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2014 (3) TMI 56 - HC - CustomsSearch and seizure - Narcotic drugs - presence of diacetylmorphine of 60.4% and 57.7% purity respectively - Compliance of Section 50 of the NDPS Act - Session judge acquitted the respondents of the offences under Sections 21 and 27A of Narcotic Drugs and Psychotropic Substances Act, 1985 ( NDPS Act ). - Held that - a personal search was also made of the body of the accused. A notice under Section 50 NDPS Act had therefore to be mandatorily issued. The notice under Section 50 mentions the time of occurrence as around 11.30 hrs. today which was 6th October 2007. In the absence of any indication that it was p.m. or a.m. it could well be taken to be a.m . Even if it was taken to be p.m., it contradicted the case of the prosecution that the accused was apprehended at around 10.30 p.m. The second factor pointed out is that a typed notice could not possibly have been served at the time and place of apprehension of the accused. There was nothing to show that the raiding party took any computer with them from which a typed notice could have been prepared at the spot. These factors indicate that the notice Ex. PW11/B was a document prepared subsequently. The recovery from the vehicle on a public highway was not as a matter of pure chance but on specific advance information and therefore the requirements of Sections 41 and 42 of the NDPS Act had to be complied with. The Court is unable to find any valid ground for granting leave to appeal against the impugned judgment. Accordingly, the petition is dismissed with no order as to costs. - Decided against the petitioner.
Issues:
Petition seeking leave to appeal against judgment acquitting respondent of offences under NDPS Act; Contravention of Section 50 NDPS Act; Non-compliance with Sections 41 and 42 NDPS Act; Applicability of Section 43 NDPS Act; Authenticity of summons under Section 67 NDPS Act; Failure to associate public witnesses; Issues with site plan and team constitution; Certification regarding recovered mobile phone; Guilt under Sections 27 and 27A NDPS Act based on cash recovery. Issue 1: Petition for Leave to Appeal Against Acquittal: The petition sought leave to appeal against the judgment acquitting the respondent of offences under Sections 21 and 27A of the NDPS Act. The prosecution's case involved intelligence gathering, interception of the respondent at a petrol pump, recovery of heroin from a suitcase in his possession, and subsequent procedures including personal search and recovery of cash and a mobile phone. The trial court acquitted the respondent based on various grounds, as detailed in the judgment. Issue 2: Contravention of Section 50 NDPS Act: The trial court found that the notice issued under Section 50 of the NDPS Act was a fake document created after the interception, raising doubts about its authenticity. The discrepancies in the details recorded in the notice, such as the time mentioned conflicting with the prosecution's case, led the court to question the validity of the notice and its timing of preparation. Issue 3: Non-compliance with Sections 41 and 42 NDPS Act: The prosecution failed to comply with Sections 41 and 42 of the NDPS Act as the seizure was not authorized properly. The court noted that specific intelligence led to the interception, necessitating compliance with these sections. The absence of valid authorization for the seizing officer raised concerns about the legality of the seizure. Issue 4: Applicability of Section 43 NDPS Act: The court discussed the applicability of Section 43 of the NDPS Act, highlighting that the seizure was not a chance recovery but based on prior information. This distinction was crucial in determining the procedural requirements that should have been followed during the interception and seizure process. Issue 5: Authenticity of Summons under Section 67 NDPS Act: Concerns were raised regarding the authenticity of the summons issued under Section 67 of the NDPS Act. The discrepancies in the timing and execution of the summons cast doubt on its genuineness, leading the court to question the validity of the document and its procedural compliance. Issue 6: Other Procedural Irregularities: The court identified various other procedural irregularities, including the failure to associate public witnesses during the search and seizure, doubts about the site plan, issues with the team constitution, and the absence of necessary certification regarding the recovered mobile phone. These factors contributed to weakening the prosecution's case against the respondent. Issue 7: Guilt under Sections 27 and 27A NDPS Act: The court addressed the issue of the respondent's guilt under Sections 27 and 27A of the NDPS Act based on the recovery of cash. It was emphasized that mere cash recovery was insufficient to establish guilt under these sections, highlighting the need for substantive evidence to prove the alleged offences. Conclusion: The High Court dismissed the petition seeking leave to appeal against the impugned judgment, citing no valid grounds for appeal. The detailed analysis of various procedural irregularities and non-compliances with the NDPS Act led to the court's decision to uphold the acquittal of the respondent. The trial court record was ordered to be sent back forthwith, concluding the legal proceedings in this case.
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