Emma Charlotte Eve v. Narcotic Control Bureau..

M.S.A Siddiqui, J.— This appeal is directed against the judgment and the order of conviction dated 11.12.1998 passed by the Additional Sessions Judge in Sessions Case No. 74/96 convicting the Appellant under Sections 21/23 of the Narcotic Drugs and Psychotropic Substances Act (for short the Act) and sentencing her to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000/- or in default to suffer further rigorous imprisonment for a period of six months.

Briefly stated the prosecution case is that on 3.4.1996, two postal parcels bearing Nos. R-250012 and R-250013 arrived at Frankfurt Airport, Germany, with flight N0.AV018 from Bogota, Columbia destined for further transport to India. At Frankfurt Airport, both the parcels were intercepted by the Custom Officer Mr. Rabolt, who had handed over them to the Chief Inspector Customs Mr. Prior. Both the parcels, when opened in the presence of the Custom Officer Mr. Hilder Brand, tested positive for cocaine. Consequently, a criminal case was registered vide Reference No. 89Js 141520/96 and both the parcels containing contraband were seized and confiscated by the Custom authorities, Government of Germany. After obtaining sanction from the Chief Public Prosecutor, Government of Germany. Dr. Leistner, the Narcotics Control Bureau, Govt. of India (for short “the NCB') was requested for a controlled delivery. By the order dated 4.4.1996 (Ex.PW-16.A), the Government of India empowered the NCB to undertake controlled delivery of the said consignment. On 9.4.1996, the aforesaid parcels were handed over to the Captain of the Lufthansa Airlines Mr. Manfred Montjoge for their delivery to Mr. Berned Engel, German Drug Liaison Officer posted in India. On 10.4.1996, the said consignment arrived at I.G.I, Airport, New Delhi by the morning flight. Mr. Montjoge delivered the parcels to Mr. Berned Engel, who in turn handed over them to Mr. Shailendra Sharma (PW-12) at the airport. The parcel No. 251002 destined for Goa had been handed over to the officers of the NCB, Bombay Zonal Unit and the parcel No. 251003 destined for Delhi remained in the custody of Shri Shailendra Sharma. The further case of the prosecution is that Deputy Chief Post Master, Mr. R.P Sharma was contacted by the Zonal Director NCB, Mr. Mukesh Khullar and a plan was chalked out to nab the claimant of the parcel bearing No. 251003. According to the plan, the intimation slip (Ex. PW-1.D) was prepared and kept in the post restante counter under surveillance of the Officers of the NCB.

On 19.4.1996, at about 10 A.M, the Appellant came to the post restante counter. She picked up the intimation slip (Ex. PW-1.D) and requested Postal Assistant Mr. Vasudev (PW-7) to deliver the said parcel to her. The intimation slip (Ex.PW-1.D) was in the name of ‘Elizabeth Evans’ and the appellant's passport was issued in the name of Emma Charlotte Eve. The appellant, therefore, addressed an application (Ex.PW-1.F) to the Chief Post Master, GPO explaining the discrepancy in her name and that of on the parcel. Being satisfied with the explanation offered by the appellant, Deputy Chief Post Master Mr. R.P Sharma (PW-14) allowed the Appellant to take delivery of the parcel in question. Thereafter, the parcel, which was in the custody of Mr. Shailender Sharma (PW-12) was delivered to the Appellant by Mr. Vasudev (PW-7) in the presence of Smt. Suman Kumari Yadav (PW-11), who had disguised herself as the Postal Assistant.

The appellant, after taking delivery of the parcel, proceeded to the Shiva Guest House on a three wheeler driven by Rakesh Sharma (PW-10). The Officers of the NCB followed the Appellant from the post office to her guest house and accosted her to her room. On being asked by the officers of the NCB, the Appellant handed over the said parcel to them, which was found to contain 122 grams of cocaine. The said parcel was seized vide seizure memo (Ex.PW-1.H). Two representative samples of 5 gms. each were drawn and kept in two separate polythene bags. The samples as well as the remaining cocaine were converted into separate parcels and they were duly sealed on the spot. The sampled powder along with the test memo (Ex.PW-9.B) was sent to the Chemical Examiner, which on examination, was found to contain cocaine vide report dated 28.5.1996 The Appellant was charged with the offences punishable under Sections 21/23 of the Act and tried.

The Appellant abjured her guilt and alleged that a false case has been foisted on her. According to the appellant, on 19.4.1996, she had gone to the post office to enquire about the parcel which she was expecting from her father from U.K and was wrongly handed over a parcel, which was addressed to one Elizabeth Evans and she, therefore, refused to take delivery and immediately returned it back to the postal officer. Thereafter, she came to Paharganj and when she was about to enter the restaurant, three men grabbed her and forcibly took her to the guest house where she was staying and there she was subjected to a humiliating search, during the course of which, officials of the Narcotic Control Bureau wrongfully forced a parcel upon her. She has not examined any witness in support of her defence.

The learned Additional Sessions Judge, on an assessment of evidence adduced by the prosecution, accepted the prosecution case and convicted and sentenced the Appellant as indicated above.

