By TIOL News Service

NEW DELHI, JUNE 17, 2015: THE appellant challenged the order of Trial Court sentencing him to undergo RI for 10 years and pay fine of Rs 1 lakh in a heroin export case.

The prosecution case is that the Respondent- Narcotic Control Bureau (NCB) through its intelligence officer filed a complaint against the accused inter alia on the allegations that on 05.02.2009 at about 6.00 pm they received a secret information that a group of African persons are actively involved in the illegal export of heroin and drugs to various countries through courier and this group has a member namely Edward resident of Uttam Nagar who books parcels containing drugs through courier in Delhi. This information was reduced into writing and the officers and the informer went to the DTDC Franchise office. At about 8.45 pm hours the accused came on a cycle rickshaw. He was carrying a cardboard box in his hand with which he went to the office of DTDC. On checking the cardboard box, it was found to contain six sarees of different colours. On its minute checking, nine long packets concealed inside the layers of the cardboard box containing off white powder were recovered which on testing gave positive for heroin weighing 770 grams. Two samples of 5 grams each were taken out from the powder. The remaining substance and the nine empty packets were kept in a cloth. Torn pieces of cardboard box and six sarees were also kept in a cloth. All the parcels were sealed with the seal of Narcotics Control Bureau DZU 2.

The appellant challenged the order of Trial Court on several grounds, but the High Court held that the method of sample drawing alone would be sufficient to decide the appeal. The High Court inter alia held:

It is the case of prosecution that on checking the cardboard box nine long polythene boxes were recovered. On checking of all the nine boxes they were found to contain off white coloured powder which gave positive test for heroin. The powder in all the nine boxes were transferred into one polythene and was weighed with the help of electronic weighing machine which came to be 770 gms . Two samples of 5 gms each were taken out and kept inside two polythene pouches and the remaining heroin in polythene packet alongwith nine empty polythene packets were converted into a cloth parcel. One sample was sent to CRCL which gave positive test for heroin.

Following the judgement of Gaunter Edwin Kircher vs. State of Goa 1993(3) SCC 145 in similar factual matrix, the single judge of the High Court of Delhi held that - a wrong process of taking samples was adopted by the police. The police should have taken the samples from each packet instead of mixing all samples into two representative samples. This is precisely for the reasons that if the 8 packets were allegedly recovered from the appellant and two packets have contraband substance and rest 6 packets did not contain contraband, though all may be of the same colour but when the contraband substances of all 8 packets are mixed into one or two then definitely the result would be of the total quantity and not of the two pieces. Therefore, the process adopted by the prosecution creates suspicion. In such a situation, the benefit thereof should go in favour of the accused.

In the instant case also, transferring the powder of all 9 packets into one polythene and then taking out two samples and sending one sample to CRCL causes serious prejudice to the appellant as it cannot be ascertained whether all the 9 packets were containing heroin or not.

In addition, the High Court also found lot of discrepancies and contradictions regarding the colour, smell and texture of the contraband allegedly recovered from the appellant in the testimony of the witnesses.

Accordingly, the High Court set aside the order of Trial Court and ordered release of the appellant.

(See 2015-TIOL-1455-HC-DEL-NDPS)