2014 Supreme(Del) 859

High Court of Delhi
THE HONOURABLE MR. JUSTICE V.K. JAIN
Sunil Kumar Yadav @ Soni
Versus
N.C.B.
CRL.A. 944 of 2010
Decided On : 18-03-2014

Compliance with Section 42 of the NDPS Act, discrepancy in the weight of samples, admissibility of retracted confession under Section 67 of the NDPS Act, and proper sealing of residual contraband.

Headnote:

Appeal against conviction and sentence for possession of 10 kg of charas under NDPS Act. Appellant claims non-compliance with Section 42 of the Act, improper sealing of residual contraband, retraction of statement under Section 67, discrepancy in sample weight, and insufficient time spent in the village to complete the search and seizure.

Fact of the Case:

On 16.9.2004, NCB received information that appellant would deliver 10 kg of charas out of a 75 kg consignment at a bus stand. NCB team intercepted appellant at the bus stand and recovered 10 kg of charas. Appellant led NCB to his house where an additional 40 kg of charas was recovered. Appellant was convicted under Sections 20(ii)(C) and 20(b)(C) read with Section 29 of the NDPS Act.

Finding of the Court:

1. Non-compliance with Section 42: Information received on 16.9.2004 did not mention the place where the hashish had been kept by the appellant. The information with respect to the contraband found in the house of the appellant had not been reduced in writing before its officials entered the said house for the purpose of seizing the narcotic drug. However, the delay of 1-2 hours in recording the information would not adversely affect the case of the prosecution when examined in the light of the amended provisions of Section 42 of the Act. 2. Discrepancy in the weight of samples: Variation in the weight of the sample, along with other shortcomings and discrepancies in the case of the prosecution may, in appropriate cases, lead to acquittal of the accused, it cannot be made the sole basis of acquittal in a case where the prosecution produced the entire link evidence to rule out any reasonable possibility of the sample having been tampered with before it is examined in the laboratory. 3. Statement under Section 67 of NDPS Act: The appellant had made a voluntary statement before an officer of NCB on 17.9.2004, at the time he was not in custody, and the retraction of the said statement much later, on 22.11.2004, was only an afterthought. 4. Sealing of the residual case property: Mere possibility of the case property being taken out of the bags in which it had been kept, cannot lead to the acquittal of the appellant, when there is no evidence of actual tampering with the case property and the evidence produced by the complainant proves not only the total quantity of the contraband, but also that the samples drawn from the contraband, when examined in the laboratory, were found to be charas.

Issues: 1. Whether there was non-compliance with Section 42 of the NDPS Act in recording the information received about the contraband found in the appellant's house. 2. Whether the discrepancy in the weight of the samples rendered the prosecution case doubtful. 3. Whether the appellant's statement under Section 67 of the NDPS Act was voluntary and admissible. 4. Whether the sealing of the residual contraband was proper and ruled out the possibility of tampering.

Ratio Decidendi: 1. Compliance with Section 42 of the NDPS Act: The requirement of reducing information in writing and sending a copy to the superior officer is mandatory, but substantial compliance with the provision may be sufficient. Delay in recording the information may be excused if there is an emergency situation or if the delay is satisfactorily explained. In this case, the delay of 1-2 hours in recording the information about the contraband in the appellant's house was not fatal to the prosecution case, considering the amended provisions of Section 42 and the fact that the information was recorded in the panchnama prepared in the appellant's house. 2. Discrepancy in the weight of samples: Minor variations in the weight of samples may occur due to differences in the accuracy of weighing scales. In this case, the variation in weight was not substantial and could be attributed to the difference in accuracy between the field kit scale and the laboratory scale. The prosecution produced link evidence to rule out tampering with the samples, and the discrepancy in weight alone was not sufficient to discredit the prosecution case. 3. Statement under Section 67 of the NDPS Act: A retracted confession may be acted upon if the court is satisfied that it was true and voluntary. In this case, the appellant's statement under Section 67 was made voluntarily before he was arrested and was corroborated by the recovery of the contraband. The retraction of the statement was an afterthought and did not affect its admissibility. 4. Sealing of the residual contraband: The possibility of tampering with the contraband due to improper sealing does not automatically lead to acquittal. In this case, the NCB produced link evidence to establish that the contraband was not tampered with while in their custody. The seals were intact, and the samples drawn from the contraband were found to be charas upon examination in the laboratory.

Final Decision: Appeal dismissed. Conviction and sentence upheld. Fine reduced to three months' simple imprisonment in default.