required to verify the contents of any parcel before booking the same. However, PW11 (Rajeev Sharma) had testified that he did not scrupulously adhered to the procedure. He pointed out that the name of the consignor written on the Airway Bill was not the same as in his passport (the identification document). However, PW11 also testified that the name of the consignor is written on the Airway Bill on the basis of information furnished in the identification document. In this case, the Airway Bill mentioned the name of the consignor as 'Mosike'. However, the appellant's passport mentioned his name as 'Mokibe Mr. Leepile Moses'. The Airway Bill also did not bear the signatures of the customer. 14. Mr. Manchanda, learned SPP appearing for....
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....d that 180 grams of Heroin had been recovered from the appellant's residence. Reasons and Conclusion 17. NCB's case is founded on the alleged recovery of 2.850 kilograms of Heroin from the parcel allegedly booked by the appellant at Dart Air as well as, on the alleged recovery of 180 grams of Heroin from the appellant's residence. It would be apposite to separately examine the case set up by NCB regarding these recoveries as the evidence led by NCB to establish the same is not common. Re: Alleged Recovery of 2.850 kgs of Heroin from the Office of Dart Air. 18. It is NCB's case that Sh. Surender Singh, IO had received secret information from a reliable source that a parcel containing Heroin, with the Airway Bill bearing no. 9473329 is lying at the office of Dart Air at Express Tower, A-50/A, Mayapuri, Phase-I, New Delhi. Surender Singh, IO, who was examined as PW8 testified to the aforesaid effect. According to his testimony, he was also informed that the parcel in question was booked by an African national named Mokibe Mr Leepile Moses or Mosike and he may come to the courier agency on 08.06.2011 to enquire about the status of that parcel. He reduced the said informatio....
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....aid notice (Ex.PW 8/1) was signed by the suspect (appellant) as well as the independent witnesses. PW 8 also identified his signature on the said notice. 19. He stated that thereafter, IO Rajesh Kumar conducted a personal search of the appellant. However, nothing incriminating was found during the personal search. 20. PW 8 testified that thereafter, the parcel in question was brought for inspection/search by the witnesses who were working at the office of the courier agency/Dart Air. He testified that the parcel comprised of three cardboard parcels and "TATA Genuine Spare Parts" was embossed on them. He stated that three copies of the Airway Bill and a copy of the Passport of the accused was also attached to the packet with the Airway Bill No. 9473329/A. The other packets were numbered 9473329/B and 9473329/C. The consignee's address was written on the parcel with the Airway Bill No. 9473329/A and consignor's particulars were also mentioned on the airway bill as Mosike, New Delhi, with Passport No. N1033214. The consignee was mentioned as Francis Williams, 619, K Street North East Washington DC, USA. 21. PW8 deposed that the box with the Airway Bill No. 9473329/A was opene....
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....tnesses. He seized copies of the Airway Bills as well as a copy of the Passport of the accused. He stated that on returning back to the office, he returned the seal to Sh. Y. R. Yadav, Superintendent, NCB, at 8:10 PM and made an entry in the Seal Movement Register. He also testified that he deposited the case property, seized the Heroin samples and Test Memo Form with the malkhana In-charge, who made an entry in the malkhana Register (Ex.PW-5/A). Thereafter, on 09.06.2011, he submitted his Seizure Report under Section 57 of the NDPS Act (Ex.PW-7/6). PW-8 identified his signature on the same. In addition to the above, he also testified as to the statements made under Section 67 of the NDPS Act by Ms. Hardeep Kaur (owner of the premises let out to the appellant) and Sh. Shankar Singh. 24. The testimony of IO Rajesh Kumar, who was examined as PW-4, is more or less consistent with the testimony of Sh. Surender Singh (PW-8). However, his description of the packaging of the contraband allegedly recovered from the TSL is somewhat different. According to him, on breaking the TSL, small pouches wrapped with black tape were recovered and each pouch contained white powder. He did not testi....
