Okwun Udensi vs Customs
2007 Latest Caselaw 2347 Del

JUDGMENT

Shiv Narayan Dhingra, J.

1. This appeal has been preferred by the appellant against the judgment dated 22nd February, 2002 and order on sentence dated 6th March, 2002 whereby the appellant was convicted under Section 21(c) and Section 23 r/w 28 of NDPS Act and was sentenced to undergo RI for 12 years and a fine of Rs. One lac under each provision. Both the sentences were to run concurrently.

2. The brief facts relevant for the purpose of deciding this appeal are that on 17th November, 1998 the appellant, a Nigerian Citizen was to go to Abidjan via Adis Abada by ET Airlines. He was present in the departure wing of IGI Airport for catching ET Flight No. ET 619. On suspicion, PW 1 Custom Officer asked him if he was having any narcotics drugs in his possession to which he replied in negative. On this, PW 1 called two panch witnesses including PW 5 and he in their presence a notice under Section 50 NDPS Act was served upon him and he was asked to identify his baggage. The accused identified two suitcases as his baggage. His hand bag as well as his two suitcases were searched. Nothing incriminating was found in the hand bag. However, on search of one of his suitcases, nine cans of foodstuff were found having paper wrappers. These cans were opened and they were found containing nine packets of fine powdery substance. A pinch of powder from each of these packets was tested with the help of Field Testing Kit and they gave positive test for presence of heroin. Personal search of the accused was also conducted but nothing incriminating was found. The air ticket, boarding pass and baggage tags were seized along with recovered powder which weighed 2.456 kgs. Two representative samples of 5 gms each were drawn from each of the nine packets and sample parcels were prepared. Rest of the powder was sealed separately. Panchnama was drawn and the accused was arrested. The case property was deposited in Customs Warehouse on 17th November, 1998. Samples were sent to CRCL and the report of the CRCL gave positive result for heroin. Report under Section 57 NDPS Act was sent to the superior officers. The accused was sent to face trial and after trial of the accused, he was convicted and sentenced as stated above. The accused has assailed the judgment of the Trial Court on the ground that the Trial Court failed to appreciate the evidence properly. There were contradictions in the statements of witnesses of which benefit should have been given to the accused but the same was not done. There was no compliance of Section 55 of NDPS Act; samples were not kept in safe custody. The evidence of malkhana mohar shows that the samples were deposited in malkhana on 31st March, 1999. There was no evidence that between 17th November 1998 and 31st March, 1999, the samples were kept in safe custody and the possibility of tampering with the samples cannot be ruled out. There was violation of provision of Section 55 of NDPS Act.

3. The second ground taken during the arguments is that the appellant was arrested at 3.00 am on the night intervening 16th and 17th November, 1998, he was sent to judicial custody at around 5.00 pm on 17th November, 1998. The evidence shows that test memo was prepared on 18th November, 1998 i.e. on the next date of seizure. The seal was collected back on 18th November, 1998 for preparing the test memo. The Investigating Officer kept the seal with himself from 17th November 1998 to 18th November, 1998 leading to inference that the tampering of the samples cannot be ruled out.

4. The third ground taken during the arguments is that the samples were handed over to PW 6 for carrying to the CRCL on 18th November, 1998 but the samples were deposited with CRCL on 19th November, 1998. There was no explanation given by the prosecution regarding whereabouts of the sample in the intervening period of 18th and 19th November, 1998.

5. The fourth ground on which the judgment of the Trial Court has been assailed is that the case of prosecution was that a sample of 5 gm each was sent to CRCL whereas the report of CRCL shows the weights of different samples were 6.1 gm, 6.2 gms 6.8 gm, 6.5 gm, 6.7 gm, 6.5 gm, 6.8 gm, 6.9 gm and 7.1 gm respectively there was no explanation as to why there was discrepancy in the weight of the samples sent and actual weights of the sample received at CRCL laboratory.

6. The next ground taken is that the panch witnesses PW 5 had not supported the prosecution case fully. No proof has been produced on record to show that he was on duty at the time of arrest and seizure. There was discrepancy in the evidence of PW 5 in respect of colour of the tag. The testimony of PW 5 was not credible and valuable. The appellant could not have been convicted on the testimony of PW 1 which was not corroborated by testimony of PW 5.