At the outset, I must make it clear that the present case pertains to the controlled delivery. As per prosecution case, two postal parcels bearing Nos. R-250012 and 250013 arrived at the Frankfurt Airport, Germany with flight No. AV018 from Bogota, Columbia, destined for further transport to India. On suspicion, both the parcels containing cocaine were intercepted at the airport by the customs officer Mr. Rabolt, who handed over them to the Chief Inspector Customs Mr. Prior. Consequently, a criminal case in respect of the said parcels was registered at Frankfurt (Germany) and the said parcels were seized and confiscated by the Customs Authorities. After obtaining the requisite sanction from the Chief Public Prosecutor, Government of Germany Dr. Leistner, the NCB was requested to undertake a controlled delivery. By the order dated 4.4.1996 (Ex.PW-16.A), the Government of India empowered the NCB to undertake the ‘controlled delivery’ and pursuant thereto, the said parcels were dispatched from Germany and received on 10.4.1996 at the I.G.I Airport by Mr. Shailendra Sharma (PW-12).

It may be mentioned here that drug trafficking, trading and its use which is a global phenomena and has acquired the dimensions of an epidemic, is detrimental to the future of a country. Therefore, the Act was enacted with a view to combat the evil of drug trafficking and to suppress the abuse of dangerous drugs and psychotropic substances in the manner envisaged by the International Convention of Psychotropic Substances, 1971. The United Nations Conventions Against Illicit Trafficking in Narcotic Drugs and Psychotropic Substances was held in 1988 in Vienna, Austria to tackle the menace of drug trafficking throughout the comity of Nations. The Government of India has ratified this convention. Therefore, the Act was amended in 1989, inter alia, to provide for tracing, seizing and forfeiture of illegally acquired property. The experience gained over the years revealed that the provisions of the Act have certain inadequacies due to which the implementation of the provisions has been tardy. Certain other inadequacies in the various provisions of the Act have been noticed by the Government. The need to remove those inadequacies and rationalisation of the sentence structure was, therefore, felt. Certain obligations, specially in respect of the concept of “controlled delivery” arising from the United Nations Convention Against Illicit Traffic in Narcotic Drugs And Psychotropic Substances, 1988, to which the Government of India acceded, also required to be addressed by incorporating suitable amendments in the Act. With a view to achieve the said object, the Bill No. XIV of 1998 further to amend the Act was introduced in the Parliament. Learned counsel for the Appellant submitted that since the Parliament was dissolved in 1999, the said Bill could not be passed by the Parliament.

Sections 2(viib), 8-A, 50-A, 54 and Section 76(ca) of ‘the said Bill’ are relevant for purposes of the present case.

Section 2(viib) defined “controlled delivery” as under:—

“(viib) “controlled delivery” means the technique of allowing illicit or suspect consignments of narcotic drugs, psychotropic substances, controlled substances or substances substituted for them to pass out of, or through or into the territory of India with the knowledge and under the supervision with a view to identifying the persons involved in the commission of an offence under this Act;”

Section 8-A has been proposed to prohibit certain activities relating to property derived from offence. This Section reads as under:—

“8A. No person shall--

(a) convert or transfer any property knowing that such property is derived from an offence committed under this Act or under any other corresponding law of any other country or from an act of participation in such offence, for the purpose of concealing or disguising the illicit origin of the property or to assist any person in the commission of an offence or to evade the legal consequences; or

(b) conceal or disguise the true nature, source, location, disposition of any property knowing that such property is derived from an offence committed under this Act or under any other corresponding law of any other country; or

(c) knowingly acquire, possess or use any property which was derived from an offence committed under this Act or under any other corresponding law of any other country.”:

After Section 50 of the Act, a new Section 50-A has been proposed to confer power on the Director General of Narcotics Control, Bureau or any other person authorised by him in this behalf to undertake controlled delivery of any consignment to any destination in India or a foreign country, in consultation with the competent authority of such foreign country to which such consignment is destined, in such manner as may be prescribed. For Section 54 of the Act, substitution of the following Section has been proposed.

“54. In trials under this Act, if may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of,--

(a) any narcotic drug or psychotropic substance or controlled substance;

(b) any opium poppy, cannabis plant or coca plant growing on any land which has cultivated;

(c) any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance or controlled substance; or

(d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured, for the possession of which he fails to account satisfactorily”.”

In Section 76(2) of the Act, substitution of the following clause has been proposed:—

‘(ca) the manner in which “controller delivery” under Section 50A is to be undertaken.’

However, there is no provision in the Act relating to the concept of the “controlled delivery”. The learned Additional Sessions Judge rejected the applicant's contention that controlled delivery operation is not permitted in India and in the absence of there being any specific provision in the Act for dealing with an operation relating to controlled delivery, the provisions of the United Nations Convention of 1988 relating to the concept of controlled delivery cannot be made applicable. Learned Additional Sessions Judge was of the opinion that since the Government of India has ratified the U.N Convention Against Illicit Traffic in Narcotic Drugs And Psychotropic Substances, 1988, the provisions of the Convention are binding on India and controlled delivery is permissible in this country. I am unable to subscribe to the view taken by learned Additional Session Judge. Section 3(37) of the General Clauses Act defines an “offence” to mean an act or omission made punishable by any law for the time being inforce. Punishment is the mode by which the State enforces its laws forbidding the doing of something, or omission to do something. Punishment is always co-related to a law of the State forbidding the doing or omission to do something. Unless such a law exists, there is no question of any act or omission being made punishable (Jwala Ram v. State of Pepsu. AIR 1962 SC 1246).

