Delhi District Court
Ncb vs . Chen Ching Sung on 31 May, 2012
NCB Vs. Chen Ching Sung
IN THE COURT OF MS. ANU GROVER BALIGA: SPECIAL JUDGE
NDPS :PATIALA HOUSE COURTS:NEW DELHI
SC No. 8/09
ID No. 02403R0117232009
Narcotics Control Bureau
Through: Shri Jai Bhagwan,
Intelligence Officer,
Narcotics Control Bureau,New Delhi
Versus
Chen Ching Sung
Holder of Passport No. 216548737,
Republic of China,Taiwan.
Presently lodged in
Central Jail, Tihar,New Delhi.
Date of Institution : 08.04.2009
Judgment reserved on : 14.05.2012
Date of pronouncement : 31.05.2012
JUDGMENT
1. The Narcotics Control Bureau (herein after referred to as NCB) through its Intelligence officer (IO) Sh. Jai Bhagwan has filed the present complaint against the accused u/s 22 and 23 of the Narcotic Drugs and Psychotropic Substances Act (herein after referred to as NDPS Act).
SC 8/2009 Page No. 1 of 32 NCB Vs. Chen Ching Sung
2. Briefly stated the allegations against the accused as asserted in the complaint are as follows:
(a) On 11.10.2008 one Sh. R.R. Kumar received a secret information that a Taiwanese national named Chen Chin Sung having passport No. 21658737 was likely to board Malaysian Airlines flight No. MH191 for Kualampur in the night of 11.10.2008 with huge quantity of Methamphetamine.
(b)The aforementioned information was discussed with Zonal Director, NCB and Sh. R.R. Kumar then issued search warrant in favour of Sh. H.S. Gill, Intelligence Officer, NCB. In pursuance of the said warrant Sh. H.S. Gill along with Sh. Y.R. Yadav left for the IGI Airport on 10.10.2008 at 2130 hours and reached TerminalII at about 2200 hours on the same day.
(c)On reaching the airport, two public witnesses were requested to join the proceedings to which they agreed. Thereafter, Sh. H.S. Gill along with other members of the team reached the Immigration Counter and the accused was identified with the help of the Immigration Officials and he was then off loaded. His check in baggage bearing tag No. 0232440668 was retrieved with the help of SC 8/2009 Page No. 2 of 32 NCB Vs. Chen Ching Sung Sh. Manoj Gupta, Universal Aviation Pvt. Ltd., Which was incharge of ground duty on behalf of the Malaysian Airlines. The said baggage was a black coloured strolley bag and the same was received in intact condition and the baggage tag number was then tallied with the baggage tag pasted on the ticket being carried by the accused and the accused is also stated to have been identified the baggage as his own.
(d)The accused was thereafter, taken to the city side area of the airport in the CISF room. He was informed in writing that the officers have information of him carrying a huge amount of Methamphetamine and he was also informed that his luggage/person is to be searched. Notice under Section 50 of the NDPS Act was also served upon the accused and thereafter, the person and baggage of the accused was searched. During the said search, a Sony DVD player was found in the black coloured strolley bag and on close examination of the DVD player it was found to contain a white crystalline substance wrapped in transparent polythene. A small quantity of the said substance was taken out and tested with the help of field testing kit and it gave positive result for Methamphetamine. The weight of the recovered substance came out to be 1 Kg. Two samples of 5 grams each were drawn out of the said substance in polythene pouches and SC 8/2009 Page No. 3 of 32 NCB Vs. Chen Ching Sung further put in white paper envelopes were given Mark A1 and A2.
The remaining off white substance in polythene was wrapped and stitched with white cloth and given Mark A.
(e)It is also asserted in the complaint that on further close examination of the same black bag, it was also found to contain a white crystalline substance wrapped in a transparent polythene, concealed in the backside portion of the bag. A small quantity of the said white crystalling substance was also taken out and tested with the help of field testing kit and it also gave positive result of Methamphetamine. The weight of this recovered substance also came out to be one kg. Two samples of five grams each were also drawn out of the said white crystalline substance in polythene pouches and further put in white paper envelopes and were given mark B1 and B2.The remaining white crystalline substance in polythene was wrapped and stitched in white cloth and was give mark B.
(f)The other contents of the strolley bag namely, one laptop and some personal clothes of the accused were also searched but nothing incriminating was found therein. The accused was also found to be carrying two pieces of hand baggage i.e. two hand bags but on their SC 8/2009 Page No. 4 of 32 NCB Vs. Chen Ching Sung search also nothing was recovered. The said items were also sealed separately.
