The failure to draw samples at the spot and seal the case property at the spot is fatal to the prosecution's case under the NDPS Act. Inconsistencies and contradictions in the testimonies of the witnesses cannot be ignored, especially when essential steps in the proceedings were not remembered or explained.

JUDGMENT :

VIBHU BAKHRU, J.

1. The appellant has filed the present appeal impugning a judgment dated 22.11.2014 passed by the learned Special Judge, Patiala House Courts, New Delhi acquitting the respondent in a complaint case filed under section 20(b)(ii)(C) and 23 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereafter ‘NDPS Act’) for possession and attempt to export of 7 kg of Hashish recovered from check-in baggage of the respondent(accused).

2. The case set up by prosecution is as under:

2.1 The prosecution claims that on 01.05.2010 at about 20:10 hours, a secret information was received by I.O. NCB Sh. G.S. Bhinder that one Singapore national, namely Lee Wei Qui holding passport no. E14142747 age approximately 28 years, who was to depart from IGI airport for Zurich by Lufthansa Airlines No.LH763, would be carrying huge quantity of hashish in his baggage. The said secret information was recorded by Sh. Y.R. Yadav, Superintendent, NCB(PW-3) on the basis of which raiding team consisting of Intelligence Officer G.S. Bhinder; Intelligence Officer Vikash Kumar; Babu Lal Sepoy; and Sahib Singh Sepoy, proceeded to airport from NCB office at about 04:15 hours and reached IGI airport at 05:00 hours.

2.2 On reaching the airport, the IO and his team members met Lufthansa Airlines staff. Thereafter, two Lufthansa staff officials Sh. Sharanjeet Singh and Sh. Mahinder Singh Yadav agreed to witness the proceedings that were to be conducted by the NCB team. Thereafter, NCB team reached the check-in counter and found that the accused had checked in his baggage and was filing up some form at the check-in counter. On inquiry, the suspect revealed his name as Lee Wei Qi.

2.3 The accused was identified on the basis of his passport and boarding pass details. The accused was then served a notice under Section 50 of the NDPS Act and was briefed about his legal right that if he wants, his search can be conducted before a Gazetted Officer or a Magistrate. However, the accused refused to exercise the said right and informed that any NCB officer could conduct his search. Thereafter, the accused identified his luggage from the baggages lying at the rear side of the check-in agent’s counter in the presence of independent witnesses and Lufthansa staff.

2.4 The black coloured stroller (baggage) of the accused with tag No. LH102692 was offloaded and thereafter, search of the was then conducted. On opening, some clothes were found un the bag and on a closer search, it was found that the bottom of the bag was stuffed with some suspicious substance. On cutting open the same, a rectangular shape sheet wrapped in brown tape was recovered. The tape was cut opened and it was found to conceal dark brown material. The said material on being tested with the help of field-testing kit, gave positive result for Hashish. The substance was weighed and was found to be 7 kg. Two samples of 25 gm each were then drawn out of the said substance in transparent polythene and further put in white paper envelops and given Mark A-1 and A-2. The remaining Hashish in brown tape was kept in a transparent polythene and converted into a parcel with the help of cloth and marked A. The packing material and stroller bag were taken into possession and were marked B. All the parcels and the samples were duly sealed and paper slips having dated signature of the IO, both the public witnesses and that of accused, were pasted on them. A test memo in triplicate and the panchnama were also prepared at the spot. Certain documents were also recovered from the accused and same were seized by the seizing officer G.S. Bhinder.

2.5 Summons were then issued to the accused and the independent witnesses under section 67 NDPS Act and in pursuance of the same, their statements were recorded in the office of the NCB. Reports of arrest and seizure under Section 57 of the NDPS Act were submitted by the seizing officer Sh. G.S. Bhinder and arresting officer Sh. Vikash Kumar to Sh. Y.R. Yadav, Superinte