Charlse Howell Abel Kom v. N.C.B., Delhi High Court, Judgment, Law, casemine.com

Citation Codes

Equivalent Citations

citation codes

Case Number

Crl. A. 755/2016

Disposition

allowed

Advocates

Ms. Svetlana Khiyungdzuzu, Adv.
Mr. Subhash Bansal, Standing Counsel with Mr. Shashwat Bansal, Adv.

Judges

C. Hari Shankar, J.

Acts

ARTICLE 20 CONSTITUTION OF INDIA
ARTICLE 141 CONSTITUTION OF INDIA
sub-sections (2) and (3) of Section 52-A
Section 428 of the Code of Criminal Procedure, 1973
sub-section (2) of Section 52-
sub-section (1), the Central
Section 21(c), 23(c) and 28 of the Narcotics, Drugs and Psychotropic Substances Act, 1985.
Section 428 of the Cr.P.C. 6. Rival Submissions 6.1
Indian Evidence Act, 1872 or the Code of Criminal Procedure, 1973,
Section 313, Cr PC 4.20
Section 313 of the Cr.P.C.,
Act. Standing Order 1/88,
Section 106 of the Indian Evidence Act, 1872
Sections 21(c) and 23(c), read with Section 28 of the Narcotics, Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act"),

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Smart Summary

Factual and Procedural Background

This appeal arises from a conviction by the Special Judge, NDPS, dated 8 October 2015, and the consequent sentence dated 13 October 2015, by which the appellant, Charles Howell @ Abel Kom, was convicted under Sections 21(c) and 23(c), read with Section 28 of the Narcotic Drugs and Psychotropic Substances Act, 1985, and sentenced to ten years' rigorous imprisonment and fines for each count (sentences to run concurrently). The benefit of Section 428 CrPC was extended by the trial court.

The prosecution case, as recorded in the trial court, is that on 5 April 2011 NCB received secret information that a courier parcel (Airway Bill No. 3261394953) at Aramex contained narcotics. NCB officers attended Aramex; two Aramex employees acted as panch witnesses. The parcel, containing two ladies' lehengas, was opened and 166 stitched strips were found in the lehengas containing an off-white powder. The total weight of powder was recorded as 330 g (other witnesses gave variant figures). Two representative samples of 5 g each were taken and sent to the Central Revenues' Control Laboratory (CRCL), which reported the sample A-1 as testing positive for heroin.

The appellant was later intercepted in April 2012 in relation to a different seizure (410 g heroin) and a statement under Section 67 NDPS Act was recorded in that investigation in which he, as recorded, admitted having booked a parcel in April 2011. He was arrested on 4 August 2012. Charge in the present case was framed on 19 October 2012. After trial, the Special Judge convicted and sentenced the appellant as noted above. The appellant challenged the conviction by way of the present criminal appeal in the High Court, which reserved and pronounced judgment on 13 August 2018.

Legal Issues Presented

The extent to which inconsistencies in statements of various prosecution witnesses affect the prosecution's case.
The effect of the parcel (and the polythene strip) having been opened by PW-2 (an Aramex official) before NCB arrival, and the taking out of powder by him.
The legality and propriety of the sampling and testing method adopted (Field Testing Kit at site and subsequent CRCL testing), including whether mixing of powders and drawing of only two small samples was permissible.
The admissibility and reliability of the appellant's statement under Section 67 of the NDPS Act, especially since it was recorded in the context of another investigation and was later retracted.
The applicability and effect of Sections 35 and 52 of the NDPS Act (as raised by the respondent).
The applicability and effect of Section 106 of the Indian Evidence Act, 1872 (as raised by the respondent).
Whether the available evidence (including the Section 67 statement and forensic reports) was sufficient to sustain conviction, having regard inter alia to the decision in UOI v. Bal Mukund.

Arguments of the Parties

Appellant's Arguments (Ms. Svetlana Khiyungdzuzu)

There are material inconsistencies among prosecution witnesses on key facts (e.g., total quantity: PW-2 said 400 g; Kiran Bala 350 g; prosecution 330 g).
PW-2 (Ashok Kumar) opened the parcel before the NCB team arrived and extracted powder; this created a real possibility of tampering and destroyed the chain of custody, entitling the appellant to the benefit of doubt.
The appellant's statement under Section 67 NDPS Act was recorded in a different investigation (relating to 410 g heroin) and thus could not be used in the present case; moreover the statement was retracted.
There was a defect in the arrest memo: it was prepared later (arrest said to be on 16 April 2012 but arrest memo drawn in August 2012), which was fatal to the prosecution case.
Reliance was placed on Bal Mukund and Noor Aga regarding confessional statements and Article 20(3) protections.

Respondent's Arguments (Mr. Subhash Bansal)

