1999 (8) TMI 73 - SC - Customs

Order of conviction and sentence under Narcotic Drugs and Psychotropic Substances Act 1985 (NDPS) Held that - The fact remains that the evidence of P.W. 1 and P.W. 2 and P.W. 3 is consistant on the point that while the appellant was near the reception centre and had the telephone receiver in his hand two officers of DRI had gone there that they had tried to apprehend the appellant and at that time there was some scutfle and appellant had tried to run away. Therefore in our opinion even if there is some inconsistency in the evidence on this point it cannot led to an inference that the three witnesses had not deposed correctly about the manner in which the time at which and the place from where the appellant was apprehended by the DRI Officers. It has been found by the High Court that the search was carried out by the officers referred to under Section 41 and therefore they were not required to comply with the provision of Section 42. The High Court has further found that P.W. 2 was an empowered Officer and since the search was carried out in his presence and under his supervision the proviso to Section 42 had no application. For all these reasons we do not find any substance in this contention. Sub-section 2 of Section 52 provides that every person arrested and article seized under warrant issued under sub-section (2) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued. We do not think that this provision has any application at all. Moreover no material was brought on record to show that there was in fact any delay. Appeal dismissed.

Summary

Issues:
1. Conviction under N.D.P.S. Act and Customs Act.
2. Reliability of prosecution evidence.
3. Possession of heroin by the accused.
4. Search and seizure conducted by D.R.I. Officers.
5. Compliance with Section 42 of the Act.
6. Delay in forwarding the sample to the Magistrate.

Analysis:

1. The appellant was tried for offences under the N.D.P.S. Act and the Customs Act. The Special Judge convicted the appellant for possessing 3.8 Kgs. of heroin, but acquitted him of conspiracy and abatement charges. The appellant challenged the conviction and sentence, leading to this appeal.

2. The trial court found the evidence of prosecution witnesses, including Intelligence Officers and hotel staff, trustworthy. They testified that heroin was found in the room occupied solely by the appellant, along with incriminating items. The High Court agreed that this evidence established the appellant's possession of the articles.

3. The defense argued discrepancies in witness testimonies regarding the appellant's entry into the hotel. However, the court held that minor inconsistencies did not discredit the overall testimony that the appellant was apprehended with incriminating items in his possession.

4. The defense contended that the search conducted at the hotel violated Section 42 of the Act due to lack of recorded grounds. The High Court ruled that the search was valid as it was based on surveillance of the appellant, not specific information about narcotics in the room. The empowered officer's presence during the search further validated the procedure.

5. The defense raised concerns about the delay in forwarding the sample to the Magistrate, citing Section 52 requirements. The court dismissed this argument, stating there was no evidence of actual delay and that the provision did not apply to the circumstances of the case.

6. Ultimately, the court found no merit in the appellant's contentions and dismissed the appeal, upholding the conviction based on the reliable prosecution evidence and the legality of the search and seizure conducted by the D.R.I. Officers.