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....ed him their identity cards. He was informed that he could be searched before a Magistrate or a Gazetted Officer but the accused (the appellant) had told them that they could search him. He stated that thereafter, the NCB officials told him and Sh. Rajesh to get the parcels that was booked by the accused on 07.06.2011. He also testified that the first cardboard box contained 37 TSLs and Filters. He deposed that nothing incriminating was found in the Filters. However, one of the TSLs which were broken by the NCB officials by dropping it on the floor, was found to contain four pouches, which were wrapped in black tape. On opening the said pouch, it was found that they contained off white coloured powder. He stated that the remaining lights (TSLs) were broken in a similar manner and each one of them was found to contain four pouches of off white coloured powder. The white powder was taken from two of the pouches and was tested. He confirmed that the powder from one hundred and forty-eight pouches was taken out and NCB officials placed the powder recovered from those pouches into one transparent polythene and thereafter, drew samples for testing it on the Field Testing Kit. He stated t....
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....urt, he had stated that there were thirty-seven to thirty-eight lights and the weight of the lights taken by the NCB officials was two kilograms and eight-hundred/nine-hundred grams. He also confirmed that the NCB officials had collected invoices, Airway Bills from Sh. Rajeev Sharma, who was an employee from the Operation Department. 30. Plainly, PW-12's testimony was not consistent with his statement (Ex.PW-8/11). At that stage, a request was made by the learned SPP for cross examining the said witness, which was allowed. In his cross examination by the learned SPP, he confirmed that he had written the statement (Ex.PW-8/11) out of his own free will. He accepted the suggestion that all TSLs recovered from the three boxes were broken and four pouches from each of the TSLs were recovered. 31. PW12 was cross examined on behalf of the appellant. In his cross examination, he admitted that he had written down the time as 10-10:30 AM and his name on the palm of his left hand. He had written down the Airway Bill No. on the palm of his left hand. He had noted the number of the Airway Bill and weight 2.850 kilograms on the sleeve of the white shirt worn by him. 32. There are severa....
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.... and, had requested for two independent witnesses to join the proceedings. They were introduced to PW-11 and PW-12 who were stated to be working in the reception area They were informed about the secret information received by the NCB officials. Surely, if PW-11 knew that the accused would come to fill up the Proforma Invoice, he would have informed PW-4 and PW-8 about the same. However, none of these witnesses have testified to this effect. There is no evidence that these independent witnesses shared any information with the NCB officials. According to NCB, these witnesses were independent witnesses and were joined to witness the proceedings. 34. The next aspect is regarding the name of the appellant as mentioned in the Airway Bill. The said Airway Bill has not been filled in by the appellant. It is also relevant to note that none of the witnesses that testified had stated in their examination-in-chief, as to who had filled up the Airway Bill. However, PW-11, in his cross-examination, conceded that the Airway Bill in question had been filled up in his hand writing. Interestingly, the Airway Bill mentions the name of the appellant as 'Mosike'. But, that is not the appellant's na....
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....on the basis of the statement recorded by the appellant under Section 67 of the NDPS Act. However, in view of the decision of the Supreme Court in Tofan Singh v. State of Tamil Nadu: 2020 SCC OnLine SC 882, the said evidence is not admissible. 37. The next important aspect is regarding the testing of the contraband. According to the witnesses, only few of the pouches had been tested on the Field Testing Kit. All the pouches were opened and the white substance recovered from them was mixed. According to the prosecution, the entire powder recovered was mixed and two samples were drawn from the mixture. There were in total one hundred and forty-eight pouches. It is at once clear that the procedure followed for testing the substance and drawing samples was not in conformity with the procedure that would lend sufficient credibility to the assertion that the entire white powder was Heroin. 38. In Gaunter Edwin Kircher v. State of Goa, Secretariat Panaji (supra), two sample pouches of charas weighing five and seven grams respectively, were allegedly recovered by the Enforcement Agency. The piece of 5 grams was sent to the Chemical Examiner for analysis but the other piece of seven g....
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....emoved and the entire substance was weighed. Two samples had been drawn out of the entire substance collected at one place. The court following the decision of the Supreme Court in Union of India v. Bal Mukund & Ors. (2009) 12 Supreme Court Cases 161, found that the said procedure was not in compliance with the Standing Order No. 1/88, dated 15.03.1988 of NCB. 43. A similar view has been expressed by this Court in a recent judgment, in Santini Simone v. Department of Customs (supra). 44. The contention that the manner in which the samples had been drawn was not prejudicial to the appellant, is wholly unmerited. The pouch from which the substance was allegedly tested was not weighed separately and, there is no evidence to establish that the substance recovered from the other pouches also contained Heroin. This procedure must also be considered in the light of the decision of the Supreme Court in Hira Singh & Anr. v. Union of India & Anr.: (2017) 8 SCC 162, wherein the Supreme Court has held that irrespective of the quantity of the prohibited substance in a mixture, the weight of the entire mixture is to be taken into account for determining the conviction of the accused. Thus,....
