Delhi District Court
Dri vs Ms Lily Lam on 5 December, 2011
1
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH & SOUTH-EAST
SAKET COURTS COMPLEX, NEW DELHI
DRI Versus Ms Lily Lam
D/o Sh Chanda Lam
R/o East Police Colony
Dimapur, Nagaland.
Local Address :
C-109, 3rd Floor,
Flat No. 36,
Paryavaran Complex,
Neb Sarai, New Delhi.
SC No. : 24A/08
U/S : 21 NDPS Act.
Date of institution : 03.05.2008
Date of reserving judgment : 26.11.2011
Date of pronouncement of judgment : 05.12.2011
J U D G M E N T
The proceedings of this case have been initiated on a complaint filed by the Directorate of Revenue Intelligence (herein after referred to as DRI) through Sh D.P. Saxena, Intelligence Officer against the accused Ms Lily Lam for the offence punishable U/S 21 of the NDPS Act, 1985. In brief, the case of the DRI is that on 19.11.2007 a secret information was received by Sh Kamal Kumar, Intelligence Officer (IO), DRI Headquarters, New Delhi on phone that a lady of around 25 years of age, around 5 feet tall and of SC No. 24A/08 DRI Vs Lily Lam 2 North-East region would be carrying some narcotic drugs in a hand bag carried by her and would be travelling in a private taxi car bearing registration no. DL 1YA 7928 and would cross main bus stand, Swaran Park, Nangloi, near Hyundai Service at about 07.30 am on 20.11.2007. The above information was reduced into writing and was put up by Sh Kamal Kumar, IO before his senior officer and the complainant Sh D.P. Saxena, IO was directed to take the immediate suitable action for effecting the seizure.
2. It is alleged in the complaint that on 20.11.2007 the complainant alongwith some other officers of DRI, including a lady officer, had reached the above said spot well in advance and had kept a watch to locate the above taxi. At about 07.40 am the officers had noticed the above said vehicle coming from Rohtak Delhi Road and on being signaled the driver of the said vehicle had stopped the same and one lady was also found sitting on the backseat of the car and her description was found matching with the details provided in the above said information. A black colour bag and a plastic polythene carry bag were also found kept on the seat beside the lady.
3. It is alleged in the complaint that the officers of the DRI had introduced themselves to the occupant and the driver of the above car by showing their identity cards and the above lady sitting on the backseat of the car had introduced herself as Ms Lily Lam, a resident of Dimapur, Nagaland and presently residing at C-109, 3rd Floor, Flat SC No. 24A/08 DRI Vs Lily Lam 3 No. 36, Paryavaran Complex, Neb Sarai, New Delhi while the driver of the above taxi had introduced himself as Vinod Kumar, a resident of Vasant Vihar, New Delhi and an employee of Palestine Embassy as a driver. The above Sh Vinod Kumar had also disclosed that he was the owner of the above taxi car and used to ply the same on hire during free time and on holidays. He had also disclosed that the accused Lily Lam had hired his taxi from Neb Sarai and had directed him to take the taxi towards the main bus stand, Swaran Park, Nangloi and had got it stopped on the main road after going one kilometre beyond the said bus stand. He had also informed that after waiting there for about five minutes, a silver green colour car had come there and had stopped at about 100 metres after crossing their taxi and then the accused Lily Lam had informed him that she had to collect some of her personal things from her uncle and had left the vehicle after directing him to wait and then she had brought the above black coloured bag and the polythene carry bag from the above other car and sat on the back seat of his car and had directed him to move his vehicle towards Delhi.
4. It is also alleged in the complainant that the DRI officers had then apprised the accused Lily Lam about the above secret information regarding her being carrying some narcotic drugs with her or in her baggage to which she had replied in negative. She was also told that the search of her person and bag was required to be conducted in connection with the same and at that stage the accused had requested the DRI officers to take her to their office as SC No. 24A/08 DRI Vs Lily Lam 4 the place of interception of the above taxi was a public place and it was not safe and the DRI officers had acceded to the above request of the accused and the accused as well as the above taxi car, alongwith its driver and luggage, were brought to the DRI office at IP Estate, New Delhi.
5. It is also alleged in the complaint that then two witnesses were called there by the complainant and they were informed about the above secret information and the interception of the accused and they both had agreed to the request of the DRI officers to witness the search proceedings. The witnesses were introduced to both the occupants of the above car in the parking area of the DRI office and in the presence of the witnesses the accused was again asked if she was carrying any narcotic drugs on her person or in her baggage and she had again replied in negative. Before conducting the search the accused was given a notice U/S 50 of the NDPS Act, explaining to her that she had a legal right to get her above baggage and person searched before a Magistrate or a Gazetted Officer, but she had given her option in writing that the search of her person can be conducted by any lady officer of the DRI and the search of her baggage can be conducted by any officer of the DRI. Thereafter, the complainant had first conducted the search of the above taxi car, but except the above black coloured bag and the white colour plastic polythene bag nothing was recovered further. The accused, alongwith the witnesses and the driver of the above taxi car and the luggage, was then taken to the 7th floor office of SC No. 24A/08 DRI Vs Lily Lam 5 the DRI for detailed examination. Nothing incriminating was though recovered in the search of the ' p erson ' of the accused conducted through a lady officer but in search of the above black coloured bag, on which ' A didas Taiwan International' was printed, eight white cloth packets having some stamp markings were found and the above white coloured plastic polythene bag was also found to contain four similar white cloth packets having some stamp markings. The above twelve packets were given markings as X1 to X8, Y1, Y2, Z1 and W1, keeping in view the different rubber stamp markings appearing thereon, and on opening all the above twelve packets were found to contain some off white granular substance in heat sealed transparent polythene packets.
6. It is also alleged in the complaint that a small quantity of the off white granular substance from each of the above twelve packets was tested by the complainant with the help of a narcotic drug detection kit of Hindustan Antibiotics Ltd. and the same had given positive results for heroin. The gross weight of the above twelve packets was found to be 11.954 kg and the net weight of the contraband substance contained in the said packets to be 11.685 kg and the contraband substance of all the above twelve packets, with the original packing material, and the above black coloured bag and white colour plastic polythene carry bag were seized under the provisions of the NDPS Act.
7. The complainant had also drawn two representative SC No. 24A/08 DRI Vs Lily Lam 6 samples of 5 grams each out of the above twelve packets and the same were given corresponding markings as X1A to X8A, Y1A, Y2A, Z1A, W1A and X1B to X8B, Y1B, Y2B, Z1B and W1B and the above samples were kept in separate zip locked small polythene packets and the same were further kept in the yellow coloured paper envelops and corresponding numbers were put on these envelops. All the above sample packets were sealed with the seals of DRI No. 10, over a paper slip containing the dated signatures of the witnesses, accused, the above Vinod Kumar and the complainant. The remaining off white coloured granular substance of all the above twelve packets was also individually repacked in their original packings and those packets were further converted into cloth packets and the same were also given corresponding markings and were also sealed with the above seal of DRI No. 10, over a paper slip bearing the dated signatures of the witnesses, accused, the above Vinod Kumar and the complainant. The above twelve parcels were then further put in a steel trunk, alongwith the above black coloured bag and white coloured plastic polythene carry bag, and the above trunk was further wrapped and stitched with a white cloth and was sealed with the same seals, over a paper slip signed by the above signatories. The test memo in triplicate was also prepared by the complainant and the facsimile of the above seal affixed thereon and further a panchnama was also prepared regarding the above detailed proceedings and the same was read over to all of them and was also signed by the above signatories of the paper slips and a facsimile of the above seal was also affixed on the SC No. 24A/08 DRI Vs Lily Lam 7 panchnama.
