Delhi High Court
Rita Karoline Kummel vs Customs And Another on 7 October, 1999
Equivalent citations: 1999VIAD(DELHI)255, 2000CRILJ800, 82(1999)DLT245, 1999(51)DRJ440
Author: M.S.A. Siddiqui
Bench: M.S.A. Siddiqui
ORDER M.S.A. Siddiqui, J.
1. This appeal is directed against the judgment and order of sentence dated 14.5.1996 passed by the Additional Sessions Judge, Delhi in S.C. No. 234/95 convicting the appellant under Section 21, and Section 28 read with Section 23 of the Narcotic Drugs and Psychotropic Substances Act (for short 'the Act') and sentencing her to undergo rigourous imprisonment for 15 years and to pay a fine of Rs. one lakh on each count or in default to suffer further rigorous imprisonment for one year.
2. The appellant, a German national, was intercepted at the Indira Gandhi National Airport, New Delhi by Mr. Dineshwar Singh, Assistant Custom Officer while she was leaving for Madrid on the night intervening 11 & 12 November, 1994. The search of her personal luggage resulted in recovery of 8 kgs. of hereoin. On 7.2.1995, Mrs. Geeta Srivastava, Customs Officer (Prevention) IGI Airport, New Delhi filed a complaint under Sections 21/23/28 of the Act against the appellant. The appellant was charged for offence punishable under Sections 21/23/28 of the Act for being in unlawful possession of 8 kgs. of heroin which she attempted to unsuccessfully export out of the country.
3. The appellant abjured her guilt and alleged that a false case has been foisted on her. The appellant in her statement under Section 313 Cr.P.C. has stated that she was coerced to write a statement dictated by customs officers. She has not examined any witness in support of her defense. The trial court for the reasons mentioned in its judgment convicted the appellant under Sections 21/28/23 of the Act.
4. The conviction of the appellant has been challenged inter alia on the grounds, firstly, that in the absence of any independent witness, conviction of the appellant which rested on the testimony of the official witnesses alone was not sustainable. Secondly, there is no link evidence in establish that the substance allegedly recovered from the appellant was heroin. In other words, the necessary link between the contraband allegedly seized in the case and the report of the Chemical Analyser was missing.
5. Mrs. Geeta Srivastava (P.W.1) testified that on the night intervening 11th and 12th November, 1994, she was on duty at the IGI Airport Departure Hall as Assistant Customs Officer (Preventive). The appellant was travelling on 12.11.1994 by flight No. SR 195 to Mardrid via Zurich from IGI Airport. According to Mrs. Geeta Srivastava (P.W.1), on the night in question, Mr. Dineshwar Singh, Assistant Customs Officer (Preventive) intercepted the appellant and asked her if she was carrying any contraband substance but she replied in negative saying that she had a small quantity of foreign currency. Mrs. Geeta Srivastava (P.W.1) further testified that after inquiring from the appellant whether she desired that her personal search be taken before the Gazetted Officer or before a Magistrate and after noting that the appellant declined it, her checked in luggage was searched in the presence of the panch witnesses, namely Ms. Richa Sharma (P.W. 2) and G. Haridass Nair, whereupon 8 kgs. of brown powder (in various multiple packing) marked in series A to H, was recovered from her suit case vide seizure memo (Ex. P.W.1/C), that thereafter two representative samples of 5 grams from each of the eight packets were drawn and made into 16 sample packets. These two sets of 16 sample packets, comprising 8 sample packets each were thus dulicate of each other and, therefore, were marked serially from A to H in the case of one set of 8 sample packets and from A1 to H-1 in the case of other 8 sample packets. The 8 sample packets (series A to H) were sealed in the presence of the panch witnesses and the appellant vide seizure memo Ex. P.W.1/C. Mrs. Geeta Srivastava (P.W.1) further testified that she deposited all the 16 sample packets with seals, intact with Air Customs Superintendent Mr. Yasin while the remaining case property with seals intact was deposited with the Customs Godown keeper, on the same day.
6. Mrs. Geeta Srivastava (P.W.1) also testified that the appellant was arrested vide arrest memo (Ex. P.W. 1/D) and she made a confessional statement (Ex. P.W. 4/A) before Shri Tilak Raj (P.W. 4). Thereafter, she submitted a report under Section 57 of the Act (Ex.P.W.1/E) to her superior officer. For the reasons best known to the prosecution, Mr. Dineshwar Singh, who had intercepted the appellant, was not examined in the case. It can't be doubted that he could have enlightened the Court as to what actually led him to intercept the appellant. It was the bounden duty of the prosecution to examine Mr. Dineshwar Singh, particularly when no allegation was made that if produced, he would not speak the truth. However, the circumstance of his being withheld from the Court casts a serious reflection on the fairness of the trial.