(g)The contraband substance along with other items were properly seized and sealed. The recovery memo was prepared on the spot and read over to the accused and the witnesses. The test memo was also prepared in triplicate.
(h)The IO Manoj Kumar then issued summons dated 12.10.2008 calling upon the accused to tender his statement under Section 67 of the NDPS Act but the accused being a foreigner is stated to have not understood the requirement of the summons and refused to tender his statement.
(i) In pursuance to the summons issued to the public witnesses under Section 67 of the NDPS Act one of the public witnesses appeared before the IO and voluntarily tendered his written statement.
(j) Since the accused appeared to have committed offence punishable under Section 22 and 23 of the NDPS Act he was arrested on 12.10.2008 at 15.10 hours and was thereafter got medically examined. SC 8/2009 Page No. 5 of 32 NCB Vs. Chen Ching Sung
(k) Reports, of arrest and seizure as required under Section 57 of the NDPS Act were submitted by the arresting officer Sh. Jai Bhagwan and Sh. H.S. Gill to Sh. R.R. Kumar, Superintendent and the intimation of the arrest of the accused was also conveyed to the Ministry of External Affairs.
(l)The case property along with samples and test memo was deposited with the Malkhana Incharge and on 13.10.2008 the samples along with test memos were sent to the C.R.C.L., New Delhi for testing. Vide report dated 19.1.2009 Sh. S.C. Mathur, Chemical Examiner opined that on analysing the samples gave positive test for Methamphetamine.
3. On the basis of the material on record vide order dated 26.5.2009 charges were framed against the accused for the offence punishable under Section 22(c) read with Section 23 and 28 of the NDPS Act. It is relevant to mention herein that since the accused was not conversant in Hindi or English, the learned predecessor of this court had directed the NCB to make necessary arrangements for an interpretor to be present on all dates so that the accused could understand the proceedings being conducted against him. Further, SC 8/2009 Page No. 6 of 32 NCB Vs. Chen Ching Sung counsel Sh. T.K. Mahapatra was also appointed as amicus curiae to represent the accused in this case. In pursuance of the said directions the entire trial proceedings have been conducted in the presence of an interpretor. The charge was also read over and explained to the accused by the interpretor and the accused pleaded not guilty to the same.
4. The prosecution in order to prove its case has examined 12 witnesses.
5. PW7 Sh. R.R. Kumar and PW11 Sh. Harcharan Singh, the Superintendent and Intelligence Officer of the NCB respectively both being members of the raiding team have deposed on similar lines. The secret information deposed to have been received by PW7 Sh. R.R. Kumar has been exhibited as Ex. PW7/A. The search authorisation warrant issued by PW7 in favour of PW11 has been exhibited as Ex. PW1/B. The relevant pages of the Seal Movement Register vide which the departmental seal is deposed to have been issued by PW7 in favour of PW11 has been exhibited as Ex. PW7/C. The legal notice under under Section 50 of the NDPS Act stated to have been issued to the accused by PW11 has been exhibited as Ex. PW9/B. The recovery memo with respect to the contraband recovered from the baggage of SC 8/2009 Page No. 7 of 32 NCB Vs. Chen Ching Sung the accused has been exhibited as Ex. PW9/B and is deposed to have been prepared by PW11. The travel documents of the accused have been exhibited as Ex. PW9/B2 to Ex. PW9/B11. The copy of the test memo has been exhibited as Ex. PW7/E. The case property and the samples were also duly produced before the court and were duly exhibited.
6. One of the public witnesses who is stated to have witnessed the entire recovery proceedings,Sh. Ravinder Singh has been examined as PW9. He has supported the version put forward by the Investigating Officer and has identified his signatures on the Section 50 notice, on the recovery memo and on the paper slips which had been affixed on the samples and the case property. He has also deposed that in pursuance of the summons Ex. PW9/C served upon him he had appeared in the office of the NCB and had tendered the statement Ex. PW9/D.
7. PW4 Inspector Manoj Kumar has merely deposed that the accused was produced before him to tender his voluntary statement under SC 8/2009 Page No. 8 of 32 NCB Vs. Chen Ching Sung Section 67 of the NDPS Act but that the accused refused to tender the statement as he was unable to understand either English or Hindi.
8. PW5 Sh. Jai Bhagwan has interalia deposed that he had arrested the accused vide arrest memo Ex. PW5/A and had submitted the arrest report Ex. PW5/C to the superintendent and that he has also filed the present complaint.
9. PW12 Dr. P.C. Khandoori has deposed that he was the Malkhana Incharge of the NCB, R.K. Puram during the relevant time and that on 12.10.2008, H.S. Gill had deposited with him the sample envelopes along with the test memo in triplicate and the case property. According to his deposition, on 13.10.2008 on the directions of Sh. R.R. Kumar, Superintendent he had handed over the sample packets along with its memo to Havaldar Shiv Rattan for sending the same to C.R.C.L.