8. It is further alleged in the complaint that in response to the summons served upon her, the accused had appeared before the complainant and had tendered her voluntary statement dated 20.11.2007 U/S 67 of the NDPS Act, in the presence of Ms Poonam Aggarwal, a Tax Assistant, and in the said statement she had admitted, inter-alia, her interception by the DRI officers from the above place and the recovery of the above twelve packets containing the off white coloured granular substance from the above two bags, besides some personal details of her. She had also stated that she was handed over the above two bags containing the above packets of the narcotic drugs by one person of Jammu, to whom she was introduced by a Manipur girl called Nancy and her Nigerian boyfriend named Kingslay, and she was to get 1500 US Dollars after handing over the above consignment to the above Kingslay and earlier also she had picked up a similar consignment from the above place in the same manner for a monetary consideration. However, she had also stated therein that the driver Vinod Kumar of the above taxi car was not aware of the above narcotic drugs being carried by her in the above vehicle. A similar statement under the above provisions about their interception and the above seizure was also tendered on the same day by the above Vinod Kumar before the complainant while denying his knowledge about the above contraband substance.
9. It is also a part of the complaint that since the SC No. 24A/08 DRI Vs Lily Lam 8 accused appeared to had committed an offence punishable U/S 21 of the NDPS Act, she was arrested by the complainant on 20.11.2007 itself and was got medically examined and was subsequently produced in the court and got remanded to JC. The intimation about her arrest was given to her father through a telegram. The sealed parcels of the samples as well as of the remaining case property were handed over by the complainant to Sh K.K.Sood, Assistant Director, DRI for safe custody on 20.11.2007 itself and on 21.11.2007 the twelve sealed sample packets were sent by Sh K.K.Sood to CRCL through Sh Jagdish Rai, alongwith a forwarding letter and the test memo in duplicate, for analysis and after deposit of the samples the acknowledgment receipt thereof was handed over back by Sh Jagdish Rai to Sh K.K.Sood. On 22.11.2007 the parcel of the case property was also handed over by Sh K.K.Sood to the complainant and the same was deposited by the complainant with Sh D.B.Sharma of the Valuable Godown, New Customs House. The tenanted residential premises of the accused were also got searched, but nothing incriminating was recovered in the said search. On 04.12.2007 the two public witnesses Sh Vishnu Dev and Sh Ashok Kumar had also tendered their voluntary statements U/S 67 of the NDPS Act before the complainant about the above seizure and prior to that on 21.11.2007 a report U/S 57 of the NDPS Act was also sent by the complainant to his immediate superior officer. Though the complainant had also tried to trace the address of the above Kingslay, but he could not be traced. In the CRCL report dated 10.01.2008 the above twelve samples were found to contain diacetylmorphine SC No. 24A/08 DRI Vs Lily Lam 9 ranging between 53% to 68.8% and ultimately a complaint for commission of the above said offence was filed in this court against the accused.
10. The complaint was filed in the court on 03.05.2008 and cognizance thereof was taken on the same day. A prima facie case for offence U/S 21(c) of the NDPS Act was made out against the accused as the above quantity of heroin found to be in her possession was a commercial quantity of the said substance and hence a charge for the above said offence was also framed against her on 03.09.2008.
11. It is also necessary to mention here while the evidence of the prosecution was in progress, one application dated 14.05.2010 was moved on behalf of the accused for drawing of fresh samples from the case property for re- testing and the said application was dismissed by this court on 03.07.2010. However, the accused had filed a criminal M.C. No. 2804/10 before the Hon' b le High Court and vide order dated 10.01.2011 of the Hon' b le High Court the above petition was allowed and fresh samples were directed to be drawn in this court out of the remaining case property for re-analysis by the CRCL. Accordingly, twelve fresh samples were taken out from the remaining case property in this court on 23.02.2011 and in the re-analysis report dated 23.03.2011 of the CRCL the same had been opined to contain diacetylmorphine ranging between 1.4% to 13.8% only.
12. Total 12 witnesses have been examined by the DRI on SC No. 24A/08 DRI Vs Lily Lam 10 record. The names of the above witnesses and the purpose of their examination is being stated herein below:-
(i) PW1 Sh Kamal Kumar, is an Intelligence Officer of DRI and he is the person who had received the above secret information and had reduced the same into writing as Ex.
PW1/A.
(ii) PW2 Sh Pankaj K Singh was posted as a Deputy Director in the DRI Office on the relevant day when the above secret information Ex. PW1/A was put up before him. He had called the complainant Sh D.P.Saxena, IO and after discussing the matter with his seniors, he had made his endorsement on Ex. PW1/A authorizing the complainant to take further necessary action in the matter.
(iii) PW3 Sh B.K.Banerjee was posted as Appraiser in the DRI at the relevant time and he had issued the above DRI seal No. 10 used in this case to the IO/complainant on 20.11.2007 and it was returned to him on the same day. A copy of the relevant entry no. 35 of the Seal Movement Register has been brought on record during his statement as Ex. PW3/A. On 21.11.2007 he had also received a report U/S 57 of the NDPS Act Ex. PW3/A from the IO/complainant regarding the above arrest and seizure and subsequently a report Ex. PW3/B regarding the verification of the address of the above Kingslay was also submitted to him by the IO.
SC No. 24A/08 DRI Vs Lily Lam
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(iv) PW4 Sh Dharambir Sharma was posted as Inspector,
Valuable Godown, Customs, New Delhi on 22.11.2007 when the above sealed parcel of the case property was deposited with him by the complainant/IO Sh D.P.Saxena vide endorsement on the Inventory/Deposit Memo Ex. PW4/A.
(v) PW5 Sh D.P.Saxena, Intelligence Officer is the In- charge of the raiding team and the main investigating officer of this case and he in his statement has deposed almost on the above lines of the prosecution story. He has proved on record various documents prepared or signed by him in connection with the investigation of this case and the depositions of this witness and the relevant documents will be discussed and appreciated subsequently, as per the extent of challenge made to them. He has also identified the accused as well as the remaining case property, the samples, the above bags and the packing material etc. during his statement made in this court.