Thus, the question which arises for consideration is whether the obligations of the Government of India under the accord and obligations attached to the U.N Conventions Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988 has the force or authority of law? Article 245(1) read with the entry 14 in List-I of Schedule-7 of the Constitution and Article 253 empower the Parliament to make laws for implementing treaties and agreements entered into by the Government of India with foreign countries. The provisions in Part IV of the Constitution contain the directive principles of State policy. The provision in Article 51, occurring in that part, provides, inter alia, that the State shall endeavour to foster respect for international law and treaty obligations in the dealings of organised peoples with one another. The provision in Article 37 occurring in the same part, though it declares that the directive principles in part-IV are fundamental in the governance of the country and it shall Be the duty of the State to apply those principles in making laws, states that the provisions in that part shall not be enforceable by any court. From this it follows that in the absence of any law, court cannot also enforce obedience of the Government of India to its treaty, agreement or convention with foreign countries or the United Nations.

13. In Encyclopedia Britannica (vol. 12) at pages 424 and 425, under the heading ‘Relationship with the Internal law of States’, it is stated thus:

“Relationship with the Internal law of States:—

To understand international law it is necessary to appreciate its close relationship to the internal law of States, or as lawyers say, the municipal laws of States; for it is increasingly penetrating that sphere. Even the traditional international law, at a time when it was supposed to be a law only between States, had many rules which required the co-operation of municipal courts for their realization; for example, the very ancient rules whereby foreign sovereigns and their diplomatic representatives enjoy certain immunities from the municipal jurisdiction. But a very large part of modern international law is directly concerned with the activities of individuals which come before municipal courts. So that it is in municipal courts that a large and increasing part of international law is enforced.

One school of thought accepts that international law may be per se a part of the law of the land and that the municipal court therefore, in the appropriate case, applies international law directly. Another insists that a municipal court can only apply and enforce its own municipal law, and that the international law rule is binding only on the State itself, which must be legislation transform the precept into one of municipal law. The two approaches can on occasions lead to different results; e.g, in a case involving a treaty which the government has omitted to transform into a municipal statute. But the second, or dualist, theory can hardly be applied in any case in those many countries (e.g, the Republic of Ireland, France and the German Federal Republic) where it is by the constitution provided that international law is part of the law of the land.

There are broadly, two different methods by which precepts of international law are applied in the domestic Courts of a State. By the first method it is accepted that international law is per se a part of the law of the land and that the domestic court therefore, in an appropriate case, applied international law directly. According to the second method a domestic court can only apply and enforce its own internal law, and the international law rule is binding only on the State itself, which must be legislation transform the precept into one of domestic law. The first method is employed in those countries (e.g, the Republic of Ireland, France and the German Federal Republic) where it is by the constitution provided that international law is part of the law of the land.

The position before English Courts is something of a compromise between the two methods. There can be no doubt that they regard customary international law as part of the law of the land, for they take “judicial notice” of it; that is to say they assume that the court knows the law and does not require it to be proved by calling expert evidence, as in cases involving foreign and external systems of law. The courts regard any relevant rule of customary international law as being incorporated into the domestic law.”

In the case of Xavier v. Canara Bank Ltd. (1969 Ker LT 927), it was held that the remedy for breaches of International law in general is not to be found in the law courts of the State because International law per se or proprio vigore has not the force or authority of civil law, till under its inspirational impact actual legislation is undertaken.

In Jolly George Varghese v. Bank of Cochin (AIR 1980 SC 470), while dealing with the effect of international law and the enforceability of such law at the instance of individuals within this country, the Supreme Court having quoted with approval the above observations of the Kerala High Court in Xavier v. Canara Bank Ltd. (1969 Ker LT 927), has enunciated the law on the point thus:

“The positive commitment of the States parties ignites legislative action at home but does not automatically make the covenant an enforceable part of the corpus juris of India.”

As noticed earlier, the bill No. XV of 1998 further to amend the Act has not been passed by the Parliament. In the absence of there being any specific provisions in the Act for dealing with an operation relating to controlled delivery, the provisions of 1998 U.N Conventions relating to the concept of controlled delivery cannot have the force of law.

In the instant case, there is not an iota of legal evidence on record to show that on 28th March, 1996, the parcel in question was posted by the appellant. Admittedly, the addressee of the parcel in question was one Elizabeth Evans and on 3.4.1996, the parcel in question was intercepted at the Frankfurt Airport, Germany. It is also undisputed that a criminal case was registered at Frankfurt, Germany in respect of the parcel in question and the same was seized and confiscated by the Customs Authorities, Government of Germany. As per prosecution case, on 9.4.1996, the parcel in question was despatched to India by the German Authorities. That being so, the parcel in question is the property of the criminal case registered at the Frankfurt (Germany) and it was sent to India with a view to identifying the person involved in the commission of the offence. It follows that the contraband in question was sent to India at the instance of the Government of Germany and not at the instance of the appellant. Reference may, in this context be made to the decision of the Punjab Chief Court in Bostan v. Emperor, 1911 Crl.LJ (Vol. 12) 116.

In that case, the accused tendered a parcel of opium at the Post Office for despatch to Burma but the parcel was opened by the Postmaster at the place of despatch on account of information received and sent on to Burma by the Postal authorities marked “doubtful” with a view to the identification of the consignee. It was held:—

“that the accused did not commit the offence of exporting opium under Sec-tion 9(e) of the Opium Act, as the parcel was seized by the authorities before despatch and it ceased to be in the Post Office on accused's account before it left India for Burma.”

Thus, in the instant case, it cannot be held that the Appellant had imported or attempted to import the contraband into India. Consequently, the charge under Section 23 of the Act levelled against the Appellant must fall to the ground.