7. Ms. Richa Sharma (P.W. 2), who was customs Service Agent, testified that on the night in question contraband was recovered from the appellant's suitcases; that two representative samples of 5 grams from each of the eight packets containing brown sugar seized from the appellant, were drawn and made into 16 sample packets and that they were sealed in her presence. The other panch witness namely G. Haridass Nair was not produced in the witness box. Learned counsel for the appellant contended that Ms. Richa Sharma (P.W. 2), being a customs agent, is an interested witness and further she had been tutored to give the much needed support to the testimony of Mrs. Geeta Srivastava (P.W. 1) and so no reliance could be placed on her evidence. He has invited my attention to para No. 1 of her cross examination in support of his contention, where she has unequivocally admitted that before her examination in the court, the counsel for the customs department had a discussion with her about the case and he had also shown her copies of certain documents filed in the case. In my opinion, the aforesaid admissions of Ms. Richa Sharma (P.W.2) rob efficacy of her statement regarding the alleged seizure fo the contraband from the appellant's possession.
8. It is significant to mention that the Narcotics Control Bureau, New Delhi has issued a comprehensive guide-lines for drawl, storage, testing and disposal of samples from seized Narcotic Drugs and Psychotropic Substances vide Standing Instructions No. 1188. Clause 1.1 of the said instructions is as under :
"It has been brought to the notice of this Bureau by the Chief Chemist, Central Revenues Control Laboratory that different investigating officers of various enforcement agencies adopt different Procedures in drawing samples from seized narcotic drugs and psychotropic substances, particularly with regard to the number of samples drawn, quantity of the sample, sealing, mode of packing, despatch of samples etc, to the concerned laboratory, for test. It has also been found that handling of samples at different stages and places may also become an issue of dispute during the trial, and hence a clear and uniform procedure is necessary to avoid any doubt or confusion at any level. With a view to bring uniformity of approach in such matters, and also to provide for a secure system of handling of drug samples it is decided to standardise the procedure with regard to drawing forwarding and testing of samples."
9. Thus, the whole objective of the said instructions issued by the Narcotics Control Bureau is to adopt a uniform procedure with regard to drawing, forwarding and testing of samples from seized Narcotic Drugs and Psychotropic substances. None of the instructions contained in the said circular is inconsistent with any provision of the Act. Learned counsel for the appellant contended that the aforesaid instructions are binding on the concerned department. Reliance is sought to be placed on a decision of the Apex Court in Paper Products Ltd. Vs. Commissioner of Central Excise . In that case, the Supreme Court had occasion to consider the effect of a circular issued under Section 37-B of the Central Excise Act and it was held that circular issued under Section 37-B of the Act are binding on the department and the department cannot be permitted to take a stand contrary to such instructions. In the case in hand, the aforesaid instructions have not been issued under any provision of the Act. That being so, the aforesaid instructions have no statutory sanction at their back and, any infraction thereof would not earn an acquittal in favour of the accused. Nonetheless, the aforesaid instructions have been issued to ensure observance of a fair and uniform procedure in respect of drawl storage, testing and disposal of samples from seized narcotic drugs and psychotropic substances and so they are binding on the concerned department. Therefore, it is clear that so far as the authorised officer under the Act is concerned, whatever procedure he has to adopt in respect of seizure or drawl, stroage, testing and disposal of samples from seized narcotic drugs and psychotropic substances, the same will have to be consistent with the relevant provision of the Act and the instructions mentioned above and any violation thereof would naturally detract immensely from the value to be given to his testimony regarding seizure of the contraband substance.
10. At this juncture, it is relevant to reproduce the instructions incorporated in Clauses 1.5, 1.6, 1.7, 1.10 of the standing instructions issued by the Narcotics Control Bureau :-
1.5 Place and time of drawl 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 a mention to this effect should invariably be made in the panchnama drawn on the spot.
1.6 Quantity of different drugs required in the sample:
The quantity to be drawn in each sample for Chemical test should be 5 grams in respect of all Narcotic Drugs and Psychotropic Substances except in the cases of Opium, Ganja and Charas/Hashish where a quantity of 24 grams in each case is required for Chemical test. The same quantities should be taken for the duplicate sample also. The seized drugs in the packages / containers should be well mixed to make it homogeneous and representative before the sample in duplicate is drawn.
1.7 Number of samples to be drawn in each seizure case:
(a) In the case of seizure of a 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/containers seized together are of identical size and weight, bearing identical markings and the contents of each package give identical results on colour test by U.N. kit, conclusively indicating that the packages are identical in all respect/the packages/container may be carefully bunched in lots of 10 packages/containers. In case of seizure of Ganja and Hashish, the packages/containers may be bunched in lots of 40 such packages/containers. For each such lot of packages/containers, one sample in duplicate may be drawn.