10. PW2 Sh. Shiv Ratan, Havaldar has deposed that 13.8.2008 he had carried the sample packets to the C.R.C.L. on the instructions of Sh. R.R. Kumar, Superintendent, NCB. The forwarding letter vide which SC 8/2009 Page No. 9 of 32 NCB Vs. Chen Ching Sung the sample packets and the test memo were deposited in C.R.C.L. has been exhibited during the deposition of this witness as Ex. PW1/D and the acknowledgment issued in his name by C.R.C.L. has been exhibited as Ex. PW1/A.
11. PW1 Sh. Bhuvan Ram and PW8 Sh. S.C. Mathur, Chemical Examiners have proved the chemical analysis report with respect to the samples deposited with the C.R.C.L. and the same has been exhibited as Ex. PW1/B. As per their depositions, the samples in question were examined by PW1 Sh. Bhuvan Ram under the supervision of PW8 Sh. S.C. Mathur and had tested positive for methamphetamine.
12. PW3 Dr. Mukul Mangla has proved the MLC of the accused vide which he was medically examined at Safdarjung Hospital.
13. The entire incriminating evidence discussed herein above was put to the accused through the interpretor Prabhat Kumar( who is a student of M.Phil in Chinese, Jawahar Lal Nehru University and had explained the proceedings to the accused in Taiwanese language) and the statement of SC 8/2009 Page No. 10 of 32 NCB Vs. Chen Ching Sung the accused was recorded by this Court u/S 313 Cr. P. C on 19.11.11. In the said statement the accused has stated that he had come to India as a tourist and he used to earn his livelihood in Taiwan by driving private vehicles. According to him no drugs had been recovered from any baggage belonging to him and that he had told this fact to the interpretor who was provided to him in the Court and the said interpretor had given statement mark A in this Court. He has also interalia stated that he had not been carrying any checkin baggage and no baggage had given by him to the concerned airline for checking.
14. No defence evidence has been led by accused and after the statement of the accused was recorded u/S 313 Cr.P.C, final arguments were advanced by Ld. SPP for NCB and Ld. Amicus Curie Sh. Mahapatra. Both Ld. Counsel Sh. Mahapatra and Ld. SPP have also filed written submissions on record.
15. Though according to Ld. SPP the deposition of 12 Prosecution witnesses and the documents placed on record amply prove the guilt of the accused, Ld. Defence Counsel has submitted that the non compliance of Section 50 of the NDPS in the present case has vitiated the entire recovery allegedly made from the accused. He has pointed out that the SC 8/2009 Page No. 11 of 32 NCB Vs. Chen Ching Sung accused was not conversant with either Hindi or English and despite knowing this fact the IO did not find it necessary to arrange for an interpretor before starting proceedings and this lapse on behalf of IO has vitiated the entire proceedings conducted against the accused. He has also submitted that Prosecution has failed to prove that contraband was recovered from the baggage belonging to the accused. He has also pointed out that the statements made by PW7 R.R. Kumar in his cross examination show that the secret information was never received and the documents Ex. PW7/A is a manipulated document. He has pointed out that the time of receiving the secret information is not mentioned on Ex PW7/A and that even if the testimony of PW7 that it was received at 7.00 p.m is believed , it is not understandable as to why the NCB officials reached the Airport only at 10.00 p.m and were so certain that they will be able to apprehend the accused before he boards his flight when admittedly no effort was made by PW7 or PW11 to enquire about the time of departure of Malaysian Airlines .He has also pointed that the testimony of PW9 does not support the case of the Prosecution in as much as this witness has deposed that only 1 Kg of Methaphetamine was recovered from the accused though as per the Prosecution case 2 Kg of the said substance was recovered. He has also submitted that the said SC 8/2009 Page No. 12 of 32 NCB Vs. Chen Ching Sung public witness has categorically stated that the last document that was prepared by seizing officer at the spot was the panchnama and the proceedings continued at airport only till 12 PM and that this testimony is contrary to the testimony of the seizing officer according to whom the proceedings continued at airport till 4 AM the next morning. According to Ld. Defence Counsel non signing of test memo by accused or public witness shows that it was never prepared at the spot and that this itself entitles the accused to be acquitted. He has also pointed out that the tampering of the samples allegedly sent to FSL cannot be ruled out in view of the contradiction in the deposition of PW2 HC Shiv Rattan and PW7 R.R. Kumar. He has pointed that though PW2 has deposed that it was on 13.08.08 that he had taken the samples for depositing the same CRCL, PW7 has deposed that the samples were sent to CRCL on 13.10.08. His contention is also that the samples allegedly drawn out at the spot were neither heat sealed not the test memo was kept in sealed envelope and the entire procedure of search and seizure was conducted contrary to the guidelines issued by NCB. In support of his contentions, Ld. Defence Counsel has relied on the following judgments:
(i) Union of India Vs. Shah Alam & Anr 2009 930 RCR (CRL)
158. SC 8/2009 Page No. 13 of 32
NCB Vs. Chen Ching Sung
(ii) Dilip & Anr Vs. State 2007 (1) JCC (Narcotic)5
(iii) Saifullah Vs. State 1993 (1) C.C. Case 497 (HC) and
(iv) Judgment dated 25.11.2011 by the Hon'ble Delhi High Court in CRL. L.P. No. 284/2011 in the case titled as Customs Vs. Mohammad Bagour.