The objection to sampling and testing was considered and rejected by the Special Judge relying on Sumit Tomar; the seizure, sampling and statutory compliances were otherwise in accordance with the Act.
The appellant's Section 67 statement, though recorded in another investigation, remained admissible and applicable to the present case.
Sections 35 and 54 of the NDPS Act create statutory presumptions of culpable mental state; Section 106 Evidence Act placed the onus on the appellant to explain how documents bearing his name were found with the parcel.
Retraction of the Section 67 statement was belated and omnibus and therefore not to be given weight.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Kanhaiya Lal v. Union of India (2008) 4 SCC 668	Admissibility of statements recorded under Section 67 NDPS Act.	Cited by the Special Judge (and noted in appeal) to support that statements under Section 67 are admissible in evidence; relied upon in assessing the appellant's Section 67 statement.
M. Prabhu Lal v. Asstt. Director of Revenue Intelligence (2003) 3 JCC 1631 (SC)	Admissibility of statements under Section 67 of the NDPS Act.	Used alongside Kanhaiya Lal to justify admissibility of Section 67 statements.
Sumit Tomar v. State of Punjab (2013) 1 SCC 395	Addressed objections about sampling/testing procedures (cited by prosecution to reject sampling objections).	The learned Special Judge relied on Sumit Tomar to reject the appellant's objection that powder should have been tested packetwise rather than after mixing; the respondent relied on this in argument before the High Court.
Ashok Debbarama v. State of Tripura (2014) 4 SCC 747	Permissibility of relying on in-court identification even if Test Identification was not conducted at the spot.	Cited by the Special Judge (and noted by this Court) to hold that identification in court can be relied upon even if Test Identification at scene was imperfect.
Satwantin Bai v. Sunil Kumar (2015) (V) ADSC 114	Authority for relying on in-court identification absent Test Identification.	Referenced by the Special Judge in support of relying on in-court identification of the appellant.
U.O.I. v. Bal Mukund (2009) 12 SCC 161	Two aspects in the opinion: (a) that conviction solely on basis of Section 67 statement may be impermissible; (b) Standing Instruction 1/88 is treated as a "requirement in law" for sampling procedure.	The Special Judge found Bal Mukund distinguishable on facts when rejecting the appellant's contention; in the High Court's analysis Bal Mukund was treated as authoritative on sampling (standing instructions as requirement in law) and influenced the Court's conclusion that the Section 67 statement could not, alone, safely sustain conviction in the absence of reliable sampling and corroboration.
Noor Aga v. State of Punjab (2008) 16 SCC 417	Invoked in relation to Article 20(3) protections and caution about confessional statements.	Quoted by the appellant in rejoinder; the High Court noted counsel's reliance on Noor Aga and Article 20(3) when considering whether a Section 67 statement could be treated as voluntary and corroborative.
Khet Singh v. Union of India (2002) 4 SCC 380	NCB instructions/standing orders are to be followed as guidelines though not having force of law; procedural non-compliance does not automatically render evidence inadmissible — court must assess prejudice/tampering.	The High Court reproduced the principles from Khet Singh and considered them when evaluating non-compliance with Standing Instruction 1/88 and whether such non-compliance would invalidate evidence.
State of Punjab v. Makhan Chand (2004) 3 SCC 453	Critically examined Standing Orders; held that Section 52A does not empower issuance of procedural instructions for searches and that the Standing Orders cannot be treated as law in that context.	The High Court cited Makhan Chand to explain divergence in authorities and to note that Standing Orders' legal status had been questioned; used as part of the survey of precedent before preferring Bal Mukund.
Gaunter Edwin Kircher v. State of Goa (1993) 3 SCC 145	Where multiple packets exist, sending only one packet for chemical analysis does not permit inference about all packets; samples should be taken from each packet to avoid doubt.	Cited in High Court's discussion (via other single-judge decisions) to emphasize that mixing contents of multiple packets and sending only mixed small samples creates suspicion and prejudice to the accused.
Netram v. State of Rajasthan (MANU/RH/1912/2013)	Authority holding that mixing materials from different packets and sending a single sample is defective and prejudicial.	Referred to in a passage quoted by this Court (via other judgments) as supporting the principle that mixing packages and sampling can be defective and prejudicial.
Ghewar Ram v. State of Rajasthan (MANU/RH/0662/2007)	Similar authority criticizing mixing of articles from different packets and taking single sample.	Referenced in analysis to support the proposition that mixing and single sampling is defective.
Edward Khimani Kamau v. Narcotics Control Bureau (Manu/DE/1748/2015)	High Court decision criticizing the practice of transferring powder from several packets into one and taking only two small samples; holding such procedure causes prejudice and may lead to acquittal.	Relied upon by the High Court as a supporting High Court precedent where similar sampling and mixing led to the view that the procedure caused prejudice to the accused.
Basant Rai v. State (2012) 130 DRJ 471	High Court decision holding that where samples were drawn by mixing contents of multiple packets, the process created suspicion and benefit should go to accused.	Referred to by this Court as a supporting authority where the mixing/sampling practice resulted in the accused's acquittal; used to buttress the conclusion that mixed-sample testing may be unreliable.

Court's Reasoning and Analysis

The High Court undertook a structured analysis addressing the enumerated issues. The key steps and reasoning are summarized below, drawn strictly from the opinion:

The Court surveyed controlling principles on sampling and standing instructions. It reproduced Standing Instruction 1/88 (paras 1.5–1.7) that prescribes that seized drugs should be mixed to make a homogeneous representative composite only in the circumstances indicated and that samples should be chosen representatively.
The Court reviewed precedent on the legal status of such standing instructions:
- From Khet Singh it noted that NCB instructions are to be followed as guidelines and their breach does not automatically render evidence inadmissible; the court must examine whether prejudice or tampering resulted.
- Makhan Chand was noted as critical of treating Standing Orders as law because Section 52A pertains to disposal and not search procedure.
- Bal Mukund (a three-judge bench) was identified as treating Standing Instruction 1/88 as a "requirement in law" for sampling procedure; Article 141 requires following Bal Mukund over conflicting two-judge precedents.
Applying these precedents to the facts, the Court found multiple infirmities in the manner of sampling and testing:
- There were clear and material inconsistencies among witness accounts about whether Field Testing Kit testing was carried out on a single strip or on multiple strips, and whether testing occurred before or after mixing all powder. Several witnesses gave differing accounts (PW-1 said testing of a small quantity from one strip; others said testing was done after mixing or from many strips).
- PW-2 (Ashok Kumar) admitted he had opened one polythene strip and extracted powder before the NCB team arrived; this act created a possibility of tampering with that particular strip's contents.
- Given the inconsistencies and the admitted prior opening of one slip, the Court concluded it would be unsafe to rely on the Field Testing Kit results as evidence against the appellant.
Regarding CRCL testing and representativeness of samples:
- The samples sent to CRCL were two 5 g samples taken after assimilating all powder into one lot. The Court found this contrary to Standing Instruction 1/88 (as interpreted in Bal Mukund), which emphasizes representative sampling from each packet/lot where multiple packets exist.
- Only two small samples were taken from a total quantity of 330/350/400 g (figures varied); the record did not disclose how those samples were extracted from the whole. Therefore, the High Court found it was not possible to be satisfied that the samples were representative of the entire seized quantity.
- Consequently, the CRCL test reports lost evidentiary value for conclusively proving that the entire seized quantity was heroin.
Concerning the appellant's statement under Section 67:
- Once the forensic evidence (Field Test and CRCL reports) was set aside for the reasons above, the only remaining evidence tending to show the parcel contained heroin was the appellant's Section 67 statement recorded in another investigation (relating to a 410 g seizure) in which he, when led by a question, was recorded as admitting he had booked a parcel in April 2011 and that a "black person" told him about heroin. The Court noted that the part asserting the parcel contained heroin arose from a leading question.
- The Section 67 statement was later retracted by the appellant. Given Bal Mukund and the circumstances of recording (in the office of the NCB and relating to another consignment), the Court concluded it could not safely regard the Section 67 statement as voluntary and sufficiently corroborative to sustain conviction by itself.
Other objections raised by appellant (such as the parcel being opened by Aramex staff before NCB arrival and lack of enmity of those staff) were considered. The trial court had rejected tampering objection on the ground that Aramex personnel had no apparent enmity. The High Court held that the critical issue was not enmity but the unreliability introduced by testing a slip that may already have been opened by a third party; thus the trial court's reasoning was insufficient to remove the doubt.
Weighing the cumulative effect of the defects (inconsistent witness accounts about testing, the prior opening of a slip by PW-2, and non-representative sampling for laboratory testing), the High Court held that the prosecution had not proved the commission of the alleged offence beyond reasonable doubt.
The Court also noted the appellant had already suffered incarceration for approximately six years and considered that factor in concluding that the benefit of doubt should be given to the appellant.