Next question which arises for determination is whether on 19.4.1996, the Appellant was found in possession of the parcel in question containing the contraband. The foundation and the pivotal pillar on which rests the edifice of the prosecution may be indicated as follows:—

(a) that on 28.3.1996, the Appellant left Columbia on which date the parcel No. 250013 was posted from Santa Marta, Columbia:

(b) that on 19.4.1996, the Appellant visited the post office Bhai Veer Singh Marg, New Delhi to collect the parcel in question;

(c) that on that day, she made an application to the Chief Postmaster (Ex.PW-1.F) seeking permission to collect the parcel bearing No. 250013 on the ground that the same belonged to her;

(d) that the Appellant deliberately made a false statement in the said application (Ex.PW-1.F) about her local address, which is indicative of her guilty conscience;

(e) that the Handwriting Expert (PW-15) has opined that the appellant's hand writing on her application (Ex. PW-1F) is similar to the handwriting on the envelope (Ex. PW-1.G) of the parcel in question. He further opined that the specimen handwriting of the Appellant (Ex. PW-1.Z) has been consciously written with an attempt to disguise her handwriting, which is indicative of her guilty conscience;

(f) That on 19.4.1996, the parcel No. 250013 containing cocaine was recovered from the appellant's possession vide seizure memo (Ex.PW-1.H).

The central evidence against the Appellant consists of the evidence of Mr. D.N Tyagi (PW-1), Post Assistant Mr. Nanak Ram (PW-2), Mr. Neeraj Jain (PW-3), Mr. Radhey Shyam (PW-4), Postal Assistant Shri Vasudev (PW-7), Mr. S.P Tripathi (PW-8), Mr. Rakesh Kumar Sharma (PW-10), Ms. Suman Kumari (PW-11), Assistant Director N.C.B Mr. Shailendra Sharma (PW-12), Mr. R.P Sharma (PW-14) and Zonal Director, NCB Mr. Mukesh Khullar (PW-16). Mr. D.N Tyagi (PW-1), Mr. S.P Tripathi (PW-8) and Ms. Suman Kumari (PW-11) are Intelligence Officers of the NCB. According to the Zonal Director NCB, Mr. Mukesh Khullar (PW-16), a fax message from Mr. Berned Engel, Drugs Liaison Officer, Government of Germany was received by the Deputy Director General of NCB Mr. Devender Dutta containing a request for according sanction to undertake the controlled delivery of the parcel in question in India on the basis of which the Government of India accorded the requisite sanction (Ex.PW-16.A). Thereafter, he directed the Assistant Director NCB Mr. Shailendra Sharma (PW-12) to lias with Mr. Berned Engel and receive the parcels at the I.G.I Airport. He also contacted the then Deputy Chief Postmaster Mr. R.P Sharma (PW-14) and drew out the plan (Ex. PW-1.c) to nab the claimant of the parcel in question.

Assistant Director NCB Mr. Shailender Sharma (PW-12) deposed that pursuant to the directions of Mr. Mukesh Khullar (PW-16), he accompanied Mr. Berned Engel to the I.G.I Airport, New Delhi on the night-intervening 9th and 10th April, 1996. At the airport, Mr. Berned Engel received two parcels from the Captain of Flight No. LH-760 and delivered them to him. One of the parcels was addressed to Ms. Elizabeth Evans, Delhi and the other parcel was destined for Goa. He retained the parcel in question in his custody and handed over the other parcel to Mr. Bapat, Intelligence Officer, NCB, Bombay.

It has come in the evidence of Intelligence Officers Mr. D.N Tyagi (P.W.I) and Ms. Suman Kumari (P.W.ll) that they were directed by Mr. Mukesh Khullar (P.W.16) to keep surveillance at the restante counter of the Post Office, Bhai Veer Singh Marg, New Delhi to nab the claimant of the parcel in question. Mr. D.N Tyagi, (P.W.I) testified that as per plan the postal authorities prepared the initimation slip (Ex. P.W 1.D) on 12.4.1996 and placed it at the said restante counter. He further testified that he left instructions to Mr. Nanak Ram (P.W.2) Postal Assistant to inform him telephonically if someone comes to receive the said parcel. Ms. Suman Kumari (P.W.ll) deposed that she had visited the said post office on 12, 13, 14 and 15 and she had also disclosed her identity to the Postal Assistant Mr. Vasudev (P.W.7) on all those dates. The said statement of Suman Kumari (P.W.ll) is falsified by the evidence of Mr. Vasudev (P.W.7) who pleaded ignorance about her visits on the dates mentioned above. It has also come in the evidence of Mr. D.N Tyagi (P.W.I) and Ms Suman Kumari (P.W.ll) that on 19.4.1996 at about 10 to 10.15 A.M Mr. D.N Tyagi (P.W.I) received a telephonic message from the post office saying that a foreign lady had come to collect the parcel and on receiving the said information they along with Assistant Director Shailender Sharma (PW-12) and some other officers of the NCB left for the said post office. Ms. Suman Kumari (P.W.ll) testified that on reaching the post offices she saw the Appellant sitting with Mr. Vasudev (PW-7). She presented herself as a Postal Assistant before the Appellant and asked her for her passport and found that the name in the passport did not tally with that of the addressee of the parcel. After pointing out the said discrepancy, she asked the Appellant to give in writing an application addressed to the Chief Postmaster G.P.O New Delhi seeking permission to collect the said parcel. Thereafter, the Appellant wrote the application (Ex.P.W.1/f), before him and Mr. Vasudev (PW-7), which she submitted before the Deputy Chief Postmaster Mr. R.P Sharma, (PW-14), who permitted the Appellant to take delivery of the parcel in question. According to Ms. Suman Kumari (P.W.ll) after obtaining written permission from Mr. R.P Sharma (PW-14), she took the parcel from Mr. Shailendra Sharma (PW-12) and handed it over to Mr. Vasudev (PW-7), who in turn delivered it to the appellant. Strangely enough the said testimony of Ms. Suman Kumari (P.W.ll) does not find support from the evidence of the Postal Assistant Mr. Vasudev (P.W.7). According to Mr. Vasudev (P.W.7) on 19.4.1996, the Appellant came to him for collecting the parcel but her name in the passport did not tally with that on the parcel and he therefore, took the Appellant to his superior officers who asked him to deliver the parcel after obtaining an undertaking from the appellant. Thereafter the Appellant Wrote the application (Ex.P-1.f) which he submitted before Mr. R.P Sharma (PW-14), who allowed the Appellant to take delivery of the said parcel and pursuant thereto he delivered the said parcel to the appellant.

