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2015 DIGILAW 380 (JK)

Bharat Singh and another v. State and another

2015-07-31

JANAK RAJ KOTWAL, MOHAMMAD YAQOOB MIR

body2015
JUDGMENT : 1. Appellants Bharat Singh (A-1) and Ashok Kumar (A-2) are in appeal against judgment dated 26.04.2012 of the learned Sessions Judge, Jammu, in file No. 292/Sessions whereby the appellants have been convicted under sections 21 and 23 of The Narcotic Drugs and Psychotropic Substances Act, 1985 for (short the NDPS Act) and order dated 27.04.2012, whereby each of the appellants have been sentenced to undergo rigorous imprisonment for a period of twenty years and pay a fine of one lac rupees. It is ordered also that in default of payment of fine, they shall suffer imprisonment for a period of five years. Heard. We have perused the record. 3. Facts of the prosecution case, briefly, are that in the night intervening 30th and 31st January, 1998, the appellants were accosted by an Army Surveillance (Naka) Party in an island (GR 538613) in the Chenab River and 27 packets allegedly containing heroin each weighing 1 kg, 01 packet allegedly containing 150 gms. opium, 01 shawl, 02 rubber tubes, 1.23 bore revolver and 50 rounds of ammunition were recovered from them. The Surveillance Team apprehend the appellants and took possession of the recovered substances from them. The Army Authorities informed the Customs Authorities at Akhnoor about the incident. On this information, as per the prosecution case, the Customs Authorities constituted a team of Customs staff headed by a Superintendent, Customs. The Customs Authorities took possession of the substances allegedly recovered from the appellants, except the arms and ammunition, in terms of section 110 of the Customs Act, 1962 and arrested the appellants on 03.02.1998. On sample testing, the Customs Authorities found that the 27 packets were containing heroin and 01 packet weighing 150 gms was opium. 4. After completing the proceedings in which inter alia statements of the appellants in terms of section 108 of the Customs Act were also recorded, Inspector Customs, PW P.C. Bhardwaj, filed complaint in the Court of learned Sessions Judge, Jammu against the appellants alleging commission of offence under sections 21 and 23 of the NDPS Act by them. 5. Learned Sessions Judge, Jammu upon consideration of the record of the case and documents submitted in support of the complaint vide his order dated 29.07.1998 framed charge under sections 21 and 23 of the NDPS Act against the appellants(accused). 5. Learned Sessions Judge, Jammu upon consideration of the record of the case and documents submitted in support of the complaint vide his order dated 29.07.1998 framed charge under sections 21 and 23 of the NDPS Act against the appellants(accused). Appellants denied the charge and claimed to be tried, prosecution entered its evidence and produced eight witnesses before the trial court, namely, i) Sub. Rashpal Singh, ii) Capt. Sushil Kumar, iii) Jatinder Yadav, Inspector, Customs, iv) P. C. Bhardwaj, Inspector, Customs, v) Balvinder Singh, Inspector, Customs, vi) Ram Prasad, Superintendent, Central Excise, vii) Naib Sub. Jageer Singh and viii) Col. Pardeep Narayain. Besides, prosecution also tendered the chemical analysis report received from Central Revenue Control Laboratory (CRCL), New Delhi in terms of section 510 Cr.P.C. and the defence cross-examined the author of the report Dr. Y.K. Singh, Joint Director, CRCL. Learned trial court recorded statements of the appellants in terms of section 342 Cr.P.C. who, however, did not lead any evidence. 6. Learned trial court vide impugned judgment dated 26.04.2012 recorded its satisfaction that prosecution had been able to prove commission of offences under sections 21 and 23 NDPS Act against the appellants(accused); convicted them and vide order dated 27.04.2012 impose the sentence. Hence this appeal. 7. At the outset, we on reading the impugned judgment cannot but express our disillusion on noticing the manner in which learned Judge of the trial court dealt with the matter before recording conviction and imposing sentence in a serious matter like this. We may state briefly, that the learned Judge of the trial court has prefaced the judgment with a declaration that the judgment will set at rest the 'challan of police' under sections 22 and 23 of NDPS Act in total disregard of the fact that prosecution had been launched by an Inspector of the Customs by filing complaint and not on a charge sheet (challan) filed by the police. As per the judgment, prosecution had produced seven witnesses including Dr. Y.K. Singh Rathore whom the learned Judge has named in the judgement as also given brief resume of their depositions. Deposition of other two witnesses, namely, Sub. Jageer Singh and Col. Pardeep Singh, who are witnesses of the occurrence, have not been noticed by the learned Judge. As per the judgment, prosecution had produced seven witnesses including Dr. Y.K. Singh Rathore whom the learned Judge has named in the judgement as also given brief resume of their depositions. Deposition of other two witnesses, namely, Sub. Jageer Singh and Col. Pardeep Singh, who are witnesses of the occurrence, have not been noticed by the learned Judge. After giving brief resume of the evidence of seven witnesses and submissions made at bar, the learned Judge reproduced sections 42 and 50 of the NDPS Act in extenso. This follows by exhaustive quotes from two Supreme Court judgments reported as 2006(2) Acquittal 581 and 2010 (2) law herald (SC) 1991 with a preface that 'the prosecution has been conducted in utter disregard to legal provisions of a mandate and a protection provided to a accused.' Quote from these judgments is followed by what may be taken as discussion of the evidence, which, however, is nothing more than a combined brief resume of the prosecution evidence, observation that the evidence coupled with disclosure and recovery inspire confidence and 'police has not violated any mandatory provisions of law,’ a brief reference to Section 108 of the Customs Act and section 67 of the NDPS Act and finding of the court, which reads: “There is sufficient and ample evidence that on the arrest of accused, they made disclosure statement which led to the recovery to be carried or in possession and recovery memos were prepared thereof. All the recoveries effected at the instance of accused. That accused were in conscious possession of the contraband which was only exclusive in the knowledge of the accused, though pleaded that nothing was recovered from the accused and accused was a innocent person, cannot be accepted because recovery has been effected from their possession during search. The preparation of the FIR and thereafter commencement of the investigation. It is also a beaten law of the land that the