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....h of the said residence has been taken, huge quantity of Heroin will be recover." (Ex. PW7/3). It is relevant to note that although Ex. PW7/3 records the secret information, there is no reference as to how the said secret information was generated. It is not NCB's case that such information was provided by any secret informer. It is also not NCB's case that this was disclosed by the appellant. PW4 has been examined but, he too has not given any indication as to how the said secret information came in his possession. 50. Although, there does not appear to be any source of such secret information, on receipt of the said note (Ex. PW7/3), an authorisation for search was issued by the Superintendent, Sh. Yadav in favour of Sh. G.S. Bhinder, Intelligence Officer. He was authorised to search the said premises (B-75, Hardev Nagar, Second Floor, Burari) on the basis of the secret information placed before the Superintendent, Sh. Yadav. 51. It is the prosecution's case that Sh. G.S. Bhinder constituted a raiding team comprising of himself, Ms. Kiran Bala (IO), Sh. Narender (Sepoy) and Sh. Ved Prakash (Sepoy). The said raiding team proceeded to the appellant's residence and....
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....h (PW15). PW14 had testified that both the said witnesses happened to be at the spot and on his request, had agreed to join the proceedings. 54. Sh. Devender Singh, who was examined as PW13, testified that on 09.06.2011 at about 12:45 in the afternoon, he was standing in Gali No.2, Hardev Nagar, where his property is situated. He testified that he had rented his property (B-75, Second Floor) to one Leepile Moses on rent. He stated that he was approached by three-four persons including a lady and they told him that they were NCB Officials. The appellant was also present along with them. He stated that he was informed that drugs had been recovered from the appellant and it was apprehended that drugs were also concealed in his premises. He stated that he took the keys of the premises from the appellant and took the NCB officials to the tenanted premises. Another person, whose name was Shankar, was also standing there. He too joined the proceedings. He testified that on entering the house, the first room was being used as sitting room. On proceeding to the second room, they found car lights, filters, ring like structures lying around. He stated that the NCB officials on searching th....
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.... 11:45 AM from a known person that some incident had taken place at some other place and as such he was required to go to the tenanted premises. On being further questioned, he stated that he did not remember the name of the person but he was residing in the same mohalla. He stated that he went to GTB Nagar where the said person had met him and informed him that some incident had taken place as referred above. He stated that he thereafter, went to the tenanted premises from GTB Nagar. He further stated that he went on a two wheeler. He stated in his cross-examination that the packet containing the contraband was recovered from the right corner after entering the second room and the gate of the second room was on the left hand side. He stated that the white bag in which black coloured polythene was kept was of paper. The white bag was also seized by NCB officials accompanied by Sh. G.S. Bhinder (PW-14). He was emphatic in his statement that the white bag was not synthetic. 57. Sh. Shankar Singh was examined as PW15. He testified that he drives a taxi which belongs to one Amarjeet Singh. He stated that on 09.06.2011 at about 12:00 - 12:15 PM, he had gone to the residence of Amarje....
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....assengers. He stated that it was not so and he had gone to leave the vehicle at Amarjeet's house. 59. He was cross-examined on behalf of the NCB. He then resiled from his examination-in-chief and reiterated that the bag containing the substance was found in the middle room and not next to a chair. 60. It is apparent from the above that there are a number of issues that raise doubts regarding the alleged recovery of 180 grams of Heroin from the premises let out to the appellant. First of all, all the material witnesses were not examined. As noticed above, the raiding team consisted of four members. However, apart from Sh. G.S. Bhinder, none of the other three members who had searched the premises were examined. There is also material inconsistency in the testimony of the two independent witnesses. Sh. G.S. Bhinder did not testify as to exactly from which spot in the house the contraband was recovered. He merely stated that it was recovered from the middle room. There was no explanation whether the contraband was kept in an almirah, kept in a drawer or any cupboard. According to G.S. Bhinder, it was kept in a bag in the room, which would mean that it was lying on the floor.....