9911796707
TMI Blog2008 (2) TMI 951X X X X Extracts X X X X X X X X Extracts X X X X ..... l morphine/heroin and thereby prima facie guilty of an offence punishable U/s 21 of the NDPS Act as also his attempt to export the said contraband out of the country and thereby punishable for an offence U/s 28 read with 23 of the said act. 2]. The case of the prosecution is that after the accused had been cleared by the customs he was intercepted by PW-1 and the accused was carrying three hand bags but had no checked in luggage. Two panch witnesses PW-2 Viresh and PW-4 Shri Ram Avtar were asked to join the proceedings and the accused on being questioning was noticed not to understand the English language as he was a french national and one Sanjay, a custom officer brought PW-3 Shri Gopi Nath, the interpreter who could understand both the English and the French language. 3]. In the presence of the two panch witnesses the provisions of Sec. 50 of the NDPS Act were explained by the interpreter PW-3 to the accused about his option of having his search of the person and the bags conducted before a gazetted Officer or a Magistrate vide Ex. PW1/a to which vide endorsement Ex. PW1/b he stated that he has no objection if his search is conducted by any custom officer. As per the versi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and tried by the learned trial Court for the commission of offences punishable under Sections 21 and 23 r/w Section 28 of the NDPS Act. The prosecution had examined six witnesses in all to prove the aforesaid allegations levelled against the respondent. The respondent had at the time of recording of his statement under section 313 Cr. P. C. denied the entire prosecution case and pleaded false implication. He had pleaded that this was a false and fabricated case foisted upon him because of his having fought with custom officers and slapping one of them. (4) BEFORE the trial Court, acquittal of the accused was sought on the grounds of non-compliance of the provisions of Sections 42, 50 and 57 of the NDPS Act. The learned trial Judge found on considering the prosecution evidence that there was no non-compliance of the provisions of Section 50 and 57 of the NDPS Act. However, accepting the submissions of learned counsel for accused regarding non-compliance of the provisions of Section 42 of NDPS Act, learned trial Court after concluding that since the compliance of Section 42 of the NDPS act was mandatory and the Search Officer having not complied with the same passed an order of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udgment of acquittal is same as against the judgment of conviction. However, there are certain guidelines. One is that if there are two views on evidence which are reasonably possible one supporting acquittal and the other indicating conviction. High Court in an appeal against judgment of acquittal should not interfere merely because it feels that it would as a trial court have taken a different view. High Court will certainly interfere if it finds that the judgment of acquittal is manifestly erroneous and that the trial court has acted with material irregularity or its appreciation of evidence lacks coherence or it has made assumptions which are unwarranted or its evaluation of evidence is such as to shock the sense of justice and which has led to miscarriage of justice or its reasoning is unintelligible or defies logic or its conclusions are against the weight of the evidence. (8) NOW, keeping in mind these views of the Hon ble supreme Court it is to be seen if the impugned judgment in the present case can be said to be perverse. As noticed already, the respondent was tried on the allegations that on the night of 28/29-2-1996 he was intercepted in the International Departure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government, or any such officer (being an officer superior in rank to a person, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under chapter V-A of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,- (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ritten intimation to his immediate superior about his suspicion that the respondent could be in possession of heroin etc. Before the trial Court as well as in the grounds of appeal challenging the acquittal of the respondent it was contended on behalf of the prosecution that the provisions of Section 42 were not attracted in the present case since the search of the baggage and the person of the respondent was conducted at a public place . The learned trial Court had, as noticed already, come to the conclusion that since the place where search was conducted was a restricted place not open to public at large Section 42 was attracted. In my view, there is no perversity in this conclusion of the learned trial Court since there was a decision of a Single Judge Bench of this Court itself, which is reported as 1997 Cri. L. J. 2741, richard Thomas Wrigley v. Customs and Anr. wherein it had been held that the customs counter at the airport where a passenger has to go after immigration check is not a public place since that place is not open to the members of general public. In that case, the learned Single Judge of this Court while acquitting the accused of the charges under NDPS Act be ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