(vi) PW6 Sh Bhim Sen, was working as a Lab Assistant in the CRCL on 21.11.2007 when on directions of Sh S.C.Mathur, Chemical Examiner he had received the above twelve sealed sample packets of this case, alongwith the forwarding letter and the test memo, vide acknowledgment receipt Ex. PW6/A given to Sh Jagdish Rai, who had brought the above sample packets. He has also stated that the seals affixed on the sample packets were intact and as per the test memo brought alongwith the samples. He has also stated that the samples SC No. 24A/08 DRI Vs Lily Lam 12 were diaried in the register of the CRCL vide no. 188 and were handed over to Sh S.C.Mathur.
(vii) PW7 Sh K.K.Sood was working as an Assistant Director in the DRI Office at the relevant time and on 20.11.2007 he had sent a telegram Ex. PW7/A to the father of the accused about her arrest in this case. On the same day he was also entrusted with the above sealed parcels of the case property and the samples by the complainant for safe custody and on 21.11.2007 he had sent the sample parcels, alongwith the test memos, to CRCL through Sh Jagdish Rai vide forwarding letter Ex. PW7/B and on 22.11.2007 he had also handed over back the sealed parcel of the remaining case property to the complainant for deposit in the Valuable Godown vide the above inventory/deposit memo Ex. PW4/A. Subsequently, he had also issued one search authorization Ex. PW7/C in favour of Sh R. Roy for search of the residential premises of the accused and the execution report Ex. PW7/D thereof was submitted to him in the due course of time.
(viii) PW8 Sh Jagdish Rai had taken the above twelve sealed sample packets from the office of the DRI to the CRCL, alongwith the forwarding letter Ex. PW7/B and the duplicate test memos, and after depositing the same there he had handed over back the acknowledgment receipt thereof Ex. PW6/A to Sh K.K. Sood.
SC No. 24A/08 DRI Vs Lily Lam
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(ix) PW9 Ms Poonam Agarwal is a female member of the
raiding team which had apprehended the accused and she has also broadly deposed on the lines of the depositions of the IO/PW5 and her depositions will also be discussed and appreciated subsequently.
(x) PW10 Sh R. Roy is another member of the raiding team, who had participated in the proceedings pertaining to the apprehension of the accused and seizure of the contraband substance etc. He had also subsequently carried out some search of the residential premises of the accused in Delhi, as has also been deposed by PW7, vide search authorization Ex. PW7/C and submitted his report Ex. PW7/D.
(xi) PW11 Sh V.P. Bahuguna is the Assistant Chemical Examiner of the CRCL who had examined the above twelve samples of this case under the supervision of Sh S.C. Mathur, Chemical Examiner on 08.01.2008. He had proved on record his test report regarding the above examination as Ex. PW11/A and also his analysis report in Section II of the test memo Ex. PW5/P with regard to the same. He has stated that the percentage of diacetylmorphine in the above samples was varying between 53% to 68.8%.
(xii) PW12 Sh V.B. Chaurasia has proved on record his report of re-analysis of the samples taken in this court on the directions of the Hon' b le High Court, as stated above, and he has proved on record his test report as Ex. PW12/A. SC No. 24A/08 DRI Vs Lily Lam 14 It is necessary to mention here that this witness was examined subsequently on an application U/S 311 Cr.P.C moved on behalf of the prosecution/DRI after the receipt of the above report of re-analysis wherein the percentage of diacetylmorphine was shown to me ranging between 1.4% to 13.8% only.
13. After the conclusion of the prosecution evidence, the entire incriminating evidence brought on record was put to the accused in her statement recorded U/S 313 Cr.P.C. and the same was denied by her to be incorrect. She has specifically denied the recovery of any contraband substance from her and has claimed this case and the documents to be false while stating that she was falsely arrested in this case and was beaten to make an involuntary statement. She has also specifically denied the making of any voluntary statement U/S 67 of the NDPS Act and has claimed that her alleged statement was already retracted by her on 28.11.2007 from jail and also on 04.12.2007 when she was produced in the court. However, no defence evidence was led on record by her.
14. I have heard the arguments advanced by Sh Satish Aggarwal, Ld SPP for DRI, assisted by Sh Vikas Gautam, Advocate and Sh R.S. Kundu, Ld Defence Counsel representing the accused. I have also perused the evidence led by the prosecution on record as well as the other record of the case.
SC No. 24A/08 DRI Vs Lily Lam 15
15. The first challenge made by the Ld Defence Counsel to the prosecution story is that the mandatory provisions of Section 42 of the NDPS Act have not been complied with in this case because though the secret information received in this case and reduced into writing as Ex. PW1/A was with regard to the carrying of or transporting of the above contraband substance by the accused in a car, as stated above, but the above information was not entered in any separate register by PW1 Sh Kamal Kumar, IO who had received it, PW2 Sh Pankaj K. Singh to whom the same was put up or by the IO/PW5 Sh D.P. Saxena or any other officer of the DRI. However, there is no merit in the above argument of Ld Defence Counsel because Section 42 of the NDPS Act only requires that such an information has to be reduced into writing and a copy thereof has to be sent by the officer receiving such information to his immediate superior officer within the given time. It is specifically deposed by PW1 that the above information was received by him on 19.11.2007 at about 06.00 pm and was reduced into writing as Ex. PW1/A and the time of writing of Ex. PW1/A is given as 1800 hours, i.e. 06.00 pm itself, and the above information was immediately put up by PW1 before PW2 Sh Pankaj K. Singh, who had also made his endorsement thereon and had directed the IO/PW5 to take further suitable action thereon. Hence, the provisions of Section 42 of the NDPS Act are found to be duly complied with in this case and there is not found to be any requirement under the above said Section that the said information is or was required to be entered in any separate register.
SC No. 24A/08 DRI Vs Lily Lam 16
16. The next are the rival contentions of the Ld SPP for DRI as well as the Ld Defence Counsel regarding the necessity of joining and examination of the public witnesses and the effect of non examination of such witnesses on the credibility of the prosecution story. As per the case of the prosecution/DRI the two public witnesses namely Sh Ashok Kumar and Sh Vishnu Dev were joined in the investigation by the IO/PW5 when they had reached back their office after the apprehension of the accused and the seizure of the above contraband substance. It is also the case of the prosecution that the above two public witnesses had even signed the notice U/S 50 of the NDPS Act Ex. PW5/B given to the accused, the panchnama Ex. PW5/D and its annexures Ex. PW5/E1 to PW5/E12 and also the paper slips affixed on the pullandas of the samples and the remaining case property. Further, according to the depositions made by the IO/PW5 the statements of the above two witnesses U/S 67 of the NDPS Act Ex. PW5/T and PW5/S respectively dated 04.12.2007 in response to the summons Ex. PW5/R and PW5/Q respectively served upon them on 20.11.2007 were also subsequently tendered before him. Even the name of the above two witnesses were included in the list of witnesses filed by the prosecution/DRI alongwith the complaint.