16.In rebuttal Ms. Mala Sharma, Ld. Defence Counsel for NCB has contended that the secret information Ex. PW 7/A clearly mentioned the name, age and the passport number of the accused and further the baggage tag affixed on the checkin baggage tallied with the counterfoil available with the accused and these two facts cumulatively prove that the baggage from which the contraband was recovered was of the accused only. She has also submitted that the fact that the disembarkation and the customs declaration card of the accused was filled in English language shows that the accused was conversant with the English language and that he has taken a wrong plea before this Court that he is not conversant with the English language. (It is relevant to mention herein that this contention was not pressed later on once it was pointed out to the Ld. SPP that the prosecution has not produced any evidence to show that the said forms / cards were filled in by the accused). She has also contended SC 8/2009 Page No. 14 of 32 NCB Vs. Chen Ching Sung that there was no requirement for the compliance of Section 50 of the NDPS Act in the present case in as much as the contraband was recovered from the baggage belonging to the accused and not from his personal search. As regards the contradictions pointed out by the Ld. Defence Counsel in the deposition of prosecution witnesses, she has contended that the same are minor, insignificant and are not fatal to the case of the prosecution. She has also submitted that the prosecution has been able to establish its case beyond reasonable doubt and the mere fact that there are some minor contradiction or lacuna in its case does not entitle the accused to the benefit of doubt. In support of her contentions Ld. Defence Counsel has relied upon the following judgments:
(i) Khet Singh Vs. UOI (2002) 4 SCC 380. (ii) Sukhdev Yadav Vs. State of Bihar (2001) 8 SCC 86. (iii) Dalel Singh Vs. State of Haryana 2009 (4) JCC (Narcotics) 185. (iv) Kamaljeet Singh Vs. State of Punjab AIR 2004 Supreme Court 69. (v) Siddiqua Vs. NCB 2007 (1) JCC (Narcotics)22. (vi) Vijay Kumar Chaddha Vs. CBI 2011(3) JCC 1660. SC 8/2009 Page No. 15 of 32 NCB Vs. Chen Ching Sung
(vii) Iqbal Moosa Patel Vs. State of Gujarat Crl. Appeal No. 12311232 of 2009 (Supreme Court of India) and
(viii) Sucha Singh Vs. State of Punjab 2003 (3) JCC 1320.
17.After hearing both the Ld. Counsels and after going through the entire record, this Court is of the considered opinion that the accused cannot be held guilty in the present case for the testimony of the investigating officials has been found not to be sufficiently credible and trustworthy so as to declare the guilt of the accused on the basis of the same.