FIR is a document only to be used to corroborate or contradict the prosecution version. The discrepancies occurring therein cannot mitigate the other piece of evidence, inspiring confidence and is never fatal for the prosecution. The accused cannot inter benefit out of this omission or deliberation on the basis of this the case of the prosecution cannot be overthrown. The discrepancies occurring therein cannot mitigate the other piece of evidence, inspiring confidence and is never fatal for the prosecution. The accused cannot inter benefit out of this omission or deliberation on the basis of this the case of the prosecution cannot be overthrown. Taking the cumulative effect of this evidence, I am satisfied that prosecution has been able to prove the case for offence u/s 21, 23 NDPS Act against accused.” (underlining by me) We have no trace of doubt in observing that the conviction and sentence recorded by the learned trial court sans scrutiny and appraisal of the evidence and record of the case. What disillusioned us more is the finding that 'on the arrest of accused, they made disclosure statement which led to the recovery to be carried or in possession and recovery memos were prepared thereof. All the recoveries effected on the instance of accused’. It is not understandable as to how such a finding has been recorded contrary to prosecution case and evidence indicating that the appellants on being accosted by the Army Naka party had thrown the loads being carried by them. It is not the prosecution case nor there is anything in the evidence of the Army personnel that disclosure statements of the appellants or one of them was recorded and recovery effected on the basis of such statement(s). 8. Be that as it may, we have scrutinised and appraised the entire record and the evidence on the trial court file, which we are called upon and have jurisdiction to do in exercise of appellate power of this Court. We have heard at length Ms. Z.A. Wattali, learned counsel for the appellants and Ms. Sindhu Sharma, learned ASGI for the respondents. 9. PWs Col. Pardeep Narayain, Capt./Major Sushil Kumar, Sub. Rajpaul and Naib Sub. Jageer Singh are the four Army officers/personnel who claim to have accosted and apprehended the appellants and recovered the contrabands, including heroin and opium, from their possession during a surveillance (Naka) laid by the Army in the night intervening 30th and 31st January, 1998. We have, however, found that PW Capt./Maj. Susheel Kumar neither was comprised in the Naka party nor was present on spot at the relevant point of time, whereas presence of the other three Army personnel on spot at the relevant time would admit of no doubt. We have, however, found that PW Capt./Maj. Susheel Kumar neither was comprised in the Naka party nor was present on spot at the relevant point of time, whereas presence of the other three Army personnel on spot at the relevant time would admit of no doubt. We may in this behalf refer to testimony of PW Sushil Kumar himself, who in cross-examination has unequivocally stated that he was not comprised in the Naka party and that the accused (appellants) were not apprehended in his presence. We may also refer to testimony of PW Col. Pardeep Narayain, who was heading the Naka party and has stated that Capt. Sushil Kumar was not comprised in his Naka party. On reading the testimony of PW Sushil Kumar in its entirety, it would be clear that he had gone on spot in the morning and had seized the substances said to have been recovered in the night. 10. We have read and scrutinised the testimonies of the three Army personnel/officer, that is, PWs Col. Pardeep Narayain, Sub. Rajpaul and Naib Sub. Jageer Singh both in the chief as well as cross-examination. Having accorded our consideration to the evidence rendered by these three witnesses, we find no reason for not accepting the same except to the extent of the two substances as heroin and opium. We have noticed that the truthfulness of the evidence rendered by these witnesses has not been questioned by the appellants in this appeal though its legality and sufficiency vis-a-vis the commission of any offence under NDPS Act has been questioned on other grounds such as non compliance with certain provisions of NDPS Act. It was, however, pointed out by Ms. Wattali that PW Capt./Major Sushil Kumar in his chief examination recorded on 26.09.1998 had stated that the seizure memo in regard to the recovered material was signed by him and both the appellants and the prosecution on finding that only a photocopy of this memo was lying on record of the case had got further recording of his statement deferred to enable him to produce the original seizure memo but the witnesses, when he appeared next time on 07.03.2003, stated that the said memo could not be traced. On this, Ms. Watali argued that written document having not been proved, oral evidence cannot be relied upon. We, however, do not find any substance in argument of Ms. On this, Ms. Watali argued that written document having not been proved, oral evidence cannot be relied upon. We, however, do not find any substance in argument of Ms. Watali for the reason that the said memo if proved would have provided additional support to the oral evidence rendered by the four witness and by not proving and producing the said memo the prosecution can be said to have deprived itself of a piece of evidence. 11. On the basis of evidence rendered by the aforementioned three witnesses the prosecution in our view has succeeded in proving before the trial court that the Surveillance(Naka) Party of the Army, which among others comprised of aforementioned three witnesses, had accosted and challenged the appellants when they were found coming from Pakistan side in an island in the Chenab River in sub-sector, Jorian of sector. Akhnoor at about 9:30 PM in the night intervening 30th and 31st January, 1998. The appellants had thrown the material which they were carrying. A-1 was apprehended by the Surveillance Team as soon as he was spotted whereas A-2 had managed to hide but was traced out and apprehended shortly. 