17. It is the contention of Ld SPP for DRI that since the summons to the above witnesses were issued by this court on few occasions and the witnesses were reported to be not existing/ traceable at their given addresses, prosecution cannot be faulted for their non appearance in this court and SC No. 24A/08 DRI Vs Lily Lam 17 no adverse inference is required to be drawn against the prosecution for non examination of the above two witnesses. Reference in this regard has also been made to the cases of Delias Christophe Guy Jeans Vs. Customs 2004(3) JCC 1747, Union of India Vs. Sat Rohan 2008(3) JCC (Narcotics) 182 and State of Haryana Vs. Mai Ram 2008(3) JCC (Narcotics) 188. On the other hand the argument of Ld Defence Counsel is that the above two witnesses never existed and they are the fake witnesses cited in the prosecution list and IO/PW5 had even not taken any care to collect any identity documents of the above two witnesses and this very fact is sufficient to show that the witnesses were fake and never existed at their given addresses.
18. I am afraid that simply because a witness is subsequently reported to be not existing or available at a given address it cannot be a ground to arrive at any conclusion that he was a fake witness introduced by the IO in the prosecution story. Since the process to the above witnesses was issued by this court and their presence could not be secured for making statements in the court for the reasons that they could not be subsequently traced at their given addresses, the prosecution cannot be faulted for their non examination and as held in the above said cases no adverse inference is required to be called against the prosecution on this ground only as it cannot be said that the above witnesses have been intentionally withheld by the prosecution from examination in the court. The judgment in SC No. 24A/08 DRI Vs Lily Lam 18 case Ritesh Chakarvarti Vs State of Madhya Pradesh 2006 Drugs Cases (Narcotics) 420 being relied upon by Ld Defence Counsel in the given context is found to be not applicable to the facts of the present case as in that case two material witnesses, who were the members of the raiding team, were withheld by the prosecution and were not examined as witnesses during the trial, whereas in the present case the two public witnesses could not be examined on record for no fault of the prosecution as they were subsequently reported to be not existing/traceable at their given addresses. Neither the IO was under any obligation to obtain their identity proofs at the time of joining them nor the witnesses can be presumed to be fake merely because they could not be traced out subsequently. Moreover, it is now well settled that the statements of the official witnesses only are sufficient to establish the guilt of the accused, if the same are otherwise found to be consistent and trustworthy, and the same cannot be discarded or disbelieved merely because the witnesses are official witnesses.
19. The next contention of Ld Defence Counsel is that no register or record has been produced or proved by the prosecution to show the departure of the members of the raiding team for the spot or their arrival back in their office, alongwith the contraband substance and the accused. However, in this regard also it is observed that the above argument of Ld Defence Counsel is not having any force or acceptability because no such register or other record of SC No. 24A/08 DRI Vs Lily Lam 19 the above officers of a specialized intelligence agency, like DRI, is or was required to be maintained or produced in this court, either under the NDPS Act or the Rules made thereunder or under any other Rules or provisions.
20. The next challenge to the prosecution story by Ld. Defence Counsel is on the ground that the alleged statement U/S 67 of the NDPS Act Ex. PW5/G of the accused cannot be looked into and considered by this court as the same is not a voluntary statement tendered by the accused and further that the same was already retracted by the accused on 28.11.2007 & 04.12.2007, as stated by her during the course of recording of her statement U/S 313 Cr.P.C. On the other hand, the argument of Ld. SPP for DRI is that the above statement of the accused is admissible in evidence and can be considered by the court and the alleged retraction of the accused is of no consequence as the same was not proved on record as per the provisions of the Evidence Act and is also a result of the legal advice.
21. As far as the admissibility of such a statement of accused in evidence is concerned, it is now well settled that since such a statement is made by an accused prior to his/her arrest in the case, the same is admissible in evidence as it is not hit by the provisions of Sections 24 to 27 of the Evidence Act and Article 20(3) of the Constitution. Reference in this regard can be made to some of the judgments in cases of Raj Kumar Karwal Vs. Union of SC No. 24A/08 DRI Vs Lily Lam 20 India & Ors. (1990) 2 SCC 409 and Kanhaiya Lal Vs. Union of India 2008 I AD (Crl.) (SC) 277, as have been relied upon by Ld. SPP for DRI and this preposition of law could not be challenged or controverted by the Ld. Defence Counsel.
22. However, it is also well settled now that the above statement of the accused, if confessional in nature, can be acted upon and considered against the accused only when the same is found to be voluntary in nature and has not been retracted. But if such a statement has already been retracted upon then the same alone cannot be made the basis of the conviction of the accused and it will not be safe to reply upon such a statement unless the case of the prosecution is corroborated by some independent evidence. However, in the cases of Kanhaiya Lal-Supra decided by the Hon ' b le Supreme Court and also in Criminal Appeals No. 694/2005 titled Vimal Kumar Bahl Vs. DRI and 779/2005 titled Surender Raj Singh Vs. DRI decided by the Hon' b le Delhi High Court vide judgment dated 05.11.2009, as have been replied upon on behalf of the prosecution/DRI, it was also held that such a retracted statement of the accused is required to be proved on record according to law before it can be looked into and considered by this court.
23. In the instant case, though the two retraction statements dated 28.11.2007 & 04.12.2007 of the accused, which were received in this court through the Jail Superintendent concerned and are exactly same in contents, SC No. 24A/08 DRI Vs Lily Lam 21 are on record but the same have not been proved on record as per the provisions of the Evidence Act as the accused had not even examined herself in her defence to prove the above statements. The above statements were simply received through the Jail Superintendent and were duly replied by the prosecution and form part of the case file and were only referred to by the accused during the course of recording of her statement U/S 313 Cr.P.C., but for the reasons best known to the accused she had not stepped into the witness box to depose about the above statements or the circumstances under which she was forced or pressurized to make the above statements. In the absence of their being any evidence on record in this regard, it cannot be said that the above statements are the result of some pressure or threats exercised or extended to the accused.
24. Moreover, the statements have been made after a considerable delay as the accused was first produced in the court on the day of her arrest itself, i.e. 21.11.2007, and no such retraction was filed or pressure or threats were alleged by her at the time of her first production in the court. Further, from the language in which the above statements have been written, the same appear to be the result of some legal advice. Hence, the above statement Ex. PW5/G of the accused is very much admissible in evidence and can be considered by this court.
25. The Ld Defence Counsel has also next pointed out some other discrepancies in the prosecution evidence to make SC No. 24A/08 DRI Vs Lily Lam 22 out a case for acquittal of the accused. It has been pointed out by him that PW3 Sh B.K. Banerjee in his cross examination has stated that there were two keys of the locker in which the seal of DRI No. 10 used in this case was kept under safe custody and one of these keys was with him and the other key was with Sh S.K. Sharma. Since PW3 has also stated in his statement made in the court that he do not recollect if Sh S.K. Sharma was available in the office at the time of issuance of the said seal, it is the argument of Ld Defence Counsel that the depositions of this witness as well as of the IO/PW5 regarding the issuance of the above seal and return thereof are false and the possibility of misuse of the seal cannot be ruled out and seal could not had been issued to the IO/PW5 unless both the above officers were present in the office with their respective keys in their possession.