18.I am constrained to note that both the main investigating officers and members of the raiding team in the present case, PW7 R.R.Kumar and PW11 Harcharan Singh, have made on oath absolutely false and fabricated statements with respect to the service of notice issued u/s 50 of the NDPS Act upon the accused.(The asserted third member of the raiding team Sh.Y.R.Yadav has not been produced in the witness box at all.) Despite the testimony of the prosecution witness PW4 Inspector Manoj Kumar that the statement of the accused could not be recorded u/s 67 NDPS Act because he was neither able to understand English or Hindi or even gestures, both PW7 R.R.Kumar and PW11, IO Harcharan Singh in their examination in chief have deposed that SC 8/2009 Page No. 16 of 32 NCB Vs. Chen Ching Sung the accused had understood the contents of sec50 notice and the search authorisation warrants, both of which are written in English . PW11 has also deposed that the accused was informed that he has a legal right if he so desires that his personal search and search of the baggage could be conducted in the presence of a Gezetted officer or a Magistrate. According to statement made by R.R.Kumar, in his cross examination , the IO Harcharan Singh was able to communicate the language of the notice to the accused in sign language. When asked as to how the accused was made to understand the same, PW11 in his cross examination has deposed that though the accused was unable to write or understand any language, he (the IO) by using hand gestures explained to him the meaning of the words gazetted officer, a legal right, a magistrate to the accused and that after understanding the contents of the legal notice issued to him u/s 50, the accused shook his head and pointed towards his baggage and this gesture was understood by the IO to mean that the accused did not want to be produced before a judge and that the NCB officials could check his baggage. In my considered opinion this testimony of the IO that he was able to make the accused understand by gesturing that if he requires a magistrate or a gazetted officer to be present during his SC 8/2009 Page No. 17 of 32 NCB Vs. Chen Ching Sung search, the same can be arranged, is absolutely incorrect and false. How can one by mere gesturing (not by sign languages used by physically challenged person) make another understand the meaning of a gazetted officer or Magistrate is beyond comprehension. Yet this officer insisted that by seeing him put his hands together over his head ( this is how he had gestured in Court to explain the manner in which he had made the accused understand the meaning of Magistrate), the accused was able to understand that he was being asked to exercise his right of calling a Magistrate and that he shook his head to indicate his refusal. This Court during the deposition of this witness directed this witness to make the accused understand the meaning of one or two statements and each time the witness tried to do so, all that the accused did was that he shook his head. It was amply evident during court proceedings that accused was unable to comprehend the court proceedings till the same were translated to him in Taiwenese by the interpretor appointed by Court.
19. In such circumstances, to contend that the accused identified his luggage and gave his consent for its search by the NCB officers after fully understanding the notice served upon him u/s 50 NDPS, is SC 8/2009 Page No. 18 of 32 NCB Vs. Chen Ching Sung absolutely outlandish and it is being rightly argued on behalf of the accused that he did not have a clue whatsoever about the proceedings that took place at the airport . Though the Ld Counsel for NCB has contended that even if the accused was not made to understand the search and seizure proceedings since the prosecution has been able to prove that contraband was infact recovered from the checkin baggage of the accused and not from his person the non compliance of Section 50 does not vitiate the said recovery, the said contention of the ld Counsel is not acceptable for two reasons. Firstly because the contention made on behalf of the NCB amounts to a proposition that the criminal process of our country does not recognize the human right of a foreigner on our land to understand the search and seizure proceedings that are to be conducted against him and the reasons for his arrest ,as long as we are able to prove that he did contravene the law of our land and the said proposition is contrary to the law laid down by the Hon'ble Supreme Court of our country. The extent to which human rights are respected and protected within the context of the criminal proceedings is an important measure of a society's civilization and therefore the Apex Court of our Country has held in DK Basu v.State of W.B.AIR 1997 SC 610 that personal liberty is a SC 8/2009 Page No. 19 of 32 NCB Vs. Chen Ching Sung basic human right that is seriously curtailed by arrest and therefore whatever be the nature of the offence involved, informing the grounds of arrest to the arrestee is important to the protection of personal liberty of individuals and is guaranteed to them under Article 21 of our Constitution. In Louis De Raedt Vs. Union of India and Others (1991) 3 Supreme Court Cases 554, the Hon'ble Supreme Court further clarified that this right is also guaranteed to foreigners. In view of the aforementioned judicial dicta, it is to be held in the facts of the present case that a valuable right of the accused has been infringed without any reasonable basis in as much as it is clear that he was not even informed about the grounds of his arrest. Even in this respect, the arrest memo Ex.PW5/A wrongly records that the arrest grounds were explained to the accused. Nothing prevented the NCB Superintendent who allegedly was himself present at the Airport to have made efforts to join a person who understood the language of the accused in the proceedings, to lend credibility to the proceedings. The Malaysian Airlines which the accused was to board or for that matter some other Airlines at the airport would have had some officials conversant with the language of the accused. Though, R.R. Kumar has deposed in his crossexamination that he did try to arrange for an SC 8/2009 Page No. 20 of 32 NCB Vs. Chen Ching Sung interpreter, he admits that he did not make any efforts whatsoever to contact the Malaysian Airlines in this regard. His statement that he had tried to arrange for an interpreter has also been proved to be incorrect by PW 11 Harcharan Singh, who in his crossexamination has categorically deposed that the Superintendent R.R. Kumar had not given him any directions to call for an interpreter.