Holding and Implications

Holding:

ACQUITTAL AND ALLOWANCE OF APPEAL

The High Court quashed and set aside the impugned judgment dated 8 October 2015 (conviction) and the consequent order dated 13 October 2015 (sentence). The appellant was acquitted of the charges under Sections 21(c), 23(c) and 28 of the NDPS Act and ordered to be released forthwith unless required in another case. The appeal was allowed.

Direct consequences for the parties:

The appellant is acquitted of the NDPS offences in this case and to be released unless detained in other matters.
The trial court's conviction and sentence are quashed and set aside.

Broader implications: The opinion conducts a detailed application of Supreme Court authority (notably Bal Mukund) and High Court decisions on the importance of representative sampling and the dangers of mixing contents of multiple packets when drawing samples. The judgment emphasizes that unreliable sampling and evident possibilities of tampering undermine the evidentiary value of both field tests and laboratory reports and that, in such circumstances, reliance solely on a Section 67 statement is unsafe. The opinion itself does not purport to lay down a novel legal principle beyond its application of existing authorities.

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Charlse Howell Abel Kom v. N.C.B.

$~3 * IN THE HIGH COURT OF DELHI AT NEW DELHI th

Reserved on: 4 August, 2018 th

Pronounced on: 13 August, 2018

+ CRL.A. 755/2016 CHARLSE HOWELL @ ABEL KOM ..... Appellant Through: Ms.Svetlana Khiyungdzuzu, Adv. versus

N C B ..... Respondent

Through: Mr.Subhash Bansal, Standing Counsel with Mr.Shashwat Bansal, Adv.

CORAM:

HON'BLE MR. JUSTICE C.HARI SHANKAR

% JUDGMENT

C. HARI SHANKAR, J.

1. The appellant Charles Howell @ Abel Kom has been convicted, vide the impugned judgement, dated 8^thOctober, 2015, passed by the learned Special Judge, NDPS under Sections 21(c) and 23(c), read with Section 28 of the Narcotics, Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act"), and sentenced, vide consequent order dated 13^thOctober, 2015, to 10 years" rigourous imprisonment along with a fine of ₹ 1 lakh, for each of the offences under Sections 21(c) and 23(c) of the Act, with 2 months" simple imprisonment default sentence in each case, the sentences being directed to run concurrently. The benefit of Section 428 of the Code of Criminal Procedure, 1973 has been extended to the appellant.

2. Case of the Prosecution

2.1 On 5^thApril, 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 Testing Kit carried by the raiding team, tested positive for heroin.

2.3 In all, 166 strips were found stitched in both the lehengas, with similar powder concealed in the strips. The powder recovered from all

the strips was collected together in a transparent polythene and, on weighment, was found to weigh 330 g.

2.4 Two representative samples, of 5 gm each, were drawn out from the polythene and put separately in smaller Ziploc polythene pouches, which were further kept in white paper envelopes, marked A-1 and A-2. The remaining powder was converted into a parcel with the help of a marking cloth and was marked „A". The parcels and samples were duly sealed, and paper slips, with dated signatures of IO Surender Singh and the panch witnesses were pasted on them. Panchnama and Test memo were prepared.

2.5 Summons were issued to the panchas under Section 67 of the Act, pursuant to which they appeared in the office of the NCB and tendered their statements.

2.6 The case property, along with the samples and test memo, were deposited with the Malkhana Incharge, and the statutory report, under Section 57 of the Act, was submitted to Supdt. Sh. Y. R. Yadav.

2.7 On 6^thApril, 2011, the sample marked A-1, along with the Test Memo, was sent to the Central Revenues" Control Laboratory (CRCL) for analysis wherefrom, report was received on 10^thMay, 2011, disclosing that the sample had tested positive for heroin.

2.8 On 15^thApril, 2011, the driving licence of the appellant, found along with the parcel, was sent to the NCB Unit, Manipur, for

verification. However, the reply received from the NCB was to the effect that the address on the licence could not be located, and could be fake/bogus.

2.9 On 16^thApril, 2012, the appellant was intercepted by the NCB in another case of seizure of 410 g of heroin, and his statement was recorded under Section 67 of the Act. In the said statement, the appellant revealed that he had also booked the parcel at the Aramex Office in April, 2011.

2.10 The statement of Mr. Umesh Madan, the official at the Aramex office, was also recorded. He identified the appellant as the person who had booked the parcel in question with him.

2.11 On 4^thAugust, 2012, the appellant was arrested with the permission of the Court. A report, under Section 57 of the Act, regarding the appellant"s arrest, was submitted to the Superintendent, Sh. Y. R. Yadav.

3. Framing of charge

3.1 On 19^thOctober, 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 5^thApril, 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 (PW-2), and was found to contain a red fibre bag having attached, to it, three copies of the Airway Bill, three copies of an invoice and one copy of a driving licence of the appellant, (ii) on opening the parcel, it was found to contain two ladies lehangas, which were stitched with laces, which, on being torn open, were found to contain small polythene strips, 166 in number, each of which contained off-white powder, (iii) a small quantity of the powder was tested with the Field Testing Kit, which tested positive for heroin, whereupon all the powder contained in the strips was collected in a

separate transparent polythene, which, on being weighed, was found to be 330 g, (iv) the powder was properly mixed, and two samples, of 5 g each, were retrieved, therefrom, in two transparent Ziploc pouches, which were further kept in two separate white envelopes marked „A-1"