26. In this regard also, it is observed that nowhere it has been deposed by PW3 that the locker in which the above seal was kept under safe custody was to be operated or opened only with the help of both the above keys and he has simply stated that out of the two keys of the said locker one was in his possession and one was with Sh S.K. Sharma. Hence, there is nothing on record to suggest that the locker could not had been opened by the above key in possession of PW3 Sh B.K. Banerjee.
27. However, it is observed by this court that there is another circumstance which makes the depositions of the SC No. 24A/08 DRI Vs Lily Lam 23 above witnesses regarding the issuance of the above seal by PW3 to the IO/PW5 in the morning of the date of incident, i.e. 20.11.2007, to be doubtful. According to the depositions made by PW3 Sh B.K. Banerjee the above seal of DRI used in this case was issued by him to the IO/PW5 at about 05.30 am on 20.11.2007. He has also stated that his duty hours were from 09.30 am to 06.00 pm and he was not called in his office in the early hours of 20.11.2007 and he had come to the office on his own to hand over the seal. He has further stated that the IO/PW5 Sh D.P. Saxena had asked him on 19.11.2007 that he will be in need of a seal in the early hours of 20.11.2007.
28. But, on the other hand, the IO/PW5 in his statement made in this court had stated that on 20.11.2007 he had reached the DRI Office at about 05.30 am and 4-5 other officers namely Ms Poonam Aggarwal, Sh. B.K. Banerjee, Appraiser, Sh. R. Roy IO and two Sepoys had also reached the office on that day by the same time. He has also stated in his statement that all of them had met each other on the ground floor of the office premises only and they did not go to the DRI Office as such and they had left for the spot to conduct the raid within 15-20 minutes thereof. It is also on record that the office of the DRI is on the 7th floor of the above said building. Since as per the depositions of the IO/PW5 they had not even gone to their office on the 7th floor in the above morning of the day of incident, how the above seal of DRI could have been issued to him by PW3 Sh B.K. Banerjee as the above seal was in a locker which was SC No. 24A/08 DRI Vs Lily Lam 24 kept only in the office of the DRI and not at the ground floor area of the above building, which only consisted of the parking area. The above depositions made by the IO/PW5 falsify the claim of the PW3 Sh B.K. Banerjee regarding the issuance of the above seal by him to the IO/PW5 in the morning 20.11.2007 and this is a circumstance which affects the credibility of the prosecution story to a great extent.
29. Further, there are also certain other factors and circumstances on record which make the prosecution story to be doubtful and seriously affect the credibility and acceptance of the same. According to the depositions made by the IO/PW5 Sh D.P. Saxena as well as PW10 Sh R. Roy, PW3 Sh B.K. Banerjee was also a member of the raiding team which had apprehended the accused with the above contraband substance. However, none of the documents pertaining to the proceedings conducted with regard to the search of the accused and her above vehicle or the seizure of the above contraband substance, like the notice U/S 50 of the NDPS Act Ex. PW5/B, the panchnama Ex. PW5/D and its annexures Ex. PW5/E1 to PW5/E12 and the above paper slips affixed on the pullandas of the case property and samples etc. contain or bear the signatures of PW3 Sh B.K. Banerjee as a witness.
30. Though it has been argued by Ld SPP for DRI that there was no requirement of obtaining the signatures of PW3 also on the above said documents, but the above claim of the IO/PW5 and PW10 regarding the presence of PW3 as a member of the raiding team is even not supported by PW9 Ms Poonam SC No. 24A/08 DRI Vs Lily Lam 25 Aggarwal and even by PW3 Sh B.K. Banerjee himself. Though PW9 is silent in this regard, but PW3 in his statement made in the court has only made depositions with regard to the issuance of the above seal to the IO/PW5, the receipt of the information U/S 57 of the NDPS Act Ex. PW3/A on 21.11.2007 and subsequently the receipt of a verification report Ex. PW3/B regarding the address of above Mr Kingslay on 24.11.2007. If he was a member of the raiding team and had gone to the spot of apprehension of the accused and had also subsequently participated in the proceedings of the search and seizure, this was not something to be forgotten by him and even if he had forgotten or could not remember these things he was expected to be reminded of these facts by Ld SPP for DRI or could had been cross examined on the above aspect. In the absence of that having been done, there is no reason to disbelieve the depositions made by PW3 Sh B.K. Banerjee regarding his limited role pertaining to this case in issuance of the seal and receipt of the above reports etc. and the same are sufficient not only to falsify the depositions of the IO/PW5 as well as of PW10 on this aspect but this is also a serious blow to the credibility of the prosecution story as a whole.
31. Again, even the presence and participation of PW9 Ms Poonam Aggarwal and PW10 Sh R. Roy in the above raid and the proceedings of search and seizure is highly doubtful. Likewise PW3 Sh B.K. Banerjee, the name of PW10 Sh R. Roy also does not figure on any of the above material documents as a witness and this fact has also been specifically SC No. 24A/08 DRI Vs Lily Lam 26 admitted by him. Though it can be understood that there is no legal requirement of obtaining the signatures of all the members of the raiding team on such documents but there is nothing also to prevent the IO/PW5 in obtaining the same and the same if obtained would had added credibility to the prosecution story.
32. Further, though the signatures of Ms Poonam Aggarwal as a witness are there on the panchnama Ex. PW5/D and its annexures Ex. PW5/E1 to PW5/E12, but there is no justification or explanation on record as to why her signatures were not obtained on the notice U/S 50 of the NDPS Act, which was the first document prepared after the apprehension of the accused, as the case of the prosecution is that she was only included in the raiding team as a female member of the team as the accused was a female. It is also found that even the above paper slips affixed on the pullandas of the samples as well as of the case property are not signed by her. She being a female member of the raiding team, her presence at the spot of apprehension of the accused and also at the time of the search proceedings, which were initiated by the service of the notice U/S 50 of the NDPS Act, was required to be proved beyond reasonable doubts as the search of the person of a female accused could never had been conducted in the absence of a female member in the raiding team.
33. The presence of PW9 Ms. Poonam Agarwal as a member of the raiding team is also made doubtful by the fact that, SC No. 24A/08 DRI Vs Lily Lam 27 as admitted by PW9 herself, she was not intimated about the above secret information on the day of its receipt, i.e. 19.11.2007, and she was not asked in advance to be a member of the raiding team despite the fact that as per the information the accused was a female and PW9 was to be joined as a witness only as a female member of the raiding team. She was even not intimated by the IO/PW5 about her inclusion in the raiding team on 20.11.2007 as she has stated that she had no information about the case till the driver of the official vehicle had reached her residence with the official car and she was asked to come to office and had even reached office by 05.30 am. Even her claim of sending of an official vehicle at her residence is not free from doubts as she was only an official of the DRI being a Tax Assistant, whereas the intelligence officers like PW3 Sh. B.K. Banerjee and PW10 Sh. R. Roy were left to reach the office from their residence on their own. Further, though the IO/PW5 and PW10 have both stated that the above car of the accused had reached at the spot of interception of the accused after about 40 minutes of the arrival of the raiding team at the spot, but PW9 Ms. Poonam Agarwal has stated on record that the above car of the accused had arrived there just within about 10 minutes of their reaching the spot. The above depositions of PW9 also make her presence at the spot at the relevant time to be doubtful.
