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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 ..... use 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. In appeal, the High Court directed acquittal by a practically non-reasoned order holding that there was non-compliance of Sections 42(2) and 50 of the Act. It was noted that the Narcotics Department has given licence to the father of the respondent for cultivation of opium and if there had been recovery of poppy straws it might be relatable to the ownership of father of the respondent. 3. Learned counsel for the appellant submitted that the trial Court had relied upon the confession of the accused respondent and the grounds on which the High Court directed acquittal are (i) non examination of independent witnesses; (ii) lack of evidence to show exclusive ownership; and (iii) the allege ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 8. In Kanhaiyalal v. Union of India (2008 (1) SCALE 165) at para 7 it was noted as follows: "7. Since the appellant Kanhaiyalal was convicted on the basis of the statement made by him under Section 67 of the NDPS Act, a question has been raised whether such statement made to an officer within the meaning of Section 42 of the said Act could be treated as a confessional statement and whether the accused could be convicted on the basis thereof in the absence of any other corroborative evidence." 9. Similarly in A.K. Mehaboob v. The Intelligence Officer, Narcotics Control Bueau (JT 2001 (1) SC 614) it was observed as follows: "4. Smt. Malini Poduval, learned counsel for the appellants contended tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, therefore, not disposed to upset the finding on that score either." 12. So far as the applicability of Section 42 is concerned few decisions need to be noted. 13. In M. Prabhulal v. The Assistant Director, Directorate of Revenue Intelligence (JT 2003 (2) Supp SC 459) it was noted as follows: "8. Now, we come to the last and rather more serious objections raised on behalf of the appellants regarding the non-compliance with Section 42 of the NDPS Act vitiating the conviction which looks quite formidable but only on the first impression and not on its deeper examination. The contention of Mr R.K. Jain is that the view of the High Court that when a Gazetted Officer himself conducts a search it is not necessary t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. 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 provides for procedure and power of entry, search, seizure and arrest without warrant or authorization. An empowered officer has the power of entry into and search of any building, conveyance or place, break open any door, remove obstruction, seize contraband, detain, search and arrest any person between sunrise and sunset in terms provided in sub-section (1) of Section 42. In case of an emergent situation, these powers can also be exercised even between sunset and sunrise without obtaining a search warrant or authorization, in terms provided in the proviso to sub-section (1) of Section 42. Sub-section (2) of Section 42 is a mandatory provision. In terms of this provision a copy of information taken down in writing under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 person acquainted with the facts and circumstances of the case." 15. Section 41(2) deals with two situations. One is relatable to Gazetted Officer while in the other case the Gazetted Officer may authorize his subordinate to do the relevant act or may do it himself. Section 41(3) refers to the power under Section 42 which refers to subordinates. 16. In the confessional statement the accused has clearly stated about the ownership. So, there has been no retraction at considerable length of time. 17. Above being the position, the High Court was clearly in error by setting aside the judgment of the trial Court. We set aside the judgment of the High Court and restore that of the trial Court. The appeal is allowed to the aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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