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Case No. Sc/8939/2016 State vs . Tsering Choezom & Ors. Dated: ... on 31 August, 2022

           IN THE COURT OF SH. AJAY KUMAR JAIN : DISTRICT JUDGE:
                    COMMERCIAL COURT­03: SHAHDARA,
                      KARKARDOOMA COURTS: DELHI.

Case No. SC/8939/2016
ID No. 02403R0078202012
FIR No. 106/2013
PS Parliament Street
U/sec.21, ,  NDPS Act & 468/471 IPC

         State
                                 Versus
1.       Tsering Choezom @ Pooja Ray (in JC)
         W/o Lobsong Ngodup
         R/o S­2/103, Old Mahavir Nagar, New Delhi.
         Permanent r/o: H. No.94, Poanta Sahib,
         Dist. Sirmour, H.P.

2.       Omenoys Favor (in JC)
         S/o Monenoye
         R/o S­2/103, Old Mahavir Nagar, New Delhi.
         Permanent r/o: 103, Udi Street, Lagos State,
         Nigeria.

3.       Isika Collins (PO)
         S/o Isika
         R/o S­2/103, Old Mahavir Nagar, New Delhi­18.
         Permanent r/o: Agbor Asada, Nigeria.


Date of Institution              : 19.12.2013
Judgment reserved on             : 27.07.2022
Date of pronouncement            : 31.08.2022



JUDGMENT

1. Prosecution case in brief that on 15.07.2013 on receiving DD no. 10, IO SI Subhash Chand reached the spot i.e. near metro station, Patel Chowk where SI Narender Singh handed over him the rukka containing the statement of complainant Case No. SC/8939/2016 State Vs. Tsering Choezom & Ors. Dated: 31.08.2022 Page No. 1 of 44 Vashisht who was also found at the spot with raiding party in which he alleged that he is having franchise of DTDC courier and one Pooja Ray r/o WZ­124, Gali no.4, Mahavir Nagar who used to book the parcels for last one month came on 12.07.2013 at around 12.30 PM for booking a parcel containing 21 fancy laces packets, 26 metallic roller courier in three white boxes for courier which was packed by him in a carton box and sealed with brown tape. He also taken the copy of election I card and PAN card of Pooja Ray. The courier receiver name is Jack J of Netherlands. This parcel was sent to M.A. Worldwide Logistic for further delivery through Fedex company, however, on 13.07.2013 at around 11.30 he received a call from Tarachand Bhat of MA Worldwide that parcel could not be sent due to lack of a document and thereafter he had collected the said parcel at around 06.00 PM. Accused Pooja Ray on phone asked from him the status of parcel, then he told her that it could not be sent due to lack of document and asked her to collect thereafter, she called him at different places to collect but did not come, she called him outside Patel Chowk metro station at 08.00 PM today. At around 08.30 PM, he reached the spot in his Accent car and started waiting for her but she did not come. He also called her on her mobile but she did not pick up. He got suspicious about the material in parcel, in the meanwhile, the police party met and he told about the said parcel and on opening the same white powder was recovered from the metallic thread rollers. On testing the said white powder, it was found to be methaqualone and total weight of the powder was 640 gm. Samples of 5 gm each were taken, sealing and seizure proceedings were completed, FSL form was filled up, rukka was prepared and FIR was registered.

2. During investigation, site plan was prepared. The complainant was instructed to send the dummy parcel in place of this parcel to Netherlands after doing clerical mistake in address. Thereafter, on 17.07.2013 complainant Vashisht had given 5 parcel courier receipts, undertaking of Pooja Ray, one paper having lines, receiver's address and also the copy of voter I­card of Pooja Ray. The complainant told that Pooja Ray used to call him from mobile no. 8375872534 and 8375873280 to mobile no. 93122248400, and on 16.07.2013 she deposited Rs.

Case No. SC/8939/2016 State Vs. Tsering Choezom & Ors. Dated: 31.08.2022 Page No. 2 of 44 2400/­ in his account. On 18.07.2013, when SI Subhash Chand was along­with Vashisht near Gopalji Dairy at the pointing out Pooja Ray alongwith two African nationals namely Isika Collins and Omenoys Favor were apprehended. Notice u/s 50 NDPS Act were given. From the search of black colour ladies purse of accused Tsering @ Pooja Ray, 100 gm of methaqualone powder was recovered. From the search of half pant of accused Isika Collins, further methaqualone powder of 100 gm was recovered and thereafter from the shoulder bag of accused Omenoys Favor also 100 gm of methaqualone was recovered. Samples were taken, sealing and seizing proceedings were conducted, thereafter accused were arrested.

3. From the possession of accused Pooja Ray, one photocopy of coloured voter I card, three photocopies of voter I card, two ruled papers (line­dar), one mobile phone Nokia having dual sim was recovered. At the instance of accused Omenoys Favor, his house was search in presence of owner Shashi Yadav and from his bedroom, three photo, one album, passbook of Tsering was recovered with one electronic weighing machine, three mobile phones then also the election I card in the name of Chiring Lamba and Neha Singh and also PAN card in the name of Neha. Accused Tsering used to give forged ID in the name of Pooja Ray which could not be verified. Accused Omenoys Favor could not produce any valid document/passport. Complainant Vashisht also gave two months bank account statement, CDRs of mobiles of Pooja Ray were collected, specimen hand­writing of Pooja Ray were also taken during investigation. In FSL result, diacetylemorphine was detected hence section 21 NDPS Act was added. On completion of investigation, charge­sheet was filed.

4. Vide order dated 09.12.2015, charges u/s 29 and 21(c) r/w section 29 NDPS Act were framed against all the accused. The accused Tsering @ Pooja Ray is also charged for offence u/s 23(c) r/w section 28 NDPS Act and also u/s 420/468/471 IPC to which accused persons pleaded not guilty and claimed trial.

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5. Prosecution for substantiating its case examined 25 witnesses. The summary details of their testimony is reproduced as under:

Witnesses of recovery of contraband and apprehension of accused:

6. PW7 Vashisht Kumar stated that one lady used to come to courier office for booking the courier and she used to supply documents in the name of Pooja Ray and later on, when she was apprehended, her actual name was Tracy. In the month of July, 2013 at around 10.30 AM, she came to courier office and booked 15­20 bundles of laces and three boxes containing thread reals and he packed the same in her presence. She insisted for supplying AWB however he told that AWB will come by the evening only as they were dealing with DTDC. She also supplied her voter ID in the name of Pooja Ray. She also told that he can charge extra but forward the parcel right now. He identified the accused Tsering in court. She also transferred Rs.2500/­ extra in his account. On the next day, he received a call that voter I card was not clear, then he requested accused on telephone to clear the copy of voter I card, however, she did not provide copy on the said day but provided on the third day. On third day DTDC asked him to bring the customer and without her they will not forward the same to destination, then, he informed this fact to Pooja Ray. After 3­4 days, she told him to meet at Patel Chowk. Then, he reached there around 12 noon/01.00 PM but she did not turn up up to 04.00 PM. He waited there for accused but she did not turn up then called on her number. Thereafter, he suspected something wrong, in the meanwhile, SI Narender Tyagi of Special Cell met him at the metro. He told all the facts to him, handed over the parcel. Thereafter on search, contraband was recovered. On 16.07.2013 SI Subhash also reached the spot who instructed him to prepare dummy parcel for sending same to Netherlands and also asked him to make clerical mistake. On 16.07.2013, he also handed over SI Subhash five receipts of courier parcel and one undertaking. He was instructed by police to call Pooja Ray however she did not pick up the phone. After 2½ hours the mobile was switched off and picked up by one male person, then he told him to come at Patel Chowk. Then, around 03­04.00 PM one female and two Case No. SC/8939/2016 State Vs. Tsering Choezom & Ors. Dated: 31.08.2022 Page No. 4 of 44 male persons reached there. He identified accused Pooja Ray and Omenoys Favor as male and female however third was not in the court. He gave signals to police when all the three reached thereafter, they were apprehended and taken to the office of PS Parliament Street. He further stated the case pertains to 2013. He did not remember all the facts. Thereafter, this witness is cross­examined by Ld. Addl. PP as resiling from previous statement. He stated it is correct that accused Tsering @ Pooja Ray booked the parcel on 12.07.2013, and on 18.07.2013 at around 08.00 AM SI Subhash called him to reach metro station for searching accused Tsering @ Pooja Ray. Thereafter, he reached and along­with Pooja Ray, two other Africans were apprehended and from them also methaqualone was recovered. In cross­ examination stated that he was called by IO on 18.07.2013 on the basis of location/tracking of CDR. He again stated that it is correct that on mark 25/1 the weight is written as 5.7 kg however on Ex.P25/2, the weight is written as 5.8 kg. They do not give any receipt of extra money.

7. PW25 IO/SI Subhash stated that on receiving DD NO.10 he reached the spot and left the office at 12.05 AM and found ASI Narender, Ct. Naveen and Vashisht. At 01.00 AM HC Vijay reached the spot and handed over him copy of FIR, original rukka, copy of seizure memo. On 17.07.2013, he went to the office of complainant with HC Vijay who stated that he was receiving calls from Pooja Ray and produced 5 courier receipts and photocopy of I card of Pooja Ray. On 18.07.2013 vide DD NO.4, he left with staff at around 08.00 AM and given prior information to complainant Vashisht to reach Janakpuri metro station. They reached metro station due to two reasons as the voter I card of Pooja Ray was of Mahavir Nagar and location of mobile number of Pooja Ray was near the area of old Mahavir Nagar. He showed photocopy of voter I card to all the members of raiding party and separated in two parts. At around 12 noon, he saw one lady along­with two African nationals then at the pointing out of complainant, Pooja Ray was apprehended and the African nationals started scuffling with them and then they showed them the card. Meanwhile, Inspector Jarnail Singh also reached the spot, notices u/s 50 were given. There was a recovery of 100 gm each of methaqualone from all the accused.

Case No. SC/8939/2016 State Vs. Tsering Choezom & Ors. Dated: 31.08.2022 Page No. 5 of 44 They left the spot with all the accused persons and produced before the SHO Inspector Dinesh. On 20.07.2013 accused Omenoys Favour took them to their house then recoveries of photographs, passbook of Tsering was made, weighing machine was also seized, three mobile phones, 5 data cards, one pen­drive was also seized. 3 laptops were also found in the said room. There was a container in the aforesaid room from where 63 sims of Reliance, 15 sims of Aircel, 18 sims of Vodafone and 4 sims of Airtel were found. He went to the office of Sky courier and met Jaspal Singh who told that the said lady Tsering used to come to get the parcel booked for different countries.