34. On further appreciation of the prosecution evidence it is also found that there is force in the argument of Ld. Defence Counsel that the non examination of the above Sh.
SC No. 24A/08 DRI Vs Lily Lam 28 Vinod Kumar, who was the driver as well as the owner of the above car/taxi in which the contraband substance was being transported, is fatal for the prosecution case. Though the above Sh. Vinod Kumar was allegedly joined by the IO/PW5 as a witness during the investigation and the search and seizure proceedings and even one statement U/S 67 of the NDPS Act Ex. PW5/J dated 20.11.2007 of the above witness was also allegedly tendered by the witness before the IO/PW5, but the prosecution could not secure the presence of the above witness in this court as it was reported that he had left his given address.
35. The Ld. SPP for DRI has argued that just like the non examination of the public witnesses, the non examination of this witness is also not fatal as the prosecution had cited him as a witness in this case and it was beyond the control of the prosecution that the above witness was subsequently not traceable at his given address. It has also been argued by him that the IO/PW5 had even taken on record copies of the employment identity card Ex. PW5/J1 and driving licence Ex. PW5/J2 of the above witness and also a copy of the original registration certificate of the above car at the time of recording of his above statement U/S 67 of the NDPS Act and hence it cannot be said or argued by the defence that the above witness was a fake witness.
36. On perusal of the record it is found that it is the case of the prosecution itself that the above witness was an employee of the Embassy of the State of Palestine and the SC No. 24A/08 DRI Vs Lily Lam 29 above identity card Ex. PW5/J1 of the witness also confirms this fact and the address of the above Embassy given in this document is D-1/27, Vasant Vihar, New Delhi. The address of the above witness given in his driving licence Ex. PW5/J2 and copy of the above RC Ex. PW5/J3 is also the same. It is further found on perusal of the record that the summons to the above witness were issued by this court only once for 07.01.2011 when it was reported on the summons that the witness had vacated his residence at the given address about three months back and had shifted to Chankyapuri.
37. As stated above, the above address was the official address of the concerned Embassy and the possibility cannot be ruled out that the office of the Embassy stood transferred from Vasant Vihar to Chankyapuri. There was also nothing to suggest that the witness had left the services of the above Embassy and just by believing the report of a Head Hawaldar of the DRI, which was not even forwarded by the complainant or any other responsible officer of the DRI, the prosecution had chosen to drop the above witness and no efforts at all were made and no time was sought for even tracing out the present particulars of the witness and to secure his presence in the court. This conduct of the prosecution forces this court to draw an adverse inference against the prosecution and come to a conclusion that the above witness, if examined on record, would not had supported the case of the prosecution as presented before this court and that is the reason why the prosecution was not serious for examining the above witness.
SC No. 24A/08 DRI Vs Lily Lam 30
38. There is also one other factor which goes against the prosecution and that is the non seizure of the above car/taxi involved in transporting the above contraband substance. It is strange that the IO/PW5 had not made any independent enquiry or investigation to find out the truth contained in the statements U/S 67 of the NDPS Act of the accused as well as of the above Sh. Vinod Kumar to that effect that only the accused was aware about the above contraband substance contained in the above bags carried by her and the driver of the vehicle Sh. Vinod Kumar was not aware about the same. Prima facie, any vehicle or conveyance in which a contraband substance is being transported is liable to be seized under the NDPS Act and the same may even subsequently result into confiscation of the same, but the IO/PW5 was not able to give on record any satisfactory reason for believing the above words of the accused and Sh. Vinod Kumar. The explanation given by him in his statement made in this court that the vehicle was not seized in the case as it was a public transport used by the accused is funny as the above vehicle was a private taxi and not any public conveyance or transport being used by the accused.
39. Another material discrepancy which has been pointed out by the Ld. Defence Counsel in the story of the prosecution and the truthfulness of the prosecution witnesses is about the place where the notice U/S 50 of the NDPS Act given to the accused was prepared. It has been pointed out that the IO/PW5 in his chief examination or in his cross examination does not specifically clarify the SC No. 24A/08 DRI Vs Lily Lam 31 place where the above notice was prepared, but it is the admitted case of the prosecution that the notice U/S 50 of the NDPS Act was served upon the accused in the parking area on the ground floor of the building, in which the office of the DRI was situated on the 7th floor and the accused was brought after her apprehension, alongwith the above Sh. Vinod Kumar and the seized contraband substance. It is also pointed out that there is nothing on record in the statements of any of the prosecution witnesses that the above notice was served upon the accused after reaching at the 7th floor office of the DRI because it is also on record in the depositions made by the PWs that subsequent to the above notice the search of the above vehicle/car was also conducted in the parking area and thereafter the accused was taken to the DRI office on the 7th floor.
40. The Ld. Defence Counsel has argued that the depositions made by the IO/PW5 as well as the other members of the raiding team suggest as if the above notice was prepared in the parking area on the ground floor, though there was no facility of typing in that area as the notice Ex. PW5/B is a document typed on computer. As stated above, the IO/PW5 is though silent in this regard but his depositions suggest as if the notice was prepared in the parking area as he has not clarified specifically as to where the same was prepared or typed out. Further, PW9 Ms. Poonam Agarwal has also stated on record that after reaching the ground floor of the office building public witnesses were called and notice U/S 50 of the NDPS Act was given to SC No. 24A/08 DRI Vs Lily Lam 32 the accused and his car was searched and two bags were recovered from the car. She has further stated that it could have taken about 15 minutes in completing the proceedings at the ground floor of the office building and the above notice was prepared by Sh. D.P. Saxena, IO and it was got prepared on the computer through some other member of the team. However, she has not been able to name the member of the team who was asked by the IO to get prepared the above notice. She has even not been able to tell whether the above person was a member of the raiding team or was subsequently called by the IO. She has also stated specifically that no computer was installed in the above parking area. Her depositions not only suggest as if the above notice was prepared in the parking area of the building but the same are also self contradictory as to whether the same was prepared by the IO himself on a computer or it was got prepared through some member and even the witness is not sure about the above member.
41. Even PW10 Sh. R. Roy has stated that they had taken 15/20 minutes in conducting the proceedings at the spot, i.e. the parking area on the ground floor, and first of all the notice U/S 50 of the NDPS Act was given to the accused and then the search of his vehicle was conducted by the IO/PW5 and he has further stated that he do not remember where the above notice was prepared by the IO. Therefore, in view of the above, it is found that none of the above members of the raiding team has been able to clarify as to the place where the above notice was prepared or typed out SC No. 24A/08 DRI Vs Lily Lam 33 and the evidence led on record suggests as if the above notice was prepared on the ground floor area whereas there was no typing/computer facility in the said area. The above circumstance seriously affects the credibility of the prosecution story regarding the manner in which the proceedings have been conducted by the IO/PW5 and it appears that the above document was subsequently prepared while sitting in the office of the DRI situated on the 7th floor portion of the above building. This is a serious blow to the credibility of the prosecution story and the trustworthiness of the prosecution witnesses, even though the above notice U/S 50 of the NDPS Act was not legally required to be served in this case as the recovery of the contraband substance was effected not from the person of the accused but from the above two bags being transported in the above car/vehicle.
