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TMI Blog2003 (9) TMI 710X X X X Extracts X X X X X X X X Extracts X X X X ..... ugs and Psychotropic Substances Act, 1985 (for short the NDPS Act ), ried 11 accused for various offences. Six were convicted. Two of the convicted accused succeeded in the criminal appeal and the remaining four whose conviction and sentence has been maintained by the High Court by the impugned judgment are appellants before us. They are original accused Nos. 1, 2, 3 and 6. The trial judge convicted accused Nos. 1, 2 and 3 for offences under Section 8(c), 29 read with Section 18 and Section 8(1), 29 read with section 21 of the NDPS Act and awarded on each appellant the sentence of 10 years rigorous imprisonment and also fine amount of Rs. 1 lakh and in default of payment fine for each offence, they were directed to undergo further rigorous imprisonment for two years. The substantive sentences were, however, directed to run concurrently. Accused Nos. 6 was also found guilty for offence under Sections 8(c), 29 read with Section 21 of the NDPS Act and sentenced to undergo 10 years rigorous imprisonment and fine of Rs. 1 lakhs and in default of payment of fine, to undergo further rigorous imprisonment for two years. In brief, the case of the prosecution is that on 15th May, 1993, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused No. 1 was recorded on 17th May, 1993. It may be noted that accused Nos. 2, 3 and 6 were apprehended on the spot on 15 th May, 1993 whereas accused No. 1 was arrested on 16th May, 1993. The courts below on appreciation of evidence have neither doubted the recovery nor has found the statements to be involuntary. It has been established that the Customs Office was about 20 kms. from the place were the truck and the car were apprehended. Having regard to the large quantity of the heroin, the said vehicles with accused Nos. 2, 3 and 6 were brought to the Customs Office. Further accused Nos 1 and 2 did not know Tamil. A Hindi knowing officer had to be arranged. There was under the circumstances no delay in recording the statements of the appellants. Further, it is also to be borne in mind that the appellants did not make any complaint before the Magistrate before whom they were produced complaining of any torture or harassment. It is only when their statements were recorded by the trial judge under Section 313 of Code of Criminal Procedure that a vague stand about the torture was taken. Under these circumstances, the confessional statements cannot be held to be involuntary. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w Delhi Ors., [1974] 1 SCC 345 was noticed for the proposition that courts in India and England have consistently refused to exclude relevant evidence merely on the ground that it is obtained by illegal search or seizure. The Court declined in that case to exclude relevant evidence merely on the ground that it is obtained by illegal search or seizure. Further, in the said case though the mahazar was not prepared at the spot but at the office of the Customs Department, it was found that the accused were very much present throughout and there was no allegation or suggestion that the contraband article was, in any way, meddled with by the officers. The position in the present case is also same. Here too, no allegation about meddling with the contraband has been made, in our view, on the facts of the case, there is no illegality in the seizure of the contraband either on account of non examination of the independent witnesses or by effecting the seizure at the office of the Customs Department, the appellants having failed to establish that any prejudice was caused to them. Now, we come to the last and rather more serious objections raised on behalf of the appellants regarding the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f intelligence reduced into writing and on basis whereof the officer started to act reads as under : "One Prabhulal of Anna Nagar, Trichy, his brother Shivanarain of Trichy, Mohammed Shabir of Madhya Pradesh and Loganathan of Dindigul are engaged in dealing in narcotic drugs. Intelligence gathered indicates that Shivanarain and Loganathan are likely to proceed to Salem and stay in National Hotel, Salem and are likely to receive huge quantity of Heroin from Mahammed Shabir of Madhya Pradesh on 15.5.1993 who is accompanying the said consignment in a lorry from North India. Shivanarain and Loganathan are likely to travel in a car bearing Registration No. TNB 9346 to meet the lorry earring the contraband Heroin at the outskirts of Salem, if this car is followed from national Hotel, Salem we may be able to seize the contraband." A xerox copy of the gist of intelligence was furnished to the appellants during the proceeding under the preventive detention law through the Superintendent, Central Prison, Salem on 22.6.1993. A learned Single Judge of the High Court considering this writing to be a definite information about the definite commission of the offence under the NDPS Act with re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, if he has reason to believe from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under Chapter IV or that any narcotic drug, or psychotropic substance in respect of which any offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence has been kept or concealed in any building, convey-ance or place, may authorise any officer subordinate to him but superior in rank to a peon, sepoy, or a constable, to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest a person or search a building conveyance or place. (3) The officer to whom a warrant under sub-section (1) is addressed and the officer who authorised the arrest or search or the officer who is so authorised under sub-section (2) shall have all the powers of an officers acting under Section 42. 42. Power of entry, search, seizure and arrest without warrant or authorisation.- (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of Central Excise, Narcotic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the NDPS Act or for search, has not much relavence for the purpose of considering the contention. Under Section 41 (2) only a Gazetted Officer can be empowered by the Central Government or the State Government. Such empowered officer can either himself make an arrest or conduct a search or authorize an officer subordinate to him to do so but that subordinate officer has to be superior in rank to a Peon, a Sepoy or a Constable. Sub-section (3) of Section 41 vests all the powers of an officer acting under Section 42 on three types of officers (i) to whom a warrant under sub-section (1) is addressed, (ii) the officer who authorized the arrest or search under sub-section (2) of Section 41, and (iii) the officer who is so authorized under sub-section (2) of Section 41. Therefore, an empowered Gazetted Officer has also all the powers of Section 42 including power of seizure. Section 42 provides for proceedure and power of entry, search seizure and arrest withuot warrant or authorization. An empowered officer has the power of entry into and search of any building, conveyance or place, break open door, remove obstruction, seize contraband, detain, search and arrest any person between sun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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