8. In cross­examination stated he had no knowledge about this case prior to 15.07.2013. He did not know if any CCTV cameras were there at the Patel Chowk metro station. He stated on the intervening night he met Vashisht who had given his mobile number to him and other particulars. He did not remember whether he had taken the mobile numbers of other persons except Tsering @ Pooja Ray. He had taken the location and details of Tsering @ Pooja Ray without any written permission though there are oral directions from senior officials. Vashisht produced 5 courier receipts however he had not seized the receipt book nor sent the receipts to FSL for comparison. He had not seen any register showing IDs. He had not contacted accused Tsering from the courier office. In his presence, Vashisht also did not call Tsering to come to office. They had not put the number on surveillance/interception after 17.07.2013. They left the spot on 18.07.2013 at 08.00 AM and reached there at about 09.15­09.30 AM. Vashisht met him below Janakpuri metro station. He cannot tell the names of the team members who were searching through mobile phones. We have no documents about the identity of African nationals only carrying the photograph of Pooja Ray. At the time of apprehension her mobile phone was in working condition. The substance was recovered from transparent polythene from the purse of accused Pooja Ray and he had taken weight of substance with polythene. He did not remember which colour comes on field testing kit and also do not know which chemical was used. He prepared separate FSL form with regard to separate recovery.

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9. The charge­sheet was filed after completion of investigation. He had not taken call location chart of accused Pooja Ray. He had also taken the point for consideration that Pooja Ray was having address of Old Mahavir Nagar. However he had not mentioned this fact in charge­sheet. He had not mentioned in any reason of belief that they were going to Janakpuri metro station on the basis of call location of accused Tsering @ Pooja Ray. He had not attached call location chart of mobile but attached the CDR along­with cell ID. He had taken the location of mobile of accused Tsering @ Pooja Ray on telephone from nodal officer and on the basis of said location went to Janakpuri metro station but not recorded the statement of Nodal Officer Dinesh in this regard. He had not conducted any investigation in the area of Old Mahavir Nagar on the basis of ID documents of Tsering @ Pooja Ray from Mahavir Nagar. He did not remember whether he had stated anything regarding investigation on 16.07.2013 and 17.07.2013. He had recorded DDs on those dates but do not remember whether those DDs were attached and do not want to pursue the judicial record with regard to DD entries. He did not ask employees of Gopalji Dairy to join investigation. They reached near Gopalji Dairy as searching in the area however cannot tell any specific reason of reaching near Gopalji Dairy. He did not remember at what time Jarnail Singh reached the spot. He also does not want to disclose his mobile number which was used by him at that time. He cannot tell whether he made a call to Jarnail Singh or Jarnail Singh made a call to him. No document was signed by Jarnail Singh at the spot. He did not remember whether he had recovered any mobile from accused Omenoys Favor. He had not taken out any CDR of accused Omenoys Favor. Accused persons were not talking to each other on telephone at the time of apprehension. Accused Omenoys Favor was having laptop in his bag. He did not remember the colour of methaqualone recovered from accused Omenoys Favor. He cannot tell any reason for not sending the sample from 18.07.2013 to 24.07.2013. He did not remember whether he deposited the FSL form in maal­khana or not. He had not signed the relevant entry in register no.19. He had collected the rent agreement from landlord but not filed the same with charge­sheet. Rent agreement was in the name of friend of accused. No Case No. SC/8939/2016 State Vs. Tsering Choezom & Ors. Dated: 31.08.2022 Page No. 7 of 44 incriminating contraband was found from the house search of accused Omenoys Favor. He had not collected CDR of accused Tsering and Omenoys Favor in order to show that they were in touch with each other.

10. PW1 SI Narender Singh stated that on 15.07.2013, he along­with HC Vijay Singh and Ct. Parveen were patrolling at Patel Chowk metro station. One person namely Vashisht Kumar came at around 08.45 PM, who was holding one parcel peti and stated that this is a parcel booked by one lady having suspicion over her, thereafter, the said peti was opened by him. It was found containing damp white colour powder, then, he gave information to Inspector Jarnail Singh, I/C Special Staff, then he got received the weighing machine and DD kit through Ct. Parveen. On checking the 26 metallic thread rollers, gave positive result for methaqualone for a total weight of 640 gm. He filled the FSL form and seized the same, prepared rukka and sent to PS Parliament Street through HC Vijay along­with sealed pullanda and other documents to SHO PS Parliament Street, and further informed SI Subhash Yadav for conducting further investigation as per instructions of Inspector Jarnail Singh, then SI Subhash came to spot and handed over the documents with him. Site plan was prepared by him. In cross­examination, stated that he left the spot at around 12.30 in the night, and not carrying any mobile phone on that day and also not given any intimation to senior official at the spot after the recovery was effected. He did not write in the rukka about the name of officer to whom the investigation is required to be assigned. Again stated, he do not remember the said fact. He stated he did not know the complainant Vashisht. The white powder was collected from 24 rollers. Inspector Jarnail Singh did not give any written direction to inform SI Subhash Yadav for conducting further investigation. He did not remember at what time, he instructed Ct. Parveen to bring testing kit and weighing machine. Before opening the parcel, he did not obtain the permission of higher officials. Vol. Parcel was opened by Vashisht not by him. He denied suggestion that nothing was recovered and planted the contraband in collusion with Vashisht.

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11. PW8 HC Praveen Kumar stated that on 15.07.2013 he was on patrolling duty with SI Narender and HC Vijay and met one Vashisht who showed one cardboard box, thereafter on opening the same and cutting the threads, white colour powder was found. Then on the directions of SI Narender, he brought the weighing machine and testing kit. Contraband was weighed and sample was drawn. On 18.07.2013, he along­with SI Subhash, SI Naveen Dahiya, ASI Satish, HC Vijay, Ct. Virender, Ct. Sishpal went to Janakpuri east for search of Pooja Ray. SI Subhash briefed the members and they disbursed in the streets. Accused Pooja Ray along­ with two African nationals were stopped and interrogated and there is a recovery of substance from Pooja Ray and African boys (this witness not stated what is recovered and what is the quantity). In cross­examination stated that weight of the substance is 640 gm. SI Naveen Dahiya briefed them in the morning itself. He also stated he do not know as to how SI Subhash came to know the place i.e. Gopalji Dairy. SI Subhash made departure entry when they left for Gopalji Dairy. No information was received prior to our departure for Gopalji Dairy. Informer met at Gopalji Dairy itself. He stated he do not know at what time he reached PS Parliament Street. He do not remember the number of vehicle which was used.

12. PW10 HC Sheeshpal, member of raiding party on 18.07.2013 stated that raiding team left Special Staff office at around 08.00 AM and went in two different vehicles but cannot tell who was sitting in which vehicle and after reaching Janakpuri East, they met Vashisht and Vashisht was also accompanying them. At 12 noon they reach Gopalji Dairy at old Mahavir Nagar where Vashisht pointed out Pooja Ray. He overpowered Isika Collins from whom 100 gm of methaqualone was recovered (his further examination is not on record).

13. PW14 HC Palwinder Kaur, member of raiding party stated that she along­with SI Subhash, Ct. Sheeshpal and others reached East Janakpuri metro station where met complainant Vashisht then at about 11.45/12 Noon reached Gopalji Dairy where met Pooja Ray and two African boys. As per directions, she overpowered Pooja Ray and one white polythene bag having knot was recovered Case No. SC/8939/2016 State Vs. Tsering Choezom & Ors. Dated: 31.08.2022 Page No. 9 of 44 from ladies bag containing methaqualone 100 gm. In cross­examination stated she do not know if any DD regarding departure was made and went to place of incident in two private vehicles. They reached Janakpuri at around 09.00 AM and Vashisht was present there. They all went from Janakpuri to Gopalji Dairy on foot. After reaching Gopalji Dairy after two hours, they noticed Tsering. Accused was searched outside the shop and they remained there for around two hours for proceedings. No member of raiding party left the spot neither any other official came to spot.

14. PW15 HC Virender also member of raiding party stated that they reached Janakpuri at around 09.00 AM. At that place SI Subhash briefed them and told that raid is going to be conducted in the gali of Mahavir Nagar for a girl Pooja Ray and two Africans. At around 12 noon 2 Africans and one girl were seen and Vashisht pointed out towards the girl. He apprehended Omenoys Favor. Accused Omenoys Favor was carrying a bag on his back from which methaqualone was recovered. After being declared hostile, in cross­examination stated SI Subhash served him notice u/s 50. The meaning of gazetted officer and magistrate was also told. He was also carrying laptop. In cross­examination stated that Vashisht had given the description of all the accused persons and they had made inquiry from gali at 10.00 AM till the accused were apprehended. He do not remember whether any staff of Gopalji Dairy was joined. He do not remember whether the search of accused Pooja Ray was taken in his presence. No written order was given by SI Subhash or Inspector Jarnail Singh. No secret information was shown by SI Subhash. SI Subhash only told about Janakpuri East metro station not Gopalji Dairy. He did not remember the registration number of both vehicle by which they had gone to spot. The car of SI Naveen Dahiya was of white colour but he do not remember the colour of car of SI Sheeshpal. They reached Janakpuri East at around 9 AM. He remained there for 30 minutes. He cannot tell what is contained in IO kit for detecting the contraband.

15. PW16 Inspector Jarnail Singh stated that on 15.07.2013 being Inspector incharge of Special Staff he received the written information sent by SI Case No. SC/8939/2016 State Vs. Tsering Choezom & Ors. Dated: 31.08.2022 Page No. 10 of 44 Narender through Ct. Parveen. He then informed telephonically to the ACP and instructed Ct. Parveen to take the field testing kit and electronic weighing machine to the spot. On 16.07.2013 a report u/s 57 was produced before him by SI Subhash which he forwarded to ACP. On 18.07.2013 he reached near Gopalji Dairy in government gypsy where accused persons were detained. Then on 19.07.2013, an information u/s 57 NDPS Act was produced by SI Subhash. In cross­examination stated that he recorded DD in roznamcha regarding secret information. ACP was not present at that time in the office. He did not remember if he had written down regarding the instructions/ authorization of ACP to conduct the raid. It is correct that Ex.PW16/A and PW16/B are not bearing the endorsement authorizing IO to conduct the raid either by him or ACP concerned. He had not signed any document on 18.07.2013 at the spot. In reply to the query that how IO came to know that accused were coming to spot, stated that He did not know.

