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2008 (7) TMI 855 - SC - CustomsJudgment of the acquittal - Held that - Section 41(2) deals with two situations. One is relatable to Gazetted Officer while in the other case the Gazetted Officer may authorize his subordinate to do the relevant act or may do it himself. Section 41(3) refers to the power under Section 42 which refers to subordinates. In the confessional statement the accused has clearly stated about the ownership. So, there has been no retraction at considerable length of time. Above being the position, the High Court was clearly in error by setting aside the judgment of the trial Court. We set aside the judgment of the High Court and restore that of the trial Court. The appeal is allowed to the aforesaid extent.
Issues Involved:
1. Non-compliance with Sections 42(2) and 50 of the NDPS Act. 2. Non-examination of independent witnesses. 3. Lack of evidence to show exclusive ownership of the seized narcotic. 4. Reliance on the confession of the accused. 5. Applicability of Section 57 of the NDPS Act. Issue-wise Detailed Analysis: 1. Non-compliance with Sections 42(2) and 50 of the NDPS Act: The High Court acquitted the accused on grounds of non-compliance with Sections 42(2) and 50 of the NDPS Act. However, it was argued that Section 50 is not applicable to the case as it pertains to personal search, and in this instance, the search was of a house. The Supreme Court noted that the inspector was a Gazetted Officer, making Section 42(2) non-applicable. The Court referred to precedents, emphasizing that an empowered Gazetted Officer conducting a search does not need to comply with Section 42(2). 2. Non-examination of Independent Witnesses: The High Court's decision was also based on the non-examination of independent witnesses. The Supreme Court found this reasoning insufficient to overturn the trial court's conviction, especially given the clear and cogent evidence presented. 3. Lack of Evidence to Show Exclusive Ownership: The High Court suggested that the poppy straws might be linked to the accused's father, who had a license for opium cultivation. The Supreme Court clarified that "opium" and "poppy straws" are distinct under Sections 2(xv) and 2(xviii) of the NDPS Act. The Court found no evidence supporting the High Court's inference about the father's ownership and concluded that the accused's ownership was sufficiently established. 4. Reliance on the Confession of the Accused: The High Court questioned the reliance on the accused's confession. The Supreme Court highlighted that the confession recorded under Section 67 of the NDPS Act was not retracted at any point, including during the examination under Section 313 of the Code of Criminal Procedure. The Court cited precedents affirming the validity of confessions under Section 67, provided there is no evidence of coercion or torture. 5. Applicability of Section 57 of the NDPS Act: The Supreme Court addressed the applicability of Section 57, which mandates sending information about the seizure and arrest to superior officers. The Court found that the prosecution had complied with this requirement, and there was no statutory obligation to produce the record in court unless specifically requested. Conclusion: The Supreme Court found the High Court's acquittal to be erroneous and reinstated the trial court's conviction and sentence. The appeal was allowed, and the judgment of the trial court was restored.
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