20. Secondly the issue, in my considered opinion in the present case is not whether compliance of Section 50 Notice NDPS was required or not that question already stands answered by the recent catena of judgments delivered by Supreme Court wherein it has been held that the said compliance is only necessary for the personal search of a suspect, but the issue in the present case is about the credibility of the investigating officials who claim that such a notice was served. In the case reported as Union of India vs. Shah Alam & Another 2009(1) Drug Cases (Narcotics) 390, the facts before the Hon'ble Supreme Court were that the two accused persons were subjected to body search in course of which packets of heroin were found in the shoulder bag carried by them and in such facts also Hon'ble Supreme Court had held that the provisions of Section 50 should have been SC 8/2009 Page No. 21 of 32 NCB Vs. Chen Ching Sung complied with and if the same had not been done, it would have a bearing on the credibility of the evidence of the official witnesses. In Mohammad Bagour case (Suprajudgment relied upon by the Ld. Defence Counsel) the Hon'ble Delhi High Court has also upheld the judgment of the Ld. Special Judge NDPS vide which in similar facts like the present case, Ld. Special Judge NDPS had acquitted an Afganistan National of the charges of possessing contraband inter alia on the ground that the prosecution had failed to prove that the contents of Section 50 of NDPS Act were explained in a language known to the accused. The facts in the said case were that an interpreter had been arranged by the Customs Authorities and in his presence notice U/s 50 NDPS Act was served upon the accused and thereafter his person and baggage search was conducted.However since the prosecuting agency failed to produce the said interpreter during trial,the Ld. Special Judge NDPS held that it cannot be proved that the accused was explained the contents of the notice U/s 50 NDPS Act and therefore, acquitted the accused. Before the Hon'ble High Court of Delhi a plea was taken on behalf of the Customs Authorities that since the contraband was recovered from the baggage of the accused, there was no requirement for the compliance of SC 8/2009 Page No. 22 of 32 NCB Vs. Chen Ching Sung Section 50 of the NDPS Act but the Hon'ble High Court of Delhi negated the said contention by placing reliance upon the judgment of Hon'ble Supreme Court in Shah Alam's case (Supra). The Hon'ble High Court of Delhi in para 23 of its judgment held that since it was not known to the Customs Authorities whether the contraband would be recovered from the person of the accused or from his baggage, it was incumbent upon them to have complied with the provisions of Section 50 of the NDPS Act and if they have failed to do so, the recovery of the contraband in the manner as alleged by the prosecution becomes highly suspect. In the present case also the Panchnama Ex. PW 9/B prepared by the IO Harcharan Singh records that the person and the baggage of the accused were searched after informing him that if he so desires his personal search could be made before a Gazetted Officer. Firstly, this narration in the Panchnama itself shows that the IO has deposed falsely before this Court that the accused was informed that he has a legal right to be searched before a Magistrate or a Gazetted Officer in as much as, as per the Panchnama the accused was only given an option of getting himself searched and that to only before a Gazetted Officer and not before a Magistrate. Secondly, as discussed herein above, the IO has also SC 8/2009 Page No. 23 of 32 NCB Vs. Chen Ching Sung deposed falsely that the accused understood what was allegedly informed to him by the said IO. Thus, the fact that the investigating officials in their deposition before this Court have falsely testified that the compliance of Section 50 NDPS Act was done in its true spirit by making the accused understand its contents makes them completely unreliable and untrustworthy as witnesses.
21. The question, therefore, necessarily to be considered is whether the guilt of the accused can be declared on the basis of the testimony of such unreliable and untrustworthy witnesses. The Apex Court in the case of Noor Aga Vs. State of Punjab and Anrs. 2008 (3) JCC (Narcotics) 135 has held that in cases arising out of the provisions of NDPS Act, the Legislature in its wisdom has provided a very stringent punishment. Therefore, the Courts have to be extremely cautious and careful in adjudicating the cases pertaining to NDPS Act. There has to be a perfect balance and fine tuning between the interest of society and protection of the statutory safeguards available to the accused. In State of Punjab Vs. Baldev Singh (1999) 3 SCC 977 it was held that "It must be borne in mind that severe the punishment, greater has to be taken care to see that the safeguards provided in a stature are scrupulously followed."