12. We, however, have found on reading and comparing the testimonies of these three witnesses that it was A-1 (Bharat Singh) who was apprehended first and the 27 packets, which according to the Army personnel was heroin, one more packet, which according to Army personnel was containing opium, one revolver and fifty rounds of ammunition were found in the material which he was carrying and had thrown on the ground. In this regard, we may refer to the evidence of Col. Pardeep Narayain, who has stated that two persons were seen coming towards India after crossing Indo-Pak Border. On being challenged they ran away but one of them, whom the witness identified as accused Bharat Singh, was apprehended whereas the other accused was apprehended after some search. It is also in his testimony that both the accused while running away had thrown the material being carried by them. His evidence, however, fails to make out as to what was comprised in the material being carried by a particular accused. In this context, PW Sub. Rashpaul has stated that the accused was seen coming, one of them was apprehended and the other run away who was, however, apprehended later. His evidence, however, fails to make out as to what was comprised in the material being carried by a particular accused. In this context, PW Sub. Rashpaul has stated that the accused was seen coming, one of them was apprehended and the other run away who was, however, apprehended later. He has also stated in his cross examination that two tubes were recovered from the accused who had earlier managed to run away. Contextually, PW Nb. Sub. Jageer Singh, while expressing inability to identify the appellants (accused) in the trial court, has stated that one accused was apprehended whereas the other was apprehended after two hours at the same place. It clearly occurs in his testimony that 27 Kgs. heroin, 150 gms of opium, 1 revolver and 20 rounds of ammunition were recovered from the accused who was apprehended first. We would thus, hold that even though both the appellants (accused) were seen coming from Pakistan side at the same time but the substances alleged to be heroin and opium and arms and ammunition were being carried by A-l (Bharat Singh) whereas two tubes were found in possession of A-2 (Ashok Kumar). 13. The crucial question which would be the focal point of our endeavour hereafter would be, whether the prosecution has succeeded in establishing that the substance said to be heroin and opium was in fact heroin and opium as contemplated under the NDPS Act? 14. PWs Jatinder Yadav, P.C. Bhardwaj, Balwinder Singh, inspectors and PW Ram Prasad, Superintendent are the officers of Customs Department. From the evidence of these four Customs Officers and that of PW Capt./Major Sushil Kumar supported by 'RECOVERY-CUM-SEIZURE MEMO (Ex. PW-PC-1) dated 03.02.1998, 'Handing/Taking over certificate' (Ex. PW-PC) and 'Panchnama' dated 03.02.1998 (Ex. PW-PC-ll)' the prosecution has proved that the Army Authorities had informed the Customs Prevention Station, Akhnoor (CPS, Akhnoor) about the incident on 02.02.1998. On 03.02.1998, PW Ram Prasad, Superintendent Customs, had contacted the Army Unit and on the same day the appellants and the material were brought in the office of CPS, Akhnoor. Further it has been proved by the prosecution that the seized material comprising of 27 packets said to be heroin, 01 packet said to be opium, two rubber tubes and one shawl were handed over by PW Capt./Major Sushil Kumar to PW P.C. Bhardwaj in the CPS, Akhnoor. Further it has been proved by the prosecution that the seized material comprising of 27 packets said to be heroin, 01 packet said to be opium, two rubber tubes and one shawl were handed over by PW Capt./Major Sushil Kumar to PW P.C. Bhardwaj in the CPS, Akhnoor. On the same day, the Customs Authorities had also taken charge of the appellants and effected their formal arrest. It is noticed that prosecution case and evidence in regard to the handing over of the appellants and aforementioned seized substances by the Army Authorities to the Customs Authorities in the office of the CPS, Akhnoor has not been questioned by the appellants in this appeal. 15. The first ground on which the conviction and sentence of the appellants has been assailed is that Army Authorities are not authorized to effect arrest or seizure under the NDPS Act and the alleged apprehension of appellants by the Army and recovery of the substances alleged to be heroin and opium was in contravention of the mandatory provisions under the NDPS Act. Ms. Watali, learned counsel for the appellants argued that Army Authorities being not authorized have violated mandatory provisions of section 41, 42 and 43 of the NDPS Act in effecting the search and seizure of the two substances and arrest of the appellants. Besides, Ms. Watali argued that the Army Authorities violated the requirement of sections 50, 51, 52-A, 53, 54 and 57 and therefore, the entire prosecution is vitiated as per the law laid down by the Supreme Court in State of Punjab v. Balbir Singh, (1994) 3 SCC 299 . Dilating her point, Ms. Watali urged that the Naka was laid by the Army on prior information of smuggling of narcotics so search of the material allegedly being carried by the appellants should have been made after complying with section 50 by providing option to the appellants to be searched in presence of a Gazetted Officer or a Magistrate and independent witnesses should have been associated with the search. 16. On the other hand, Ms. Sindhu Sharma, learned ASGI submitted that it is not correct to say that Naka had been laid on the basis of information about smuggling of narcotics and that sections 41, 42, 43 and 50 of the NDPS Act were not attracted. Dilating her point, Ms. 16. On the other hand, Ms. Sindhu Sharma, learned ASGI submitted that it is not correct to say that Naka had been laid on the basis of information about smuggling of narcotics and that sections 41, 42, 43 and 50 of the NDPS Act were not attracted. Dilating her point, Ms. Sharma submitted that as per the evidence the Army had laid Naka as they were having information about smuggling of arms and ammunition but in the course of that Naka appellants were found carrying narcotics in addition to arms and ammunition. Ms. Sharma argued that sections 41, 42, 43 and 50 would be attracted only in a case when any action such as search of a premises or a person is effected on prior information about commission of an offence under the NDPS Act. 17. Section 41 of the NDPS Act deals with issue of warrant of arrest or a search warrant by a Magistrate in relation to commission of any offence under the NDPS Act. A reference to section 41 by learned appellants' counsel is uncalled for as no question in this behalf arises for consideration having regard to the situation in which the appellants were accosted and apprehended. Section 42 provides for the officers who can be authorized to effect search and arrest without warrant. Such authorisation, however, relates to the cases when such an Officer has a reason to believe from personal knowledge or information given by any person that a contraband, that is, any narcotic drug, or psychotropic substance, or controlled substance is kept at the place to be searched or an offence under NDPS Act has been committed by a person to be arrested. Contextually, section 43 empowers such an officer to make seizure or arrest of a person at a public place. Section 50 lays down conditions which are required to be fulfilled when an officer authorize under section 42 is about to search any person under provisions of section 41, section 42 or section 43. 