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TMI Blog2003 (12) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... e, there was not even any argument advanced on that score before the trial Court and the High Court. Even otherwise also the evidence of the investigating officer about safe custody of the contraband articles have not been challenged or shaken in the cross-examination. That being the position we are not inclined to accept the plea that there was non-compliance with the requirements of Section 55 of the Act. X X X X Extracts X X X X X X X X Extracts X X X X ..... Court and the High Court. 6.During the night between 17-9-1993 and 18-9-1993 PW-1 attached to Narcotic Control Bureau (in short "NCB") Office, received information that the accused, a Gambian national, was likely to smuggle heroin in his baggage by ET Flight 661, scheduled to arrive at 0645 hours that night. He received the information when he was at the Airport. He reduced the same to writing (Exh. 16-A) and placed it before his immediate superior Assistant Director, Mr. S.C. Rohatgi, who was present at the Airport. Mr. Rohatgi perused it and put his signature and asked the officer to act upon the said information. At the Airport, he called two panchas and kept a watch at the X-ray machine counter. One Mr. Karanjla, who was a Security Officer, was Screen Machine Operator at the relevant time. When the accused placed three baggages for screening, the Security Officer gave signal to PW-1. On the monitor of the screening machine PW-1 noticed green dense patches/spot when a blue coloured caravan make zipper suitcase was put. All the 3 baggages of the accused were placed on the screening machine. PW-1 as well as the security officer suspected concealment of contraband in blue coloured ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 67 of the Act and his statement was recorded by PW-1 on 18-9-1993 in which the accused admitted the recovery of 990 grams of heroin from his suitcase. The same was marked as (Exh. 18). His further statement was recorded on 19-9-1993 as per (Exh. 19). The accused was arrested on 19-9-1993. 8.On 23-9-1993, sample packet marked as S-1 was handed over to the Dy. Chief of the Laboratory and Chemical Analyst's Report from the Laboratory dated 26-10-1993 was received (as per Exh. 21), according to which the sample was of heroin (diacetylmorphine). After the investigation was completed complaint was filed. The Special Judge framed charges against the accused under Section 8(c) read with Sections 21, 23, 28 and 29 of the Act and under Section 135(1)(a)(ii) of the Customs Act. Separate charge under Section 8(c) of the Act read with Section 21 of the Act was also framed against the accused. As the accused pleaded not guilty, prosecution led evidence of two witnesses. PW-1, as noted above Ashok Thaker, who had received the information, conducted the search and also investigated the case. The other witness examined was panch PW-2 Ankush Yerunkar, who was panch to the search and seizur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act. Provided that if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment or evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. Where an officer takes down any(2) information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior. Section 50 : Conditions under which search of persons shall be conducted. - (1) When any officer duly authorized under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the depar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch. 13.In Birakishore Kar v. State of Orissa [2001 (9) SCC 541] it was held that when there was a recovery from a plastic bag belonging to the accused on which he was found sitting on railway compartment, Section 50 was not applicable. Baldev's case (supra) was referred to hold that Section 50 in case of search comes into play only in case of search by a person as distinguished from search from any premises etc. The position was also highlighted recently in Madan Lal & Anr. v. State of Himachal Pradesh (2003 AIR SCW 3969). Above being the position the High Court was justified in holding that Section 50 had no application. 14.So far as compliance with Section 42(2) is concerned, the statement of PW-1 to the effect that he had informed his superior remained unshaken and there was even no cross-examination to point out any falsity in the said statement. The note of intelligence information was placed on record vide Exh. 16-A to substantiate the testimony of PW-1. That being so the High Court was justified in holding that the provisions of Section 42(2) had been complied with. 15.Coming to the plea regarding non-compliance of Section 55 of the Act, as rightly submitted by learned Co ..... 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