Mr. Vasudev (PW-7) has nowhere stated in his evidence that at the relevant time, Ms. Suman Kumari (PW-11) was also present and that it was she who, after pointing out the discrepancy in the name mentioned in her passport and that of the addressee of the parcel, advised her to make an application to the Chief Postmaster seeking his permission to take delivery of the parcel; that Appellant had written the application (Ex.PW-1.F) in the presence of Ms. Suman Kumari (PW-11); that Ms. Suman Kumari (PW-11) had submitted the said application before Mr. R.P Sharma (PW-14) and that after obtaining his permission, who took the parcel from Mr. Shailender Sharma (PW-12) and handed it over to him for its delivery to the appellant. On the contrary, Mr. Vasudev (PW-7) testified that on 19.4.1996 at about 11 A.M, Mr. R.P Sharma (PW-14) called him in his office and directed him to deliver the parcel to the appellant. He further deposed that he had submitted the appellant's application (Ex.PW-1.F) before Mr. R.P Sharma (PW-14), who had accorded his permission at about 11.25 A.M and thereafter he delivered the parcel to the appellant. It is also significant to mention that Mr. R.P Sharma (PW-14) has denied having met with Mr. Vasudev (PW-7) or Ms. Suman Kumari (PW-11) on 19.4.1996 Viewing the discrepancies in the evidence of Mr. Vasudev (PW-7), Mr. Suman Kumari (PW-11) and Mr. R.P Sharma (PW-14), it is difficult to believe the aforesaid statement of Ms. Suman Kumari (PW-11) regarding delivery of parcel to the appellant.

It is the case of prosecution that the parcel in question was delivered to the Appellant after obtaining the written permission of the Deputy Chief Postmaster Mr. R.P Sharma (PW-14). According to the evidence of Mr. Vasudev (PW-7), Ms. Suman Kumari (PW-11), the parcel was delivered to the Appellant around 10.30 to 11 A.M As per prosecution case, the parcel was recovered from the appellant's possessions around 12 to 1 P.M It is significant to mention that there is a material discrepancy in the evidence of Mr. Vasudev (PW-7), Mr. Suman Kumari (PW-11), Mr. Shailendra Sharma (PW-12) and Mr. R.P Sharma (PW-14) about the time of grant of permission by Mr. R.P Sharma (PW-14) to the Appellant to collect the parcel. As noticed earlier, Mr. Vasudev (PW-7) deposed that the permission was granted by Mr. R.P Sharma. (PW-14) at 11.25 A.M, whereas, Ms. Suman Kumari (PW-11) wants us to believe that the parcel was delivered to the Appellant around 10.30 to 11 A.M Mr. R.P Sharma (PW-14) has a different story to tell about the time of grant of the said permission. He has contradicted the statements of Mr. Vasudev (PW-7) and Ms. Suman Kumari (PW-11) by denying his meeting with them on 19.4.1996

According to Mr. R.P Sharma (P.W.14) on 19.4.1996 at about 1 P.M, while he was proceeding to attend a meeting at the General Post Office, Mr. Shailender Sharma (P.W.12) informed him enroute about arrival of a person at the Post Office to claim the parcel and he, therefore, asked him to go ahead with the plan and proceeded for the meeting. It is relevant to mention that at that time, Mr. D.N Tyagi (PW-1), Ms. Suman Kumari (PW-11) and Mr. Shailendra Sharma (PW-12) were supposed to be at the Shiva Guest House conducting search of the room occupied by the appellant. However, the evidence of Mr. R.P Sharma (PW-14) makes it clear that till 1 P.M no permission had been granted by him regarding delivery of the parcel. He further testified that when the meeting was in progress, one messenger had brought the application (Ex.PW-1.F) for his permission and that he returned from the meeting at 3.30 P.M Thus, his evidence clearly shows that the permission to deliver the parcel to the Appellant must have been granted by him in between 1 P.W to 3.30 P.M That being so, the parcel in question could not have been delivered to the Appellant around 10.30 A.M to 11.30 A.M as asserted by Mr. Vasudev (PW-7), Ms. Suman Kumari (PW-11) and Mr. Shailendra Sharma (PW-12). On the contrary, according to the evidence of Mr. R.P Sharma (PW-14), the parcel ought to have been delivered to the Appellant after 1 P.M If that is so, the parcel could not have been recovered from the appellant's possession around 12 A.M to 1 P.M as asserted by Ms. Suman Kumari (PW-11) and Mr. Shailendra Sharma (PW-12). It is pertinent to mention that in a criminal case the accused has no other way to show that a false case has been foisted on him except to show that the witnesses examined by the prosecution are not telling the truth when they are making discrepant statements on material aspects of the case. It has to be borne in mind that admittedly the addressee of the parcel in question was ‘Elizabeth Evans’ and name of the Appellant is Emma Charlotte Eve. There is no similarity between these two names. Since the parcel in question was a registered parcel, it could have been delivered only to ‘Elizabeth Evans’, which it unclaimed would only bring into play the procedure laid down in Chapter VII of the Indian Post Office Act. The procedure supposedly adopted by the Deputy Chief Postmaster (PW-14) requiring the Appellant to make the application (Ex. PW-1.F) to deliver the parcel to her despite her passport indicating that she was not the addressee, was not warranted by the Indian Post Office Act. Keeping in view of the aforesaid material discrepancies, in the evidence of the prosecution witnesses, the whole episode regarding delivery of the parcel in question to the Appellant seems to be doubtful.