Other witnesses:

16. PW2 Shashi Yadav, land­lord stated that police came along­with his tenant Omenoys and seized the articles such as weighing machine, mobile phones, laptops, voter I card, post office passbook and one box containing sims and he can identify the said articles. In cross­examination, stated that he rented the said premises to one Adam William who left the premises after registration of case and given it to police however the said document is not found on record. The said agreement did not contain the name of Omenoys Favor however whenever he visited the premises, he saw Omenoys Favor in the premises and once he had also given rent to him. He had also seen a lady who was present in the court (identified Tsering) present in the said premises. Whenever he enquired about those two persons from Adam Williams, he stated that they were his guests. In his presence, no passport of Omenoys Favor was recovered. He did not tell the police to call Adam Williams before opening the room. At the time of police raid, Adam William had gone abroad to his village. He further stated at no stage, his statement was recorded by police. He denied suggestion that Omenoys Favor was not staying in his Case No. SC/8939/2016 State Vs. Tsering Choezom & Ors. Dated: 31.08.2022 Page No. 11 of 44 premises.

17. PW3 Saurabh Aggarwal Nodal Officer, Vodafone exhibited the CDR and CAF of mobile no. 8375873280 in the name of Subhash and 8375872534 in the name of Mahadev. PW4 SI Hukam Singh, DO of PS Parliament Street who registered the FIR. In cross­examination stated that further investigation of this case was assigned to SI Subhash as written in the tehrir. HC Vijay Singh came with rukka at 12.20 AM, and went with FIR at around 12.45 AM. PW5 ASI Mahesh Chand MHCM stated that on 16.07.2013 he was called by SHO D.K. Singh to hand over the pullandas in sealed condition along­with seizure memo and carbon copy of FSL form. PW6 Inspector Dinesh Kumar SHO stated that at around 12.40 AM on 16.07.2013 HC Vijay handed over some samples, seizure memo and FSL form. In cross­examination stated that he himself got the above seal prepared from the market and not intimated to police headquarter and there is no such requirement of intimation.

18. PW9 Satyavir Singh chief manager Bank of India exhibited bank statement of Bhanu Enterprises. PW11 SI Surajpal Singh SO to ACP exhibited the report u/s 57 NDPS Act. PW12 Ashok Kumar stated that IO SI Subhash filed an application for taking statement of accused Tsering. He took signature of Tsering on 8 papers. PW13 Kavita Goel, Assistant Director, FSL exhibited the FSL reports in which S1, S2, S4, S5, S6 contained diacetylmorphine. In cross­examination stated that chemical composition of diacetylmorphine and methaqualone is different.

19. PW17 Mohd. Irfan Nadaf, orderly Bank of India exhibited the original deposit receipt of Rs. 2400/­. PW18 Birender Kumar submitted that on 02.09.2013, he was working as AERO and received notice with regard to voter ID card in the name of Pooja Ray and Neha Singh. Both were not found to be issued from their office and were fake. PW19 Ajay Kumar Sharma, Senior Scientific Officer stated that no conclusive opinion could be given over the questioned document of Tsering. PW20 Dr. Lingraj Sahu, Senior Scientific Officer exhibited Case No. SC/8939/2016 State Vs. Tsering Choezom & Ors. Dated: 31.08.2022 Page No. 12 of 44 the FSL report. PW21 Jaspal Singh stated that in the year 2013 he was the owner of Sky Courier and in the month of July, 2013 police officials came and showed the ID of one Pooja Ray, then he identified her photo and handed over the book receipt of Sky Courier by which she booked the parcel and he used to send the same to Royal Services through one Tarun Chand for delivering the same to destinations. She had given photocopy of ID card at the time of booking (in chief examination, no question is put to this witness whether the accused is present in the court or not). In cross­examination stated that no receipt was issued by Royal Services regarding booking of parcel. PW22 Ct. Sandeep stated he collected the photocopy of cash deposit slip of Bhanu Enterprises and CCTV footage in pen­drive however on putting leading questions it is found that CCTV footage was converted into CD by the IO from the pen­drive (CD is not played during evidence). In cross­examination he stated CCTV footage were not downloaded in pen­drive in his presence. PW23 HC Satender deposited 8 internal hard drive and two boxes containing 8 DVDs at FSL. PW24 HC Dharmender deposited 19 documents to FSL.

20. Accused persons in their statements under Sec.313 Cr.P.C. denied all the incriminating circumstances put to them, however, not opted to lead any defence evidence.

Material Exhibits:

21. Ex.PW1/B is the rukka. Ex.PW4/A is the FIR. Ex.PW1/C is the site plan of the place where the parcel was opened. Ex.PW25/L is the site plan of the place from where the accused were apprehended. Mark PW6/A is the DD No. 5A dated 16.07.2013 regarding deposit of sealed pullandas at malkhana. Mark PW6/B is the DD No. 38A dated 18.07.2013 regarding production of seizure memos and case property before SHO. Ex.PW16/B is the DD No. 8 dated 15.07.2013 recorded by Inspector Jarnail Singh regarding arrival of Ct. Parveen at 09.30 PM and information to ACP. Mark A is DD No. 7 dated 15.07.2013 regarding leaving of SI Narender along­with HC Vijay Singh and Parveen Kumar in the area for information Case No. SC/8939/2016 State Vs. Tsering Choezom & Ors. Dated: 31.08.2022 Page No. 13 of 44 (surag rasani). Ex.PW25/A is the DD no. 10 dated 15.07.2013 recorded at around 1205 night of leaving of SI Subhash to the spot. Ex.PW25/E is the DD NO. 4 dated 18.07.2013 regarding leaving of raiding team for Janakpuri East metro station. Ex.PW16/A is the letter of SI Narender to Inspector Jarnail Singh regarding the recovery of suspected drugs with respect to sent Ct. Parveen with testing kit and electronic weighing machine. Ex.PW10/A is the notice u/s 50 to accused Isika Collins. Ex.PW25/J is the notice u/s 50 to accused Omenoys Favor. Ex.PW14/E is the notice u/s 50 to accused Tsering Choezom. Ex.PW25/B and Ex. PW11/B are information u/sec.57 NDPS Act. Ex.PW1/A is the seizure memo of the methaqualone powder recovered at the spot. Ex.PW25/C is the seizure memo of courier receipt from Vashisht including receipt dated 12.07.2013. Ex.PW25/D is the seizure memo of photocopy of voter I card in the name of Pooja Ray. Ex.PW25/F, PW25/I and PW25/K is the seizure memo of recover of 100 gm of methaqualone each from accused Tsering, Isika Collins and Omenoys Favor. Ex.PW14/G is the seizure memo of papers at the time of apprehension of Tsering including election I card. Ex.PW25/3 is the slip. Ex.PW14/D is the seizure memo of mobile phone of accused Tsering. Ex.PW25/B is the seizure memo of laptop from accused Omenoys Favor. Ex.PW14/B, PW15/B and PW10/B are the arrest memos of accused Tsering, Omenoys Favor and Isika Collins. Ex.PW14/C is the personal search memo of accused Tsering. Ex.PW10/C is the personal search memo of accused Isika Collins. Ex.PW15/C is the Omenoys Favor. Ex.PW2/A, PW2/B, PW2/C, PW2/D, PW2/E and PW2/F are the seizure memos of articles from the house of accused Omenoys Favor. Ex.PW8/A is the seizure memo of receipt and register from Sky courier. Ex.PW12/B is the seizure memo of specimen handwriting. Ex.PW25/P is the FSL result. Ex.PW25/N is the account statement showing deposit of Rs. 2400/­ on 16.07.2013. Ex.P25/X is the CD of CCTV footage of bank. Ex.PW3/C and PW3/F are the CDR of mobile no. 8375873280 and 8375872534. Ex.PW14/F, 15/D and PW10/D is the disclosure statement of Tsering, Omenoys Favor and Isika Collins. Ex.PW13/A and PW20/A are the FSL report. Ex.PW19/A is the handwriting expert report over the fact that questioned handwriting of accused Tsering is not matching with the specimen handwriting.

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22. Ld. Counsel for accused Omenoys Favor submits that parcel was booked by co­accused Pooja Ray on 12.07.2013 at the office of PW7 Vashisht which was sent by him to MA worldwide Logistics at Bhikaji Cama Place and thereafter to Fedex Company and thereafter he took back the parcel on 13.07.2013 at around 06.00 PM from MA Worldwide Logistics. The parcel as per prosecution case remained with him since 13.07.2013 to 15.07.2013 and he has not explained why he personally went to different places to return the parcel and why he did not go to the police when the accused has not collected the parcel. No handing over or returning memo was prepared to suggest that seal was not in possession of PW1 Narender Singh till the sample sent to FSL to overrule the possibility of tampering. Ld. Counsel submits that PW7 Vashisht disclosed two number of Pooja Ray and stated that she would call at his mobile number however no such evidence is brought on record. Courier receipt of sending the parcel undertaking was handed over to SI Subhash Chand however as per handwriting expert opinion no opinion can be given with regard to the handwriting of accused Pooja Ray. No DD entry was placed on record qua arrival of Inspector Jarnail Singh at the spot nor he signed any document prepared at the spot to show his presence. In the entire charge­sheet, it is nowhere recorded as to how PW25 SI Subhash came to know about the arrival of the applicant with co­accused near Gopalji Dairy. He only in cross­examination stated that he was having call location of Tsering however no call location chart was placed on record. No number of Tsering of which call location start was mentioned. He also stated he had not recorded the statement of officer of mobile company who provided the call location chart. There is no non compliance of section 42 as there is no information recorded in writing qua arrival of applicant and co­accused on 18.07.2013 near Gopalji Dairy was reduced into writing as required u/s 42(1) of NDPS Act nor placed before the immediate senior officer for authorization to search u/s 42(2) NDPS Act. The seizure memo of the accused Omenoys Favor talks about the preparation of FSL however the malkhana entry register did not mention about the deposit of FSL form in malkhana and this fact was admitted by PW6 Inspector Dinesh Kumar in his cross­examination on 02.02.2018. The RC also do not show the Case No. SC/8939/2016 State Vs. Tsering Choezom & Ors. Dated: 31.08.2022 Page No. 15 of 44 carrying of FSL form to FSL. It creates doubt about preparation and deposit of FSL forms with exhibits.