and „A-2", (v) the remaining powder was wrapped in a stitched white cloth and marked as „A", (vi) white paper slips, signed by himself and the two panchas, were pasted on „A-1", „A-2", „A" and „B" and sealed with the seal of the NCB, (vii) Test Memo and Panchnama were prepared in the presence of the panchas, (viii) at 3:40 PM, they left the office of Aramex and proceeded to the office of the NCB, where he handed over the seal to the seal in-charge, Y. R. Yadav (PW-5), who made the requisite entry in the register, (ix) the case property was, thereafter, deposited in the Malkhana, and the seizure report (Ex. PW- 1/G) was, thereafter, handed over, by him, to Y. R. Yadav, and (x) after issuing summons under Section 67 of the Act, the statements of Ravikant Thakur (PW-11), Ashok Kumar (PW-2) and Umesh Madan (PW-10); (the official of M/s Student Infoline Courier) were recorded. He further deposed that, on 16^thApril, 2012, 410 g of heroin was seized, by him, from Overseas Courier, the documents relating to which showed the consignor to be the appellant, and the driving licence of the appellant was attached with the said parcel as well. On inquiry with Overseas Courier, it was revealed that the said parcel was originally booked at Blazeflash Courier. PW-1 further deposed that, during investigations into the said consignment, the appellant was apprehended, and his statement, under Section 67 of the Act, recorded, in which the appellant admitted to having deposited a 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^ndApril, 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 4^thAugust, 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 5^thApril, 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 course of trial, before the learned Special Judge, the pullanda marked „A" was produced, which was found to be sealed, at all four corners, with the seal of the NCB. It was also found that the parcel could not be cut open without disturbing the said seals. On cutting open the parcel, it was found to contain one polythene, in which some light brown powder was seen. PW-1 Surender Singh identified his signatures on the slip, whereupon the slip was exhibited

as Ex. P-1, and the pullanda and packet, containing the powder, were exhibited as Ex P-2. PW-1 Surender Singh identified the powder as that which had been recovered from the parcel seized from the office of Aramex on 5^thApril, 2011. Similarly, the white envelope marked „A-2", and the pullanda marked „B" were also produced, and were identified, by PW-1, as containing the same powder.

4.5 The Seizure Report (Ex. PW-1/G) stated that testing of the powder, using the Field Testing Kit, had been done on a small sample recovered from one of the polythene strips, before the powder contained in all the slips was mixed.

4.6 Ravikant Thakur (PW-11) and Ashok Kumar (PW-2) also deposed, in their statements under Section 67 of the Act (Ex. PW-1/I and PW-1/J respectively), that testing, using the Field Testing Kit, was done prior to mixing of the powder. They further deposed that the testing had been done on more than one samples, recovered from more than one slips.

4.7 Umesh Madan (PW-10), in his statement under Section 67 of the Act (Ex. PW-1/L), acknowledged booking the appellant"s parcel, stated to contain lehangas, to China, at Aramex, on 2^ndApril, 2011, as well as attaching, to the said parcel, three copies of the Airway Bill, three copies of the invoice and a copy of the driving licence of the appellant. In his second statement, recorded under Section 67, Umesh Madan (PW-10) identified the appellant as the person who had booked the parcel to China on 2^ndApril, 2011.

4.8 Ashok Kumar, the official of Aramex and one of the panchas, deposing as PW-2, confirmed that, in April 2011, an employee of Student Infoline Courier had brought a sealed packet, for being booked to China and that, as required by regulations, he opened the packet to ascertain its contents. He, however, went on to depose that, having been earlier in a security agency, he could make out that the lehengas booked in the said 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 cross-examination by the learned Public Prosecutor, PW-2 Ashok Kumar confirmed that the facts, as recorded in his statement, were true, and denied the suggestion that the powder found in the polythene strips had been tested before it was mixed. In cross- examination by learned counsel for the appellant, PW-2 reiterated that the parcel had been cut open by him, and stated that before producing the parcel before the NCB officials, he repacked the parcel in the same condition. He confirmed that he did not reveal, to the NCB officials, the fact that he had opened the parcel and seen its contents.

4.10 Ravi Kant Thakur, deposing as PW-11, corroborated the deposition of Surender Singh (PW-1) and other witnesses. He, however, asserted that a small quantity of the powder was checked using the Field Testing Kit, and tested positive for heroin. On being shown the cloth pullandas marked A and B sealed with paper slips, already exhibited as Ex.P-1 and Ex.P-5, he identified his signatures on the said slips. Similarly, he identified the paper envelopes marked A1 and A2.

4.11 Sanjay Rawat, who was also IO in the NCB at the relevant time, and was part of the team which visited the office of Aramex Courier, deposing as PW-4, substantially supported the version of PW-1 Surender Singh. However, he stated, both in examination-in-chief as well as cross examination, that the parcel was produced, before the team, by Ravikant Thakur (PW-11). Also, sequentially, PW-4 referred to the checking of the samples, using the Field Testing Kit, after the collection and weighing thereof. PW-4 further confirmed the

depositing of the pullandas marked „A" and „B", and the sample parcels „A-1" and „A-2", along with the Test Memo in triplicate, in the Malkhana, and the entry, thereof (Ex. PW-4/A) in the Malkhana register, as well as the sending, of the said samples and Test Memo, to the CRCL, through Digambar Singh (PW-9), in respect whereof entry Ex. PW-4/B was made in the register, and the receiving back, of the remnant sample marked „A-1" on 10^thMay, 2001. In cross- examination, PW-4 stated that the parcel, as brought by Ravikant Thakur, was "in packed condition although not sealed".

4.12 Kiran Bala, also IO in the NCB, deposed as PW-7. She corroborated the statement of PW-1 Surender Singh. She, too, acknowledged that the parcel was produced, before the team, 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 8^thApril 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 16^thApril, 2012, when his statement (Ex. PW-8) was recorded. During the course of the said statement, which continued for two days, the appellant was arrested, at about 8:30 PM on 17^thApril, 2012, consequent on recovery of 410 g of heroin from a parcel booked by him. PW-8 further deposed that the appellant had, in his statement under Section 67 of the Act in connection with the recovery of the said 410 g heroin, also disclosed the fact of his having booked a parcel, using the same document of identity, in April, 2011. PW-8 correctly identified the appellant in court. In cross-examination, PW-8 asserted that the statement, of the appellant, under Section 67 of the Act, was recorded without pressure or coercion.

4.15 The statement, dated 16^th/17^thApril, 2012, of the appellant, under Section 67 of the Act, related, mostly, to the recovery of 410 g of heroin, from him, with which the present appeal is not concerned. However, the following questions, and the answers, of the appellant, thereto, are relied upon by the prosecution:

"Q:- Did you book any other parcel earlier containing heroin?

A:- Yes in April 2011 from Student Infoline Courier office, Vasant Kunj and one black person gave this parcel to me and told about heroin and for sending to China. Q:- What was inside the parcel?

A:- Multi colours ladies lenga.

Q:- Do you have contact No. name and address of that black person who gave you the parcel?

A:- No I don"t remember.

Q:- Why did you book the parcel?

A:- Due to shortage of money."

