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Showing contexts for: cocaine in Emma Charlotte Eve vs Narcotic Control Bureau on 5 April, 2000Matching Fragments
1. This appeal is directed against the judgment and the order of conviction dated 11.12.1998 passed by the Additional Sessions Judge in Sessions Case No. 74/96 convicting the appellant under Sections 21/23 of the Narcotic Drugs and Psychotropic Substances Act (for short 'the Act') and sentencing her to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000/- or in default to suffer further rigorous imprisonment for a period of six months.
Briefly stated the prosecution case is that on 3.4.1996, two postal parcels bearing Nos. R-250012 and R-250013 arrived at Frankfurt Airport, Germany, with flight No. AV018 from Bogota, Columbia destined for further transport to India. At Frankfurt Airport, both the parcels were intercepted by the Custom Officer Mr. Rabolt, who had handed over them to the Chief Inspector Customs Mr. Prior. Both the parcels, when opened in the presence of the Custom Officer Mr. Hilder Brand, tested positive for cocaine. Consequently, a criminal case was registered vide Reference No. 89Js 141520/96 and both the parcels containing contraband were seized and confiscated by the Custom Authorities, Government of Germany. After obtaining sanction from the Chief Public Prosecutor, Government of Germany, Dr. Leistner, the Narcotics Control Bureau, Govt. of India (for short "the NCB") was requested for a controlled delivery. By the order dated 4.4.1996 (Ex.PW-16/A), the Government of India empowered the NCB to undertake controlled delivery of the said consignment. On 9.4.1996, the aforesaid parcels were handed over to the Captain of the Lufthansa Airlines Mr. Manfred Montjoge for their delivery to Mr. Berned Engel, German Drug Liaison Officer posted in India. On 10.4.1996, the said consignment arrived at I.G.I., Airport, New Delhi by the morning flight. Mr. Montjoge delivered the parcels to Mr. Berned Engel, who in turn handed over them to Mr. Shailendra Sharma (PW-12) at the airport. The parcel No.251002 destined for Goa had been handed over to the Officers of the NCB, Bombay Zonal Unit and the parcels No. 251003 destined for Delhi remained in the custody of Shri Shailendra Sharma. The further case of the prosecution is that Deputy Chief Post Master, Mr. R.P. Sharma was contacted by the Zonal Director NCB, Mr. Mukesh Khullar and a plan was chalked out to nab the claimant of the parcel bearing No. 251003. According to the plan, the intimation slip (Ex.PW-1/D) was prepared and kept in the post rest ante counter under surveillance of the Officers of the NCB.
3. The appellant, after taking delivery of the parcel, proceeded to the Shiva Guest House on a three wheeler driven by Rakesh Sharma (PW-10). The Officers of the NCB followed the appellant from the post office to her guest house and accosted her to her room. On being asked by the officers of the NCB, the appellant handed over the said parcel to them, which was found to contain 122 grams of cocaine. The said parcel was seized vide seizure memo (Ex.PW-1/H). Two representative samples of 5 gms. each were drawn and kept in two separate polythene bags. The samples as well as the remaining cocaine were converted into separate parcels and they were duly sealed on the spot. The sampled powder along with the test memo (Ex.PW-9/B) was sent to the Chemical Examiner, which on examination, was found to contain cocaine vide report dated 28.5.1996. The appellant was charged with the offences punishable under Sections 21/23 of the Act and tried.
The learned Additional Sessions Judge, on an assessment of evidence adduced by the prosecution, accepted the prosecution case and convicted and sentenced the appellant as indicated above.
5. At the outset, I must make it clear that the present case pertains to the controlled delivery. As per prosecution case, two postal parcels bearing Nos. R-250012 and 250013 arrived at the Frankfurt Airport, Germany with flight No.AV018 from Bogota, Columbia, destined for further transport to India. On suspicion, both the parcels containing cocaine were intercepted at the airport by the customs officer Mr. Rabolt, who handed over them to the Chief Inspector Customs Mr.Prior. Consequently, a criminal case in respect of the said parcels was registered at Frankfurt (Germany) and the said parcels were seized and confiscated by the Customs Authorities. After obtaining the requisite sanction from the Chief Public Prosecutor, Government of Germany Dr.Leistner, the NCB was requested to undertake a controlled delivery. By the order dated 4.4.1996 (Ex.PW-16/A), the Government of India empowered the NCB to undertake the 'controlled delivery' and pursuant thereto, the said parcels were despatched from Germany and received on 10.4.1996 at the I.G.I. Airport by Mr.Shailendra Sharma (PW-12).
33. As demonstrated earlier, in the instant case the prosecution has failed to establish that adequate precautions were taken by the prosecuting agency to complete material link in the prosecution case by eliminating the possibility of the sample being tampered with. The benefit arising out of such a doubtful situation must necessarily go the appellant.
34. The crucial question which arises for determination is whether the substances produced before the trial court was cocaine. The learned Additional Sessions Judge, on the basis of the report of the Chemical Examiner, came to the conclusion that the parcel in question was found to contain cocaine. It is significant to mention that the report of the Chemical Examiner was not tendered in evidence. It is well settled that the formal proof of a document can be waived by the party against whom it is sought to be used. In the instant case, the report of the Chemical Examiner is a disputed document and there is nothing on record to show or suggest that the appellant had waived her right to have the said report proved. Section 293 of the Code of Criminal Procedure provides that any Government Scientific Expert may be received in evidence without examining the expert to whom the said Section applies. Section 293 engrafts a special rule of evidence and makes any document, purporting to be a report under the hand of a Government Scientific Expert to whom this Section applies upon any matter or thing duly submitted to him for examination and report, admissible in evidence without calling such expert as a witness. This, however, does not imply that without tendering the report in evidence, it can be made use of . Thus, the provisions contained in Section 293 Cr.P.C. do not rule out the requirement of the Indian Evidence Act and do not in any event override the provisions contained in Section 61 to Section 64 thereof. The document envisaged by Section 293 Cr.P.C. can be used as evidence in an enquiry or a trial. It is a piece of evidence that does not require any formal proof but at the same time it must be tendered as evidence and used as such, so that the accused may have a chance of questioning the identity of the sampled packets. In the instant case, none of the prosecution witnesses has stated that the report of the Chemical Examiner dated 28.5.1996 pertains to the substance alleged to have been recovered from the appellant's possession. The document as noticed earlier was not even exhibited in evidence. In that view of the matter, the learned Additional Sessions Judge has committed a grave legal error in convicting the appellant on the basis of the said report. In failure of the said report, having been formally tendered in evidence, there is really no satisfactory evidence to show that the powder contained in the capsules recovered from the parcel in question was cocaine. The case must, therefore, fall to the ground.