18. Contextually, section 43 empowers such an officer to make seizure or arrest of a person at a public place. Section 50 lays down conditions which are required to be fulfilled when an officer authorize under section 42 is about to search any person under provisions of section 41, section 42 or section 43. 18. Common thread of sections 42, 43 and 50 of the NDPS Act is that the authorized officer while effecting search or arrest must have been acting on prior information about existence of a contraband such as any narcotic drug or psychotropic substances or controlled substance at the place to be searched or commission of any offence punishable under the NDPS Act by the person to be arrested. 19. Question in regard to the Army personnel jurisdiction to effect a search of or arrest the appellants in connection with commission of any offence under the NDPS Act and compliance of section 50 therefore, would be relevant only if it is found that the Naka had been laid on the basis of an information about smuggling of the contrabands as per the NDPS Act, that is, any narcotic drug, or psychotropic substance, or controlled substance. In this regard testimonies of four Army personnel are relevant which on their perusal would show that the information, whatsoever, available to the Army was one about smuggling of arms and ammunition and not the contrabands as per the NDPS Act and further that no search of the appellants was made as the substances, whatsoever, were found in the material thrown by them on the ground. There is nothing in relation to the nature of information received by the Army in the testimonies of PWs Col. Pardeep Naryain, Sub. Rashpaul and Nb. Sub. Jageer Singh. According to PW Capt./Major Sushi Kumar who had received the information, the information related to smuggling of arms and ammunition. There is nothing in his testimony to show or indicate that information related to smuggling of narcotic drugs, or psychotropic substances, or prohibited substances or in particular opium or heroin. Challenge to the impugned judgment on this score therefore, is misplaced and devoid of any merit and deserves no more discussion. 20. There is nothing in his testimony to show or indicate that information related to smuggling of narcotic drugs, or psychotropic substances, or prohibited substances or in particular opium or heroin. Challenge to the impugned judgment on this score therefore, is misplaced and devoid of any merit and deserves no more discussion. 20. The other grounds on which the conviction has been assailed is that there was huge discrepancy in the weight of the samples said to have been prepared by the Customs Authorities and those received in the CRCL, New Delhi, which creates serious doubt as to tempering of the samples which is strengthened by huge unexplained delay in receipt of samples in the CRCL. Contextually, it is contended that possibility of tempering is further strengthen by the fact that the whole bulk of the two substances alleged to be heroin and opium and the seal with which the bulk and the samples were sealed had all along remained under the control of the Customs Authorities. It is contended further that the seized substances were not produced before the trial court which creates a serious doubt about the same being heroin or opium. 21. Ms. Wattali urged that as per the prosecution case, one sample weighing 05 grams from each of the three lots were sent for chemical analysis to CRCL, New Delhi and similarly to FSL, Jammu but the three samples received at CRCL, whose report the prosecution has relied upon, weighed 4.09 gms, 3.1 gms and 1.9 gms. Ms. Wattali submitted further that the Customs Authorities committed illegality by not entrusting the seal to an independent person and had left open the possibility of tempering with or changing the samples which cannot be ruled out having regard to the discrepancy in the weight of the samples allegedly prepared and those received in the Laboratory. Ms. Watalli submitted that discrepancy in the weight of the samples and open possibility of tempering the samples creates a serious doubt about genuineness of the chemical analysis's report relied upon by the prosecution and bereft the prosecution case of the all important reliable link evidence between the substances allegedly recovered from the appellants and the chemical analysis report relied upon by the prosecution. Ms. Ms. Wattali argued also that due to the non-production of the seized substances and the container/bag in which they were allegedly being carried by the appellants before the court the same have not been identified by the eye witnesses and the defence has been deprived of its right of cross-examining the witness in that respect which creates a serious doubt about the nature of the substances recovered. Ms. Wattali in support of the arguments placed reliance on Noor Aga v State of Punjab and anr. AIR 2009 SC (Supp) 852, Mohd. Ashiqeen v State, 2007 (3) JKJ 362 (HC), Rajesh Jagdamba Avasthi v State of Goa, AIR 2005 SC 1389 , Jatindra and anr. State of M.P. 2003 Cri.L.J. 4985 (1) and Bhasker Aayyar Kaunder v State of Maharashtra, 1993 CRI.L.J. 2761. 22. We with the assistance of learned counsel for both the sides have scrutinized the whole record on the trial court file to ascertain the facts, proved and not proved, relating to the sampling of the two substances alleged to be heroin and opium, weighing and dispatch of samples to and their receipt at the laboratories, discrepancy in the weight of samples as they were sent to and received at the laboratories, weighing and sealing of the whole bulk of the substances recovered from the appellants and whereabouts of the seized substances all through after they were taken over by the Customs Authorities at Akhnoor. All these facts are relevant for providing the link evidence for establishing that the aforementioned two substances recovered by the Army were the contrabands, namely, heroin and opium. 23. We start with the evidence of PW Ram Prasad, who at the relevant time was posted as Superintendent, CPS, Akhnoor. According to him on receiving the information from the Army on 02.02.1998, he informed his higher officers at Jammu and constituted a squad of his officers headed by him. On 03.02.1998, he contacted Army Authorities at Jorian, who told him that they have seized 27 Kgs. of heroin, 150 gms. of opium, 02 rubber tubes, 01 shawl, 01 revolver and 50 rounds of bullets from them. The accused and the recovered substances were brought to the CPS, Akhnoor accompanied by the Army personnel. The witness also states about the handing over and taking over proceedings having taken place in the office of CPS, Akhnoor. of heroin, 150 gms. of opium, 02 rubber tubes, 01 shawl, 01 revolver and 50 rounds of bullets from them. The accused and the recovered substances were brought to the CPS, Akhnoor accompanied by the Army personnel. The witness also states about the handing over and taking over proceedings having taken place in the office of CPS, Akhnoor. On similar line is the evidence of PW P.C. Bhardwaj, who at the relevant time was posted as Inspector at CPS, Akhnoor and had conducted the proceedings, among others, relating to handing over and taking over of the material and the appellants between the Customs officers and the Army personnel and sampling etc. 24. The manner in which sampling was done is given in the complaint. It is stated that samples were taken from all the packets in presence of Army Authorities and tested with Drug-testing kit, which gave positive result. 