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2005 (10) TMI 534 - SC - CustomsWhether the conviction of the appellants under Section 22 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (for short NDPS Act) and sentencing both of them to rigorous imprisonment for ten years and a fine of Rupees one lakh each, in default of payment of fine further imprisonment of six months to the defaulter valid? Whether it is necessary for officers of the gazetted rank to comply with sub-section (2) of Section 42, i.e. send the information taken down in writing by the officers to immediate official superior within seventy two hours?
Issues Involved:
1. Non-association of independent witnesses. 2. Non-compliance of Section 42 of the NDPS Act. Issue-wise Detailed Analysis: 1. Non-association of independent witnesses: The appellants contended that the recovery of the contraband drug was doubtful due to the non-association of independent witnesses. However, the court found no substance in this argument. Exhibit P.2, the panchnama, was signed by two independent witnesses, three officers of the department, and the two accused, detailing the search and seizure process. The court noted that the recovery of 20 kg of Diazepam, a significant quantity, did not suggest planting of evidence. The search took place at 5.30 a.m., making it difficult to find independent witnesses from the general public. Nevertheless, the officer managed to bring two witnesses, one of whom was examined. The court emphasized that there is no legal bar for a policeman to act as a mediator/panch witness, especially since the raid was conducted by excise officials and not the police. Thus, the court dismissed the argument regarding the non-association of independent witnesses. 2. Non-compliance of Section 42 of the NDPS Act: The appellants argued that there was non-compliance with Section 42 of the NDPS Act. Specifically, they contended that the information received by the Assistant Commissioner of Prohibition and Excise was not reduced into writing before proceeding for the search, nor was a copy of the information sent to the immediate official superior as required by Section 42(2) of the Act. The court addressed the first point by referring to the memo of search proceedings, Exhibit P.W.1, which indicated that the officer had noted the receipt of reliable information regarding the storage and possession of Diazepam and deemed it unnecessary to obtain a search warrant due to the urgency. This was deemed sufficient compliance with the requirement of making a note in writing about the information received. Regarding the second point, the court analyzed Sections 41 and 42 of the Act. Section 41(2) pertains to the issuance of authorizations by officers of gazetted rank, while Section 42(1) deals with search and seizure without warrant or authorization. The court noted that Section 42(2) requires officers acting without authorization to send a copy of the information to their immediate official superior. However, the court concluded that this requirement does not extend to officers of gazetted rank, who have the authority to authorize their subordinates for such actions. The rationale is that gazetted officers, due to their rank and seniority, do not need to report to their superiors when acting on their own. The court supported this view by referencing previous judgments, including M. Prabhulal v. Assistant Director, Directorate of Revenue Intelligence, and State of Haryana v. Jarnail Singh and Ors., which held that officers of gazetted rank are not required to comply with Section 42(2) when conducting searches themselves. The court distinguished the present case from others cited by the appellants, such as State of W.B. and Ors. v. Babu Chakraborthy and Beckodan Abdul Rahman v. State of Kerala, emphasizing that the present case involved action by an officer of gazetted rank. Conclusion: The court found no merit in the appellants' arguments regarding non-association of independent witnesses and non-compliance with Section 42 of the NDPS Act. Consequently, both appeals were dismissed, and steps were ordered to apprehend any accused/appellants on bail to serve the remaining sentence.
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