23. The rent agreement was not in the name of present applicant/accused therefore, prosecution unable to prove that accused was residing there. PW25 IO SI Subhash Chand specifically admitted in cross­examination that no connection was found between Tsering and Omenoys Favor from the recovered sim card, laptop and pen­drive. He also disclosed that he had not collected the CDR of Tsering and Omenoys Favor. PW7 in his examination in chief on 02.04.2022 stated that on 16.07.2013 when he was at Patel Chowk metro station he pointed out at accused Pooja Ray who booked the parcel and two Nigerians were also arrested and thereafter all the three were taken to PS special Cell and he also do not remember what was recovered from them. PW10 HC Sheeshpal though the member of raiding team conducted on 18.07.2013 but did not speak about the apprehension, recovery and seizure of drugs from accused Omenoys Favor of co­accused Tsering. PW11 SI Surajpal in cross­examination admitted that no secret information was ever received by him as SO to ACP either on 16.07.2013 or 19.07.2013. ACP was not examined regarding the receipt of the report. PW14 Palvinder Kaur member of the raiding party did not talk about the apprehension, recovery and seizure of drugs from accused Omenoys Favor or Isika Collins. In cross­examination admitted that she had not seen or joined the investigation of proceedings of the case other than stated by him in her examination in chief. PW HC Virender was declared hostile qua the recovery of contraband from the laptop bag of the accused, about taking of seal for seizure of contraband from Ms. Palvinder. The witness did not depose over the seizure proceedings or recovery of contraband from co­accused persons. PW15 stated that Gopalji Dairy was open on the said day however PW25 stated that it was closed. PW8 HC Parveen did not say from which side accused persons were coming or where they were apprehended. No details of vehicle used by raiding party was given in the charge­sheet. There is unexplained delay in sending samples S4, S5 and S6 to FSL. Seal was not given to public witness PW7 Vashisht. No documents at the spot signed by Jarnail Singh. No call records of applicant/accused proved during Case No. SC/8939/2016 State Vs. Tsering Choezom & Ors. Dated: 31.08.2022 Page No. 16 of 44 trial. No call record of PW7 was also placed on record. Ld. counsel submits that prosecution miserably failed to prove the factum of recovery and apprehension of accused from the spot hence, accused is entitled to be acquitted. Ld. Counsel also filed written arguments

24. Ld. Counsel for accused Tsering stated that PW7 Vashisht did not produce any document regarding the ownership of courier business in the name and style of Bhanu Enterprises. PW7 in cross­examination stated that parcel was deposited on 13/14.08.2013 but in examination in chief only told that it was in July, 2013 and again in cross­examination stated it was on 12.07.2013. The document on record was of MA Worldwide Logistics and not of DTDC. No witness from MA Worldwide or DTDC was examined to prove the safe custody. The airway bill was not signed by accused and phone number mentioned on the bill was not recovered from the accused. In personal search two IMEI number were mentioned but no mobile number is written. The document mark PW25/1 and Ex.PW25/2 carries two different weights i.e. 5.8 kg and 5.7 kg. The discrepancies in weight suggest tampering in the parcel. PW7 did not explain how the parcel remained with him for four days. Tarachand Bhat was not examined by prosecution who handled the parcel and returned the same to PW7 with remarks that documents were not complete. The handwriting on the parcel could not be proved through FSL by comparing the specimen handwriting of accused Tsering. The said box found to contain 26 thread rollers having pouches containing white powder however the sample from each of the pouch was not taken which is in contravention of the judgment of Hon'ble High Court of Delhi in case titled Amani Fidel Chris Vs. NCB Crl. Appeal 1027/15 dated 13.03.2020. PW14 in cross­examination stated that public persons were present during the said proceedings however no public witnesses were joined. There is no compliance of section 50 as no gazetted officer was joined. There is no videography at the time of recovery or CCTV footage was collected. Ld. Counsel submits that prosecution miserably failed to prove its case against accused beyond reasonable ground hence the accused is entitled to be acquitted.

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25. Ld. Addl. PP for the State submitted that all the accused were apprehended together and there is a recovery of contraband from them, which is duly proved through the testimony of independent witness Vashisht Kumar as well as raiding team members. The minor discrepancies in the statements over the time and place are bound to occur, however, there is no major discrepancy in their statements. Accused Tsering had booked the parcel concealing the contraband with PW7 Vashisht Kumar and the said fact is duly substantiated through the testimony of PW7 Vashisht Kumar. Addl. PP submits that there is no occasion for PW7 to depose against accused persons. He is an independent witness having no animosity with any of the accused persons. The accused persons were found to be residing together and there is recovery of various electronic items and sim cards from the accused. The accused persons did not give any explanation for the same. The accused Tsering @ Pooja Ray used to book the parcels on fake identity. One of the co­accused Isika Collins absconded while on interim bail. The FSL report was found positive for diacetylemorphine. The CDR of accused Tsering corroborates the fact that she was in contact with PW7 Vashisht Kumar. Ld. Addl. PP for the State submits that prosecution is able to prove its case without reasonable doubts, hence, accused persons are liable to be convicted for the offences charged.

26. Arguments heard. Record perused.

27. The brief sequence of the facts is that on 12.07.2013 accused Tsering @ Pooja Ray booked the parcel with PW7 Vashisht Kumar who is running the franchise of DTDC for sending it to Netherlands however the said parcel was returned and the accused Pooja Ray was called by PW7 Vashisht to take back the delivery and for that purpose she called him at Patel Chowk metro station but could not reach the said station, however, PW7 found the patrolling party consisting of PW1 SI Narender Singh, PW8 HC Praveen Kumar and HC Vijay. Thereafter, the said parcel was opened and on opening it was found concealing 640 gm of methaqualone. Rukka was prepared and FIR was registered. On 18.07.2013 IO SI Case No. SC/8939/2016 State Vs. Tsering Choezom & Ors. Dated: 31.08.2022 Page No. 18 of 44 Subhash Chand in presence of PW7 Vashisht and other raiding team members searched the accused Pooja Ray then in front of Gopalji Dairy apprehended accused Tsering @ Pooja Ray, Omenoys Favor and Isika Collins and from them 100 gm of methaqualone was recovered. Prosecution thereafter also searched the house of accused Omenoys Favor where the house was searched in presence of PW2 Shashi Yadav but no contraband was recovered. The material circumstances to be appreciated in this case are the fact that the parcel was booked by accused Tsering @ Pooja Ray with PW7 and PW7 had sent the same parcel to MA Worldwide Logistics and delivered through Fedex company, the circumstance of the handing over the parcel concealing contraband by PW7 to the patrolling police party at Patel Chowk Metro Station and the consequent apprehension of the accused persons along­with contraband at the Gopalji Dairy.

Genesis of Prosecution case and version of PW7

28. PW7 Vashisht Kumar in his testimony stated that the accused Tsering @ Pooja Ray used to book the parcel through his courier. In the month of July in the early morning at around 10.30, the accused came to courier office with a box containing 15­20 bundles of laces and he packed the same in her presence and forwarded to DTDC however the DTDC office told him that voter ID card of the person who booked the parcel is not clear and he should provide the clear copy of ID card, but the said clear copy was not provided by her and then again DTDC company asked him to bring the customer to their office for forwarding it to Netherlands. Then he informed this fact to Pooja Ray on telephone and after 3­4 days, she asked him to meet at Patel Chowk metro station around 12 noon.

29. This PW in his statement before the police Ex.PW1/B stated that the parcel was booked on 12.07.2013. Thereafter, on 13.07.2013 at around 11.30, he received a call from Tara Chand Bhat of M.A. Worldwide that the parcel could not be sent due to lack of document. Then, he called Pooja Ray at around 06.00 PM to collect the parcel and then she called him at different places to collect the same but Case No. SC/8939/2016 State Vs. Tsering Choezom & Ors. Dated: 31.08.2022 Page No. 19 of 44 did not come and today she called him outside Patel Chowk metro station at 08.00 pm but she did not turn up. This witness however in examination in chief twisted the story and stated that the parcel could not be sent as clear copy of voter ID card was not there and therefore, he asked her to provide clear copy of voter ID card but provided later on, then, DTDC asked him to bring the customer and informed the same to accused Pooja Ray. After 3­4 days, she told him to meet at Patel Chowk. This witness nowhere stated in his statement Ex.PW1/2 that she did not provide the clear copy of the ID card. He in his testimony talked about the DTDC office of airport however in his statement before the police stated that (Ex. PW1/2), he sent the parcel to MA Worldwide Logistics to be delivered through Fedex company. There is no mention of MA Worldwide Logistics and Fedex company in his testimony before the court. Admittedly, there is no document collected during investigation by the police or before this court whether in­fact the said parcel has been travelled to the head office of DTDC courier or to MA Worldwide or to Fedex company. There is no corroborating evidence over the testimony of PW7 whether in­ fact he has dispatched the said parcel to other courier companies or remained with him from 13.07.2013 to 18.07.2013. He categorically named one Tara Chand Bhat in his statement before the police of MA Worldwide. There is no investigation over this fact that in­fact any Tara Chand was contacted by the police to verify the fact whether in­fact it was travelled to MA Worldwide or not.

30. It is pertinent to notice this witness in his statement before the police Ex.PW1/2 categorically stated that on 13.07.2013 due to lack of document, he had received back the parcel at 06.00 PM and asked Pooja Ray to collect the same. This witness in his testimony on the other hand raised another plea that Pooja Ray offered him extra amount but DTDC asked him to bring the customer. The initial statement of this witness do not show that DTDC asked him to bring the customer. If his statement Ex.PW1/2 is believed then it is clear that he has brought the parcel with him for returning on 13.07.2013, and there is nothing in the statement that he ensured to send it again. As per the prosecution case, the accused has deposited Rs. 2400/­ in the account of his firm on 16.07.2013 and to corroborate the said fact, Case No. SC/8939/2016 State Vs. Tsering Choezom & Ors. Dated: 31.08.2022 Page No. 20 of 44 prosecution relied upon the CCTV footage of the bank showing that accused is present in the bank however the said CCTV footage while exhibiting during evidence in the court is not played but while passing the judgment, this court has seen the CCTV footage showing her presence in the bank but as this CCTV footage was not played during evidence and neither accompanied with any 65B Indian Evidence Act certificate, therefore, cannot be relied upon. However the factum of depositing of Rs. 2400/­ in the account of PW7 by accused Pooja Ray runs contrary to the statement Ex.PW1/2 of PW7. In this statement, accused categorically stated that he had brought back the parcel and nowhere stated that he assured to resend it after taking extra charge. The deposit of Rs. 2400/­ afterwards suggests some other sequence of story. This creates doubt whether the said parcel was booked and sent in the manner stated by PW7. The prosecution has to prove the sanctity of parcel beyond doubt.

31. This witness in his statement Ex.PW1/2 before the police categorically stated that he has taken back the parcel on 13.07.2013 at around 06.00 PM and thereafter told accused Pooja Ray to collect the parcel however she called him at different places to collect the same but did not turn up then she called him at Patel Chowk metro station at 08.00 PM and reached there at 08.30 PM, waited for her but she did not turn up. This witness however in his testimony could not able to give the exact date of booking of parcel however stated that on the next day he received a call that voter ID is not clear. Then on the third day DTDC asked to bring the customer thereafter, 3­4 days she told him to meet at Patel Chowk. In this statement, he nowhere stated that she asked him to meet at some other places prior to this incident of Patel Chowk though in his statement during investigation (Ex.PW1/2) stated the said fact. There is nothing in investigation that he was taken to those places by police where he went to deliver the parcel to accused Tsering @ Pooja Ray. These discrepancies create doubt over the manner of booking of parcel and its custody with PW7 in the manner projected by prosecution.