Evidence of CRCL witnesses

4.16 PW-3 A. K. Maurya, the Chemical Examiner in the CRCL, confirmed having received, from the in-charge, Narcotics section, on 6^thApril, 2011, the aforementioned sample packet marked „A-1" along with four intact seals with the seal of the NCB, as well as the Test Memo. He stated that he verified the sample, with the Test Memo and, after doing so, gave acknowledgement, of receipt of the sample, to Digambar Singh (PW-9), the sepoy of the NCB, after which he kept the sample in the strong room. He further deposed that, on 18^thApril, 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 27^thApril, 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 2^nd May, 2011, and issued them to the NCB on 4^thMay, 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, deposed as PW-10. He stated that, on 2^ndApril, 2011, "one boy" had come to his booking counter, wanting to book a parcel, weighing 2.2 kg, for consignment to China. He also gave him a copy of his driving licence and a copy of the invoice pertaining to the parcel. PW-10 deposed that, on being satisfied with these documents, he issued the Airway Bill relating to the parcel, of which four copies were prepared, three copies of which were handed over to the said boy, against payment. PW-10 further stated that, in the evening of 2^nd April, 2011, he forwarded the said parcel, along with three copies of the invoice to Aramex, of which Student Infoline Courier was an authorised franchisee. A week later, he claimed to have received a telephone call from the NCB Office inquiring about the said parcel.

He was directed by IO Surender Singh (PW-1) to appear in the NCB Office, in compliance with which he proceeded to the NCB Office on 12^th/14^thApril, 2011 and tendered his statement (Ex.PW-1/L) with respect to booking of the parcel. PW-10 went on, thereafter, to state that, about a year later, in April, 2012, he received another call from the NCB, to the effect that the boy who had booked the parcel had been apprehended, and requesting him to visit the office of the NCB and identify him. He claimed that he immediately went to the office, identified the appellant, and that his statement, to the said effect, was recorded (Ex.PW-1/O). He also identified the driving licence and invoice, handed over by the said "boy" to him, which were exhibited as Ex.PW-1/C collectively, and the Airway Bill receipt received by him, which was exhibited as Ex.PW-1/M. PW-10 correctly identified the appellant, present in the court as the "boy", who had handed over the parcel to him. In his further examination-in-chief, PW-10 produced the cloth pullanda marked „B", which was cut open from one side and found to contain one red polythene packet, on which a paper was pasted, with the name of one Jackie Lee with his address. On opening the packet, it was found to contain lehangas. PW-10 identified the packet as the parcel which was handed over, to him, by the appellant, and was booked by him. As he had not opened the parcel earlier, however, he was unable to state whether the parcel contained the lehangas which were shown to him in the court.

4.19 In his cross-examination, PW-10 attributed 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 5^thApril, 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 16^thApril, 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 Couriers on 2^ndApril, 2011. He professed that, in fact, on 16^th April, 2012, while he was walking in the Bhikaji Cama Place complex, he was apprehended by four or five persons, who claimed to have lost an expensive mobile phone, in connection with which they wanted to search him. He stated that the said persons had taken him inside the office of the courier company, where they searched him thoroughly and purloined his belongings. Thereafter, the said persons, according to the appellant, took him to the office of the NCB, where

he was kept in the lock-up through the night and physically assaulted. They kept enquiring, of him, as to the source from where he had got the drugs, and caused him to write the statements Exhibits PW-8/A and PW-8/B, though he claimed to have nothing to do with any drugs. On being asked, he stated that he did not wish to lead any defence evidence.

5. The impugned judgement

5.1 Consequent to recording of the evidence and after hearing of learned Special Public Prosecutor (SPP) for the NCB and learned counsel for the appellant, the learned Special Judge proceeded, vide the impugned judgment dated 8^thOctober, 2015, to return the following findings:

(i) The search and seizure proceedings at the office of Aramex stood proved by the evidence of PW-1 Surender Singh, PW-4 Sanjay Rawat and PW-7 Kiran Bala, which was corroborated by the evidence of the panch witnesses, PW-2 Ashok Kumar and PW-11 Ravikant Thakur, both of whom were officials of Aramex.

(ii) All mandatory statutory compliances were effected thereafter. The production of the case property, before the empowered officer under Section 53 of the Act, as required by Sections 52 and 55 thereof, was proved by PW-4 Sanjay Rawat who, as malkhana Incharge in the NCB, also made an entry, to this effect, in the malkhana register (PW-4/A). PW-1 Surender

Singh proved the submission of the report, under Section 57 of the Act (Ex.PW-1/G), to Supdt. Y.R. Yadav (PW-5). PW-9 Digambar Singh, Sepoy in the NCB, proved the submission of the sample „A-1", of the powder recovered from the polythene strips, to the CRCL. The report of the CRCL (Ex.PW-3/C), establishing that the sample tested positive for heroin, was proved by PW-3, A.K. Maurya and PW-6 V.B. Chaurasiya, Chemical Examiner in the CRCL. Cross-examination of these witnesses did not dilute the veracity of their statements 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 2^ndApril, 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 Act, admitted that, in April, 2011, he had booked the parcel, containing heroin, at Student Infoline Courier. The said statement, exhibited as Ex. PW-8/A and Ex. PW-8/B, stood proved by PW-8 Rajesh Kumar, after comparison with the original.

(d) Statements, under Section 67 of the Act, were admissible in evidence, as held in Kanhaiya Lal v. UOI, (2008) 4 SCC 668 and M.Prabhu Lal v. Asstt. Director of Revenue Intelligence, (2003) 3 JCC 1631 (SC). No evidence of threat, pressure or coercion having been exercised, on the appellant, while recording his statement under Section 67 of the Act, existed; consequently, the statement was admissible in evidence and could be relied upon, against the appellant.

(e) Even if the statement of the appellant, under Section 67 of the Act, were to be excluded from

consideration, there was sufficient evidence, de hors the said statement, connecting the appellant with the offence.

(f) The allegation, of the appellant, during his statement under Section 313 of the Cr.P.C., to the effect that his driving licence had been forged, was not supported by any evidence, and stood discredited, even otherwise, by the fact of recovery of the said copy of his driving licence with the copies of the invoice and Airway Bill also bearing the appellant"s name, coupled with the testimony of Umesh Madan (PW-10).

(iv) Learned counsel for the appellant had also objected to the manner in which the powder contained in the packets was sampled and tested. It was sought to be contended that the powder from each packet ought to have been tested separately, instead of testing the powder after mixing the contents of all the packets. This submission was also rejected as without merit, in view of the law laid down in Sumit Tomar V State of Punjab,

(2013) 1 SCC 395.

(v) Learned counsel for the appellant had also objected to the fact that the parcel had already been cut open by Ashok Kumar (PW-2), a day prior to the visit of the NCB Team in the office which, in his submission, gave rise to the possibility of tampering. This submission was also rejected, on the reasoning that neither Ashok Kumar (PW-2), nor any other official of

Aramex, bore any enmity towards the appellant. In the circumstances, the mere fact that the parcel had been cut open by the officials of Aramex was not sufficient to doubt the case of the prosecution.

