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TMI Blog2018 (1) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... ail Application No. 229298 of 2016 ) 1. This application for bail has been moved by the accused appellant Suresh Kumar Gupta for being released on bail during pendency of appeal which has been filed against the judgment and order dated 2/7/2016 passed by Additional Sessions Judge, Court No. 9, Varanasi in a criminal case No. 39 of 2015, Union of India, Central Narcotics Bureau, Varanasi vs Suresh Kumar Gupta and one another whereby the accused appellant has been convicted under section 22 of NDPS Act and has been awarded punishment of 10 years rigorous imprisonment, fine of ₹ 1 lakh and in default of payment of fine 6 months additional rigorous imprisonment. 2. The facts in brief of this case as per the complaint are that Shri K K Srivastava, inspector/investigation officer, Central Narcotics Bureau, Ghazipur filed complaint before Court, who was appointed investigating officer under section 53 of the NDPS Act, 1985 by order dated 30/9/2014 of Deputy Commissioner, Narcotics, Lucknow. He had started investigation after being handed over this matter by the seizing officer/arresting officer, Inspector RS Ram. On 26/9/2014 Shri D K Singh, Office Superintendent, Ghazipur had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t on the spot and when it was ensured that no member of the raiding party had any narcotic or psychotropic substance with them, the search of the accused was made by Shri R S Ram in front of the witnesses as well as the superintendent Shri D K Singh. In a plastic bag tied by a rubber rope by the rear seat of motorcycle, was found a carton, wherein Buprenorphine injection wrapped in a white paper were found. There were 340 wrappers. Each wrapper was opened. In 160 wrappers N - Norfin injection and in 180 wrappers Lupigesic injection were found. In each wrapper 10 ampoules were found. Thus there were found 160 10 = 1600 injections of N- Norfin and 180 10 = 1800 injections of Lupigesic. On each ampoule (injection) the quantity was written as 2 ML. Thus the total recovered injections were 3400 2 ML = 6800 ML = 6.800 kg Buprenorphine Psychotropic substance. The accused could not show the valid papers to possess these injections. From out of the recovered Buprenorphine injections, as per their company, 2 injections each were taken out and were wrapped in cotton and thereafter were kept in a yellow coloured envelope and were sealed, which were marked as S - 1 and S - 2 for Norfin and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e sealed sample was sent to Director, CFSL, Kolkata by special messenger, but even from there the same was returned on 27/11/14 stating that the same should be sent to them on prescribed proforma, whereafter, after taking permission from the Court of Additional Sessions Judge, the said samples were sent on 30/11/2014 to Kolkata Laboratory. On 29/4/2015 the report from the said lab was received and it was found to be Buprenorphine. The learned Court below after having found the charge proved against accused appellant convicted him under above-mentioned section and awarded the aforesaid punishment. 3. The learned counsel for the appellant has made following arguments. The compliance of section 42 of NDPS Act has not been done in this case which is a mandatory provision. In this regard he placed reliance upon the law laid down in State of Rajasthan vs Jag Raj Singh alias Hansa, (2016) 11 Supreme Court cases 687 and the paragraphs 13 to 18 were read out by the learned counsel word by word. It was hammered by him that in this case secret information recorded and the information sent to the circle officer were found to be different, as the same copy of secret information was not sent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ember of the raiding party was the person before whom search was made when the accused opted for the same. The High Court found that to be not sufficient compliance of section 50 of NDPS Act but the Supreme Court held in Para-22 of this judgment that the object of the Act being that search is conducted in presence of a superior officer, in order to lend transparency and authenticity to the search, it could not be held as a principle in law that if a superior officer happened to be with the officer authorised (which the High Court has described as being a member of the raiding party) the position would be different. The High Court proceeded on the basis that there might be bias on the part of the officer because he was accompanying the officer authorised. Such a presumption was not legally available. 5. The compliance of section 55 of NDPS Act has not been made because the seal on the recovered contraband substance of Incharge of the police station was not affixed. 6. Next argument made by the learned counsel for the appellant is that the confession recorded of the accused appellant under section 67 of the NDPS Act cannot be held to be valid because the same was not recorded b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of Superintendent, is sitting who is a Gazetted Officer. This case also belongs to District Ghazipur. Shri D K Singh, Superintendent was the highest officer. This is a complaint case. The seizing officer is RS Ram, Inspector and Shri K K Srivastava, Inspector was appointed as investigating officer. The secret information was received by Shri D K Singh, which was reduced into writing and was communicated to Lucknow, Central Bureau of Narcotics. The compliance of the provisions of section 42 has been fully made because the secret information was reduced into writing and the same was forwarded to the Deputy Narcotic Commissioner, Lucknow. Even if it be taken that the same was not complied with, the Supreme Court has laid down in G Srinivas Gaud vs State of A.P., (2005 ) 8 SCC 183 that where Gazetted Officer has received secret information he need not send it to the higher authorities. The compliance of section 50 of NDPS Act has also been made in totality because written consent was taken from the accused appellant after apprising him of his legal right that if he desired he could be searched in presence of the Gazetted Officer or a Magistrate but he consented in writing to be sea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. Again the learned counsel for the appellant gave reply of the arguments of the learned counsel for the Union of India and placed reliance upon the law laid down in State of Uttaranchal vs Rajesh Gupta, 2007 (1) SCC 375, wherein it has been laid down that the provision of section 37 of NDPS Act must be construed in a pragmatic manner. Further reliance is placed upon 2000 (1) SCC (Criminal) 189 Thani Ram vs State of Haryana wherein the Supreme Court allowed the appeal and set aside the judgements of both the Courts below because of non-compliance of the provisions of section 55 and 57 of NDPS Act. It is further argued that no enmity with raiding party could be proved by examining DW-1. 10. It is quite apparent that both the sides have made extensive arguments on an application of bail which is little unusual, because at the level of bail the Court is not supposed to go deep into the merits of the case and is supposed to see broadly whether the Court was satisfied that there were reasonable grounds for it to believe that the accused appellant was not guilty of such offence and whether accused appellant, if released on bail was not likely to commit any offence, as these are the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the NDPS Act or for search. Under section 41 (2), only 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 authorise 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 section (1) is addressed , (ii) the officer who authorised the arrest or search under sub-section (2) of section 41, and (iii) the officer who is so authorised 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 authorisation. 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 sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mation was recorded in writing and thereafter a team of officers was constituted after consultation with the senior authority for making search of the accused and seizure of the illegal narcotic injections from him. 12. The learned amicus curiae, next, has argued that the confessional statement recorded of the accused appellant in the present case shall be inadmissible, officers of the Central Narcotics Bureau being equal to the police officers, who were vested with the power of investigation, therefore such a confession would not be admissible under section 25 and 26 Of the Indian Evidence Act. In view of this the confessional statement of the accused recorded by officers of the Narcotics Bureau shall not be treated admissible and shall be hit by section 25 and 26 of the Indian Evidence Act. In this regard he has placed reliance upon Noor Aga vs State of Punjab, 2008 16 SCC 417, in which it has been held that section 53 of the Customs Act empowers the customs officers with the powers of the Station House Officer. An officer invested with the power of a police officer by reason of a special statute in terms of sub-section (2) of section 53 would, thus, be deemed to be police off ..... X X X X Extracts X X X X X X X X Extracts X X X X
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