(c) Whereafter making such lots, in the case of Hashine and Ganja, less than 20 packages/containers remain, 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.
1.10 Packing and sealing of samples :
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 may be sealed properly. Such sealed envelope may be marked as original and duplicate. Both the envelopes should malso bear the S.No. of the package (s)/container (s) 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 alongwith test memos should be kept in another envelope which should also be sealed and marked 'secret-Drug sample/Test memo' to be sent into the concerned Chemical laboratory."
11. As noticed earlier, Mrs. Geeta Srivastava (P.W.1) testified that at the relevant time 8 packets containing the contraband were seized from the appellant's possession, out of which two representative samples of 5 grams each from the aforesaid packets were drawn; that all the 16 sample packets were sealed and were given markings 'A, A-1, B, B1 upto H and H1 corresponding to the markings given to the 8 packets as A to H. Surprising the seizure memo Ex. PW1/C mentions only one series namely A to H, it does not mention the markings A, A-1, B, B1 upto H and H1 given on the sample packets as stated by Mrs. Geeta Srivastava (P.W.1). No explanation, whatsoever, has been offered by the prosecution regarding the said omission in the seizure memo (Ex.PW.1/C). The learned Additional Sessions Judge fell in error in not properly appreciating the effect of the said omission while dealing with the evidence of Mrs. Geeta Srivastava (P.W.1).
12. Another circumstances on the facts of this case deserves notice is the non-production of the Air Customs Supdt. Mr. Yasin. Mrs. Geeta Srivastava (P.W.1) testified that on the same day she had deposited all the 16 sample packets with Air Customs Superintendent Mr. Yasin while the remaining case property was deposited with the Customs Godown Keeper. For the reasons best known to the prosecution, the Air Customs Superintendent Mr. Yasin was not produced in the witness box. It is not in dispute that under Section 53 of the Act customs officers has been invested with powers of an officer-incharge of a Police Station for the investigation of an offence punishable under the Act. Thus, it was the duty of Mrs. Geeta Srivastava (PW.1) to deposit the sample packets with the Customs Officer invested with the powers of the officer-in-charge of the Police Station as required by Section 55 of the Act. In this connection, it may be useful to extract Section 55 of the Act :
"55. Police to take charge of articles seized and delivered :-
An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police staiton and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station."
13. In the instant case, non-examination of the Air Customs Superintendent Mr. Yasin renders the testimony of Mrs. Geeta Srivastava (PW.1) doubtful on the said point. As noticed earlier, it is the evidence of Mrs. Geeta Srivastava (PW.1) that on the same day, she had deposited the sample packets with the Air Customs Superintendent Mr. Yasin. On the contrary, Inspector Customs, S.C. Khanna (PW.3) deposed that on 21.11.1994, he had taken 8 sample packets sealed with seal No. 7 of the I.G.I. Airport Customs from Mrs. Geeta Srivastava (PW.1) and deposited them with the C.R.C.L, Pusa Road. Thus, the evidence of S.C. Khanna (PW.2) clearly contradicts the aforesaid statement of Mrs. Geeta Srivastava (PW.1). Had the sample packets been deposited with Mr. Yasin as asseted by Mrs. Geeta Srivastava (P.W.1), then there was no occasion for S.C. Khanna (P.W.3) to collect them from Mrs. Geeta Srivastava (P.W.1). In the light of evidence of S.C. Khanna (P.W.3), it is difficult to accep the evidence of Mrs. Geeta Srivastava (P.W.1) that on 12.11.1994 the sealed packets containing the contraband were deposited with Mr. Yasin. That apart, it needs to be highlighted that S.C. Khanna (PW3) has unequivocally admitted in his cross-examination that in all the test memos (Ex. PW3/C-1 to Ex.P.W.3/C-8) and the forwarding letter (Ex. P.W.3/A), the date of despatch of the sample packets is mentioned as 14.11.1994. However, in view of the positive statement of S.C. Khanna (PW3) it cannot be held that the sample packets were sent for Chemical examination on 14.11.1994 as mentioned in the aforesaid memo (Ex.P.W.3/A). It is significant to mention that the endorsement (Ex.P.W.3/D) on the despatch memo (Ex.P.W.3/A) clearly shows that sample packets were received in the laboratory of the Chemical examiner on 21.11.1994. In this view of the matter, it was incumbent upon the prosecution to examine those witnesses who handled the contraband articles after their seizure till their production before the Court.
