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2024 (9) TMI 544 - SC - Indian LawsRes gestae - Relevancy of facts forming part of same transaction - Conviction u/s 29 read with 20(b)(ii)(c) and 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 - aiding the business of drug trafficking - carrying narcotic substances in an auto-rickshaw - HELD THAT - This Court has laid down the test for acts forming part of same transaction in Gentela Vijyvardhan Rao and Anr. v. State of Andhra Pradesh 1996 (8) TMI 571 - SUPREME COURT , wherein it has been held that it is based on spontaneity and immediacy of such statement or fact in relation to the fact in issue. Provided that if there was an interval which ought to have been sufficient for purpose of fabrication then the said statement having been recorded, with however slight delay there may be, is not part of res gestae. In the present factual matrix, having perused the material it appears that the attempt towards raiding/searching the residence of Accused No. 4 was not explicitly in pursuance of detaining the said accused but the testimonies of the members of the raiding party showcase the idea of search of the house to be an afterthought with an admitted time gap of 40-45 minutes between having raided the auto-rickshaw which was alleged to be abandoned by the driver and Accused No. 4 and subsequent search of the house of Accused No. 4, wherein Accused No. 1 was present - Moreover, it appears from the record that even the idea to search the house was for the purpose of recovery of more contraband and not to apprehend the said absconded accused at the first instance. Thence, it can be safely concluded that the search conducted at the residence of the Accused No. 4 is not a continuance of action of the raiding party towards the search of the auto-rickshaw based on the secret information received by Mrs. Chaube. Accordingly, it does not appropriately fulfil the requirements of the test laid down in Gentela Vijyvardhan Rao. Compliance of Section 42 of the NDPS Act, 1985 - HELD THAT - From the perusal of provision of Section 42(1) of the NDPS Act, 1985, it is evident that the provision obligates an officer empowered by virtue of Section 41(2) of the NDPS Act, 1985 to record the information received from any person regarding an alleged offence under Chapter IV of the NDPS Act, 1985 or record the grounds of his belief as per the Proviso to Section 42(1) of the NDPS Act, 1985 in case an empowered officer proceeds on his personal knowledge. While the same is to be conveyed to the immediate official superior prior to the said search or raid, in case of any inability to do so, the Section 42(2) of the NDPS Act provides that a copy of the same shall be sent to the concerned immediate official superior along with grounds of his belief as per the proviso hereto. In DHARAMVEER PRASAD @ DHARMBIR PRASAD VERSUS STATE OF BIHAR ANR. 2018 (9) TMI 2147 - SUPREME COURT (LB) , there was non-examination of the independent witness without any explanation provided by the prosecution and even the panchnama or the seizure memo were not prepared on the spot but after having had reached police station only. Since the vehicle was apprehended and contraband was seized in non-compliance of the Section 42 of the NDPS Act, 1985 - conviction and sentence of the appellant therein was set aside. It is pertinent to note that the empowered Gazetted Officer must have reason to believe that an offence has been committed under Chapter IV of the NDPS Act, 1985, which necessitated the arrest or search. As per Section 41(2) of the NDPS Act, 1985, such reason to believe must arise from either personal knowledge of the said Gazetted Officer or information given by any person to him. Additionally, such knowledge or information is required to be reduced into writing by virtue of expression and taken in writing used therein. While the facts and evidences are appreciated in the instant case, the testimonies of the PW-01 and the members of the raiding party do not present such a compliance of the information of rights to the Accused No. 1 herein. While a claim is made to this effect, nothing has come up from the perusal of the panchnama or the deposition of the PW-01 to this effect. Accordingly, the authorities have further failed to protect the inherent rights granted to the Accused No. 1 by virtue of the statutory safeguards. Section 67 is at an antecedent stage to the investigation, which occurs after the empowered officer under Section 42 of the NDPS Act, 1985 has the reason to believe upon information gathered in an enquiry made in that behalf that an offence under NDPS Act, 1985 has been committed and is thus not even in the nature of a confessional statement. Hence, question of its being admissible in trial as a confessional statement against the accused does not arise. These appeals are allowed by setting aside the impugned judgment of the High Court as well as that of the Trial Court. The appellants are acquitted of the charges framed against them by giving benefit of doubt.
Issues Involved:
1. Conviction under Sections 29 read with 20(b)(ii)(c) and 25 of the NDPS Act, 1985. 2. Compliance with statutory requirements under Sections 41 and 42 of the NDPS Act, 1985. 3. Admissibility of statements recorded under Section 67 of the NDPS Act, 1985. Detailed Analysis: Issue 1: Conviction under Sections 29 read with 20(b)(ii)(c) and 25 of the NDPS Act, 1985 Accused No. 1 was convicted under Sections 29 read with 20(b)(ii)(c) and 25 of the NDPS Act, 1985, sentenced to ten years of rigorous imprisonment, and fined INR 30,000. The High Court modified this sentence, increasing the fine to INR 1,00,000 and reducing the default sentence to three months of simple imprisonment. Accused No. 4 was convicted under Sections 29 read with 20(b)(ii)(c) and sentenced to thirteen years of rigorous imprisonment and fined INR 1,00,000, which was affirmed by the High Court. The trial for Accused No. 1 to Accused No. 5 concluded with convictions for Accused No. 1, Accused No. 4, and Accused No. 5, while Accused No. 2 and Accused No. 3 were acquitted. Issue 2: Compliance with Statutory Requirements under Sections 41 and 42 of the NDPS Act, 1985 The High Court observed that the statements under Section 67 were voluntary and without coercion, thus creating a presumption in favor of the prosecution under Section 114 of the Indian Evidence Act, 1872. However, the Supreme Court found that the raid at the house of Accused No. 4 was not based on personal knowledge or properly recorded information, violating Section 41(2) of the NDPS Act, 1985. The search of the house was not a continuation of the raid on the auto-rickshaw, and the necessary statutory compliance was not observed. The testimonies revealed inconsistencies, and the panchnama was not prepared at the time of actual recovery, weakening the prosecution's case. Issue 3: Admissibility of Statements Recorded under Section 67 of the NDPS Act, 1985 The Supreme Court referred to the decision in Tofan Singh v. State of Tamil Nadu, which held that statements recorded under Section 67 of the NDPS Act, 1985, are inadmissible in evidence. The Court emphasized that such statements cannot be used to convict an accused under the NDPS Act, 1985. The High Court's reliance on these statements was misplaced, and the benefit of doubt was granted to the appellants. Conclusion: The Supreme Court allowed the appeals, setting aside the judgments of the High Court and the Trial Court. The appellants were acquitted of the charges framed against them, and the pending applications were disposed of. The Court underscored the importance of compliance with statutory requirements and the inadmissibility of statements under Section 67 of the NDPS Act, 1985, for a fair trial as mandated by Article 21 of the Constitution of India.
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