1999 Supreme(Del) 872

High Court Of Delhi
RITA KAROLINE KUMMEL - Appellant
Versus
CUSTOMS - Respondent
CRIMINAL APPEAL 95 of 1996
Decided On : 10/07/1999

Headnote:Narcotic Drugs & Psychotropic Substances Act, 1985 Section 21, 23 & 28 — Directions by Narcotic Control Bureau-Non compliance-Procedure for seizure etc. of sample — Violation of the provisions of the Act or the Instructions Issued by Narcotics Control Bureau will affect the validity of the seizure.

       Held:

       Thus, the whole objective of the said instructions issued by the Narcotics Control Bureau is to adopt a uniform procedure with regard to drawing forwarding and testing of samples from seized Narcotic Drugs and Psychotropic substances. None of the instructions contained in the said circular is inconsistent with any provision of the Act. Learned counsel for the appellant contended that the aforesaid instructions are binding on the concerned department. Reliance is sought to be placed on a decision of the Apex Court in Paper Products Ltd. Vs. Commissioner of Central Excise 1999 (122) E.L.T. 765 (SC). In that case, the Supreme Court had occasion to consider the effect of a circular issued under Section 37-B of the Central Excise Act and it was held that circular issued under Section 37-B of the Act are binding on the department and the department cannot be permitted to take a stand contrary to such instructions. In the case in hand, the aforesaid instructions have not been issued under any provision of the Act. That being so, the aforesaid instructions have no statutory sanction at their back and, any infraction thereof would not earn an acquittal in favor of the accused. Nonetheless, the aforesaid instructions have been issued to ensure observance of a fair and uniform procedure in respect of drawl storage, testing and disposal of samples from seized narcotic drugs and psychotropic substances and so they are binding on the concerned department. thereforee, it is clear that so far as the authorised officer under the Act is concerned, whatever procedure he has to adopt in respect of seizure or drawl, storage, testing and disposal of samples from seized narcotic drugs and psychotropic substances, the same will have to be consistent with the relevant provision of the Act and the instructions mentioned above and any violation thereof would naturally detract immensely from the value to be given to his testimony regarding seizure of the contraband substance.

       Section 52, 53, 55 & 57 — Sample — Non compliance of provision — Seizure not effect in accordance with the procedure laid down — Minimum requirement of preservation of sample not complied — Corroboration by confessional statement not acceptable — Conviction, set aside.

       Another staggering circumstances against the prosecution is that contraband was seized on 12.11.1994 and the complaint was filed on 7.2.1995. The property was produced in the Court only on 7.2.1995 and there is no evidence whatsoever at all to show with whom the seized contraband was tying and even assuming that it was in the custody of the Air Customs Superintendent Mr. Yasin, there is again nothing to show whether it was sealed and kept there. In this context, reference may also be made to Sub-section (3)(b) of Section 52 and Section 57 of the Act. Sub-section (3) (b) of Section 52 mandates that the seized articles shall be forwarded without unnecessary delay to the officer empowered tinder Section 53 of the Act: Section 55 of the Act contemplates that the officer-in-charge of the Police Station shall take charge of and keep in safe custody, pending orders of the Magistrate, all articles seized under the Act and which may be delivered to him. In the case of Utpal Mishra Air Customs Officers IGI Airport v. Nicelai Christensen 1997 11 AD (Cr.) Delhi 537, a Division Bench of this Court has held that under Section 53 of the Act any department mentioned therein, customs being one of them, can be invested with the powers of an officer-in-charge of a Police Station for the investigation of an offence. The samples could thus be legally kept in the malkhana of the customs department and there is no requirement that the same

       should be sent to the Police Station. As noticed earlier, none of the officers of the Customs department even in a serious case of this nature has come forward to state that after seizure of the contraband, the same was delivered to them by Mrs. Geeta Srivastava (P.W.1) or what were the steps taken Jo preserve the sample packets intact in the same manner in which they were seized. Even Mrs. Geeta Srivastava (P. W. 1) does not say that she continued to keep the contraband in her custody under seal till it was produced in the Court on 7.2.1995. In my opinion, in view of the discrepancies noted above, it is not possible to hold that immediately after the seizure steps were taken to seal the seized contraband articles and samples were taken in the manner required by the standing instructions issued by the Narcotics Control Bureau leaving no scope for suspecting that the safeguards required in the matter of sealing and preserving the contraband were followed. There is no guarantee that the seized articles were preserved in the name condition they were when they were seized till the stage of sending the samples for the Chemical analysis. There is absolutely no link between the seizure with all the safeguards against tampering of the articles and till the samples were sent for Chemical analysis. Needless to add that the provisions of the Act are so stringent that it cast a duty on the prosecution to rule out any possibility of tampering of the sample and false implication of the accused. It must be borne in mind that severer the punishment, greater care has to be taken to see all the safeguards provided in a statute are scrupulously followed. Thus, in the instant case, the minimum requirement with regard to the preservation of the seized contraband and sending of the samples to the Chemical analyze without any suspicion with regard to tampering or meddling with the articles has not be established. The teamed Additional Sessions Judge did not taken notice of the aforesaid infirmities in the case and unjustifiably accepted the prosecution evidence.

       The prosecution has also relied upon the confessional statement (Ex.4/A) of the appellant which contains all the admissions against her. It has to be borne in mind that it is the duty of the prosecution to prove in the first instance that there was conscious possession of the contraband articles and secondly the articles seized were in fact falling within the definition of one of the drugs which are prohibited under the Act. A confession no doubt can be used as corroborative material but in the face of the aforesaid infirmities in the prosecution case, in my opinion, implicit reliance cannot be placed to hold that the prosecuting case stands proved by the appellants confession (Ex.P.W.4/A) inspire of the basic infirmities referred to above going to the root of [he case. No doubt, the trafficking in narcotic drugs is a menace to the society but in the absence of satisfactory proof, the court cannot convict an accused.