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TMI Blog2013 (5) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... imony of complainant was corroborated by confessional statements of the accused persons. It was further corroborated by recovery memo and other documents which had been prepared at the time of recovery and proved before the Trial Court. All the contentions raised by the appellants have been dealt with in the impugned judgment and no interference is called for. No merit in the appeals preferred by the appellants and the same are dismissed. Conviction and sentence of both the appellants are maintained. - CRL.A. 108/2012 & CRL.M.B.175/2012 ,CRL.A. 1561/2011 & CRL.M.B.Nos.2249/2011 & 1503/2012 - - - Dated:- 8-4-2013 - S P Garg , J For the Appellant : Ms. Puja Srivastava , Adv For the Respondent : Mr. Sushil Kaushik , Adv JUDG ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial witnesses without seeking independent corroboration. Mandatory provisions of Section 50 were not complied with. No reasonable explanation was offered for withholding independent panch witnesses. No such independent witnesses were associated at the time of alleged recovery. It was the duty of the complainant to ascertain the address of panch witnesses to examine them in the Court. Counsel for the appellants further pointed out that material discrepancies and improvements emerging in the statements of the prosecution witnesses were ignored without any valid reasons. The prosecution was unable to prove that the accused travelled in Malwa Express. No attempt was made to ascertain the time when Malwa Express was to arrive at its destination. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the bag ( thaili ) which was being carried by the Appellant. In such circumstances, Section 50 would not be applicable. The aforesaid Section can be invoked only in cases where the drug/narcotic/NDPS substance is recovered as a consequence of the body search of the accused. In case, the recovery of the narcotic is made from a container being carried by the individual, the provisions of Section 50 would not be attracted. This Court in the case of Kalema Tumba v. State of Maharastra : (1999) 8 SCC 257 discussed the provisions pertaining to 'personal search' under Section 50 of the NDPS Act and held as follows; ...if a person is carrying a bag or some other article with him and narcotic drug or psychotropic substance is found from it, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... There was no time for them to verify and ascertain their identity. The name and address disclosed by them were believed. No fault can be found on this account with the members of the raiding team. The nonexamination of the witnesses, who joined in the investigation per se is not fatal. It is no rule of law but of prudence that public witnesses should be joined. This is insisted so as to lend authenticity and credibility to the search and the recovery that are effected , it is of course not an absolute rule. Though it is desirable to examine an independent witness, in the absence of any such witness, if the statements of the official witnesses are reliable and when there is no animosity established against them by the accused, their version ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the said premises on 23.11.2005 in the evening when they were going to sleep, after taking dinner. They did not examine any independent witness to establish their presence at their residence on 23.11.2005 before their apprehension. The prosecution witnesses were not acquainted with the accused. They did not have their photographs. They were not aware as to what was the relationship between the two appellants. Only after their apprehension, they came to know that A-1 and A-2 were husband and wife. The appellants did not deny this relationship. When house No.E-397, East Vinod Nagar was searched on 25.11.2005, some documents including passport, bank passbook, driving licence and ATM card in the name of A-1 were seized vide seizure memo (E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. In Raju Premji vs. Customs NER Shillong Unit Arun Kanungo vs. D.Pakyntein ', 2009 Crl.L.J . 3972 , the Supreme Court held : ******* 22. We would, for this purpose, assume that such confessions are not hit with Section 25 of the Evidence Act, 1872 but even then they must receive strict scrutiny. This Court in Kanhaiyalal v. Union of India : AIR2008SC1044 , upon taking into consideration number of decisions, held as under: 43. The law involved in deciding this appeal has been considered by this Court from as far back as in 1963 in Pyare Lal Bhargava case. The consistent view which has been taken with regard to confessions made under provisions of Section 67 of the NDPS Act and other criminal enactments, such as th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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