(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 13^thOctober, 2015, the learned Special Judge, as already been noted hereinabove, sentenced the

appellant to ten years" rigorous imprisonment and fine of ₹ 1 lakh, with default sentence of two months" simple imprisonment, for each of the abovementioned offences under Section 21(c) and 23(c) of the Act, the sentences being directed to run concurrently. The appellant was also extended the benefit of Section 428 of the Cr.P.C.

6. Rival Submissions

6.1 Appearing on behalf of the appellant, Ms. Svetlana Khiyungdzuzu first highlighted the inconsistencies in the testimonies of the various witnesses who deposed regarding the seizure effected at the premises of Aramex. She submitted that there was clear contradiction, among the statements of the various witnesses even with respect to the total quantity of heroin, with PW-2 stating that it was 400 g, Kiran Bala stating that it was 350 g, and the prosecution contending that it was 330 g.

6.2 Ms. Khiyungdzuzu contended that the case of the prosecution stood entirely demolished by the single act of PW-2 Ashok Kumar in cutting open the parcel before the arrival of the officials of the NCB at Aramex. Once the parcel had been cut open, and the powder taken out of the polythene strip by Ashok Kumar, even before the NCB officials arrived, she would submit that the possibility of tampering could not be ruled out, and that the benefit of doubt, in this regard, had necessarily to enure in her client"s favour.

6.3 Ms. Khiyungdzuzu also contended that the statement of the appellant, though recorded under Section 67 of the Act, was recorded in the context of an entirely different investigation relating to seizure of 410 g heroin booked through Blazeflash Courier, and could not, therefore, be used in the present case. Moreover, she submitted, the said statement had been retracted.

6.4 Finally, Ms. Khiyungdzuzu contended that the drawing up of the arrest memo in August 2012, while her client had been arrested on 16^thApril, 2012, was also fatal to the case of the prosecution.

6.5 Arguing per contra, Mr. Subhash Bansal, learned Standing Counsel first contended, regarding the objection of Ms.Khiyungdzuzu about the manner in which sampling had been effected, that the issue had been comprehensively considered by the learned Special Judge in para 22 of his judgment, in which he had rejected the said submission on the basis of the decision of the Supreme Court in Sumit Tomar (supra). He drew my attention to the recital, in para 2 of the impugned judgment, regarding the manner 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) of the Constitution of India and invoked, for the said purpose, the ratio of the decision of the Supreme Court in Noor Aga v. State of Punjab,

(2008) 16 SCC 417.

7. Analysis

7.1 The rival submissions, urged at the bar by learned counsel, throw up, for consideration, the following issues:

(i) the extent to which the inconsistencies, in the statements of the various PWs, affect the case of the prosecution,

(ii) the effect of the opening, by PW-2, of the parcel, as well as the polythene strip, in which the heroin was secreted, and the taking out, by him, of powder therefrom,

(iii) the legality of the manner in which the heroin, found concealed in the lehengas, was sampled, and tested, using the Field Testing Kit of the NCB and, later, by the CRCL,

(iv) the admissibility and reliability of the statement of the appellant, recorded under Section 67 of the Act, especially in view of the fact that the statement was recorded in the context of another investigation, relating to seizure of 410 g heroin, inter alia in view of the fact that the said statement was stated to have been retracted by the appellant,

(v) the applicability and effect of Sections 35 and 52 of the Act,

(vi) the applicability and effect of Section 106 of the Indian Evidence Act, 1872, and

(vii) whether the available evidence was sufficient to maintain the conviction of the appellant, keeping in view, inter alia, the decision in Bal Mukund (supra).

7.2 Power to search and seize is conferred by Section 42 of the Act, which permits any empowered officer to, if he has reason to believe that any narcotic drug, or psychotropic substance, is kept or concealed in any building, conveyance or enclosed place, enter into, and search such building, conveyance, or place, seize such drug or substance and all materials used in the manufacture thereof, and to detain and search and, if he thinks proper, arrest any person whom he has reason to believe to have committed an offence punishable under the Act.

7.3 The method of sampling is not provided under the Act. Standing Order 1/88, dated 15^thMarch, 1988, has, however, been issued by the NCB in this regard. Paras 1.5 to 1.7 thereof read as under:

"1.5 Place and time of drawal of sample. - Samples from the Narcotic Drugs and Psychotropic Substances seized, must be drawn on the spot of recovery, 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 and the contents of each package give identical results on colour test by U.N. kit, conclusively indicating that the packages are identical in all respect/the packages/container may be carefully bunched in lots of 10 packages/containers may be bunched in lots of 40 such packages such

packages/containers. For each such lot of packages/containers, one sample in duplicate may be drawn.

(c) Where after making such lots, in the case of Hashish and Ganja, less than 20 packages/containers remains, and in case of other drugs less than 5 packages/containers remain, no bunching would be necessary and no samples need be drawn.

(d) If it is 5 or more in case of other drugs and substances and 20 or more in case of Ganja and Hashish, one more sample in duplicate may be drawn for such remainder package/containers.

(e) While drawing one sample in duplicate from a particular lot, it must be ensured that representative drug in equal quantity is taken from each package/container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot."

(Emphasis supplied)

7.4 The aforementioned Standing Order purports to have been issued under Section 52A of the Act. On the issue of whether the Standing Order is binding, or not, the Supreme Court held, in Khet Singh vs U.O.I., (2002) 4 SCC 380, thus (in para 10 of the report):

"The instructions issued by the Narcotics Control Bureau, New Delhi are to be followed by the officer-in-charge of the investigation of the crimes coming within the purview of the NDPS Act, even though these instructions do not have the force of law. They are intended to guide the officers and to see that a fair procedure is adopted by the officer-in-charge of the investigation."

(Emphasis supplied)

In the same decision, the Supreme Court, examining the issue of the consequence of violation of such procedural guidelines, ruled as under (in para 16 of the report):

"Law on the point is very clear that even if there is any sort of procedural illegality in conducting the search and seizure, the evidence collected thereby will not become inadmissible and

the court would consider all the circumstances and find out whether any serious prejudice had been caused to the accused. If the search and seizure was in complete defiance of the law and procedure and there was any possibility 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, (2004) 3 SCC 453, which was more critical, finding the Standing Order, effectively, to be ultra vires Section 52A of the Act, whereunder it was purported to have been issued. Paras 9 to 11 of the report merit reproduction as under:

"9. Learned counsel for the respondent-accused relied on certain standing orders and standing instructions issued by the Central Government under Section 52-A(1) which require a particular procedure to be followed for drawing of samples and contended that since this procedure had not been followed, the entire trial was vitiated.