08 packets, which were bearing mark 'WT were placed in Lot No. 1, 19 packets which were bearing mark 'ITTEFAK LTD' were placed in Lot No. 2 and 01 packet said to be containing opium was placed in lot No. 3. Twelve representative samples, that is, four from each lot were prepared and sealed with seal No. 82 of Central Excise Chandigarh over slips bearing dated signatures of handing over/taking over officers. 25. The manner in which the sampling was done is incorporated in the document called the 'Panchnama' (Ex-Pw-PC-ll). This reads: “12. representative samples of 5 gms. each appox. were drawn from the 03 lots for testing/chemical analysis and were placed in small polythene bags, were further packed in paper envelops which have been sealed with Central Excise Chandigarh Seal No. 82 in our presence.” 26. The Panchnama has been prepared by PW P.C. Bhardwaj, Inspector, that is, the complainant and has been signed also by PW Capt. Sushil Kumar. Besides, signatures of two panch witnesses, namely, Sadhu Ram Sharma and Tirath Ram also appear on it but the panch witnesses have not been produced by the prosecution. PW P.C. Bhardwaj in his chief examination has supported the factum of sampling by stating briefly that samples were separated and sealed and one portion of samples was sent to CRCL and another to the FSL. One portion was sent to Divisional Office of the Customs and one portion was retained by him. PW P.C. Bhardwaj in his chief examination has supported the factum of sampling by stating briefly that samples were separated and sealed and one portion of samples was sent to CRCL and another to the FSL. One portion was sent to Divisional Office of the Customs and one portion was retained by him. In regard to the whole bulk of the recovered substances, this witness has stated that 08 packets contained white powder and the 19 packets contained brown powder weighed 01 Kg each and the opium weighed 150 gms. This entire material was also sealed. Nothing in regard to sampling and sealing of the whole bulk seems to have been asked to PW P.C. Bhardwaj in his cross-examination as nothing could be found therein nor was pointed out by the counsel for the appellants. 27. More description in regard to the sampling and sealing is contained in the evidence of PW Ram Prasad, who has stated that heroin was divided into two lots. 08 packets bearing mark 'WT were kept in one lot, and 19 packets bearing mark 'ITTEFAK LTD' were kept in the other lot. 150 gms. opium was kept in third lot. Four samples were prepared from each lot. Seal No. 82 of Central Excise Chandigarh was used for sealing the samples. One sample each was sent to the laboratories at Jammu and New Delhi. As regards the whole bulk, his evidence indicates that the same was packed in a steel trunk, lock whereof was sealed, which was deposited in malkhana at Amritsar by PW P.C. Bhardwaj. Not much in regard to the sealing and sampling was asked by the defence in cross-examination of this witness too. Nonetheless, it has come in the cross-examination that the seal No. 82 which was used for the purpose of sealing remained in the possession of this witness and that neither the whole bulk of recovered substances nor the samples were weighed before the sealing for the reason that weighing scale was not available with them. 28. Evidence of PWs Jatinder Yadav and Balwinder Singh; both Inspectors, Customs, is by and large in line with the evidence of PWs Ram Prasad and P.C. Bhardwaj and nothing from their evidence was pointed out by counsel for the parties. 29. 28. Evidence of PWs Jatinder Yadav and Balwinder Singh; both Inspectors, Customs, is by and large in line with the evidence of PWs Ram Prasad and P.C. Bhardwaj and nothing from their evidence was pointed out by counsel for the parties. 29. It is noticed that no evidence in regard to the date and mode of dispatching the samples to the CRCL, Delhi is available in the testimonies of the four Customs Officers, who have been examined as prosecution witnesses, in particular the testimony of PW P.C. Bhardwaj, who has conducted the proceedings in the case including the sampling and has launched the prosecution. No such evidence was pointed out to us by learned ASGI. Documents produced along with the complaint, however, include a 'copy of chemical analysis letter to CRCL, New Delhi dated 04.02.1998' as annexure-11. This letter seems to have been signed by PW Ram Prasad but this letter has not been proved before the trial court nor even a reference to this letter is contained in the testimony of any witness. There is, however, no evidence as to when and how this letter and the samples were sent to CRCL, New Delhi. 30. There is no evidence in regard to the mode and manner of dispatching the samples to FSL, Jammu too. The documents produced along with the complaint, include a 'copy of test report from Director, FSL, Jammu dated 02.03.1998, as annexure-16 but as per the record on the trial court file this report neither has been formally tendered as evidence in terms of 510 Cr.P.C nor the chemical examiner who issued this report was produced. This report therefore, has no evidentiary value. 31. The prosecution in the course of trial, however, has tendered in terms of section 510 Cr.P.C. the Chemical Analysis Report, FO No. 1/ND/R/98CD/36 to 38 (N) dated 28.03.1998 with the permission of the learned trial court granted vide order dated 04.01.2006 and by virtue of the same order the prosecution produced the author of this report, Dr. Y. K. Singh Rathore, Joint Director, CRCL, New Delhi in the court on 27.04.2006 when the defence cross-examined him. 32. As per the Chemical Analysis's Report issued by Dr. Y.K. Singh Rathore two of the three samples received by him were found to contain, 'diacetyl morphine (HEROIN) % of diacetyl morphine (HEROIN)' and third sample was found to contain opium. 33. Dr. 32. As per the Chemical Analysis's Report issued by Dr. Y.K. Singh Rathore two of the three samples received by him were found to contain, 'diacetyl morphine (HEROIN) % of diacetyl morphine (HEROIN)' and third sample was found to contain opium. 