There is yet another staggering circumstance which has shaken the foundation of the prosecution case to an irreparable extent. According to the evidence of Mr. D.N Tyagi (PW-1), Ms. Suman Kumari (PW-11) and Mr. Shailender Sharma (PW-12), on 19.4.1996, Ms. Suman Kumari (PW-11) had disguised herself as Postal Assistant and the parcel containing the contraband was delivered to the Appellant in her presence at the post office. If that was so, there was no reason for Ms. Suman Kumari (PW-11), Mr. N.D Tyagi (PW-1) and Mr. Shailender Sharma (PW-12) not to seize the said parcel from the appellants' possession at the post office itself. The prosecution version could have assumed plausibility only if it was shown that the Appellant was apprehended and the parcel was seized while she Was about to leave the post office. However, no explanation, whatsoever, has been offered by the prosecution as to why the Appellant was not apprehended after receiving the parcel at the post office itself and why she was allowed to proceed to the guest house. In her examination under Section 313 Cr.P.C, she has stated that on the day in question the parcel in question was planted on her by officers of the NCB. In the context of the said defence plea, non-seizure of the parcel in question, from the appellant's possession at the post office assumes significance and renders the prosecution case doubtful about recovery of the contraband from the appellant's possession.

It is worth mentioning that Panch witnesses Mr. Neeraj Jain (PW-3) and Radhey Shyam (PW-4) have not supported the prosecution case regarding recovery of the contraband from the appellant's possession. They have been declared hostile by the prosecution. Even assuming that on 19.4.1996, the parcel containing the contraband was recovered from the appellant's possession, the further question which arises for consideration is whether provision of Section 54 of the Act can be invoked to raise a presumption against the appellant. Section 54 of the Act raises a presumption of guilt from possession of any narcolic drug of psychotropic substance qr any illicit article mentioned therein. It is well settled that unlawful possession of the contraband is the sine qua non for conviction under the Act and that fact has to be established by the prosecution beyond reasonable doubt (Syed Mohd. Syed UmerSyed and Others v. State of Gujrat JT 1995 (3) SC 489; Ali Mustaffa Abdul Rahman Moosa v. State Of Kerala. AIR 1995 SC 244). Possession has not been defined in the Act but has been judicially construed to be conscious and intelligent possession and not merely the physical presence of the accused in proximity or even in close proximity to the object. (Rubyana v. State of Maharashtra 1996 Crl.L.J 148; Pritam Singh Dalip Singh v. State AIR 1967 Punjab 50.) There are two essential elements of possession; firstly, the corpus - the element of physical control and secondly, the animus or intent with which such control is exercised. It is conscious and intelligent possession of any contraband which attracts penal provision of the Act and it is for the prosecution to establish that the accused was found in conscious and intelligent possession of the contraband. In Mahara Prithvi Singh Ji v. State of Bombay AIR 1960 SC 483, accused was prosecuted for the offences punishable under Sections 65(a) and 65(b) of the Bombay Prohibition Act on the allegations that he and his servant travelled from Delhi to Abu Road by the train. At the Abu Road Station, the Accused detrained and his servant took out his luggage and followed his master to the 1st Class waiting room. After some time, the accused's luggage was loaded into the trailer attached to a jeep car. Some time later, the accused got into the jeep and when the jeep was about to start, a police head constable stopped it in order to make a search in connection with a suspected offence. On search, 75 bottles of foreign liquor were found in the trunks belonging to the accused as well as two half consumed bottles, one of which was in an attache case. The accused admitted the ownership of the luggage but he took the plea that he did not know about the existence of these numerous bottles of foreign liquor in his trunks or attache case. The Apex Court acquitted the accused on the ground of failure of the prosecution to prove that the accused had knowledge of the contents of his luggage and had accordingly possessed and imported an intoxicant in contravention of the provisions of the Bombay Prohibition Act.