7. It was also submitted that the appellant has been convicted on the basis of conjectures, there were inconsistencies in the statements of the witnesses and the appellant should have been given benefit of doubt. The NDPS Act was estranged law and the proof required to convict the appellant would be equally estranged. The discrepancies in the evidence of the witnesses would show that the case against the appellant was not beyond doubt.

8. A perusal of statement under Section 313 Cr.P.C. of the appellant whereunder the entire evidence was put to the appellant, would show that the appellant except denying the evidence has not taken any stand. His only stand is that he was innocent. He even denied his presence on the airport. Seizure of his tickets, baggage tags, the fact of his having checked in at the airport for catching flight No. ET 619 were all denied. He was also asked if he had to say anything he did not say a word as to how he was falsely implicated in the case except saying that he was innocent.

9. In his testimony PW 1 gave a detailed account as to how the appellant was present at IGI Airport in order to catch the flight and had completed his immigration and custom formalities and was proceeding towards security zone while he was stopped and asked about the narcotics drugs. No suggestion was given to this witness that appellant was not present at IGI airport or he had not checked in for departure or he had not crossed the immigration area and completed custom formalities or he had not identified his baggage or that nine food cans were not recovered from his baggage. un- controverter testimony of PW 1 in respect all these facts proves that the appellant was questioned when he had moved from immigration and had completed custom formalities to go to security zone. It also proves beyond doubt that the baggage of the appellant was identified by him and it was opened in his presence and in presence of witnesses for checking, and nine food cans were taken out and opened and from those, nine polythene bags containing brown powder were recovered. There is no cross examination on the question that this brown powder recovered from each of the nine polythene bags was tested on the spot by Field Testing Kit and it gave positive test for heroin. In fact the entire testimony of PW 1 in respect of recovery of heroin from one of the bags of the appellant has gone unchallenged.

10. Similarly, the testimony of PW 5, a panch witness, in respect of identifying his baggage, recovery of nine cans with label of foodstuffs and on opening of these nine cans recovery of nine polythene pouches, each containing brown powder giving positive test for heroin has gone un-assailed. The entire cross examination is centered regarding attendance register of PW 5 and about other details from the witness. Even in his cross examination, he confirmed about the recovery of drug from the witnesses from inside the food cans and he re-asserted that on opening these cans only polythene pouches containing powder was found and nothing else was inside the cans. He also reconfirmed that panchnama was drawn, a sample from each can was drawn and all the documents were prepared in his presence after opening the property and before sealing it. He remained in the room till the arrest of the accused and up to 1.30 p.m. Thus, in view of un-assailed testimonies of two witnesses one PW 1 and another PW 5, the recovery of substance which gave positive test for heroin on testing by Field Test Kit stands proved beyond reasonable doubt. Inability of the witnesses to answer the irrelevant details does not throw the testimony of witnesses in doubt. PW-5 was called to be a witness of the recovery. His attention has to be on the events regarding recovery. Such a witness is not supposed to concentrate on details like colour of the walls, number of persons present in the hall, furniture in the room, etc. The witness was not supposed to bring his attendance record along with him when he came to appear in the witness box. If the accused had any doubt about the attendance, he should have requested the Court that the record of attendance of the witness should be summoned from his office. In absence of any request made by the accused beforehand to summon the record of presence, the witness is not supposed to carry with him his attendance record when he comes to appear in the witness box. No adverse inference can be drawn against the witness on this count. The plea taken by the appellant that there were contradictions and he has been convicted on conjectures is a baseless plea. Both the witnesses PW 1 and PW 5 have deposed in the Court cogently about the recovery and their testimony has gone unassailed even in cross examination.