33. Dr. Y.K. Singh Rathore in his cross-examination by the defence has stated that the sealed samples were received on 13.02.1998. The test memo was containing the seal impression and date of dispatch as 04.02.1998. Weight of the samples was shown as 05 gms each but on weighing in the Laboratory, the first sample weighed 04 gms, the second sample weighed 3.1 gms and the third sample weighed 3.9 gms. 34. In backdrop of the aforementioned fact situation, we have accorded consideration to the all important question relating to link evidence, that is, whether it is proved that the substance contained in 27 packets said to be weighing 01 kg each and the substances contained in one packet said to be weighing 150 gms recovered from the possession of A-l was heroin and opium respectively. 35. Two things can be taken as indisputable facts. One, that the seized substances and the two sets of samples, which were retained by the Customs authorities and the remnant of the samples, which as per the chemical analysis report of Dr. Y.K. Singh Rathore were returned to the Customs Authorities, were not produced before the trial court at the trial of the case. No explanation in this regard is available from the evidence/record of the case Two, that there is a remarkable discrepancy in the weight of the samples said to have been sealed by PW P. C. Bhardwaj, Inspector, Customs in presence of PW Ram Prasad, Superintendent, Customs on 03.02.1998 and those received at the CRCL, New Delhi on 13.02.1998. It may be reminded that, as per the prosecution evidence, sample from each of the three lots weighed 05 gms approximately whereas the three samples received at the CRCL, as per Dr. Y.K. Singh Rathore, weighed 04 gms, 3.1 gms and 3.9 gms. respectively. No explanation in this regard is available from the evidence/record of the case. An attempt to explain this discrepancy, however, was made by learned ASGI which we shall take up later. Y.K. Singh Rathore, weighed 04 gms, 3.1 gms and 3.9 gms. respectively. No explanation in this regard is available from the evidence/record of the case. An attempt to explain this discrepancy, however, was made by learned ASGI which we shall take up later. Other important fact which is proved from the evidence is that there was a gap of ten days in receipt of the samples in the CRCL, Delhi and it is not proved when and in what mode the samples were sent from the office of the CPS, Akhnoor to the CRCL. Other important facts proved are that the whole bulk of the substances, alleged to be heroin and opium and the seal used for sealing the samples all along remained under the control and within the reach of the Customs authorities inasmuch as there is nothing on record to rule out their accessibility to the persons dealing with the case. 36. The effect of non production of the physical evidence like the seized substances alleged to be narcotics, container allegedly used for carrying those substances and the samples before the court in NDPS cases has been considered by the Supreme Court in landmark judgment in Noor Aga v. State of Punjab, AIR 2009 SC (Supp.) 852. In that case the accused, an Afgan national, was allegedly arrested for carrying 1 kg 400 gms of heroin in a cardboard carton as a member of crew of Ariana Afgan Airlines and was accosted by the Customs authorities at Raja Sansi Airport, Amritsar. Dealing with the question of non-production of the physical evidence at trial the Supreme Court laid down the benchmark in para 111 of the reporting, which reads: “NON PRODUCTION OF PHYSICAL EVIDENCE 111. The prosecution alleged that 1.4 kgs heroin was concealed in a cardboard container for carrying grapes and were recovered from the appellant at Raja Sansi Airport. Essential key items necessary to prove the same were: “i) The cardboard carton allegedly used for carrying the heroin to test the veracity. ii) The bulk, which establishes the quantity recovered. iii) The three homogenous samples of five grams each taken from the bulk amount of heroin, which would be essential in ascertaining whether the substance that the accused was allegedly in possession of was, in fact, heroin.” 37. The cardboard carton was not produced at trial being allegedly missing. ii) The bulk, which establishes the quantity recovered. iii) The three homogenous samples of five grams each taken from the bulk amount of heroin, which would be essential in ascertaining whether the substance that the accused was allegedly in possession of was, in fact, heroin.” 37. The cardboard carton was not produced at trial being allegedly missing. Supreme Court while, pointing out that no convincing explanation was rendered in that behalf observed in para 120 of the reporting that 'omission on the part of the prosecution to produce evidence in this behalf must be linked with second important piece of physical evidence that the bulk quantity of heroin allegedly recovered indisputably has also not been produced in court'. The Supreme Court after pointing out the flaws in the therein respondents' contention that the same had been destroyed observed in para 125 of the reporting: “125. The High Court proceeded on the basis that non-production of physical evidence is not fatal to the prosecution case but the fact remains that a cumulative view with respect to the discrepancies in physical evidence creates an overarching inference which dents the credibility of the prosecution. Even for the said purpose the retracted confession on the part of the accused could not have been taken recourse to.” 38. In regard to non-production of the samples Supreme Court observed in para 126 and 127: “126. The last but not the least, physical evidence relating to three samples taken from the bulk amount of heroin were also not produced. Even if it is accepted for the sake of argument that the bulk quantity was destroyed, the samples were essential to be produced and proved as primary evidence for the purpose of establishing the fact of recovery of heroin as envisaged under Section 52A of the Act. 127. The fate of these samples is not disputed. Two of them although were kept in the malkahana along with the bulk but were not produced. No explanation has been offered in this regard. So far as the third sample which allegedly was sent to the Central Forensic Science Laboratory, New Delhi is concerned, it stands admitted that the discrepancies in the documentary evidence available have appeared before the court, namely: i) While original weight of the sample was 5 gms, as evidenced by Ex. No explanation has been offered in this regard. So far as the third sample which allegedly was sent to the Central Forensic Science Laboratory, New Delhi is concerned, it stands admitted that the discrepancies in the documentary evidence available have appeared before the court, namely: i) While original weight of the sample was 5 gms, as evidenced by Ex. PB, PC and the letter accompanying Ex.PH, the weight of the sample in the laboratory was recorded as 8.7 gms. ii) Initially, the colour of the sample as recorded was brown, but as per the chemical examination report, the colour of powder was recorded as white.” 