10. This contention too has no substance for two reasons. Firstly, Section 52-A, as the marginal note indicates, deals with "disposal of seized narcotic drugs and psychotropic substances". Under sub-section (1), the Central Government, by a notification in the Official Gazette, is empowered to specify certain narcotic drugs or psychotropic substances, having regard to the hazardous nature, vulnerability to theft, substitution, constraints of proper storage space and such other relevant considerations, so that even if they are material objects seized in a criminal case, they could be disposed of after following the procedure prescribed in sub-sections (2) and (3). If the procedure prescribed in sub-sections (2) and (3) of Section 52-A is complied with and upon an application, the Magistrate issues the certificate contemplated by sub-section (2), then sub-section (4) provides that, notwithstanding anything to the contrary contained in the Indian Evidence Act, 1872 or the Code of Criminal Procedure, 1973, such inventory, photographs of narcotic drugs or substances and any list of samples drawn under sub-section (2) of Section 52- A as certified by the Magistrate, would be treated as primary

evidence in respect of the offence. Therefore, Section 52-A(1) does not empower the Central Government to lay down the procedure for search of an accused, but only deals with the disposal of seized narcotic drugs and psychotropic substances.

11. Secondly, when the very same Standing Orders came up for consideration in Khet Singh v. Union Of India . [(2002)

4 SCC 380 : 2002 SCC (Cri) 806] this Court took the view that they are merely intended to guide the officers to see that a fair procedure is adopted by the officer in charge of the investigation. It was also held that they were not inexorable rules 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 from a particular lot, it must be ensured that representative

drug in equal quantity is taken from each packet/container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot." "

* * * * *

36. There is another aspect of the matter which cannot be lost sight of. Standing Instruction 1/88, which had been issued under the Act, lays down the procedure for taking samples. The High Court has noticed that PW 7 had taken samples of 25 g each from all the 5 bags and then mixed them and sent to the laboratory. There is nothing to show that adequate quantity from each bag had been taken. It was a requirement in law."

(Emphasis supplied)

7.8 Bal Mukund (supra), therefore, accords primacy to the manner of sampling, especially where the allegedly contraband narcotic is contained in more than one bags/parcels. Being a pronouncement by three Hon"ble judges of the Supreme Court, the mandate of Article 141 of the Constitution of India would require us to be guided by Bal Mukund (supra), in preference to Khet Singh (supra) and Makhan Chand (supra), especially as Bal Mukund (supra) itself has been followed by the Supreme Court in subsequent decisions, to which reference would be made later in the course of this judgement.

7.9 Adverting, now, to the facts of this case, it is seen that there is more than one infirmity, in the manner in which sampling and testing of the powder found concealed in the polythene strips stitched into the lehengas, took place. The witnesses are not ad idem even as to the number of polythene strips, from which powder was retrieved and subjected to testing using the Field Testing Kit. PW-1 Surender Singh

categorically stated, in his deposition on 10^thDecember, 2012, that

"one transparent polythene strip was cut and opened and found to contain off white substance a small quantity of which was tested with the help of Field Testing Kit which gave positive result for heroin."

PW-2 Ashok Kumar deposed, per contra, thus:

"The powder was tested by the NCB officials with the kit that they were carrying and they informed us that the powder was heroin. The said test was done after all the powder was collected together and the powder from each of the package was not tested separately."

PW-4 Sanjay Rawat deposed thus:

"On checking the 2 multicoloured lehengas, laces 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

thereafter weighed and its weight came out to be approximately 350 g."

(Emphasis supplied)

To the same effect was the deposition of Ravi Kant Thakur (PW-11), the second pancha:

"On cutting open the tapes the said poly bag was found containing 2 sets of lehenga choli. There were cloth strips on the lehengas. The said strips on opening was found to contain white color powder. Small quantity of powder was checked from every strip with the help of Field testing Kit and it gave positive test for heroin. The powder from all the strips was collected in separate polythene and was buried with the help of electronic weighing machine and its weight came out to be 330 g."

(Emphasis supplied)

7.10 Considerable inconsistency, therefore, exists, among the depositions, during trial, of the witnesses to the search and seizure operations at Aramex, on the issues of whether (i) testing, using the Field Testing Kit, was performed on the powder taken from one of the polythene strips found in the lehengas, or from more than one, and (ii) the said testing, using the Field Testing Kit, took place before, or after, collecting all the powder found in the polythene strips. It is axiomatic, in criminal law, that the benefit of such inconsistency has necessarily to enure in favour of the accused-appellant. While it is true that all the prosecution witnesses to the said search and seizure, barring PW-1 Surender Singh, deposed that testing, using the Field Testing Kit, had been performed on the powder extracted from all the polythene strips, this court cannot be unconscious of the fact that PW-

1 Surender Singh, who cannot be regarded as an interested witness in any way, clearly stated that he had performed testing, using the Field

Testing Kit, only on the powder retrieved from one of the polythene strips. The word of the doer has, necessarily, to be accorded its own weight, and precedence over the words of the spectators.

7.11 The uncertainty, on the issue, is compounded by the evidence of PW-2 Ashok Kumar, who went to the extent of deposing that testing, using the Field Testing Kit, "was done after all the powder was collected together and the powder from each of the package was not tested separately". No suggestion was put, either to PW-1 Surender Singh or to PW-2 Ashok Kumar, questioning the correctness of their depositions.

7.12 These discrepancies are pivotal, 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 with the contents of the polythene strip, as none of the said persons bore any enmity towards the appellant. That may very well be so. The issue, however, is not whether the persons at the Aramex office bore, or did not bear, any enmity towards the appellant, but, rather, the extent to which reliance could be placed on the results of testing of a powder, alleged to be heroin, contained in a polythene strip which already stood opened, by a third party, before the powder was tested. It is plainly obvious that no reliance could be placed, on the result of the testing, in such circumstances.

7.14 It would be unsafe, therefore, to rely on the purported testing, of the powder, using the Field Testing Kit, as evidence against the appellant.

7.15 Coming, now, to the taking of samples, from the heroin allegedly contained in the polythene strips stitched into the lehengas, it is an admitted position that the samples, which were sent for testing to the CRCL, were taken after assimilating all the powder found concealed in the lehengas into one lot. This, in my view, would be contrary to Standing Instruction 1/88, as noticed by the Supreme Court in Bal Mukund (supra). Moreover, only two samples were

taken, 5 g each, out of a total quantity of powder weighing 330 g, 360 g, or 400 g, depending on whose statement is to be believed. The manner in which the said two samples of 5 g were extracted, from the total quantity of 330/360/400 g, is not forthcoming on the record. It is not possible, therefore, for this court to be convinced, with any degree of certainty, that the two samples were actually "representative" in nature, so that the test reports, relating to the said two samples, could be said to represent the character of the entire quantity of powder contained in all the 166 polythene strips found in the lehengas.

