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TMI Blog2014 (3) TMI 56X X X X Extracts X X X X X X X X Extracts X X X X ..... ll be taken to be ‘a.m’. Even if it was taken to be p.m., it contradicted the case of the prosecution that the accused was apprehended at around 10.30 p.m. The second factor pointed out is that a typed notice could not possibly have been served at the time and place of apprehension of the accused. There was nothing to show that the raiding party took any computer with them from which a typed notice could have been prepared at the spot. These factors indicate that the notice Ex. PW11/B was a document prepared subsequently. The recovery from the vehicle on a public highway was not as a matter of pure chance but on specific advance information and therefore the requirements of Sections 41 and 42 of the NDPS Act had to be complied with. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ., the Bolero jeep arrived at the petrol pump and was immediately intercepted. The driver of the jeep was the Respondent, who happened to be a resident of Village Sammipur in District Jalandhar, Punjab. 4. The case of the prosecution is that although the Respondent initially denied carrying any narcotic substance, on persistent questioning by the team, he admitted that he was carrying approximately 5 kgs of Heroin concealed in a greenish colour VIP suitcase lying in the boot of the jeep. Notice under Section 50 of the NDPS Act (Ex. PW11/B) was given to the Respondent at the spot and he gave a reply in writing on the said notice in his handwriting that he did not require any Magistrate or Gazetted Officer for the search proceedings and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he impugned judgment after discussing the entire prosecution evidence, the learned trial court has come to the following conclusions: i. Section 50 of the NDPS Act was contravened in as much as the notice issued under that provision, Ex. PW11/B, to the accused at the spot appeared to be a fake document, created and manufactured after the alleged time of interception. ii. Sections 41 and 42 of the NDPS Act were not complied with since the Investigating Officer (IO) (PW11) did not possess a valid authorisation to effect the seizure. The authorisation was given by PW2 Sanjay Bansal in favour of PW9 Shri N.D. Azad who in turn authorised Shri Devender Singh (PW7). However, PW7 Devender Singh was neither the seizing officer nor a member of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ince the recovery was made from the vehicle there was no need for issuance of notice under Section 50 of the NDPS Act and, therefore, the finding of the learned trial court in that behalf was erroneous. 8. This Court is unable to agree with the above submissions. In the present case a personal search was also made of the body of the accused. A notice under Section 50 NDPS Act had therefore to be mandatorily issued. 9. What is however, disconcerting is that the details recorded in this notice were contrary to what was deposed by the prosecution witness, as to what transpired on 6th October 2007. The notice under Section 50 (Ex. PW11/B) mentions the time of occurrence as around 11.30 hrs. today which was 6th October 2007. In the absen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to no avail since both the decisions are distinguishable on facts. In any event, in the latter case a distinction was drawn between recovery from a public place on receipt of specific information in advance and a recovery by chance. The rigours of the law might not apply. In the present case, however, the recovery from the vehicle on a public highway was not as a matter of pure chance but on specific advance information and therefore the requirements of Sections 41 and 42 of the NDPS Act had to be complied with. 11. Further the mere fact that PW9 went along with the raiding party did not mean that he was not required to authorise the officer who in fact effected the seizure. The seizure in the case was effected by PW11 who was required t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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