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2017 (12) TMI 1449 - HC - Indian LawsSmuggling - Heroin - seizure of contraband item - offence under Section 8(c) read with 21(c) of the NDPS Act - acquittal of offences - Held that - As regards the contention that there was violation of Section 42 of the NDPS Act, this Court did not find any infraction. In fact, Section 42 of the NDPS At will not apply to this case and only Section 43 of the NDPS Act will apply, since the interception and seizure was in a public place. Applicability of provisions of Section 50 of the NDPS Act - Held that - it is seen from the evidence of Krishnamoorthy P.W.1 and Chandran P.W.5 that when the Officers intercepted and introduced themselves, Ibrahim A1 came forward to hand over the travel bag M.O.2 from Shakila A2 and took out heroin from inside the bag and gave it to the Officers - the bag was with Shakila A2 and Ibrahim A1 took the bag from Shakila A2 and handed over the same to the Officers. - provisions of Section 50 of the NDPS Act will not apply to the facts and circumstances of the case. Confession statement of the appellant - Held that - when the accused was produced before the Remanding Magistrate, he did not complain of ill-treatment by the Officers and the Magistrate has recorded No Complaint on the Remand Application Ex.P.11 - this Court has no reason to believe that the accused was subjected to torture and the confession was obtained thereafter. That apart, this is not a case based on circumstantial evidence. In other words, the culpability of the appellant is not fixed merely on the confession statement. Even without the confession statement, the possession of the drug has been established by the prosecution through cogent evidence. The trial Court had acquitted Shakila A2 , because the evidence showed that she was merely pulling the trolley bag M.O.2 , which was given to her by Ibrahim A2 and when the Officers intercepted, it was Ibrahim A1 , who took out the contraband from the trolley bag and handed over the same to the Officers - appeal dismissed being devoid of merits.
Issues Involved:
1. Compliance with Section 42 of the NDPS Act. 2. Compliance with Section 50 of the NDPS Act. 3. Validity of witnesses from the Railway Protection Force. 4. Voluntariness of the confession statement. 5. Corroboration of evidence from Krishnamoorthy (P.W.1) and Chandran (P.W.5). Issue-wise Detailed Analysis: 1. Compliance with Section 42 of the NDPS Act: The appellant contended that there was no proper compliance with Section 42 of the NDPS Act, arguing that the information was not properly recorded and sent to the official superior as required. However, the court found that Section 42 was not applicable since the interception and seizure occurred in a public place, making Section 43 of the NDPS Act relevant instead. The court did not find any infraction in this regard. 2. Compliance with Section 50 of the NDPS Act: The appellant argued that there was a violation of Section 50 of the NDPS Act, as the option to be searched in the presence of a Gazetted Officer or a Magistrate was not properly given. The court examined the evidence and found that the officers had indeed given the option under Section 50, which the accused declined. The court also noted that the Supreme Court has held in multiple judgments that Section 50 applies only to personal searches and not to searches of bags. Therefore, the court concluded that there was no violation of Section 50 in this case. 3. Validity of witnesses from the Railway Protection Force: The appellant contended that the Railway Protection Force (RPF) personnel should not have been called as independent witnesses and that members of the public should have been called instead. The court referred to the Supreme Court’s ruling in State of Uttar Pradesh vs. Zakaullah, which stated that acquaintance with the police does not destroy a person's independent outlook. The court found that the RPF personnel were independent witnesses as they were not dependent on the NCB for their sustenance. The court also noted the practical difficulties in finding public witnesses in a busy railway station. 4. Voluntariness of the confession statement: The appellant claimed that the confession statement was obtained under coercion and threat. The court observed that the appellant did not complain of ill-treatment when produced before the Magistrate, who recorded 'No Complaint' on the Remand Application. The court referred to the Supreme Court rulings in Prabhulal and A.K. Mehaboob, which held that confessions made without complaints of torture to the Magistrate are presumed voluntary. The court found no reason to believe that the confession was involuntary. 5. Corroboration of evidence from Krishnamoorthy (P.W.1) and Chandran (P.W.5): The appellant argued that the evidence of Krishnamoorthy (P.W.1) was not properly corroborated and there were contradictions with Chandran’s (P.W.5) testimony. The court found that the evidence of Krishnamoorthy was sufficiently corroborated by Chandran. The court also noted that the possession of the contraband was established through cogent evidence, independent of the confession statement. The court concluded that the defense failed to make any significant dent in the prosecution’s evidence. Conclusion: The court dismissed the appeal, confirming the conviction and sentence of 10 years Rigorous Imprisonment and a fine of ?1,00,000/- for Ibrahim [A1] under Section 8(c) read with 21(c) of the NDPS Act. The court found no merit in the appellant’s contentions regarding non-compliance with Sections 42 and 50 of the NDPS Act, the validity of RPF personnel as witnesses, the voluntariness of the confession statement, and the corroboration of evidence.
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