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32. This witness in his statement Ex.PW1/2 stated that he came to Patel Chowk metro station on 15.07.2013 at around 08.30 PM for delivery of parcel to Pooja Ray in his Accent car and started waiting for her. On reaching there, he also called her but she did not pick up the phone, therefore, he became suspicious over the parcel and in the meanwhile met the police party and handed over the same to police party. This witness in his testimony before the court stated that he reached Patel Chowk at around 12 noon to 1 PM and waited for her till 04.00 PM. Then he suspected something wrong and found SI Narender Tyagi of Special Cell at metro station. This contradiction in timing appears to be material, as found to be more than 4 hours. There is no accompanying CDR or CCTV footage to show the presence of PW7 along­with the police party near the metro station. There is no other independent witness at the spot regarding the seizure of the contraband handed over by PW7 Vashisht Kumar to PW1 Narender Singh. PW HC Vijay Singh is the member of the patrolling party who had taken the rukka to the PS along­with police party, but, he is not been examined by the prosecution. The prosecution case over the manner of handing over the parcel to PW1 SI Narender Singh appears suspect.

Circumstance of apprehension of accused Tsering Choezom and Omenoys Favor and consequent recovery of contraband from them:

33. As per prosecution case, accused Tsering and Omenoys Favor and Isika Collins were apprehended on 18.07.2013 while roaming nearby Gopalji Dairy at Mahavir Nagar, Janakpuri. The information regarding the search of the accused near Janakpuri Metro Station was recorded vide DD No.4 dated 18.07.2013 (Ex. PW­25/E). This DD was recorded at around 8 AM on 18.07.2013 in which IO PW25 SI Subhash mentioned that he along­with the team consisting of SI Naveen Dahiya, ASI Satish Chander, HC Vijay Nagar, Ct. Sheeshpal, Ct. Sandeep, Ct. Praveen Kumar, Ct. Virender Singh, W/Ct. Palwinderjeet Kaur, Ct. Satender left for Janakpuri Metro Station for searching the accused and the information in this regard had already been given to PW7 Vashisht Kumar. The prosecution with regard to this raid examined PW8 HC Parveen Kumar, PW10 HC Sheeshpal, PW14 HC Case No. SC/8939/2016 State Vs. Tsering Choezom & Ors. Dated: 31.08.2022 Page No. 22 of 44 Palvinder Kaur, PW15 HC Virender, PW25 IO SI Subhash and PW7 Vashisht Kumar.

34. It is pertinent to notice that there is nothing mentioned in DD No.4 (Ex. PW­25/E) regarding on what basis the entire team of the police officials reached Janakpuri Metro Station for searching the accused. For the purpose of appreciating the apprehension of accused Tsering, Omeneys Favor and Isika Collins, the testimony of PW7 Vashisht Kumar is very material. PW7, in his examination­in­ chief which is recorded on 02.04.2022 stated that on 16.07.2013, SI Subhash came to his office and asked about on which number she used to call him and also handed over five receipts, then, he was instructed by the police officer to call the person who booked the parcel on the pretext that her articles had been returned back. Then, he called Pooja Roy on the instructions of police officials, however, she did not pick the call and later, she switched off the mobile phone and after 2½ hours, the mobile was picked up by one male person and he told him to take back the parcel and also told them in case they are not coming back to take the parcel, then would deposit the same in the DTDC courier. He also stated that he is at the Patel Chowk and deliver the same there. Thereafter, at around 3­4 PM, one female and two male persons reached ie. the accused persons and thereafter, police officials apprehended them on signalling by him. This testimony of PW7 suggests that the accused persons were apprehended at around 3­4 PM at Patel Chowk on 16.07.2013, whereas, the case of the prosecution is that accused persons were apprehended near Gopalji Dairy, Mahavir Nagar, Janakpuri on 18.07.2013 at around 12 Noon. Both the versions are inherently contradictory, thus, creating the doubt not only on the manner of arrest but also on recovery of contraband from accused persons in this case.

35. Now, it is also pertinent to appreciate the testimony of police officials over the apprehension of accused persons with contraband. PW25 IO SI Subhash stated that on 18.07.2013, he along­with the team left the police station and reached Janakpuri East Metro Station. He, in his examination­in­chief, stated that he reached the metro station on the basis of the call location of the mobile of Pooja Ray Case No. SC/8939/2016 State Vs. Tsering Choezom & Ors. Dated: 31.08.2022 Page No. 23 of 44 ie. accused Tsering and her Voter ID card of the same area. It is pertinent to notice that said fact that he reached the Janakpuri metro station on the basis of call location is not mentioned in the DD entry. This witness, in his cross­examination stated that he asked about the location of the accused from the Nodal Officer, however, no statement of Nodal Officer was recorded. There is no specific call location as deposed in the testimony of PW 25 stating Pooja Ray at Janakpuri at that time is on record. No CDR of Tsering @ Pooja Ray, Omnays Favor, Isika Collins are placed on record to show that they are apprehended on 18.07.2013.

36. PW8 stated that on 18.07.2013, he along­with his team reached Janakpuri East for the search of the accused and at the instructions of SI Subhash, dispersed in the streets which in­fact is not at all case of prosecution. PW10 HC Sheeshpal stated that they left the police station in two vehicles but he cannot tell which vehicle have which members and reached Janakpuri East, and at 12 Noon reached Gopalji Dairy. This witness is partly examined and further examination is deferred, however, prosecution had not called him again for examination. The version of this witness do not appear to be credible. PW14 HC Palvinder Kaur, another member of the raiding party, stated that she along­with raiding party reached the Janakpuri Metro Station where she met the complainant Vashisht and then at about 11.45/12 Noon, reached Gopalji Dairy where met Pooja Ray and two African boys. In cross­examination, stated that they waited at Gopalji Dairy for around two hours. It is incomprehensible that the raiding party will wait at Gopalji Dairy for two hours when they have no knowledge that accused persons would reach there. She nowhere stated that they reached there on the basis of call location. PW15 HC Virender, in his testimony, stated that SI Subhash briefed them and told them that raid is going to be conducted in the gali of Mahavir Nagar for accused persons, but, this is not the version of PW25. It is also not the version of PW25 that after reaching Gopalji Dairy, they waited for two hours. There is no other raiding team member examined by the prosecution despite the fact that a number of persons went to Janakpuri as raiding team members.

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37. It is pertinent to mention that the raiding team members went to the spot in vehicles, however, there are no number of the vehicles mentioned by any of the witnesses. It is also not mentioned in the DD no.4 (Ex.PW­25/E) that by which means the entire raiding team went to Janakpuri. PW7, though, had given altogether different version in examination­in­chief about apprehension of accused persons, however, after being declared hostile have given another version. On overall, the apprehension of accused persons namely Tsering and Omnoys Favor in the manner relied upon the prosecution is not at all reliable.

38. As per the prosecution case, when all the accused persons were apprehended, there is recovery of 100 gm each of Methaqualone from the accused persons, which was later on found to be diacetylemorphine. However, when the apprehension of the accused in the manner relied upon, is doubtful, then, the recovery of contraband in the manner relied upon, also cannot be believed. PW8 HC Parveen Kumar even did not state that what is recovered from the accused persons. He also stated in cross­examination that He did not know as to how SI Subhash came to know about the place of occurrence. He further stated that informer met at the Gopalji dairy, whereas, as per the prosecution, there was no informer in this case and the entire raid was on the basis of call location. The testimony of the entire raiding party over the apprehension of accused is not at all reliable and thus, recovery of contraband in the manner stated can't be held reliable.

SAMPLING

39. On opening of the parcel which was handed over by PW7 to PW1 SI Narender Singh. 26 metallic thread rollers were found. Thereafter, on cutting the same, every roller was found containing white powder, then, the white powder was collected together and thereafter, tested with the testing kit and found positive for methaqualone. PW 1 SI Narender Singh in his testimony also stated that on cutting the thread of all 26 rollers, it was found to containing damp white coloured powder, then, the entire powder was collected and tested positive for methaqualone. The Case No. SC/8939/2016 State Vs. Tsering Choezom & Ors. Dated: 31.08.2022 Page No. 25 of 44 total weight of methaqualone was found to be 640 gms. Thereafter, he took the samples of 5 gm each. Therefore, the case of the prosecution is that the contraband found in each thread roller was not checked separately, however, checked after collecting and mixing the powder from all the threads at single place. The non­ checking of powder from each thread vitiates the entire proceedings of the sampling. It is mandatory that before mixing and collecting the sample from all 26 threads, the powder from each thread is to be checked, which is not done in this case.

40. Hon'ble Delhi High Court in the case titled as, "Amani Fidel Chris vs. Narcotics Control Bureau in Cr. Appeal 1027/2015 & Crl. M.B. 511/2019 & Crl. M.A. 1660/2020 dated 13.03.2020", held that :­

13. The manner of drawing a sample of narcotics has been laid down in Standing Order 1/88 dated 15.03.1988 issued by the Narcotics Control Bureau. The relevant paras of the Standing Order are reproduced 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 sample­The 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 Case No. SC/8939/2016 State Vs. Tsering Choezom & Ors. Dated: 31.08.2022 Page No. 26 of 44 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 added)

14. Pari materia with Standing Order 1/88 is the Standing Order No. 1/89 dated 13.06.1989 issued under subsection (1) of Section 52A of NDPS Act by the Department of Revenue, Ministry of Finance, Government of India.

Section (II) provides for general procedure for sampling, storage and reads as under:--

"SECTION II­GENERAL PROCEDURE FOR SAMPLING, STORAGE ETC.

2.1 All drugs shall be properly classified, carefully, weighed and sampled on the spot of seizure.

2.2 All the packages/containers shall be serially numbered and kept in lots for sampling. Samples from the narcotic drugs and psychotropic substances seized, shall be drawn on the spot of recovery, in duplicate, in the presence of search witness (Panchas) and the person from whose possession the drug is recovered, and a mention to this effect should invariably be made in the panchanama drawn on the spot.

2.3 The quantity to be drawn in each sample for chemical test shall not be less than 5 grams in respect of all narcotic drugs and psychotropic substances save in cases of opium, ganja and charas (hasish) where a quantity of 24 grams in each case is required for chemical test. The same quantities shall be taken for the duplicate sample also. The seized drugs in the packages/containers shall be well mixed to make it homogeneous and representative before the sample (in duplicate) is drawn.

