2001 (5) TMI 940 - HC - Customs

Summary

Issues Involved:
1. Compliance with Section 42 of the NDPS Act.
2. Compliance with Section 50 of the NDPS Act.
3. Voluntariness and admissibility of statements under Section 67 of the NDPS Act.
4. Validity of search and seizure operations.
5. Requirement of prior sanction under Section 197 Cr.P.C.
6. Jurisdiction of Delhi Team for search and seizure in Bikaner.
7. Impact of hostile witnesses on the prosecution's case.
8. Retracted confessions and their impact on the case.

Issue-wise Detailed Analysis:

1. Compliance with Section 42 of the NDPS Act:
The court held that Section 42 of the NDPS Act, which mandates recording and forwarding of information to superior officers, was not applicable as the recovery was made from a public conveyance (truck). Instead, Section 43, which deals with seizure in public places, was applicable. The court confirmed that the truck was a public conveyance, and thus, Section 42 did not apply.

2. Compliance with Section 50 of the NDPS Act:
The court found that compliance with Section 50, which requires informing the accused of their right to be searched before a Magistrate or Gazetted Officer, was not necessary since the recovery was from a truck and not from a personal search. The court confirmed the Special Judge's finding that Section 50 was not applicable in this case.

3. Voluntariness and Admissibility of Statements under Section 67 of the NDPS Act:
The court examined the statements of the accused recorded under Section 67, which allows officers to call for information and examine persons during an investigation. The court held that these statements were admissible as they were made voluntarily and before the accused were formally arrested. The court rejected the argument that these statements were made under coercion or were hit by Article 20(3) of the Constitution, which protects against self-incrimination.

4. Validity of Search and Seizure Operations:
The court validated the search and seizure operations conducted by the DRI officers. It was confirmed that the heroin was found in the truck, which was a public conveyance, and thus, the search was lawful under Section 43 of the NDPS Act. The court also held that the hostile witnesses did not affect the legality of the search and seizure, as their signatures on the relevant documents were admitted.

5. Requirement of Prior Sanction under Section 197 Cr.P.C.:
The court held that prior sanction under Section 197 Cr.P.C., which protects public servants from prosecution without government sanction, was not required in the case of accused appellant Arvinder Singh. The court confirmed the Special Judge's finding on this matter.

6. Jurisdiction of Delhi Team for Search and Seizure in Bikaner:
The court rejected the argument that the Delhi Team had no jurisdiction to conduct the search and seizure in Bikaner. It was held that the DRI officers had the authority to act on the information received and conduct the operations accordingly.

7. Impact of Hostile Witnesses on the Prosecution's Case:
The court held that the hostility of the two motbirs (witnesses) did not affect the prosecution's case. Their signatures on the search and seizure documents were admitted, and the testimonies of the DRI officers were found to be credible and corroborative.

8. Retracted Confessions and Their Impact on the Case:
The court addressed the retraction of confessions by accused appellant Arvinder Singh. It was held that the retraction, made with a delay, did not affect the earlier voluntary statements recorded under Section 67. The court confirmed that the statements were made voluntarily and were admissible in evidence.

Conclusion:
The court dismissed the appeals filed by the accused appellants, confirming the judgment and order of the Special Judge, NDPS Cases, Bikaner. The findings of conviction were based on a correct appreciation of evidence and legal principles. The sentences awarded were deemed appropriate given the quantity of heroin involved. The court also noted that the record of the case should not be weeded out until the appeal of the absconding accused appellant Harjeet Singh is decided.