In order to connect the Appellant with the contraband, it is alleged that on 28th March, 1996, the parcel in question was posted from Santa Marta (Columbia) by the appellant. Reliance was placed on the appellant's air ticket (Ex. P. 1) to show that on 28.3.1996, at about 7.20 A.M the Appellant left bogota (coumbia) by an international flight. On the basis of the said air ticket an interference was sought to be drawn that the parcel in question was posted by the appellant. It is relevant to mention that there is not an iota of legal evidence on record to prove that on 28.3.1996, the parcel in question was posted by the appellant. As noticed earlier, the addressee of the said parcel was Elizabeth Evans and not the appellant. If the Appellant wanted to import cocaine into India through post she would hardly have chosen to import in through registered post and that too in a name which does not telly with the name in her passport. That apart, no circumstance regarding appellant's departure from Columbia on 28.3.1996, or regarding the despatch of a parcel from Santa Marta on that date was put to her in her examination under Section 313 Cr.P.C It is well settled that circumstances, appearing on record against an accused, which were not put to him in his examination under Section 313 Cr.P.C, are to be completely excluded from consideration Sharad Birthichand v. State of Maharastra AIR 1984 SC 1622). Thus, the circumstance that on 28.3.1996, the Appellant had left Columbia by air cannot be pressed into service to raise any adverse inference against her. The prosecution has examined handwriting expert Mr. N.K Agarwal (PW-15), who deposed that address on the parcel in question and the application (Ex.PW-1.F) have been written by the same person. As per prosecution case, the application (Ex.PW-1.F) had been written by the appellant. In State of H.P v. Jai Lal and Others, J.T 1999 (6) SC 548, it was held that “an expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case.” It has to be borne in mind that admittedly the application (Ex.PW-1.F) is not the specimen handwriting of the appellant. The appellant's specimen handwriting is Ex.PW-1.Z. It is significant to mention that Mr. N.K Agarwal (PW-15) has not opined that the specimen handwriting of the Appellant (Ex.PW-1.Z) is similar to that of the application (Ex.PW-1.F) or the parcel in question (Ex.PW-1.G). That being the position, the evidence of Mr. N.K Agarwala (PW-15) does not help the prosecution to connect the Appellant with the parcel in question (Ex.PW-1.G). Thus, there is nothing on record to establish that the Appellant had knowledge of the contents of the parcel in question and she had accordingly possessed and imported the contraband in contravention of the provisions of the Act.

For the foregoing reasons I find and hold that the prosecution has failed to prove beyond any shadow of doubt that on 19th April, 1996, the parcel in question containing the contraband was recovered from the conscious and intelligent possession of the appellant. Consequently, the provision of Section 54 of the Act cannot be invoked to raise a presumption of guilt against the appellant.

Even assuming that the parcel in question containing the contraband was recovered from the appellant's possession, the further question which arises for consideration is whether the prosecution has proved all the links starting from the seizure of the contraband till the same reached the office of the Chemical Examiner in order to show that seals of the sampled contraband remained untempered with throughout. As noticed earlier, on 3.4.1996, the parcel in question was seized and confiscated in Germany. Thereafter, the parcel changed several hands. In State Of Rajasthan v. Daulat Ram., AIR 1980 SC 1314, it was found that the samples of opium changed several hands before reaching the Public Analyst and yet none of those in whose custody the samples remained were examined by the prosecution to prove that while in their custody the seals on the samples were not tampered with. It was held that the inevitable effect of the said omission was that the prosecution failed to rule out the possibility of the samples being changed or tampered with during the period in question a fact which had to be proved affirmatively by the prosecution.

On 10.4.1996, the said parcel was received at the Airport by Mr. Shailender Sharma (P.W.12). According to Mr. Shailender Sharma (P.W.12) the parcel remained in his custody from 10th April, 1996 to 19th April, 1996. Mr. D.N Tyagi (P.W.1), Ms. Suman Kumari (P.W.11) and Mr. Shailender Sharma (P.W.12) deposed that the parcel was seized from the appellant's possession on 19.6.1996 Intelligence Officer Shri D.N Tyagi (P.W.1) deposed that the entire case property and the sampled packets were deposited by him in the Malkhana on the same day and at that at time Assistant Director, Mr. Shailender Sharma, (P.W.12) was the incharge of the Malkhana. In his cross-examination he has stated that the said property remained in the Malkhana from 19.4.1996 to 22.4.1996 On the contrary Mr. Shailender Sharma (P.W.12) pleaded ignorance about the officer who was incharge of the Malkhana from 19.4.1996 to 22.4.1996 He further stated that the Investigating Officer concerned retrieved the parcel from Malkhana on 22.4.1996, and delivered it to him. In view of the contradictory statements of the said witnesses it becomes doubtful that after seizure of the contraband the sealed parcel and the samples were deposited in the Malkhana. It is also significant to mention that in the instant case neither the Malkhana incharge nor the Malkhana register was produced to prove that the parcel and the samples were in fact deposited in the Malkhana by Mr. D.N Tyagi (P.W.10) and remained there in safe custody. No explanation, whatsoever, has been given for non-examination of the Malkhana incharge or non-production of the Malkhana Register. This gives rise to an adverse inference against the prosecution case (Kiziti EL EBE v. CBI 39 (1989) DLT 439). In this view of the matter, it is difficult to hold that on 19.4.1996, the seized property was deposited in the Malkhana to ensure that there was no tampering with the parcel/samples of the contraband.

It is worth mentioning that Mr. Shailender Sharma (P.W.12) deposed that the seal No. 10 which was used in the proceedings was received by him from the Zonal Director Shri Mukesh Khullar (P.W.16) and after completing the formalities Mr. D.N Tyagi (PW-1) returned the said seal and he handed over the same to Mr. Mukesh Khullar. He further testified that on 22.4.1996, he again took the seal from Mr. Khullar (P.W.16) for using it on the test memos prepared on that day and after using the same he returned it to Mr. Khullar on the same day. It has also come in his evidence that on 22nd April, 1996, he took out the sampled contraband and delivered the same along with test memos in duplicate to Mr. Hawaldar Jaspal Singh for onward transmission to the CRCL. Thus, the testimony of Mr. Shailender Sharma P.W.12 shows that test ‘memos were not prepared on the date of the alleged seizure of the contraband but the same were prepared on 22.4.1996 No explanation has been offered by the prosecution for non-preparation of the test memos on the date of the alleged seizure of the contraband. It is well settled that till the case property has not been despatched to the CFSL or CRCL, the seal should not be available to the prosecuting agency but it should be given to an independent witness and in the absence of such safeguard, the possibility of the seal being tampered with and the substance being changed and the containers being re-sealed cannot be ruled out.