2.4 In the case of Seizure of a single package/container, one Case No. SC/8939/2016 State Vs. Tsering Choezom & Ors. Dated: 31.08.2022 Page No. 27 of 44 sample (in duplicate) shall 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. 2.5 However, when the packages/containers seized together are of identical size and weight, bearing identical markings and the content of each package given identical results on color test by the drug identification kit, conclusively indicating that the packages are identical in all respects, the packages/containers may be carefully bunched in lots of 10 packages/containers/except in the case of ganja and hashish (charas), where it may be bunched in lots of 40 such packages/containers. For each such lot of packages/containers, one sample (in duplicate) may be drawn. 2.6 Where­after making such lots, in the case of hashish and ganja, less than 20 packages/containers remain, and in the case of other drugs, less than 5 packages/containers remain, no bunching will be necessary and no sample need to be drawn.

2.7 If such remainders are more in the case of other drugs and substances and 20 or more in the case of ganja and hashish, one more sample (in duplicate) may be drawn for such a reminder package/container.

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

2.9 The sample in duplicate should be kept in heat sealed plastic bags as it is convenient and safe. The plastic bag container should be kept in a paper envelope which may be sealed properly. Such sealed envelope may be marked as original and duplicate. Both the envelopes should bear the S. No. of the package(s)/containers from which the sample has been drawn. The duplicate envelope containing the sample will also have a reference of the test memo. The seals should be legible. This envelope which should also be sealed and marked 'secret­drug sample/Test memo' is to be sent to the chemical laboratory concerned.

3.0 The Seizing officers of the Central Government Departments, viz., Customs. Central Excise, Central Bureau of Narcotics, Narcotics Control Bureau, Directorate of Revenue Intelligence etc. should dispatch samples of the seized drugs to one of the Laboratories of the Central Revenues Control Laboratory nearest to their office depending upon the availability of test facilities. The other Central Agencies like BSF, CBI and other Central Police Organizations may send such sample to the Director, Central Forensic Laboratory, New Delhi. All State Enforcement Agencies may send samples of seized drugs to the Director/Deputy Case No. SC/8939/2016 State Vs. Tsering Choezom & Ors. Dated: 31.08.2022 Page No. 28 of 44 Director/Assistant Director of their respective State Forensic Science Laboratory.

3.1 After sampling, detailed inventory of such packages/containers shall be prepared for being enclosed to the panchanama. Original wrappers shall also be preserved for evidentiary purposes."

(emphasis added)

15. In view of the stringent provisions of the NDPS Act, the issue to be considered is whether the procedure specified under the Standing Orders can be flouted.

16. A combined reading of paras of the Standing Orders would show that where more than one container/package is found, the respondent is required to draw a sample from each of the individual container/package and test each of the sample with the 'field testing kit'. It is further provided that if the container/packages are identical in shape, size and weight then lots of 10 or 40 containers/packages may be prepared and thereafter representative samples from each container/package in a particular lot are to be drawn, mixed and sent for testing.

17. Mixing of the contents of container/package (in one lot) and then drawing the representative samples is not permissible under the Standing Orders and rightly so since such a sample would cease to be a representative sample of the corresponding container/package.

18. In the present case, four packets containing suspicious powdery substance were found concealed in a 'stroller bag'. On testing with the 'field testing kit', the powder in each packet tested positive for heroin. The I.O., without weighing the contents of each individual packet, mixed the powder from all the 4 packets in one polythene bag and then drew the sample from the mixture.

19. In the opinion of this court, the respondent ought to have adopted the procedure outlined in Para 2.4 of the Standing Order 1/89 [or para 1.7(a) of Standing Order 1/88] by drawing sample (in duplicate) from each of the 4 packets separately and then sending the samples for testing.

20. Going by the submission of learned counsel for the respondent that the procedure in para 2.5 [or para 1.7(b) of Standing Order 1/88] was to be followed and the four packets were to be considered as one lot, even then the contents of all the four packets ought not to have been mixed with each other. Instead, in terms of Para 2.8 [or para 1.7(e) of Standing Order 1/88], representative samples (in duplicate) from each individual packet ought to have been taken. Once representative samples were drawn from each individual packet, then such representative samples were to be mixed together to make a composite whole, out of which a further Case No. SC/8939/2016 State Vs. Tsering Choezom & Ors. Dated: 31.08.2022 Page No. 29 of 44 sample was to be drawn as a representative sample of this "lot of four packets". The Standing Order nowhere provides that the contents of all the containers/packages are to be mixed, which has been done in the present case.

21. The object of not mixing the contents of container/packages with each other can also be inferred from Paras 2.9 and 3.1 of Standing Order 1/89 where it is stated that "Both the envelopes should bear the S. No. of the package(s)/containers from which the sample has been drawn" and "After sampling, detailed inventory of such packages/containers shall be prepared for being enclosed to the panchnama".

22. The sanctity of the Standing Order 1/89 came for consideration before the Supreme Court in Noor Aga v. State of Punjab reported as (2008) 16 SCC 417, where the facts before the Court were that 1.4 kg heroin was found concealed in a cardboard container carrying grapes. It was held as under:

--

"87. Perseverance of original wrappers, thus, comes within the purview of the direction issued in terms of Section 3.1 of the Standing Order No. 1 of 1989. Contravention of such guidelines could not be said to be an error which in a case of this nature can conveniently be overlooked by the Court. We are not oblivious of a decision of this Court in Chief Commercial Manager, South Central Railway, Secunderabad v. G. Ratnam (2007) 8 SCC 212 relating to disciplinary proceeding, wherein such guidelines were held not necessary to be complied with but therein also this Court stated : (SCC p.222, para 23) 23. In the cases on hand, no proceedings for commission of penal offences were proposed to be lodged against the respondents by the investigating officers.

88. In Moni Shankar v. Union of India (2008) 3 SCC 484, however, this Court upon noticing G. Ratnam (supra), stated the law thus:

15. It has been noticed in that judgments that Paras 704 and 705 cover the procedures and guidelines to be followed by the investigating officers, who are entrusted with the task of investigation of trap cases and departmental trap cases against the railway officials. This Court proceeded on the premise that the executive orders do not confer any legally enforceable rights on any persons and impose no legal obligation on the subordinate authorities for whose guidance they are issued.

16. We have, as noticed herein before, proceeded on the assumption that the said paragraphs being executive instructions do not create any legal right but we intend to emphasize that total violation of the guidelines together with other factors could be Case No. SC/8939/2016 State Vs. Tsering Choezom & Ors. Dated: 31.08.2022 Page No. 30 of 44 taken into consideration for the purpose of arriving at a conclusion as to whether the department has been able to prove the charges against the delinquent official.

It was furthermore opined: (Moni Shankar case., SCC p. 493, para

23) "23.....It may be that the said instructions were for compliance of the Vigilance Department, but substantial compliance therewith was necessary, even if the same were not imperative in character. A departmental instruction cannot totally be ignored. The Tribunal was entitled to take the same into consideration along with other materials brought on record for the purpose of arriving at a decision as to whether normal rules of natural justice had been complied with or not."

89. Guidelines issued should not only be substantially complied, but also in a case involving penal proceedings, vis­ a­vis a departmental proceeding, rigours of such guidelines may be insisted upon. Another important factor which must be borne in mind is as to whether such directions have been issued in terms of the provisions of the statute or not. When directions are issued by an authority having the legal sanction granted therefore, it becomes obligatory on the part of the subordinate authorities to comply therewith.

90. Recently, this Court in State of Kerala v. Kurian Abraham (P) Ltd. (2008) 3 SCC 582 following the earlier decision of this Court in Union of India v. Azadi Bachao Andolan (2004) 10 SCC 1 held that statutory instructions are mandatory in nature.

91. Logical corollary of these discussions is that the guidelines such as those present in the Standing Order cannot be blatantly flouted and substantial compliance therewith must be insisted upon for so that sanctity of physical evidence in such cases remains intact. Clearly, there has been no substantial compliance of these guidelines by the investigating authority which leads to drawing of an adverse inference against them to the effect that had such evidence been produced, the same would have gone against the prosecution."

(emphasis added)

23. In Union of India v. Bal Mukund reported as (2009) 12 SCC 161, the Supreme Court while referring to the Standing Instruction 1/88, held as follows:-- "36. There is another aspect of the matter which cannot also be lost sight of. Standing Instruction No. 1/88, which had been issued under the Act, lays down the procedure for taking samples. The High Court has noticed that PW­7 had taken samples of 25 grams each from all the five 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."

Case No. SC/8939/2016 State Vs. Tsering Choezom & Ors. Dated: 31.08.2022 Page No. 31 of 44 (emphasis added)

24. Earlier, in Gaunter Edwin Kircher v. State of Goa, Secretariat Panaji, Goa reported as (1993) 3 SCC 145, the accused was found in possession of 2 cylindrical pieces of charas which were found to be 7 gram and 5 grams respectively. The investigating agency sent only one piece weighing 5 grams for chemical analysis while neither the second piece weighing 7 grams nor any of its part was sent for chemical analysis. The Supreme Court held that both the pieces ought to have been sent. It was held as follows:-- "5. ... 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. From this report alone it cannot be presumed or inferred that the substance in the 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 to all other kinds of intoxicating substances. In any event in the 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 or pieces recovered should be sent for chemical examination under a regular panchnama and as per the provisions of law."

25. A coordinate Bench of this Court in Basant Rai v. State reported as (2012) 191 DLT 403, under somewhat similar circumstances where the accused was found carrying a polythene bag containing 8 smaller polythene bags having brown colour substance and the investigating officer took small pieces of charas from each packet,mixed the same and drew two sample parcels which were sent to FSL for analysis, while allowing the appeal of the accused, held as under: "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 IO prepared two samples of 25 grams each after taking a small quantity from Case No. SC/8939/2016 State Vs. Tsering Choezom & Ors. Dated: 31.08.2022 Page No. 32 of 44 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."

26. Similarly, another coordinate bench of this court in Edward Khimani Kamau v. The Narcotics Control Bureau reported as 2015 SCC OnLine Del 9860 held that transferring the powder of 9 packets into one polythene and taking two samples and sending one sample to CRCL caused serious prejudice to the case of the appellant as it could not be ascertained whether all the nine packets contained heroin or not.

27. Recently, in Charlse Howell (Supra), 166 polythene strips, allegedly containing heroin, were found stitched in two lehngas. After mixing the substance from all the polythene strips, the samples were sent to CRCL for analysis. While allowing the appeal, it was held that the samples were drawn contrary to the Standing Order 1/88. It was held that the sample was not representative in nature and the test report could not be said to represent the character of entire quantity of powder contained in all 166 polythene strips.

