9911796707
TMI Blog1994 (4) TMI 147X X X X Extracts X X X X X X X X Extracts X X X X ..... They further disclosed that they have also delivered 5 sacks of charas to Mrs. Khusia Bai (mother of Mangha Singh) and a search of her house led to the recovery of 5 sacks containing a total of 160 packets of charas. In their respective statements, all 3 of them admitted the above facts and stated that earlier 5 sacks had been dumped in the house of Khusia Bai which were given to them by Lal Singh and transported by them along with Khanda Singh in Khanda Singh s tractor trolly. Lal Singh also admitted that while he was rowing his boat he noticed something which was found to be charas and further deposed that he had arranged for its transportation through Khanda Singh s tractor trolly along with his son Mangha Singh to his house with directi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tional Sessions Judge, Ferozpur acquitting the other 3 appellants of the same charge. 3. Shri O.K. Khullar, learned Counsel appearing on behalf of Khanda Singh submits that there is no independent evidence on record against the appellant and the case against him has been made out only on the basis of statements of co-accused without any independent corroboration and this is not sufficient to bring home the charge against the appellant herein. The appellant is in no way concerned with the transport of the offending goods and the Department has failed to establish conscious knowledge on his part and therefore, the burden of proof has not been discharged by the Department. 4. Shri K.N. Gupta, learned SDR submits that a case of a conspiracy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intly owned and possessed by Lal Singh and Khusia Bai. We find that the acquittal order is mainly based on non-compliance with the mandatory requirement of Sections 41, 42, 50, 52, 55 and 57 of the NDPS Act, 1985. The Court has held that the case before it is a police case and not that of the Customs Department on the ground that inter alia the Investigating Officer was sought to be examined as a witness for the State by the Additional Public Prosecutor. The Court has also held that Section 53 of the NDPS Act which deals with the power of the Central Government to investigate officers of the Excise, Narcotics, Customs Department with the powers of an officer incharge of a Police Station to investigate offences under this Act and Section 79 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the accused nor any memo was prepared in this respect. He had not asked the accused whether they wanted to get the search conducted before the Gazetted Officer or nearest Magistrate and no memo was prepared in this regard. No lady constable was associated nor Khusia s personal search was conducted by any lady constable. This P.W. did not affix any seal on any of the recovered items. He did not produce the case properly before his superior officer. No independent witness was joined from the public. So, all this admitted statement definitely goes a long way to show that the mandatory provisions of Sections 41, 42, 50, 52, 55 and 57 of the Act were not complied with. This being the position in view of the case law Hahim Singh v. Union Territ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of proof to establish such contravention. It is the case of the Department that the appellants have violated the provisions of Section 111 of the Customs Act as the charas seized is of Pakistan origin according to the statement of one of the appellants, viz. Mohan Singh, and the goods had been smuggled into India from a foreign country. The case of the Department is based upon the recovery of charas from Mohan Singh and Mangha Singh and also from the residence of Khusia Bai and upon statements of the appellants No. 1 to 4 herein which contained all the details unfolding the offence. It is pertinent to note that the statements have not been retracted till date and, therefore, are to be treated as voluntary and acceptable in evidence under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess and nature of offence. 11. Looking to the quantity, value and the nature of the goods, the offence is obviously of a very serious nature. In the circumstances, there is no reason to interfere with the order passed by the Adjudicating Authority. 12. Before parting, I may also mention en passant that the goods having been already confiscated absolutely under the Customs Act, 1962 vest in the Central Government and it is not clear how the same property has again been confiscated to the State by the order of the Additional Session Judge, Ferozepur. However, since none of the Appellants before us had claimed the goods and we have upheld the order of absolute confiscation passed by the Additional Collector of Customs, it is not necessary ..... X X X X Extracts X X X X X X X X Extracts X X X X
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