The illegal drawing of samples from seized substances, in violation of prescribed procedures, can lead to prejudice and failure to prove the case beyond reasonable doubt.

JUDGMENT :

1. The present appeal is directed against the judgment dated 28.07.2015 passed by the Special Judge whereby the appellant was convicted for the offence under Section 21(c) NDPS Act and was sentenced to undergo RI for 10 years and fine of Rs.1 lac in default whereof to undergo SI for 6 months. It was further directed that after completion of the sentence, the convict be deported to his country.

2. Briefly, the relevant facts as noted by the trial court for the disposal of the present appeal are reproduced as under :-

“... (h) On 01/02/2010 at about 1450 hours I0 Sh. G.S. Bhinder received a secret information that one Nigerian national Amani Fidel Chris aged 26 years, height 5.5 feet with curly hair, is indulging in drug trafficking and is likely to travel through Silyaldah Rajdhani Express, Train no. 2134 and that he is suspected to be carrying a huge quantity of heroin.

(i) The information was reduced into writing and was put up by I0 G.S. Bhinder before Sh. Ajay Kumar, Superintendent, NCB and on his instructions a raiding team consisting of Intelligence Officers of NCB namely, Sh. G.S. Bhinder, Sh. Nirbhay Singh, Sh. Pankaj Dwivedi, Sh. Sanjay Rawat, Sh. Vikas Kumar, Smt. Jaswani, Babu Lal and Om Prakash along with driver Rajbir Singh proceeded from NCB office on 01/02/2010 at about 1515 hours in official vehicle and reached railway Station platform no. 12 at about 1600 hours.I0 took along with him I0 kit and field testing kit.

(G) On reaching the platform, 10 Sh. G.S. Bhinder introduced himself and the team members to a few public persons and requested them to join the raiding party and on his request, two persons namely Sh. Pinkesh Kumar and Sh. Sher Singh voluntarily agreed to join as independent witnesses to the proceedings. At about 1625 hours while Sh. G.S. Bhinder, I0 along with Sh. Nirbhay Singh were waiting at the platform no. 12 near the staircase along with independent witnesses, they noticed one African approaching towards the Rajdhani Express with similar features as mentioned in the secret information. The said person was intercepted by the NCB officials and on enquiry the said African person revealed his name as Amani Fidel Chris and also disclosed that he would be traveling via Siyaldah Rajdhani Express on a valid ticket.

(k) The NCB officers then disclosed their identity and the secret information to the said African person. Thereafter a notice u/s 50 of NDPS Act was served upon the accused. He was also made to understand that he had a legal right to be searched before a Magistrate or a Gazetted Officer but the accused refused to exercise the said right and informed that any NCB officer could conduct his search.

(l) The accused was carrying one stroller bag of blue colour (make perfect), one black colour pitthu bag (make Adidas) and one laptop bag with laptop (make Dell). Sh. G.S. Bhinder, IO firstly took the search of the stroller bag and on its search it was found containing four brown carton boxes, one hand towel of sky blue colour and one Sunday School Manual (Book) of light pink colour. On opening of the brown carton boxes, they were found containing one door spring machine of Amrit Company in each cartoon which was properly screwed and welded. The machines were opened with the help of vehicle tools and it was found that cavity in each of the spring machine were stuffed with one brown colour packet each i.e. 4 packets in total. On further opening each of the packets, powdery substance was recovered which on testing with the help of field testing kit gave positive for heroin. The total substance recovered from all the machines was mixed properly and weighed with the help of electronic weighing machine and its weight came out to be 1.5 kg. Two samples of 5 grams each were drawn out from the recovered substance and were put in two small zip lock pouches and were then placed inside separate white paper envelopes. The samples were given marks A1 and A2 and the remaining substance was kept in the polythene