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TMI Blog2009 (5) TMI 864X X X X Extracts X X X X X X X X Extracts X X X X ..... ecial Judge, NDPS, Shillong in Criminal (NDPS) Case No. 26/2003 whereby both the appellants were convicted under Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the NDPS Act ) and were sentenced to undergo rigorous imprisonment for ten years each and to pay a fine of Rs. 1,00,000/- each; in default of payment of fine, to further undergo a rigorous imprisonment for one year. 2. Appellant Raju Premji (A-4) was a resident of Shillong. He, however, had been carrying on business in shoes in West Bengal. Appellant Arun Kanungo (A-3), however, is a resident of Meghalaya. They along with two other accused, namely Yashihey Yobin (A-1) and Lishihey Ngwazah Ngwazah (A-2) were prosecuted for commission of offences under the NDPS Act. 3. Before placing on record the factual matrix of the matter, we may notice that whereas accused Nos. 1 and 2 have been convicted for possession of 380 gms. of heroin, appellants herein were convicted under Section 25 of the Act for abetment thereof as they purported to have associated themselves with finding prospective buyers in disposing of the contraband. 4. The prosecution case in brief is that D. Pakyntein, PW-11, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dy was handed over to the customs officers. It is now borne out from the record that whereas all the accused made two statements each on 20th August, 2003 purported to be under Section 67 of the Act. So far as accused No. 4 is concerned the statements made by him were marked as Exts 17 and 18 whereas those of the accused No. 3 are concerned, they were marked as Exts. 13 and 14. A formal first information report was lodged only in the afternoon of 20th August, 2003. All the accused persons were formally arrested at 4.30 p.m. They were subjected to further interrogation and both the appellants made a third statement on 21st August, 2003 which were marked as Exts. 19 and 15 respectively. They were produced before the Magistrate on the same day. Whereas accused No. 4 retracted from his confession on 4th November, 2003, other accused including accused No. 3 retracted therefrom while making their statements under Section 313 of the Code of Criminal Procedure. 7. A charge sheet was filed against the appellants for commission of offences under Sections 21, 28 and 29 of the Act on 21st November, 2003. They were convicted, as stated aforesaid. Appeal preferred by them before the High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11. The Act provides for stringent punishment. Where a statute confers drastic power and provides for stringent penal provisions including the matter relating to grant of bail, the conditions precedent therefor must be scrupulously complied with. An information was received by the police authorities. The police officers were empowered officers within the meaning of the provisions of the NDPS Act. They were required to reduce the same into writing so as to apprise the higher officers thereabout. No search warrant or authorisation was obtained. Some plain clothes policemen were posted. In the own words of prosecution witnesses and particularly those of PWs. 9 and 10, M. Kharkrang, Additional Superintendent of Police, S.I. N. Thapa, respectively, the appellants were nabbed. Raid was conducted inter alia by S.I. N. Thapa, PW-10. They were taken in custody and brought to the office of PW-9. Even then they were not asked to make any statement. They were not even summoned. Their persons were searched without complying with the provisions of Section 50 of the Act. They were evidently interrogated. Only on interrogation they disclosed about the address of accused No. 1. In the aforementi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examined times without number unless they make replies to their satisfaction. 17. The application of the provisions of Section 67 of the Act is required to be considered in the aforementioned factual backdrop. It reads as under :- Section 67. Power to call for information, etc. - Any officer referred to in section 42 who is authorised in this behalf by the Central Government or a State Government may, during the course of any enquiry in connection with the contravention of any provisions of this Act, - (a) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder; (b) require any person to produce or deliver any document or thing useful or relevant to the enquiry; (c) examine any person acquainted with the facts and circumstances of the case. 18. An empowered officer, therefore, is entitled to examine any person acquainted with the facts and circumstances of the case, inter alia during the course of any enquiry in connection with the contravention of any provision of the Act. As the term enquiry is not defined under the NDPS Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in Section 50 are intended to serve a dual purpose - to protect a person against false accusation and frivolous charges as also to lend creditability to the search and seizure conducted by the empowered officer. The argument that keeping in view the growing drug menace, an insistence on compliance with all the safeguards contained in Section 50 may result in more acquittals does not appeal to us. If the empowered officer fails to comply with the requirements of Section 50 and an order or acquittal is recorded on that ground, the prosecution must thank itself for its lapses. Indeed in every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of the judicial process may come under a cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for the law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. 22. We would, for this purpose, assume that such confessions are not hit with Section 25 of the Evidence Act, 1872 but even the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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