42. Lastly, but most importantly, there is also another serious discrepancy in the case of the prosecution which alone is sufficient to acquit the accused in this case and to disbelieve and discard the prosecution version. The report of the CRCL regarding the examination of the twelve samples taken by the IO/PW5 from the above contraband substance seized from the accused has been duly proved on record during the depositions made by PW11 Sh. V.P. Bahuguna, Assistant Chemical Examiner of the CRCL, as Ex. PW11/A. In the above said report the percentage of the diacetylmorphine in the above twelve samples is given as ranging between 53% to 68.8%. As stated above, due to some SC No. 24A/08 DRI Vs Lily Lam 34 changes in the colour and texture of the contraband substance produced in the court the accused had also sought the redrawing of fresh samples out of the remaining case property and retesting thereof. As also stated above, the above request of the accused was allowed by the Hon' b le High Court vide order dated 10.01.2011 in Crl. M.C. No. 2804/2010 and 12 fresh samples were taken from the remaining case property in this court vide proceedings conducted on 23.02.2011 in this court and the same were sent to the CRCL for re-examination in sealed covers. The report dated 23.03.2011 regarding the analysis thereof Ex. PW12/A was also received subsequently in this court and in the above report the percentage of diacetylmorphine in the above fresh samples has been opined to be ranging only between 1.4% to 13.8%.
43. Subsequent to the receipt of the above report Ex. PW12/A of retesting of the samples, one application U/S 311 Cr.P.C. was moved on behalf of the prosecution/DRI for summoning the expert concerned who had analysed the above second set of samples and the above application was allowed and the concerned chemical examiner Sh. V.P. Chaurasia was examined in this court as PW12 and he has proved on record his above report of retesting of the samples as Ex. PW12/A.
44. PW12 was specifically questioned and asked by this court to explain the above huge difference of the percentage of the diacetylmorphine detected in the two separate sets of samples examined in the CRCL vide reports Ex. PW11/A & SC No. 24A/08 DRI Vs Lily Lam 35 PW12/A and he has replied as follows:-
" The test result of second samples should not be correlated with earlier results due to following reasons:-
(a) Heroin is an organic compound. If it is re-sampled sample variation in the contents of active substances will occur.
(b) If re-sampling is done after a gap of considerable duration, then great variation in percentage of active content can occur due to the following reasons:
1. Improper storage (fast deterioration of a material will occur due to effect of light, variation in temperature and humidity)
2. Natural products are prone to get infected with bacterial and fungal micro-organism, which causes a change in chemical composition of organic material by decomposition partly or fully.
Hence, result of second analysis, can not be correlated with the initial results, and therefore, has no technical sanctity for comparison purposes. "
45. He has also placed on record one letter as Ex. PW12/C dated 23.02.2011 from the Joint Director, CRCL to the Additional Commissioner, Customs and the above depositions made by this witness were based on the conclusions arrived at in the CRCL and reflected in the above said letter. The above said letter was written with reference to the queries raised by the Customs Department regarding the legality of drawing of the second samples and the effect of the second analysis of the samples in some other case.
SC No. 24A/08 DRI Vs Lily Lam 36
46. It has been argued by Ld. SPP for DRI that in view of the contents of the above letter Ex. PW12/C and the depositions made by PW12, the above difference in the percentage of diacetylmorphine in the two sets of samples is duly explained and it is also his argument that the presence of diacetylmorphine in the contraband substance like heroin is bound to decrease with the passage of time as such substances have also a shelf life and if the same is not stored and preserved properly, the strength or grading of the same is bound to decease with the passage of time. Some book material pertaining to a study on the degradation of heroin conducted in Sri Lanka has also been placed on record in this regard.
47. On the other hand, the Ld. Defence Counsel has argued that there is a huge difference in the percentage of diacetylmorphine reported in the above two sets of samples tested vide reports Ex. PW11/A & PW12/A and the same cannot be justified merely by the passage of time and alleging some lack of proper storage facilities and it is his argument that in view of the above huge difference serious doubts have arisen as to what was the nature of the contraband substance which was allegedly recovered from the accused and which was tested vide the above reports and hence in view of the prepositions of law as laid down by our own High Courts in cases Ram Narayan Vs. State 121 (2005) DLT 166 and Rahul Saini Vs. The State, Bail Application No. 2042/2005 decided on 29.08.2006, the accused is entitled to be acquitted SC No. 24A/08 DRI Vs Lily Lam 37 giving benefit of doubt.
48. The submissions made from both the sides and the prepositions of law as laid down in the above said cases have been considered. In the case of Ram Narayan-Supra the recovery of 1.5 kg of heroin was effected from the accused and the percentage of diacetylmorphine in the report of the FSL was opined to be 1.08% in the sample drawn out of the above substance. However, in the fresh sample which was drawn on the directions of the trail court, the purity percentage of diacetylmorphine was found to be observed to be 0.8% only. While considering a plea for bail of the accused in the said case, in view of the bars and rigors contained in Section 37 of the NDPS Act, their Lordships had made the following observations:-
" I have considered the arguments advanced by the learned counsel for the petitioner as well as the learned counsel for the state. Insofar as the applicability of Section 37 of the NDPS Act is concerned, without going into the question of percentage of the Heroin found in the substance, it may be assumed that the same is applicable in this case. However, the fact that Section 37 of the NDPS Act applies to a particular case does not mean that the accused in such a case would not be entitled to bail per se. What is necessary for the court examining the question of grant of bail where Section 37 applies is that the court should be satisfied having regard to the material available on record that there are sufficient grounds that the petitioner may not be convicted. If the probabilities are that the petitioner may not be convicted, the the court can grant bail subject to the further condition being satisfied that the petitioner is not likely to commit any SC No. 24A/08 DRI Vs Lily Lam 38 offence while on bail. However, if the court is satisfied looking at the probabilities of the case that the petitioner is likely to be convicted, the the question of grant of bail would not arise. This is what has been held by the Supreme Court in the case of Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and another: AIR 2005 SCW 2215 while considering the provisions of Section 21 of the Maharashtra Control of Organized Crime Act, 1999. The provisions of Section 21 of the latter act are in pari materia with the provisions of Section 37 of the NDPS Act " .
......
......
" In the backdrop of the foregoing principles, I find that the differences in the test results of the samples taken from the very same packet cast doubts on the issue as to whether the case property is the same as what is alleged to have been recovered from the petitioner. This is not a definite finding and that would come at the time of trial. However, on the basis of the materials brought on record, there is every likelihood that the petitioner may not be convicted in this case. It is further to be examined as to whether there is any likelihood of the petitioner committing any offence while on bail. In this regard, the Supreme Court in the aforesaid decision, held that the satisfaction of the court as regards the likelihood of not committing any offence while on bail must be construed to mean an offence under the Act and not any offence whatsoever be it a minor or major offence. It further held that since it is difficult to predict the future conduct of the accused, the Court must necessarily consider this aspect of the matter having regard to the antecedents of the accused, his propensities and the nature and the manner in which he is alleged to have committed the offence. The present petitioner has no criminal antecedents and nothing has been indicated to show that the SC No. 24A/08 DRI Vs Lily Lam 39 petitioner has a propensity to commit any offence under the NDPS Act " .
