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TMI Blog2018 (5) TMI 120X X X X Extracts X X X X X X X X Extracts X X X X ..... uantity of seized opium would create a doubt in the mind of Court on the genuineness of the samples drawn and marked as A, B, C, D, E, F from the allegedly seized contraband. However, the simple argument that the same had been destroyed, cannot be accepted as it is not clear that on what authority it was done. Appeal dismissed. - Criminal Appeal Nos. 741-742 of 2011 - - - Dated:- 31-1-2018 - N.V. Ramana and S. Abdul Nazeer, JJ. Shri K. Radhakrishnan, Senior Advocate, Ms. Sadhana Sandhu, Ms. Kiran Bhardwaj, B.V. Balaramdas and Manish Vashishtha, Advocates with him, for the Appellant. Shri Sushil Kumar Jain, Senior Advocate, Puneet Jain, Harsh Jain, Abhinav Gupta and Ms. Christi Jain for Ms. Pratibha Jain, Advocates with him, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ositing the seized contraband at Malkhana, the samples were sent for chemical examination and a complaint under Sections 8/18 and 29 of the Act against the accused has been filed. Taking cognizance of the Complaint, the Special Judge, Neemuch by his judgment dated 21st April, 2008 convicted the accused and sentenced him to suffer rigorous imprisonment for a period of ten years and to pay a fine of ₹ 1,00,000/-. 3. Agitating the judgment of the learned trial Judge, the accused filed appeal before the High Court. By the impugned judgment, the High Court observed that the bulk quantity of the seized case property was not disposed of by the Executive Magistrate, the statement of the accused under Section 67 of the Act was recorded when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stimony of the accused that his signatures were obtained on blank papers forcibly, though there was enormous evidence in support of the prosecution case. 6. Learned Counsel for the accused, on the other hand, supported the impugned judgment and submitted that the High Court considered all aspects of the case in a prudent manner under the established provisions of law, particularly Section 52A of the Act, and then only reached to the conclusion that the prosecution has failed to prove the case against the accused-respondent. 7. Having considered the rival submissions and the material on record, at the outset, we think it appropriate to quote here what the High Court has observed in para 9 of the impugned judgment : In the proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same, we have also carefully perused the exact content of the proceedings dated 14th October, 2004 (Annexure P-5) recorded by the Executive Magistrate, Singoli Tappa. The proceedings recorded as far as the respondent herein is concerned, read thus : PROCEEDINGS 14-10-2004 : Case submitted. Shri Harvinder Singh, Inspector (Investigating Officer), Narcotics Bureau, Singoli has submitted three sealed packets of seized stuff in Crime No. 1/2004 under Section 8/18 and 8/29 of the NDPS Act, 1985. These packets were marked A, B and C and the details are given as under : (1) A : On the packet marked A it was indicated that packet contains 7.200 kgs opium seized from Jaroopram S/o Ganga Ram Bishnoi. On opening the packet, transpar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rawn and marked as A, B, C, D, E, F from the allegedly seized contraband. However, the simple argument that the same had been destroyed, cannot be accepted as it is not clear that on what authority it was done. Law requires that such an authority must flow from an order passed by the Magistrate. On a bare perusal of the record, it is apparent that at no point of time any prayer had been made by the prosecution for destruction of the said opium or disposal thereof otherwise. The only course of action the prosecution should have resorted to is to for its disposal is to obtain an order from the competent Court of Magistrate as envisaged under Section 52A of the Act. It is explicitly made under the Act that as and when such an application is ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss, that the statement of accused-respondent under Section 67 of the Act was recorded while he was in his custody and the time was not mentioned on the statements. This fact further gets corroborated with the statement of PW 6 also that the statement of accused was recorded after arrest and while in custody. Thus, it cannot be said that the statement of the accused confessing the crime was of voluntarily made under the provisions of the Act. 13. For the aforesaid reasons, we are in complete agreement with the judgment of the High Court. We do not find any reason to interfere with the well reasoned judgment. The appeal lacks merit and is dismissed. Pending applications, if any, shall also stand disposed of. - - TaxTMI - TMITax - Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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