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TMI Blog2016 (9) TMI 668X X X X Extracts X X X X X X X X Extracts X X X X ..... cence. The said finding, inter alia, is based on the evidence of PW1- Bhaskar Shetty, Inspector of Customs who seized the contraband from the co-accused- Karim Patel. The evidence in the form of statement of the appellant himself (Ex.-20) under Section 67 of the Act before his arrest clearly shows that the appellant had sold the contraband to the co-accused- Karim Patel who did not have any licence to purchase thereof. At the time of production of gunny bag no objection was raised on behalf of the appellant that the bag did not carry any label or sign of identity - the absence of label and sign of identity could not be presumed - no serious infirmity in the findings recorded by the courts in convicting and sentencing the appellant - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ash payment of ₹ 5400/-. On search of the premises belonging to the appellant, some documents were recovered. Appellant was found in the shop and stated that he was proprietor and a lady present there was the manager of the firm. Co-accused- Karim Patel, who was also brought by the raiding party with it, opened the bag which had colored powder in a polythene bag. A small quantity was tested on the Field Testing Kit and result was positive for the presence of opium. The powder was weighed and found to be 30 Kgs. Three samples of 24 grams each were collected and sealed. Remaining powder was sealed and kept in the same bag. The label with signatures of panchas and the investigating officer PW1- Bhaskar Shetty was affixed on the bag. Co-a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and sentence for illegal sale transaction of 30 kgs. of poppy straw powder. The High Court also upheld the conviction of co-accused for abetment of the said offence by purchasing 30 kgs. of poppy straw powder from the appellant without any valid licence and permit. The co-accused has not preferred any appeal as stated by the learned counsel. The appellant has undergone the sentence during pendency of the proceedings. 7. Learned counsel for the appellant has taken the Court through the evidence on record and submitted that conviction and sentence awarded to the appellant was unsustainable. There are discrepancies in recording of prior information, resulting in violation of mandatory requirement of Section 42 of the Act. Reference was made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. The appellant was in custody at the time of recording the statement. The statement was not voluntary. Its contents were not read over to him. A-2 was also in custody and his statement was also not voluntary. Statement of co-accused could not be taken as substantive evidence. The same could not be relied upon in view of the decision in Bal Mukund and Raju Premji (supra). 8. Learned counsel for the State supports the conviction and sentence of the appellant. He submitted that concurrent finding of the courts below is based on evidence and the same is not liable to be disturbed in an appeal under Article 136 of the Constitution. It was pointed out that the contentions advanced by the learned counsel for the appellant are not shown to ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntraband from the co-accused- Karim Patel. Further, the evidence in the form of statement of the appellant himself (Ex.-20) under Section 67 of the Act before his arrest clearly shows that the appellant had sold the contraband to the co-accused- Karim Patel who did not have any licence to purchase thereof. Even otherwise, the connection of contraband with the appellant was clearly established after which the burden was on appellant to show that he had effected sale to an authorized person. Recovery from the co-accused was from an open place to which Section 42 of the Act is not attracted. At the time of production of gunny bag no objection was raised on behalf of the appellant that the bag did not carry any label or sign of identity. Thus, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 43 of the Act. 11. Similarly, the contention on the basis of the judgments in Tofan Singh, Raju Premji and Noor Aga (supra) also cannot be accepted. There can be no doubt that the Court has to satisfy itself that the statement under Section 67 was made voluntarily and at a time when the person making such statement had not been made an accused. Whether the statement is voluntary and free from encumbrance has to be judged from the facts and circumstances of each case. In Tofan Singh (supra), the question whether the investigating officer investigating the matter under the Act is a police officer and whether the statement recorded by the investigating officer under Section 67 of the Act can be treated as a confessional statement ..... X X X X Extracts X X X X X X X X Extracts X X X X
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