11. The contention of the appellant that preparation of test memo on 18th November, 1998 was a material infirmity in the case, stands nowhere. It has come in the evidence that all the samples were sealed on the spot. The remaining case property/narcotics substance was also sealed on the spot. It has come in evidence that sealing was done in such a manner using paper seal and lakh seal that tampering was not possible without disturbing seals. It has also come in evidence that the seals were intact when the samples reached CRCL and seals were also found intact when rest of the case property was produced in the Court. The Court observation is there that seals were fixed in such a manner that it was not possible to tamper with the sample. It has been proved by cogent evidence that the substance which was seized from the accused was the same substance which was produced in the Court and the sample of which were sent to CRCL. The report of CRCL showing that the substance gave positive test for heroin has gone un-assailed. Much does not lie on when the test memo was prepared. Even if the test memo is not prepared immediately at the time of seizure of the articles and is prepared on next day that does not fail the case of the prosecution. Test memo is prepared for sending sample to CRCL. No provision of NDPS Act or rules require that the test memo has to be prepared on the spot at the same time when the sample is seized. The investigating officer, investigating the case, started investigation at 3.00 am in the night and continued to be on his toes right till 1.30 pm on the next day. He kept on writing proceedings and conducting proceedings regarding recovery of narcotics substance and other requirements under the Act. He is also a human being and it cannot be expected that he has to do every thing concerning case at one go at the same time even if the some part of it can be postponed for the next day. The preparation of test memo could have been prepared on next day and there was no illegality conducted by the investigating officer in asking one of his supporting staff to prepare the test memo on next day. It is not a requirement of law that every document regarding investigation of a case must be in the hand of Investigating Officer and the investigating officer cannot give directions to any of his supporting staff for preparing any document. Neither it is an illegality, if the Investigating Officer had a slip of mind and forgot to prepare test memo on the same day and gave directions for preparing test memo on next day or if he asked the other officer to lend the seal so that it could be put on test memo. There is no presumption that if a seal is taken back for putting on test memo, it amounts to tampering of the sample or of the recovered substance. If an accused alleges tampering of the sample, he has to put specific question to witnesses about tampering as to when and how tampering was done. It is to be demonstrated to Court as to how tampering was possible. Without specifying as to how the tampering could have been done or was possible, no inference can be drawn that sample had been tampered with or the substance recovered from the accused has been tampered with. Moreover, in the present case, the substance recovered from the accused was sealed on the same very day after it tested positive with the Field Testing Kit and no suggestion was given to the witness that it was not so sealed.

12. The other ground on which the judgment is assailed is violation of Section 55 NDPS Act It is vehemently argued that the sample was deposited with Valuable Godown on 31st March, 1999 and there is no explanation as to where the property remained between 17th November, 1998 and 31st March, 1999. The testimony of the witness shows that a new godown was allotted as a godown for valuable goods on 31st March, 1999 and thereafter all the properties which were lying in the old godown were deposited in the new godown. He had brought the register of the new godown showing that the property was deposited in the new godown on 31st March, 1999 vide entry No. 69/99. He categorically stated that property was received in the valuable godown only if the seals were intact. He denied the suggestion that the seals were not intact. PW 1 had categorically stated that after the case property was seized, the same was deposited in the Custom Warehouse on 17th November, 1998. He produced even receipt as PW 1/E. Not only the case property but personal search of the accused was also deposited with the custom warehouse vide PW 1/F. It is obvious that the case property remained deposited in the same sealed condition in the old custom warehouse from 17th November, 1998 to 31st March, 1999 and on 31st March, 1999 when a new godown was allotted entire case property including of this case was also deposited in the new valuable godown on 31st March, 1999. The plea taken by the appellant that there is no explanation given by the prosecution as to where this case property remained, is baseless.

13. The discrepancy in the weight of the sample as found in the test laboratory is no ground to doubt the case of the prosecution. Anybody having a little knowledge of science and the scientific instruments knows that every scientific instrument has a least count. The accuracy of a scientific balance is much more than the ordinary balance used by a I.O and there may be a variation of few grams plus or minus depending upon the least count of the scientific balance. Similarly, atomic balances are more accurate than scientific balance. Such balances are used in more sensitive laboratories and are accurate to .0001 gm and even more accurate. An Investigating Officer, who draws sample for testing, need not have a balance of a high accuracy in order to draw the samples. He can draw sample weighing approximately 05 gm using ordinary balance. If the same sample is weighed at an accurate scientific balance used in CRCL, the weight of each sample is bound to differ. The difference in weights of samples rather shows the genuineness of the case. If the case had been a made up or a false case, the IO might have used more accurate balance and weighed the samples with accuracy. One may have doubt on the genuineness of the case if the each sample weight is the same on accurate balance used in CRCL but one cannot doubt if the weight difference is found as in these cases. Such difference in weight is natural. No malafide can be drawn by the appellant by this difference of weight.

14. The argument has been raised by the appellant regarding his statement under Section 67. Conviction of the appellant is not based on his statement recorded under Section 67 neither any or reliance is placed by the Trial Court for convicting the accused on his statement under Section 67 of NDPS Act. However, it is to be noted that the appellant had not retracted, at any stage during trial, his statement under Section 67 made before the PW2.

15. As a result of my above discussion, I find no infirmity in the judgment of the Trial Court. The appeal is hereby dismissed.