SC 8/2009 Page No. 24 of 32 NCB Vs. Chen Ching Sung
22.In the facts and circumstances of the present case discussed herein above, in my considered opinion, it cannot be held on the basis of the depositions of the IOs that all the statutory safeguards provided in the NDPS Act were scrupulously followed. The preparation of the test memo at the spot is very essential and necessary in the case of recovery of a contraband as has been observed by the Hon'ble Delhi High Court in Saifullah's case (Supra). In the present case when the test memo is not signed by Pw9, the technician at the airport in whose presence the search and seizure proceedings are asserted to have been conducted and this witness has further deposed that the IO has not prepared any separate document regarding samples, the mere testimony of IO Harcharan Singh that the test memo was prepared at the spot cannot be believed as the gospel truth. Further the deposition of Pw9 that all the proceedings were completed at the spot by 12midnight also belies the testimony of IO Harcharan Singh that the proceedings were completed only by 4am the next morning. Further this IO has also admitted that he did not mix the entire recovered substance and merely took out samples from the corner of the packets and neither did he seal the samples as per the guidelines issued by NCB in this regard. This testimony is itself sufficient to hold that representative samples were not drawn out. Similarly the testimony SC 8/2009 Page No. 25 of 32 NCB Vs. Chen Ching Sung of Superintendent R.R.Kumar also hardly inspires any confidence . Apart from the fact that the said Superintendent, as contended by the ld. Defence Counsel, has been unable to explain as to how the NCB officials without enquiring from the concerned Airlines about the departure of the flight in question, were so certain that they will be able to apprehend the accused before he boards his flight has also been unable to depose whether the search and seizure proceedings were conducted as per the guidelines laid by the NCB. He does not remember how the samples were drawn. Neither does he recollect whether the samples were hot sealed or not. He does not recollect how many seal impression were put on the test memo and whether the test memo was sealed in an envelope or not. No doubt investigating officers are not expected to have a photographic memory of all the proceedings but so often it is observed that though in their examination in chief, the said officers are able to recollect and depose facts of the investigation done, in a parrot like manner, in their cross examination they seem to suffer from selective amnesia.
23. Much emphasis has then been laid by the Ld. Counsel for the NCB on the fact that the baggage tag no. on the checkin baggage retrieved by Manoj Gupta, the ground duty official, was tallied with the baggage tag SC 8/2009 Page No. 26 of 32 NCB Vs. Chen Ching Sung pasted on the boarding pass that the accused was holding and that this itself sufficiently proves that the baggage from which the contraband was recovered belonged to the accused and that therefore the irregularities in the search and seizure proceedings do not entitle the accused to be acquitted. First of all, with respect to this contention it is to be held that in view of the judicial dicta discussed herein above, the prosecution cannot be absolved of proving that the search and seizure proceedings were conducted in a legal manner. Secondly, it is to be noted that the prosecution has failed to produce in the witness box, Manoj Gupta, the ground duty official, who as per the case of the prosecution had retrieved the checkin baggage of the accused on the directions of the NCB officials. In such circumstances, we are left only with the testimony of the IO and R.R. Kumar. Now, as per the testimony of the IO PW 11 Harcharan Singh after the baggage was retrieved from the Malaysian Airlines with the help of Manoj Gupta, the baggage tag on the checkin baggage was tallied with the counterfoil affixed on the ticket of the accused. Even in the Panchnama Ex. PW 9/B it is recorded by the said IO that the baggage tag no. on the checkin baggage retrieved by Manoj Gupta, was tallied with the baggage tag pasted on the ticket of the accused. Contrary to this deposition and the panchnama, PW 7 Sh. R.R. SC 8/2009 Page No. 27 of 32 NCB Vs. Chen Ching Sung Kumar has deposed that the tag no. on the checkin baggage was tallied with the baggage tag no. that was affixed on the boarding pass held by the accused. Though, Ld. Counsel for NCB Ms. Mala Sharma has contended that this contradiction is a minor one and that normally the baggage tag is affixed on the boarding pass issued to a passenger and that inadvertently PW 11 Harcharan Singh has mentioned that the baggage tag was affixed on the ticket issued to the accused, in my considered opinion the said contradiction cannot be brushed aside lightly when apart from the said depositions there is nothing else on record to show that the checkin baggage of the accused was retrieved by the NCB officials with the help of the ground duty staff. Both Harcharan Singh and R.R. Kumar have admitted that no written request was made to the Malaysian Airlines to retrieve the checkin baggage of the accused and the person who allegedly retrieved the said baggage on the oral instructions of the NCB officials has not been produced in the witness box. It is also to be borne in mind that neither R.R. Kumar nor Harcharan Singh were able to depose whether the said checkin baggage was locked or not. It is also an admitted fact that the baggage when produced in the Court was not having the baggage tag affixed on it and there is also no deposition whatsoever to the effect that the baggage tag found on the said baggage SC 8/2009 Page No. 28 of 32 NCB Vs. Chen Ching Sung was removed by the IO or any other NCB official. In the entire panchnama also there is not a whisper that during proceedings the baggage tag was removed. On the other hand PW 9 Ravinder Singh, the technician at the Airport in whose presence the search and seizure proceedings were allegedly conducted has deposed that the trolley bag when produced was unlocked. Therefore, there is nothing before this Court, which satisfactorily proves that the baggage, if any, checkedin by the accused with the Malaysian Airlines was the same from which the contraband was recovered and that the checkin baggage being unlocked was not tampered with once it was checked in by the accused. The proper procedure in such a case would have been that the official from the Malaysian Airlines who had booked the checkin baggage of the accused should have been joined in the investigation and it is he who could have explained in Court that baggage once checkedin was not tampered with any of their officialsthe mere contention of the Ld. Counsel for NCB in this regard that there is no possibility that the checkin baggage could have been tampered with even if it was unlocked, is not sufficient to hold that it was the accused who was carrying contraband in his baggage. In the case of Sharad Birdhichand Sarda Vs. State of Maharashtra (1984) 4 SCC 116 it has been held by the Hon'ble Supreme Court : "We SC 8/2009 Page No. 29 of 32 NCB Vs. Chen Ching Sung can fully understand that though the case superficially viewed bears an ugly look so as to prima facie shock the conscience of any Court yet suspicion, however great it may be, cannot take the place of legal proof. A moral conviction however strong or genuine cannot amount to a legal conviction supportable in law.It may be recalled that the well established rule of criminal justice is that "fouler the crime higher the proof". A very careful, cautious and meticulous approach is necessary to be made."