14. Thus, there is no acceptable evidence showing as to who had handled the sample packets from 12.11.1994 till their despatch to the Chemical Analyser on 21.11.1994. In the case of The State of Rajasthan Vs. Daulat Ram , their lordships of the Supreme Court observed on the facts of the case that it was the admitted case of the prosecution that the sample changed several hands before reaching the Public Analyst. The inevitable effect of the omission to examine any of the witnesses who handled the sample was that the prosecution failed to rule out the possibility of the sample being changed or tampered with during that period, a fact which had to be proved affirmatively by the prosecution. Thus, the necessary link between the contraband seized and the report of the Chemical Examiner (Ex.P.X) was missing. The prosecution has left this gulf unabridged leaving many things in the womb of mystery and we do not find it possible to salvage the prosecution case out of the gulf.
15. Another staggering circumstances against the prosecution is that contraband was seized on 12.11.1994 and the complaint was filed on 7.2.1995. The property was produced in the Court only on 7.2.1995 and there is no evidence whatsoever at all to show with whom the seized contraband was lying and even assuming that it was in the custody of the Air Customs Superintendent Mr. Yasin, there is again nothing to show whether it was sealed and kept there. In this context, reference may also be made to sub-section (3) (b) of Section 52 and Section 57 of the Act. Sub-section (3) (b) of Section 52 mandates that the seized articles shall be forwarded without unnecessary delay to the officer empowered under Section 53 of the Act. Section 55 of the Act contemplates that the officer-in-charge of the Police Station shall take charge of and keep in safe custody, pending orders of the Magistrate, all articles seized under the Act and which may be delivered to him. In the case of Utpal Mishra Air Customs Officer IGI Airport Vs. Nicelai Christensen 1997 11 AD (Cr.) Delhi 537, a Division Bench of this Court has held that under Section 53 of the Act any department mentioned therein, customs being one of them, can be invested with the powers of an officer-in-charge of a Police Station for the investigation of an offence. The samples could thus be legally kept in the malkhana of the customs department and there is no requirement that the same should be sent to the Police station. As noticed earlier, none of the officers of the Customs department even in a serious case of this nature has come forward to state that after seizure of the contraband, the same was delivered to them by Mrs. Geeta Srivastava (P.W.1) or what were the steps taken to preserve the sample packets intact in the same manner in which they were seized. Even Mrs. Geeta Srivastava (P.W.1) does not say that she continued to keep the contraband in her custody under seal till it was produced in the Court on 7.2.1995. In my opinion, in view of the discrepancies noted above, it is not possible to hold that immediately after the seizure steps were taken to seal the seized contraband articles and samples were taken in the manner required by the standing instructions issued by the Narcotics Control Bureau leaving no scope for suspecting that the safeguards required in the matter of sealing and preserving the contraband were followed. There is no guarantee that the seized articles were preserved in the same condition they were when they were seized till the stage of sending the samples for the Chemical analysis. There is absolutely no link between the seizure with all the safeguards against tampering of the articles and till the samples were sent for Chemical analysis. Needless to add that the provisions of the Act are so stringent that it cast a duty on the prosecution to rule out any possibility of tampering of the sample and false implication of the accused. It must be borne in mind that severer the punishment, greater care has to be taken to see all the safeguards provided in a statute are scrupulously followed. Thus, in the instant case, the minimum requirement with regard to the preservation of the seized contraband and sending of the samples to the Chemical analyser without any suspicion with regard to tampering or meddling with the articles has not be established. The learned Additional Sessions Judge did not take notice of the aforesaid infirmities in the case and unjustifiably accepted the prosecution evidence.
16. The prosecution has also relied upon the confessional statement (Ex. 4/A) of the appellant which contains all the admissions against her. It has to be borne in mind that it is the duty of the prosecution to prove in the first instance that there was conscious possession of the contraband articles and secondly the articles seized were in fact falling within the definition of one of the drugs which are prohibited under the Act. A confession no doubt can be used as corroborative material but in the face of the aforesaid infirmities in the prosecution case, in my opinion, implicit reliance cannot be placed to hold that the prosecuting case stands proved by the appellant's confession (Ex. P.W. 4/A) inspite of the basic infirmities referred to above going to the root of the case. No doubt, the trafficking in narcotic drugs is a menace to the society but in the absence of satisfactory proof, the court cannot convict an accused.
17. In view of the aforesaid infirmities in the prosecution case, the impugned order of conviction and sentence cannot be sustained in law. In the result, the appeal succeeds. The impugned order of conviction and sentence is set aside. The appellant is acquitted of the offences punishable under Sections 21/28/23 of the Act. Appellant is in custody, she be set at liberty forthwith unless required in some other cause. Fine, if paid, shall be refunded. The articles seized from the appellant's possession (except the contraband) shall be returned to her.