39. In Noor Aga's case (supra) the Supreme Court also referred to an earlier judgement of the Court in Jatindera and anr. v. State of M.P. 2003 Cri.LJ. 4985 (1) (supra). In that case the Supreme Court had noticed that the panch witnesses to recovery of charas and ganja from the accused have turned hostile, there was no independent witness to the recovery of these substances from the accused and the charas and ganja alleged to have been seized from the possession of the accused were not produced before the trial court, so as to connect them with the samples sent for chemical analysis. The High Court of Madhya Pradesh while taking note of this aspect had taken the view that it would not vitiate the conviction as it had been proved that the samples were sent to chemical examiner in a properly sealed condition and those were found to be charas and ganja and held that 'non-production of these commodities before the Court is not fate to the prosecution.' The Supreme Court, however, held in para 6 of the reporting: “6. In our view, the view taken by the High Court is unsustainable. In the trial it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of charas and ganja were seized from the possession of the accused. The best evidence would have been the seized materials which ought to have been produced during the trial and marked as material objects. There is no explanation for this failure to produce them. The best evidence would have been the seized materials which ought to have been produced during the trial and marked as material objects. There is no explanation for this failure to produce them. Mere oral evidence as to their features and production of panchanama does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent sentence as under the NDPS Act.” (underlining by me) 40. In regard to discrepancy in the weight of samples, argument of Ms. Sharma, learned ASGI was that 5 gms. was the approximate weight of each sample and not the real weight which was made clear in the 'panchnama'. Ms. Sharma supported her argument by the say of PW Ram Prasad in his cross-examination that neither the whole bulk of heroin and opium nor the samples were weighed for the reason that they were not having a weighing scale. Argument of Ms. Sharma supported by the version of PW Ram Prasad, if taken as prosecution's explanation, defeats more than it serves the prosecution's cause. It is noticed that there is nothing in the evidence or record on the trial court file that the Army personnel had ever weighed the substances alleged to be heroin and opium before handing them over to the Customs authorities and admission on behalf of the prosecution is that Customs authorities did not weigh the substances due to non availability of weighing scale with them. In that case question arises as to how the quantity of the substances alleged to be heroin and opium was ascertained and how the appellants were sent for trial with the allegation of possessing huge quantities of these substances. This aspect which now emerges as admitted case of the prosecution bereft the prosecution case of all its credibility. Such a situation seems to have arisen in Noor Aga's case too and their Lordships in para 128 of the reporting have observed: “128 We are not oblivious of the fact that a slight difference in the weight of the sample may not be held to be so crucial as to disregard the entire prosecution case as ordinarily an officer in a public place would not be carrying a good scale with him. Here, however, the scenario is different. The place of seizure was an airport. The officers carrying out the search and seizure were from the Customs Department. Here, however, the scenario is different. The place of seizure was an airport. The officers carrying out the search and seizure were from the Customs Department. They must be having good scales with them as a marginal increase or decrease of quantity of imported articles whether contraband or otherwise may make a huge difference under the Customs Act.” 41. Like in Noor Aga's case, entire paper work and sealing and sampling of the substances had taken place in the office of CPS, Akhnoor. An important functionary of the Customs department, who was an officer holding the position of a Superintendent and was heading the office at that time, cannot be heard explaining the failure to weigh the bulk of substances, which were said to be heroin, and opium and their samples by saying merely that scale was not available without explaining as to whether it was impossible too to arrange one. Failure to weigh the huge bulk of the substances and the samples, thus, remains unexplainable and can be taken as nothing less than negligence on the part of the Customs officers which cannot escape its adverse effect on the prosecution case. 42. The discrepancy in the weight of samples cannot be delinked from the facts that there was a time gap of ten days till the samples were received at CRCL and that the bulk of the substances and the seal were not beyond the accessibility of the officers dealing with the case. In Bhaskar Aayyar Kaunder v. The State of Maharashtra, 193 CR.LJ 1761 there was a delay of five days in delivery of the samples to the Chemical Analyser and the Supreme Court held that the accused was entitled to benefit of doubt because the possibility of tempering or substituting could not be ruled out. In Rajesh Jagdamba Avasthi v. State of Goa, AIR 2005 SC 1389 there was discrepancy in the weight of the contraband given at the time of seizure and that found when it was delivered in the laboratory. Supreme Court observed in para 14 of the reporting: “4. We do not find it possible to uphold this finding of the High Court. The appellant was charged of having been found in possession of Charas weighing 180.70 gms. The Charas recovered from him was packed and sealed in two envelopes. Supreme Court observed in para 14 of the reporting: “4. We do not find it possible to uphold this finding of the High Court. The appellant was charged of having been found in possession of Charas weighing 180.70 gms. The Charas recovered from him was packed and sealed in two envelopes. When the said envelopes were opened in the laboratory by Junior Scientific Officer, PW-1, he found the quantity to be different. While in one envelope the difference was only minimal, in the other the difference in weight was significant The High Court itself found that it could not be described as a mere minor discrepancy. Learned counsel rightly submitted before us that the High Court was not justified in upholding the conviction of the appellant on the basis of what was recovered only from envelope 'A' ignoring the quantity of Charas found in envelope 'B1. This is because there was only one search and seizure, and whatever was recovered from the appellant was packed in two envelopes. The credibility of the recovery proceeding is considerably eroded if it is found that the quantity actually found by PW-1 was less than the 'quantity sealed and sent to him. As he rightly emphasized, the question was not how much was seized, but whether there was an actual seizure, and whether what was seized was really sent for chemical analysis to PW-1. The prosecution has not been able to explain this discrepancy and, therefore, it renders the case of the prosecution doubtful. 