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TMI Blog2008 (7) TMI 855X X X X Extracts X X X X X X X X Extracts X X X X ..... g aside the judgment of conviction recorded by learned Additional District and Sessions Judge, Lucknow in Criminal Appeal No.65 of 1993. The trial Court had convicted the respondent for offences punishable under Section 8(c) and 15 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (in short the `Act') and sentenced to undergo RI for 10 years and fine of rupees one lakh with default stipulation. 2. Prosecution version in a nutshell is as follows: On the basis of secret information Sri Naseem Ahmad, an Inspector of Narcotics Department along with other officials raided the house of the respondent on 20.11.1992 at about 8.00 a.m. in village Dadari Jamalpur. The house of the respondent was searched and from his house 29 bags containing poppy straws were recovered. The respondent could not explain legal possession of poppy straws weighing 309 kgs. The respondent was arrested and after investigation charge sheet was submitted against him. The respondent denied the possession and ownership of the property in question and claimed trial. The trial Court found the evidence adduced to be clear and cogent and directed conviction and imposed sentence as afore-noted. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble as contended by learned counsel for the respondent, as Section 2(xiv) clearly makes out a distinction between opium and poppy straws. So far as the role of PW-6 is concerned, it is to be noted that there is no reference to the stand presently highlighted by the High Court. 7. Undisputedly, there are two different entries for opium and poppy straws. Opium appears at Sl. No.92 while poppy straws appear at Sl. No.110. The statement of the accused-respondent in terms of Section 67 throws considerable light on the controversy. In the statement recorded there was no retraction and in fact during examination under section 313 of the Code of Criminal Procedure, 1973 (in short the `Code') while answering question No.4 it was stated that there was no confession. The confessional statement was recorded on 20.11.1992 and the statement under Section 313 of the Code was recorded on 6.2.1999. Therefore, there has been no retraction at any point of time. The position is also clear from Section 57 of the Code. At the time of production before the Magistrate, there was no allegation of any torture as presently submitted. In this connection a few decisions of this Court need to be noted. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... repelled the contentions made on behalf of appellant- Naushad relating to Exhibit P-8. 10. The inferential conclusion that the articles seized might have been recovered by the father's licence is a conclusion without any foundation and basis. 11. So far as the fulfillment of the requirement of Section 57 of the Act is concerned it is to be noted that the legal position was stated by this Court in T. Thomson v. State of Kerala and Anr. (2002 (9) SCC 618) and in State, NCT of Delhi v.Malvinder Singh (JT 2007 (9) SC 283). In Malvinder Singh's case (supra) at para 6, it was observed as follows: 6. At this juncture, it would be relevant to take note of that has been stated by this Court in T. Thomson v. State of Kerala and Anr. At para 5 it was observed as follows: 5. Learned Senior counsel further argued that the record alleged to have been prepared by PW-1 on getting information regarding the movement of the appellants has not been produced in court. But he conceded that no motion was made on behalf of the appellants to call for the said record. There is no statutory requirement that such a record should be produced in the Court as a matter of course. We are, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Section 42(2) of the NDPS Act. It was also contended, in the alternative, that Section 42 (2) of the NDPS Act was complied with. 14. Section 41(1) which empowers a Magistrate to issue warrant for arrest of any person whom he has reason to believe to have committed any offence punishable under the NDPS Act or for search, has not much relevance 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 the power of seizure. Section 42 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n about to be searched to ask for being searched in the presence of a Gazetted Officer. The High Court is, thus, right in coming to the conclusion that since the Gazetted Officer himself conducted the search, arrested the accused and seized the contraband, he was acting under Section 41 and, therefore, it was not necessary to comply with Section 42. The decisions in State of Punjab v. Balbir Singh, Abdul Rashid Ibrahim Mansuri v. State of Gujarat and Beckodan Abdul Rahiman v. State of Kerala on the aspects under consideration are neither relevant nor applicable. 14. Section 67 reads as follows: 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 provision 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 pers ..... X X X X Extracts X X X X X X X X Extracts X X X X
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