7.16 Though, therefore, there is no serious challenge to the manner in which the powder was tested, yet, in view of the fact that the samples tested cannot definitively be said to have been

"representative" in character, the test reports of the CRCL, with respect to the said samples, too, would lose their evidentiary value.

7.17 I also draw sustenance, in the above context, from the judgments of this Court, rendered by a learned Single Judge in each cases, in Edward Khimani Kamau v. The Narcotics Control Bureau, Manu/DE/1748/2015 and Basant Rai v. 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. Otherwise, result thereon, may be doubted.

27. For example, if the 08 packets were allegedly recovered from the appellant and only two packets were having contraband substance and rest 6 packets did not have any contraband; though all may be of the same colour, when we mix the substances of all 8 packets into one or two; then definitely, the result would be of the total quantity and not of the two pieces. Therefore, the process adopted by the prosecution creates suspicion. In such a situation, as per settled law, the benefit thereof should go in favour of the accused. It does not matter the quantity. Proper procedure has to be followed, without that the results would be negative.

28. In view of above discussion, instant appeal is allowed."

7.19 In Edward Khimani Kamau (supra) nine long polythene boxes, containing powder which tested positive for heroin, were found in a cardboard box. The powder in all the nine boxes, after being transferred into one polythene, was found to weigh 717 gms. Two samples, of 5 gms each, were taken out of the said sample and transferred to two polythene pouches, with the remaining heroin being

converted into a cloth parcel. One of the two samples was sent to the CRCL which returned for a positive test of heroin. Apart from Basant Rai (supra), reliance was placed, by this Court, on the following passages from Gaunter Edwin Kircher v. State of Goa, 1993 (3) SCC

145.

"5. We shall first consider whether the prosecution has established beyond all reasonable doubt that the accused had in his possession two pieces of Charas weighing 7 gms and 5 gms respectively. As already mentioned only one piece was sent for chemical analysis and P.W.1 the Junior Scientific Officer who examined the same found it to contain Charas but it was less than 5 gms form this report alone it cannot be presumed or inferred that the substance in other piece weighing 7 gms also contained Charas. It has to be borne in mind that the act applies to certain narcotic drugs and psychotropic substances and not all other kinds of intoxicating substances. In any event in absence of positive proof that both the pieces recovered from the accused contained Charas only, it is not safe to hold that 12 gms of Charas was recovered from the accused. In view of the evidence of P.W.1 it must be held that the prosecution has proved positively that Charas weighing 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 when the contraband substances of all 8 packets are mixed into one or two then definitely the result would be of the total quantity and not of the two pieces. Therefore, the process adopted by the prosecution creates suspicion. In such a situation, the benefit thereof should go in favour of the accused. Substantially similar question arose in Netram vs. State of Rajasthan MANU/RH/1912/2013 : 2014

(2) WLN 394 (Raj.) wherein also the recovered material was found packed in two separate gunny bags weighing 40 kgs each. The seizure officer mixed the material packed in the two gunny bags and then collected the samples which were forwarded to FSL. Relying upon Gaunter Edwin Kircher (supra) and Ghewar Ram vs. State of Rajasthan reported in MANU/RH/0662/2007: 2007 (2) Cr.L.R. (Raj.) 1695, it was held that the procedure adopted by the seizure officer in mixing the articles contained in different packets and collecting a single sample from the same and having it analysed by the FSL was found defective and caused prejudice to the accused.

10. In the instant case also, transferring the powder of all 9 packets into one polythene and then taking out two samples and sending one sample to CRCL causes serious prejudice to the appellant as it cannot be ascertained whether all the 9 packets were containing heroin or not."

(Emphasis supplied)

7.21 For, inter alia, the above reason, the appellant, in that case, was ultimately acquitted.

7.22 The above decision, too, endorses the view that the manner of sampling of the substance suspected to be narcotic has to be

completely credible and such that the test results, of the sample, inspires confidence as being representative of the entire quantity of suspected narcotic. If not, the accused is necessarily entitled to benefit of doubt.

7.23 Once the test reports, using the Field Testing Kit of the NCB team, and as provided by the CRCL, are discarded from consideration, the only evidence, to indicate that the parcel booked at Student Infoline Courier contained heroin, was the statement, of the appellant, recorded under Section 67 of the Act. The statement of Umesh Madan only proved the fact of booking, by the appellant, of the parcel at Student Infoline Courier and its subsequent booking, by Umesh Madan, at Aramex. It did not throw any light on the contents of the parcel. True, in response to a leading question, put to him, during the recording of his statement, under Section 67 of the Act, on 17^thApril, 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 18^thFebruary, 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 from India, can be said to have been made out against the appellant, solely on the basis of his statement under Section 67 of the Act.

8. The decisions cited hereinabove have enunciated, repeatedly, that, given the "Draconian" nature of the legislation, conviction, for having committed an offence under the Act, was permissible only if the commission of the offence was proved beyond all reasonable doubt, and there was strict compliance with all requirements, substantive and procedural, of the Act. Tested on the said touchstone, I am of the considered opinion that the appellant would be entitled to the benefit of doubt, in respect of the offence found, by the learned Special Judge, to have been committed by him.

9. I may also note, in the above context, that the appellant has already suffered incarceration, for a period of 6 years, having been taken into custody on 4^thAugust, 2012, and having failed in his attempts to obtain bail or suspension of sentence.

Conclusion

10. In view of the above discussion, I am of the view that the prosecution has not been able to prove, conclusively, that the

appellant had attempted to export heroin, and that he had, therefore, committed the offences contemplated by Section 21(c), 23(c) and 28 of the Narcotics, Drugs and Psychotropic Substances Act, 1985. The impugned judgement, dated 8^thOctober, 2015, convicting him for the said offences, as well as the consequent order, dated 13^thOctober, 2015, sentencing him therefor, are, therefore, quashed and set aside.

11. The appellant is, accordingly, acquitted of the said charges, and shall be released forthwith, unless required to be detained in any other case.

12. The appeal stands allowed accordingly.

C.HARI SHANKAR

(JUDGE)

AUGUST 13, 2018

rk/dsn

Charlse Howell Abel Kom v. N.C.B.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments (Ms. Svetlana Khiyungdzuzu)

Respondent's Arguments (Mr. Subhash Bansal)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Charlse Howell Abel Kom v. N.C.B.

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