43. The cumulative effect of prosecution's failure to weigh the recovered substances and the samples and to produce the recovered substances and samples (remnants of samples) before the court, remarkable discrepancy in the approximate weight of the samples as at the time of sampling and at the time they were received in the CRCL, New Delhi coupled with unexplained time gap in delivery of the samples in the CRCL and retaining the control ever the bulk of the recovered substances and the seal used for sampling is that the prosecution has failed to establish the quantity (weight) of the received substances and a credible and reliable link between the recovered substances and the chemical analysers report and to prove that the substances recovered from the possession of A-l were heroin and opium in a particular quantities. 44. 44. Another piece of evidence produced by the prosecution before the trial court is the statements of the appellants; which as per the complaint were recorded by PW P.C. Bhardwaj in terms of section 108 Customs Act. Argument of Ms. Sharma, learned ASGI was that such statements of their own are sufficient to bring home the guilt against the appellants because they have admitted having visited Pakistan by crossing the River Chinab and having returned back bringing the contrabands, arms and ammunition with them. Ms. Sharma submitted also that statements recorded by the Customs Officers were admissible in terms of section 67 NDPS Act also. 45. Once prosecution has failed to establish link between the two recovered substances alleged to be heroin and opium and the chemical analysis's report and thereby to prove that the said substances were heroin and opium, it would not be possible to secure or sustain conviction on the basis of statements be they under section 108 Customs Act or 57 of the NDPS Act. That notwithstanding, a duty is cast on the prosecution when in it tends to rely upon a statement under section 108 Customs Act or 57 of the NDPS Act that such a statement was voluntarily made. Casual approach of the prosecution in dealing with these two statements has been noticed. It If has been noticed that when PW P.C. Bhardwaj was in the witness box, he stated that he recorded statements of the accused (appellants) in presence of Superintendent Ram Prasad. He identified the statement of appellant Bharat Singh said to be recorded on 03.02.1998 lying on the file which was marked as Ex. PW-PC-III. He did not identify the statement of the other appellant. When PW Ram Prasad, Superintendent Customs came in the witness box, he stated that accused had made statements that they had gone to Pakistan and had brought aforementioned substances with them and these statements were recorded in his presence by PW P.C. Bhardwaj and were signed by the accused persons in his presence. On the basis of his evidence, one statement said to have been made by accused Ashok Kumar on 03.02.1998 was marked as Ex.-PW-RP, one statement said to have been made by accused Ashok Kumar on 07.02.1998 was marked as Ex.-PW-RP-l and another statement said to have been made by accused Bharat Singh on 08.02.1998 was marked as Ex.-PW-ll. On the basis of his evidence, one statement said to have been made by accused Ashok Kumar on 03.02.1998 was marked as Ex.-PW-RP, one statement said to have been made by accused Ashok Kumar on 07.02.1998 was marked as Ex.-PW-RP-l and another statement said to have been made by accused Bharat Singh on 08.02.1998 was marked as Ex.-PW-ll. In addition, this witness also identified the statement of accused Bharat Singh (Ex. PW-PC-III) (supra). What is thus evident is that as per PW P.C. Bhardwaj, statements of the appellants were recorded once only out of which he referred to that given by accused Bharat Singh only whereas as per PW Ram Prasad statements were recorded twice, firstly on 03.02.1998 and secondly, on 07/08 of the same month. This aspect of the matter has not been clarified and it has not been explained as under circumstances statements were recorded twice. It any case it has not been satisfactorily made out that these statements were voluntarily made. 46. Similar statements seem to have been recorded by the Customs Authorities in Noor Aga's case as well (supra). While dealing with these statements, Supreme Court observed at the outset in para 88 of the reporting that 'fundamental error has been committed by the High Court in placing explicit reliance upon Section 108 of the Customs Act'. Supreme Court in para 89 of the reporting observed also that 'the enquiry contemplated under Section 108 is for the purpose of 1962 Act (that is the Customs Act) and not for the purpose of convicting an accused under any other statute including the provisions of the NDPS Act'. The Supreme Court observed in para 92 of the reporting that 'Clause (3) of Article 20 of the Constitution provides that no person accused of any offence shall be compelled to be a witness against himself. Any confession made under Section 108 of the Customs Act must give way to Article 20(3) wherefor there is a conflict between the two. A retracted confessional statement may be relied upon but a rider must be attracted thereto namely if it is made voluntarily. The burden of proving that such a confession was made voluntarily would thus, be on the prosecution.' 47. For all that and discussed above, learned trial court has fallen into error by holding the appellants guilty and convicting and sentencing them. This appeal, therefore, has merit and is allowed. The burden of proving that such a confession was made voluntarily would thus, be on the prosecution.' 47. For all that and discussed above, learned trial court has fallen into error by holding the appellants guilty and convicting and sentencing them. This appeal, therefore, has merit and is allowed. Conviction and sentence recorded by the learned trial court are set aside. 48. A certified copy of this judgment be sent to the learned trial court along with record of the case for immediate follow up action. 49. Disposed of.