In Shafiullah v. State 49 (1993) DLT 193, it was found that the seals remained with the police officers after use and the CFSL form was neither prepared on the spot nor deposited in the Malkhana and this circumstance was held to be fatal to the prosecution case.

In Afsar Hussain v. NCT of Delhi 72 (1998) DLT 261 it was found that after sealing the contraband, the seals were returned to the Station House Officer and the case property was deposited by the SHO in the Malkhana after about 5 days of acquiring the seals from a prosecution witness examined in the case. It was held that in view of the fact that the seals were available with the SHO and the pulandas remained with him for a period of five days, the likelihood of tampering with the sample and the case property cannot be ruled out.

Reference may, in this connection, be made to the decision of this Court in Chameli Devi v. State 1994 (2) FAC 476; Abdul Ghaffar v. State 1996 JCC 497; Mehandi Hasan v. State 63 (1996) DLT 963, Mohd. Salim v. State 66 (1997) DLT 826, Rajinder Kumar v. State 63 (1996) DLT 721. In this connection, I may usefully excerpt following observations of this Court in Mool Chand v. State (II) (1993) CCR 964;

……The very name given to this form as C.F.S.L Form suggests the object of its preparation at the time of seizure of a contraband article and separation of its representative sample. The specimen seal impressions used at that time are affixed on it, so that it can be deposited with case property in the Malkhana and forwarded to C.F.S.L along with the sample parcel so that seal impressions affixed on the sample parcel are duly compared with the seal impressions on the C.F.S.L form. The idea behind taking such precautions is to complete a material link in the prosecution evidence by eliminating the possibility of the sample being tampered with. The sentence provide under this Act is very severe. It cannot be less than 10 years R.I and a fine of Rupees one lac. If the sentence is so severe, the Courts will naturally insist for the standard of proof also beyond the shadow of all reasonable doubt against an accused. Suspicion, however strong, cannot take the place of positive proof……”

Similarly in Lalman v. State 75 (1998) DLT 224 it was held by this Court that:—

“CFSL form is a very valuable safeguard to ensure that the sealed sample is not tampered with till its analysis by the CFSL Analyst. The CFSL form should not only be prepared and sealed by the officer making the seizure at the place where the, case property is seized from the accused, it should also be sealed by the SHO to whom the sample and case property is handed over and the same should accompany the sample sent to the CFSL. The purpose of specimen seal is to compare the same with the seals on the sample parcels meant for analysis and report by CFSL to ensure that the samples are not tampered with. In the absence of CFSL form, it cannot be said that the purety of the sample remained intact. Benefit of its absence should go to the accused”.

As demonstrated earlier, in the instant case the prosecution has failed to establish that adequate precautions were taken by the prosecuting agency to complete material link in the prosecution case by eliminating the possibility of the sample being tampered with. The benefit arising out of such a doubtful situation must necessarily go to the appellant.

The crucial question which arises for determination is whether the substance produced before the trial Court was cocaine. The learned Additional Sessions Judge, on the basis of the report of the Chemical Examiner, came to the conclusion that the parcel in question was found to contain cocaine. It is significant to mention that the report of the Chemical Examiner was not tendered in evidence. It is well settled that the formal proof of a document can be waived by the party against whom it is sought to be used. In the instant case, the report of the Chemical Examiner is a disputed document and there is nothing on record to show or suggest that the Appellant had waived her right to have the said report proved. Section 293 of the Code of Criminal Procedure provides that any Governmcnt Scientific Expert may be received in evidence without examining the expert to whom the said Section applies. Section 293 engrafts a special rule of evidence and makes any document, purporting to be a report under the hand of a Government Scientific Expert to whom this Section applies upon any matter or thing duly submitted to him for examination and report, admissible in evidence without calling such expert as a witness. This, however, does not imply that without tendering the report in evidence, it can be made use of. Thus, the provisions contained in Section 293 Cr.P.C do not rule out the requirement of the indian evidence act and do not in any event override the provisions contained in Section 61 to Section 64 thereof, the document envisaged by Section 293 Cr.P.C can be used as evidence in an enquiry or a trial. It is a piece of evidence that does not require any formal proof but at the same lime it must be tendered as evidence and used as such, so that the accused may have a chance of questioning the identity of the sampled packets. In the instant case, none of the prosecution witnesses has stated that the report of the Chemical Examiner dated 28.5.1996 pertains to the substance alleged to have been recovered from the appellant's possession. The document as noticed earlier was not even exhibited in evidence. In that view of the matter, the learned Additional Sessions Judge has committed a grave legal error in convicting the Appellant on the basis of the said report. In failure of the said report, having been formally tendered in evidence, there is really no satisfactory evidence to show that the powder contained in the capsules recovered from the parcel in question was cocaine. The case must, therefore, fall to the ground.

Unfortunately, the learned Additional Sessions Judge did not take notice of the aforesaid infirmities in the prosecution case and unjustifiably accepted the prosecution evidence. Consequently, the impugned order of conviction and sentence cannot be sustained in law.

In the result, the appeal is allowed and the Appellant's conviction and sentence is set aside. The Appellant is acquitted of the offences punishable under Section 21/23 of the Act. The Appellant, who is in custody, shall be set at liberty forthwith, if not wanted in any other case. Fine, if paid, shall be refunded to the Appellant. Appellant's passport and the air ticket shall also be returned to the Appellant.