24.Now, in the present case apart from the lacunas in the case of the prosecution discussed hereinabove, another glaring discrepancy that has come to the fore during trial is with respect to the date on which the samples of the contraband were allegedly sent to CRCL for analysis. It is matter of record that PW 2 Shiv Rattan Hawaldar NCB has deposed that he had on the directions of the Superintendent, NCB, Sh. R.R. Kumar taken the sample packets for depositing the same in CRCL on 13.08.2008, alongwith the forwarding letter Ex. PW 1/D. This deposition is totally contrary to the entire prosecution case as per which the samples in question were sent to CRCL on 13.10.2008. Ld. Counsel for NCB Ms. Mala Sharma has contended that since as per all the documents proved on record the accused was arrested on 11.10.2008 and only thereafter on 13.10.2008 were the samples sent to the CRCL, the deposition of PW 2 is SC 8/2009 Page No. 30 of 32 NCB Vs. Chen Ching Sung a mere inadvertent error and the same must not be given much importance by this Court. I would have agreed with the said contention of the Ld. Counsel had there not been cuttings made in the Malkhana Register produced by the Malkhana Incharge PW 12 P.C. Khandoori and the failure of the said witness to explain the same. As per the deposition of PW 12 on 13.10.2008, the directions of R.R. Kumar, Superintendent he had handed over sample envelopes A1 and B1 to Hawaldar Shiv Rattan. The entry regarding the same has been proved by this witness to be at point A to A on Ex. PW 12/A, the copy of relevant page of the Malkhana Register. Now the said entry is neither signed by R.R.Kumar nor by Shiv Ratan and it also reflects that the date thereof has been changed from 13.08.2008 to 13.10.2008 and despite being cross examined in this regard by the Ld. Defence Counsel, the witness did not explain the same as a mere error. The forwarding letter Ex. PW 1/D sent alongwith the sample packets and written by R.R. Kumar to Chemical Examiner CRCL, Pusa Road also mentions date thereof as 13.08.2008. Now, if the date in the forwarding letter, in the deposition of PW 2, in the Malkhana Register were all inadvertent errors then some witness of the prosecution should have deposed in this regard especially when the fact was brought to the notice of PW 12 in his crossexamination. There was SC 8/2009 Page No. 31 of 32 NCB Vs. Chen Ching Sung nothing that prevented the NCB from recalling PW 2 to explain the said discrepancy, if it was a mere error and not a lacuna in the case of the prosecution. Once the prosecution has not chosen to clarify during evidence the said error, if any, it cannot be heard now to contend that this Court must on its own draw an inference that in all the aforementioned documents and the deposition of PW 2 an inadvertent error has crept in. In my considered opinion, it is rightly being contended by the Ld. Defence Counsel that the said discrepancy in fact shows it cannot be ruled out that what was allegedly recovered from the accused was never sent for analysis and that benefit of doubt in such circumstances must be given to the accused.
25.In the facts and circumstances discussed herein above, I am of the considered opinion that the prosecution has not been able to prove its case against the accused beyond reasonable doubt and therefore, the accused is entitled to be acquitted of the charges framed against him. Accused be therefore released from judicial custody if not required in any other case.
Announced in the open court (Anu Grover Baliga)
on 31st May,2012. Spl. Judge, NDPS/New Delhi
SC 8/2009 Page No. 32 of 32
NCB Vs. Chen Ching Sung
SC 8/2009 Page No. 33 of 32