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2024 (5) TMI 270 - HC - Indian LawsChallenged the impugned judgment of conviction and order of sentence - Power to seize and arrest of a person in a public place - Smuggling - transportation of Ganja from truck - non-availability of documents - Seizure - Offence punishable u/s 28 read with 20 (b)(ii) (C) and Section 29 read with 20 (b)(ii) (C) of the NDPS Act - conviction based solely on the purported confessional statement recorded u/s 67 of the NDPS Act - Whether Section 42(1) of the NDPS Act has been complied with in its letter and spirit or not? - HELD THAT - Perusal of the notices shows that Central Government has empowered the Intelligence Officer of the Revenue Intelligence Directorate under the crime relating to Act in their regional jurisdiction. In the instant case, K.V.L Narasimham (PW-11) has conducted the proceeding of the case under his regional jurisdiction and it is accordingly established. In any case, it is important that the drug seized in the case should be kept safe and secure and the process of extracting the sample from it should be done duly and the sample should also be sent to a competent laboratory under proper custody. In the present case, the process of sealing the seized drug and keeping it in a safe in godown and taking out the sample has also been found to be legal and the sample taken out has also been found to be sealed and sent for testing legally. At any stage of the case, no tampering has been found in the drug samples or the seized packets, hence, the entire case cannot be considered unbelievable merely on the basis of samples being taken at the CGST Bhawan. Therefore, this Court is of the view that there has been proper compliance of Section 43 of the NDPS Act and the Investigator on the information of the informant, intercepted the vehicle wherein 6545 Kgs Ganja was kept and appellants K. Dharmara, Surjeet Singh Randhawa and Avtar Singh were present in the said truck. Thus, in the opinion of this Court, the prosecution has proved its case in respect of appellants K. Dharmara, Surjeet Singh Randhawa and Avtar Singh. Thus, the trial Court has rightly convicted and sentenced them. Statement recorded u/s 67 by the IO (PW-11) naming Appellants-Vishnu Bhadra and Premanand is not admissible because there is no corroborative evidence or other evidence on record, therefore, statement u/s 67 of the NDPS Act is a weak type of evidence in the instant case. Whether Appellant Vishnu Bhadra and Premanand were involved in the said crime or not? - We are of the view that the case of the prosecution in respect of Appellant Vishnu Bhadra and Premanand is not proved beyond all reasonable doubts. In the result, Cr.A. on behalf of appellants K. Dharmara, Surjeet Singh Randhawa and Avtar Singh are devoid in merits and liable to be and are hereby dismissed. The said appellants are stated to be in jail. They shall serve out the sentenced awarded to them by the Trial Court. So far as Cr.A. filed on behalf of Appellants-Vishnu Bhadra and Premanand is concerned, it is hereby allowed. Accordingly, the conviction and sentence awarded to the Appellants-Vishnu Bhadra and Premanand by the trial Court is hereby set-aside. The Appellants-Vishnu Bhadra and Premanand are acquitted of the charges framed against them. The Appellants-Vishnu Bhadra and Premanand are in jail. They shall be set at liberty forthwith if no longer required in any other criminal case. Keeping in view the provisions of Section 437-A of the CrPC, the Appellants-Vishnu Bhadra and Premanand, are directed to forthwith furnish a personal bond in terms of Form No. 45 prescribed in the Code of Criminal Procedure of sum of Rs. 25,000/- each with two reliable sureties in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon ble Supreme Court.
Issues Involved:
1. Compliance with Section 42(1) of the NDPS Act. 2. Compliance with Section 52(A) of the NDPS Act. 3. Applicability of Section 50 of the NDPS Act. 4. Admissibility of statements under Section 67 of the NDPS Act. Summary: Issue 1: Compliance with Section 42(1) of the NDPS Act The court examined whether Section 42(1) of the NDPS Act was complied with. It was established that K.V.L. Narasimham (PW-11), an Intelligence Officer, followed the provisions of the NDPS Act. The court cited State of Punjab v. Balbir Singh, emphasizing that only empowered officers can make arrests or searches under Section 42. The court found that the seizure of contraband was done in a public place, thus falling under Section 43 of the NDPS Act, which does not require prior recording of reasons for belief. Issue 2: Compliance with Section 52(A) of the NDPS ActThe court assessed whether the procedure for disposal of seized narcotic drugs under Section 52(A) was followed. Sandip Kumar Agrawal (PW-5) certified the correctness of the inventory and sampling process. The court noted that the samples were taken and sent for chemical examination, which confirmed the presence of Ganja. The court concluded that there was proper compliance with Section 52(A). Issue 3: Applicability of Section 50 of the NDPS ActThe court addressed the applicability of Section 50, which pertains to personal searches. It was determined that Section 50 was not applicable since the contraband was seized from a cargo vehicle, not from the personal possession of the appellants. Issue 4: Admissibility of Statements under Section 67 of the NDPS ActThe court considered the admissibility of statements made under Section 67. Referring to Tofan Singh v. State of Tamil Nadu, it was held that such statements are inadmissible in the trial of an offence under the NDPS Act unless corroborated by other evidence. The court found no corroborative evidence against appellants Vishnu Bhadra and Premanand, thus acquitting them. Judgment:The appeals of appellants K. Dharmara, Surjeet Singh Randhawa, and Avtar Singh were dismissed, and their convictions and sentences were upheld. The appeal of appellants Vishnu Bhadra and Premanand was allowed, and they were acquitted of the charges. The trial court was directed to release Vishnu Bhadra and Premanand if not required in any other case and to ensure compliance with Section 437-A of the CrPC.
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