49. In the case of Rahul Saini-Supra also the above prepositions of law laid down in the case of Ram Narayan- Supra were again reiterated when their Lordships had again considered a plea for grant of bail to an accused in a case of recovery of about 1.5 kg of heroin. In this case the purity percentage of diacetylmorphine was opined in the first test report to be 54.9% and in the second test report of the sample drawn in the court the same was opined to be 19.4% only. While observing the above to be a huge difference their Lordships had again directed the release of the accused on bail, despite the bars contained in Section 37 of the NDPS Act, on the grounds that in the given facts and circumstances there are reasonable doubts as to the recovery having been made and also as to the connection between the alleged recovery and the accused. In the case of Rahul Saini-Supra it was also argued on behalf of the prosecution that the above difference in the purity percentage of diacetylmorphine may be due to some other factors like the lapse of time etc., but the above contention was rejected by their Lordships on the grounds that the variation was tremendous and the same cannot be explained away by mere passage of time and further while holding that the question is not only of the difference in the purity percentage, but the doubt is with regard to the substance which was actually recovered from the accused and was tested subsequently. Though it was also argued in the SC No. 24A/08 DRI Vs Lily Lam 40 said case on behalf of the prosecution that even by taking the purity percentage of diacetylmorphine of 19.4% into consideration, the purity weight of the contraband substance recovered from the accused would still be a commercial quantity, but even this argument of the prosecution was discarded by their Lordships in view of the doubts having been raised about the identity of the contraband substance recovered from the accused and tested vide the said reports.
50. In the instant case the percentage of diacetylmorphine in the first set of samples was given to be ranging between 53% to 68.8% whereas in the second set of samples the same has been found to be ranging between 1.4% to 13.8% only. The above difference in the percentage of diacetylmorphine is very huge and inordinate and in view of the considered opinion of this court the same cannot only be attributed to the lapse of time or improper storage of the case property. It is found that as many as 12 samples were taken again by this court for retesting, i.e. one sample from each of the twelve packets, and it cannot be ignored that the percentage of diacetylmorphine in all the twelve packets has been found to had considerably decreased as though the highest percentage of diacetylmorphine reported in one such sample was 13.8% but in one other sample the same was found to be only 1.4%. Further, the depositions of PW12 also does not even make out any case in which the above sharp decline in the percentage of diacetylmorphine could have been attributed to improper storage or the lapse of SC No. 24A/08 DRI Vs Lily Lam 41 time.
51. It is observed from the record that PW12 was cross examined at length by Ld. Defence Counsel representing the accused. Some of the relevant extracts of his cross examination are being reproduced herein below :-
" Heroin is an organic compound. After storage in a humid condition and for a long period the diacetylmorphine contents in the sample of heroin will decrease as diacetylmorphine will split into smaller fractions and other organic substitutions and changes will take place, details of which are not know to me as I had not studied the above aspects. Except diacetylmorphine, no other constituent in the samples were determined or tested by me in my report Ex. PW12/A. The salts of diacetylmorphine may be diacetylmorphine hydrochloride or diacetylmorphine sulphate. I do not know as to in what form the diacetylmorphine converts after oxidation.
Q. Can you give chemical composition of diacetylmorphine and also chemical composition of products of diacetylmorphine after oxidation and how it will react after oxidation?
Ans. Molecular formula of diacetylmorphine is C21H23NO5 and how this oxidation takes place and what are the changes after oxidation is presently not known to me and it is still a study matter and to my knowledge no concrete results or material is available on this aspect.
Q. Do you want to say that you do not have knowledge or expertise to examine a sample for salts and components of diacetylmorphine after the oxidation process?
Ans. Diacetylmorphine first converts into monoacetylmorphine and morphine which is detected in our laboratory and for other components we do not have facility SC No. 24A/08 DRI Vs Lily Lam 42 at CRCL.
Q. Did you notice any morphine or monoacetylmorphine in the samples of this case?
Ans. Presence of monoacetylmorphine or morphine was not detected in the samples of this case during my examination.
Q. I put it to you that the samples which you have analysed had not gone under oxidation and that is why no morphine or monoacetylmorphine was detected therein?
Ans. The samples as received in CRCL were analysed and findings were reported. I cannot say whether the samples received were oxidated or not.
Q. In view of your answer to the above previous question that you are not sure whether the samples of this case were oxidated or not, how you can justify the huge difference/decrease in the diacetylmorphine in the second examination of samples conducted by you?
Ans. I cannot comment upon the above or give any answer to that as the second examination cannot be correlated with the first examination. "
52. It is clear from the above depositions made by this witness that the above second set of samples of heroin tested by him vide his report Ex. PW12/A cannot be said to had oxidated or to had gone under the process of oxidation because the presence of morphine or monoacetylmorphine, in which the diacetylmorphine could had changed after oxidation, were not detected by him during the analysis of the second set of samples. Rather, the above depositions made by this witness put more doubts around the trustworthiness of the prosecution story regarding the SC No. 24A/08 DRI Vs Lily Lam 43 nature of the contraband substance allegedly recovered from the accused and tested vide the above reports because his depositions are not able to clarify the reasons for the above huge difference of presence of diacetylmorphine in the above two sets of samples.
53. Therefore, in view of the above discussion, it is held that because of the above discrepancies, contradictions and lacunae in the story of the prosecution it will not be safe to rely upon the evidence led on record and to convict the accused on the basis of the same for a serious offence like one punishable U/S 21(c) of the NDPS Act which carries a minimum punishment of rigorous imprisonment for 10 years, extendable upto 20 years, and minimum fine of Rs. 1 Lac, extendable upto Rs. 2 Lacs as it is well settled that the more severe the punishment is, the greater is the care to be exercised by the court in appreciation of the prosecution evidence and to ensure that all the safeguards provided in statute are scrupulously followed.
54. Hence, the accused is being acquitted of the charges framed against her giving benefit of doubt. The accused is running in custody in this case and hence she is directed to be immediately released from custody. Let the case property, except the personal documents and belongings of the accused on record, be confiscated and destroyed as per rules, after the expiry of the period of limitation for filing of the appeal and subject to the outcome of the appeal, if any, to be filed against this judgement.
SC No. 24A/08 DRI Vs Lily Lam 44
55. However, it is found that the bond U/S 437A Cr.P.C has yet not been furnished on behalf of the accused. Hence, file will be consigned to the record room only after the furnishing of the above said bond.
Announced in the open
court on 05.12.2011 (M.K.NAGPAL)
ASJ/Special Judge NDPS
South & South East District
Saket Court Complex
New Delhi
SC No. 24A/08 DRI Vs Lily Lam