28. To the similar effect is the view of other High Courts in Netram v. State of Rajasthan reported as 2013 SCC OnLine Raj 2892; Ghewar Ram v. State of Rajasthan reported as 2007 (2) Cr.LR 1695 (Raj); Jaswinder Singh v. State of Punjab reported as (2013) 1 RCR (Cri) 257; Buta Singh v. State of Punjab reported as 2017 SCC OnLine P&H 3566 and Chinku Gupta v. State of U.P. reported as 2018 (3) ACR 2714. The reliance placed by learned counsel for the respondent on the decision in Baljinder Singh (supra) is of no avail as the captioned case discussed the scope of Section 50 of the NDPS Act, which is not an issue in the present case. Similarly, the reliance placed on the decision in Sonam Bahadur Gurung v. Union of India passed in C.R.A. No. 462 of 2006 decided on Case No. SC/8939/2016 State Vs. Tsering Choezom & Ors. Dated: 31.08.2022 Page No. 33 of 44 09.09.2009 is again of no help to learned counsel for the accused as in the captioned case, it was observed that the evidence on the method of drawing sample was lacking.

29. Looking at the issue from the aspect of Section 52A of NDPS Act, it is seen that sub­section (2)(c) provides a procedure to be followed by the I.O. where an application is required to be filed before the Magistrate for the purpose of allowing to draw the samples from the seized substance. Section 52A prior to the Amendment Act 16 of 2014 read as follows:-- "52A. Disposal of seized narcotic drugs and psychotropic substances.

(1) The Central Government may, having regard to the hazardous nature of any narcotic drugs or psychotropic substance, their vulnerability to theft substitution, constraints of proper storage space or any other relevant considerations, by notification published in the Official, Gazette, specify such narcotic drugs or psychotropic substance or class of narcotic drugs or class of psychotropic substances which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified.

(2) Where any narcotic drugs or psychotropic substances has been seized and forwarded to the officer in charge of the nearest police station or to the officer empowered under Section 53, the officer referred to in subsection (1) shall prepare an inventory of such narcotic drugs or, psychotropic substances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub­section (1) may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings under this Act and make an application, to any Magistrate for the purpose of,­

(a) Certifying correctness of the inventory so prepared; or

(b) Taking, in the presence of such Magistrate, photographs substances and certifying such photographs as true; or

(c) Allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.

(3) Where an application is made under sub­section (2), the Magistrate shall, as soon as may be, allow the application (4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1972) or the Criminal Procedure Code, 1973 (2 of 1974), every Court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs or psychotropic Case No. SC/8939/2016 State Vs. Tsering Choezom & Ors. Dated: 31.08.2022 Page No. 34 of 44 substances and any list of samples drawn under subsection (2) and certified by the Magistrate, as primary evidence in request of such offence."

30. Although in Gurbax Singh v. State of Haryana reported as (2001) 3 SCC 28, the Supreme Court held Section 52 of NDPS Act to be directory but still gave a word of caution that the provisions cannot be ignored by the Investigating Officer. While acquitting the accused for not following the procedure prescribed, it was held as under: 9. ... In our view, there is much substance in this submission. It is true that provisions of Sections 52 and 57 are directory. Violation of these provisions would not ipso facto violate the trial or conviction. However, IO cannot totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the article. In the present case, IO has admitted that seal which was affixed on the muddamal article was handed over to the witness PW 1 and was kept with him for 10 days. He has also admitted that the muddamal parcels were not sealed by the officer in charge of the police station as required under Section 55 of the NDPS Act. The prosecution has not led any evidence whether the chemical analyser received the sample with proper intact seals. It creates a doubt whether the same sample were sent to the chemical analyser. Further, it is apparent that the IO has not followed the procedure prescribed under Section 57 of the NDPS Act of making full report of all particulars of arrest and seizure to his immediate superior officer. The conduct of panch witness is unusual as he offered himself to be a witness for search and seizure despite being not asked by the IO, particularly when he did not know that the substance was poppy husk, but came to know about it only after being informed by the police. Further, it is the say of the Panch witness that muddamal seal used by the PSI was a wooden seal. As against this, it is the say of PW 2 SI/IO that it was a brass seal. On the basis of the aforesaid evidence and faulty investigation by the prosecution, in our view, it would not be safe to convict the appellant for a serious offence of possessing poppy husk."

31. The apparent conflict in the manner of drawing a sample as provided in Section 52A(2)(c) of NDPS Act on one hand and the Standing Order 1/89 on the other hand came to be considered by the Supreme Court in Union of India (UOI) v. Mohanlal, reported as (2016) 3 SCC 379 where it was held as under: "Seizure and sampling: 12. Section 52­A(1) of the NDPS Act, 1985 empowers the Central Government to prescribe by a notification the procedure to be followed for seizure, storage and disposal of drugs and psychotropic substances. The Central Government have in exercise of that power issued Standing Order No. 1/89 which Case No. SC/8939/2016 State Vs. Tsering Choezom & Ors. Dated: 31.08.2022 Page No. 35 of 44 prescribes the procedure to be followed while conducting seizure of the contraband. Two subsequent standing orders one dated 10.05.2007 and the other dated 16.01.2015 deal with disposal and destruction of seized contraband and do not alter or add to the earlier standing order that prescribes the procedure for conducting seizures. Para 2.2 of the Standing Order 1/89 states that samples must be taken from the seized contrabands on the spot at the time of recovery itself. It reads: 2.2. All the packages/containers shall be serially numbered and kept in lots for sampling. Samples from the narcotic drugs and psychotropic substances seized, shall be drawn on the spot of recovery, in duplicate, in the presence of search witnesses (Panchas) and the person from whose possession the drug is recovered, and a mention to this effect should invariably be made in the panchnama drawn on the spot.

13. Most of the States, however, claim that no samples are drawn at the time of seizure. Directorate of Revenue Intelligence is by far the only agency which claims that samples are drawn at the time of seizure, while Narcotics Control Bureau asserts that it does not do so. There is thus no uniform practice or procedure being followed by the States or the Central agencies in the matter of drawing of samples. This is, therefore, an area that needs to be suitably addressed in the light of the statutory provisions which ought to be strictly observed given the seriousness of the offences under the Act and the punishment prescribed by law in case the same are proved. We propose to deal with the issue no matter briefly in an attempt to remove the confusion that prevails regarding the true position as regards drawing of samples. xxx xxx xxx

15. It is manifest from Section 52A(2)(c) that upon seizure of the contraband the same has to be forwarded either to the officer in­ charge of the nearest police station or to the officer empowered Under Section 53 who shall prepare an inventory as stipulated in the said provision and make an application to the Magistrate for purposes of (a) certifying the correctness of the inventory (b) certifying photographs of such drugs or substances taken before the Magistrate as true and (c) to draw representative samples in the presence of the Magistrate and certifying the correctness of the list of samples so drawn.

16. Sub­section (3) of Section 52­A requires that the Magistrate shall as soon as may be allow the application. This implies that no sooner the seizure is effected and the contraband forwarded to the officer in charge of the Police Station or the officer empowered, the officer concerned is in law duty bound to approach the Magistrate for the purposes mentioned above including grant of permission to draw representative samples in his presence, which samples will Case No. SC/8939/2016 State Vs. Tsering Choezom & Ors. Dated: 31.08.2022 Page No. 36 of 44 then be enlisted and the correctness of the list of samples so drawn certified by the Magistrate. In other words, the process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct.

17. The question of drawing of samples at the time of seizure which, more often than not, takes place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Section 52­A(4) of the Act, samples drawn and certified by the Magistrate in compliance with Sub­ section (2) and (3) of Section 52­A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act that mandates taking of samples at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure.

18. Be that as it may, a conflict between the statutory provision governing taking of samples and the standing order issued by the Central Government is evident when the two are placed in juxtaposition. There is no gainsaid that such a conflict shall have to be resolved in favour of the statute on first principles of interpretation but the continuance of the statutory notification in its present form is bound to create confusion in the minds of the authorities concerned instead of helping them in the discharge of their duties. The Central Government would, therefore, do well, to re­examine the matter and take suitable steps in the above direction.

19. ... There is in our opinion no manner of doubt that the seizure of the contraband must be followed by an application for drawing of samples and certification as contemplated under the Act. There is equally no doubt that the process of making any such application and resultant sampling and certification cannot be left to the whims of the officers concerned. The scheme of the Act in general and Section 52­A in particular, does not brook any delay in the matter of making of an application or the drawing of samples and certification. While we see no room for prescribing or reading a time frame into the provision, we are of the view that an application for sampling and certification ought to be made without undue delay and the Magistrate on receipt of any such application will be expected to attend to the application and do the needful, within a reasonable period and without any undue delay or procrastination as is mandated by Sub­section (3) of Section 52A ...

xxx xxx xxx

31. To sum up we direct as under:

31.1. No sooner the seizure of any narcotic drugs and Case No. SC/8939/2016 State Vs. Tsering Choezom & Ors. Dated: 31.08.2022 Page No. 37 of 44 psychotropic and controlled substances and conveyances is effected, the same shall be forwarded to the officer in charge of the nearest police station or to the officer empowered under Section 53 of the Act. The officer concerned shall then approach the Magistrate with an application under Section 52­A(2) of the Act, which shall be allowed by the Magistrate as soon as may be required under sub­section (3) of Section 52­A, as discussed by us in the body of this judgment under the heading "seizure and sampling". The sampling shall be done under the supervision of the Magistrate as discussed in Paras 15 to 19 of this order..."

(emphasis added)

32. In the opinion of this court, the procedure adopted by the respondent in the present case for drawing samples neither conforms to the procedure prescribed under Section 52A of NDPS Act nor under the Standing Orders. At the cost of repetition, the respondent neither filed any application before the Magistrate for drawing the samples under his supervision nor followed the procedure of drawing a representative sample outlined in paras 2.4 or 2.5 read with 2.8 of the Standing Order 1/89.

33. Resultantly, this court is of the view that the samples sent to the CRCL were not the representative samples. Besides, by mixing the contents of all the 4 packets before drawing any sample not only the sanctity of the case property in the individual packet was lost but also the evidence as to how much each individual packet weighed. In reaching the aforesaid conclusion, I also draw support from the decisions in Shajahan v.

Inspector of Excise (DB) reported as 2019 SCC OnLine Ker 3685 Kulwinder Kumar v. State of Punjab, reported as 2018 SCC OnLine P&H 1754 and Santosh Kumar v. The State of Bihar passed in Criminal Appeal (SJ) No. 158/2016 decided on 30.08.2019.

