2020 Supreme(Del) 1029

IN THE HIGH COURT OF DELHI AT NEW DELHI
Vibhu Bakhru, J.
Samuel Okeke - Appellant
Versus
State - Respondent
Criminal Appeal No. 915 of 2016; Criminal Miscellaneous (Bail) No. 316 of 2020
Decided On : 28-09-2020

The manner in which the samples were drawn was fatal to the prosecution''s case regarding recovery of four hundred grams of methamphetamine from the appellant. The sample drawn after mixing the contents of both the polythene pouches cannot be stated to be representative of the contents of the two polythene pouches.

Headnote:

NDPS ACT - [SECTION 22(C) AND 21(B)] - [SECTIONS 22(C) AND 21(B)] - [CONVICTION - SECTION 22(C) SET ASIDE - CONVICTION - SECTION 21(B) UPHELD] - The appellant was convicted under Section 22(c) of the Narcotics and Psychotropic Substances Act, 1985 (NDPS Act) for possession of four hundred grams of Methamphetamine and under Section 21(b) of the NDPS Act for possession of ten grams of cocaine. The appellant challenged the conviction on the ground that the case was fabricated and that the prosecution had failed to establish that four hundred grams of methamphetamine was recovered from him. The court held that the prosecution had failed to establish that the appellant was in possession of four hundred grams of methamphetamine as the samples were drawn after the contents of two polythene packets found underneath the foam inside the metallic box were removed and put into a transparent polythene and then weighed. The court, however, upheld the conviction under Section 21(b) of the NDPS Act for possession of ten grams of cocaine.

Fact of the Case:

The appellant was apprehended by the police on the basis of secret information received that he would be delivering drugs near ISBT. The police recovered four hundred grams of Methamphetamine concealed in a metallic box from a bag carried by the appellant and ten grams of cocaine from the rear pocket of his lower (trousers). The appellant was convicted of offences punishable under Sections 22(c) and 21(b) of the NDPS Act.

Finding of the Court:

The court held that the prosecution had failed to establish that the appellant was in possession of four hundred grams of methamphetamine as the samples were drawn after the contents of two polythene packets found underneath the foam inside the metallic box were removed and put into a transparent polythene and then weighed. The court, however, upheld the conviction under Section 21(b) of the NDPS Act for possession of ten grams of cocaine.

Issues: 1. Whether the prosecution had established that the appellant was in possession of four hundred grams of methamphetamine? 2. Whether the prosecution had established that the appellant was in possession of ten grams of cocaine?

Ratio Decidendi: 1. The court held that the prosecution had failed to establish that the appellant was in possession of four hundred grams of methamphetamine as the samples were drawn after the contents of two polythene packets found underneath the foam inside the metallic box were removed and put into a transparent polythene and then weighed. The court observed that the manner in which the samples were drawn was fatal to the prosecution''s case regarding recovery of four hundred grams of methamphetamine from the appellant. The sample drawn after mixing the contents of both the polythene pouches cannot be stated to be representative of the contents of the two polythene pouches. The prosecution has been unable to establish that both the polythene packets, which were recovered from the metallic box, contained methamphetamine. This is because the contents of each of the polythene pouches were not tested prior to the same being kept together. The entire object of drawing and testing the samples is to establish the composition of the substance recovered. It is, thus, essential to ensure that the samples drawn are of the same composition as the substance recovered from the accused. It is obvious, that if a sample is drawn after the contents of two or more packets have been mixed together, then the sample of the mixture would not be a true representative of the contents of each of the packets. 2. The court upheld the conviction under Section 21(b) of the NDPS Act for possession of ten grams of cocaine as the evidence led by the prosecution clearly established the recovery of cocaine from the appellant.

Final Decision: The appeal was partly allowed. The conviction under Section 22(c) of the NDPS Act was set aside and the sentence awarded for the said offence was also set aside. The conviction under Section 21(b) of the NDPS Act was upheld.