41. In view of the mandate of the above judgment and the standing orders, the sample from parcel are not taken in accordance to law, therefore, accused is entitled to be given benefit of same.

Mobile phones seized from the accused persons:

42. Vide personal search memo Ex. PW­14/C, one Micromax mobile of dual SIM, one Nokia mobile was seized from accused Tsering. From the personal Case No. SC/8939/2016 State Vs. Tsering Choezom & Ors. Dated: 31.08.2022 Page No. 38 of 44 search memo of accused Isika Collins (PW10/C) and Omnoys Favor (PW15/C), one mobile each of Nokia was also seized. The seizure of mobile phone of accused Tsering is also shown in seizure memo Ex. PW­14/D make Nokia Black dual SIM. The mobile of Tsering searched in the personal memo is different and the mobile seized in the seizure memo Ex. PW­14/D. Therefore, as per the case of the prosecution, there are three mobiles seized from accused Tsering, one mobile each from accused Ommeys Favor and Isika Collins, however, the call records of the mobile numbers of accused persons were not collected during the investigation to show that all are in contact with each other or present together at the place of apprehension or showing or corroborating the fact that they are residing at Mahavir Nagar. This is the elementary evidence is required to be collected to corroborate the fact that all the accused knew each other and apprehended together in the manner relied upon by the prosecution. This omission on the part of the investigating officer creates the doubt over the case of the prosecution whether in­fact accused persons were apprehended together and recovery of contraband from them.

43. The prosecution has placed on record CDRs of mobile no.8375873280 and 8375872534 allegedly to be recovered from the accused Tsering, however, neither in the personal search memo or in the seizure memo of mobile, this fact is mentioned that the mobiles recovered bearing the above numbers. Both these mobiles were not in the name of the present accused Tsering @ Pooja Ray and were in the name of one Subhash and Mahadev, however, there is no investigation from Subhash and Mahadev regarding the present numbers. As per prosecution case, with these mobile numbers, the accused Tsering was in contact with PW7 Vashisht Kumar on his mobile number 9312124840 and 9312224840. However, the prosecution has not placed on record the CDR record of PW7 to show whether in fact he was in contact with Tsering and since when. The CDR of mobile no.8375872534 shows the contact with mobile number 9312224840 on 15.07.2013 (at around 11.46, 12.25, 18.54) and on 16.07.2013 (at around 11.29, 11.47, 11.49 and 11.50). This itself suggests that PW7 was not in contact with this number at 8 pm when he stated to have reached the Patel Chowk Metro Station on 12.07.2013.

Case No. SC/8939/2016 State Vs. Tsering Choezom & Ors. Dated: 31.08.2022 Page No. 39 of 44 The mobile connectivity also does not corroborate the prosecution case over the manner of handing over the parcel by PW7 to the police personnel patrolling in the said area.

44. Accused Tsering @ Pooja Ray also charged for offence under Sec.420/468/471 IPC on the basis of the fact that she used forged ID of Pooja Ray for booking the parcel. PW7 Vashisht stated that accused Tsering @ Pooja Ray booked the parcel on forged ID card and the said ID card was also seized during investigation vide seizure memo Ex. PW­ 25/D and this PW7 also handed over the receipts of the parcels (Mark 25/1 to 25/5). The receipts were sent to FSL for matching the handwriting, however, as per the handwriting expert report, Ex. PW­ 19/A, no conclusive opinion could be given over the handwriting. Therefore, the statement of PW7 Vashisht is not found corroborated. The testimony of PW7 over the handing over of the parcel to PW1 and apprehensions of the accused persons in the manner relied upon by the prosecution, as already discussed, are found incredible. There is recovery of photocopy of election I card of accused Tsering at the time of apprehension, but, the day of apprehension was whether 16.07.2013 or 18.07.2013 as already discussed is doubtful, so this recovery of forged election I card cannot be relied upon. Therefore, merely on the basis of testimony of PW7 without any corroboration, the accused Tsering @ Pooja Ray cannot be found guilty for offence Sec.420/468/471 IPC for using the forged ID card.

45. PW25 IO/SI Subhash stated that on 19.7.2013, all the accused persons produced before this Court and accused Tsering @ Pooja Ray was sent to JC and PC remand of accused Omnoys Favor was taken. On 20.7.2013 accused Ommeys Favor took them to rented house at Mahavir Nagar, where PW2 Shashi Yadav identified the accused and at his instance, photographs, weighing machine, 3 mobile phones, 5 data cards, one pen­drive, three laptops, 63 sims of Reliance, 14 sims of Aircel, 18 sims of Vodafone and 4 sims of Airtel were recovered. Election cards and pen­drive were also recovered. The hard­drive and DVD recovered were sent to FSL, however, the recoveries made from the rented premises at the instance of accused Omnoys Case No. SC/8939/2016 State Vs. Tsering Choezom & Ors. Dated: 31.08.2022 Page No. 40 of 44 Favor could not connect accused persons that they were dealing in drug trafficking activities. There are a number of sim cards recovered, however, there is no investigation as to how those sims cards came into their possession. No CDR details of the accused persons Omnoys Favor and Isika Collins were taken. No CDR of other sims were also taken during evidence. The CDR details of mobile phone of accused Tsering @ Pooja Ray which is found connected with PW7 is only of the date 15 and 16th July, 2013. There is no investigation to know the real syndicate through the said ample electronic record. There is no investigation, how and from where the accused collected the contraband.

46. The said recovery of the mobile phones, sim cards, laptops etc though show suspicion over the illegal activities of the accused persons, however, merely on the basis of suspicion, no inference regarding that the accused persons were involved in drug trafficking activities can be drawn as the recovery of contraband in this case from accused persons not found credible as already discussed.

47. PW16 Insp. Jarnail Singh reached the spot after the apprehension of accused, however, the said fact is neither corroborated through any DD entry nor he is found witness to any document at the spot. PW14 Palwinder Kaur also stated in cross­examination that no other police official came at the spot except the raiding team members, therefore, it appears that the manner of apprehension of the accused is manufactured which is also corroborated from the fact that the police did not find it necessary to place the CDR details and location of accused persons at the place of their apprehension on 18.07.2013. It is pertinent to mention again that PW7 in his examination­in­chief stated that accused persons were already apprehended on 16.07.2013.

48. As far as the factum of compliance of section 42 and 50 NDPS Act is concerned, when the proceedings of recovery of contraband and the manner of recovery and apprehension is doubtful then the documents for compliance of section 42 and 50 NDPS Act also become suspect. Apex Court in Noor Aga Vs. State of Case No. SC/8939/2016 State Vs. Tsering Choezom & Ors. Dated: 31.08.2022 Page No. 41 of 44 Punjab and Anr. 2008(16) SCC 417 in Paragraph 118 observed that that if origin of principle has not been followed and the discrepancies and contradiction have occurred in the statement of PW1 and PW2, the same would cast doubt on the credibility of prosecution case and their claim of upholding procedure established by law in effecting recovery. The Apex court in case titled Haneef Khan @ Anu Khan Vs. CBN Crl. Appeal No. 1206/2013 dated 20.08.2019 held in no uncertain terms that though the NDPS Act carries reverse burden of proof but it does not absolve the prosecution from establishing a prima facie case against the accused. Apex court in Noor Aga Vs. State of Punjab (supra) in paragraph 56 observed as under:

"56. The provisions of the Act and the punishment prescribed therein being indisputably stringent flowing from elements such as a heightened standard for bail, absence of any provision for remissions, specific provisions for grant of minimum sentence, enabling provisions granting power to the Court to impose fine of more than maximum punishment of Rs.2,00,000/­ as also the presumption of guilt emerging from possession of Narcotic Drugs and Psychotropic substances, the extent of burden to prove the foundational facts on the prosecution, i.e., `proof beyond all reasonable doubt' would be more onerous. A heightened scrutiny test would be necessary to be invoked. It is so because whereas, on the one hand, the court must strive towards giving effect to the parliamentary object and intent in the light of the international conventions, but, on the other, it is also necessary to uphold the individual human rights and dignity as provided for under the UN Declaration of Human Rights by insisting upon scrupulous compliance of the provisions of the Act for the purpose of upholding the democratic values. It is necessary for giving effect to the concept of `wider civilization'. The courts must always remind itself that it is a well settled principle of criminal jurisprudence that more serious the offence, the stricter is the degree of proof. A higher degree of assurance, thus, would be necessary to convict an accused.

49. It is settled principle of law that prosecution has to prove its case in the manner projected by the prosecution. The prosecution case entirely hinges upon the handing over the parcel concealing the contraband by PW7 to PW1 while on patrolling and of apprehension of accused persons along­with the Case No. SC/8939/2016 State Vs. Tsering Choezom & Ors. Dated: 31.08.2022 Page No. 42 of 44 contraband on 18.07.2013. However, as discussed, the prosecution is not able to prove the said fact credibly. Hence, no presumption under Sec.35 and Sec. 54 NDPS Act arose against the accused persons. The Apex Court in case titled, "Sanjeet Kumar Singh v. Munna Kumar Singh, State of Chhatisgarh, Crl. Appeal No.871/2021 dated 30.08.2022" held that, "It is true that Section 54 of the Act raises a presumption and the burden shifts on the accused to explain as to how he came into possession of the contraband. But to raise the presumption under Section 54 of the Act, it must first be established that a recovery was made from the accused. The moment a doubt is cast upon the most fundamental aspect, namely the search and seizure, the appellant, in our considered opinion will also be entitled to the same benefit as given by the Special Court to the co­accused."

50. On overall appreciation of evidence on record, the prosecution case over the factum of recovery of contraband and the apprehension of accused persons in the manner relied upon is not found credible, hence, the prosecution is not able to prove its case beyond reasonable doubt. Accordingly, both the accused Tsering Choezom @ Pooja Ray and Omnoys Favor stand acquitted of the charges framed against them by granting benefit of doubt. Both the accused persons are directed to furnish bond u/s 437A CrPC in the sum of Rs.50,000/­ each with one surety of like amount to the satisfaction of court. On apprehension of accused Isika Collins (PO), proceedings will be conducted in accordance to law.

51. Since the accused Omnoys Favor has been acquitted by this court, he is required to be deported back to his country. Let copy of the order be also sent to FRRO for making compliance in this respect.

52. The case property stands confiscated and to be disposed off as per the prescribed rules after the expiry of period of appeal/revision.

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53. File be sent back to concerned court at Patiala House Courts for consignment after completion of formalities.

Announced in the open court on this 31st day of August, 2022 (Ajay Kumar Jain) Dist. Judge (Commercial Courts­03) Shahdara, Karkardooma Courts, Delhi.

Erstwhile Special Judge (NDPS), Patiala House District Courts, New Delhi.

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