TaxTMI 
TaxTMI 
2003 (8) TMI 474
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....age, there were four petitioners. The special leave petition so far as petitioner Goyal Nath is concerned was dismissed by an order dated 5.8.2002. Accusations which led to the trial of the accused appellants in a nutshell is as follows: On 5.10.1999, a secret telephonic message was recorded by Sunder Lal, A.S.P. (PW-11) that charas was being transported in a Maruti Esteem blue car bearing No.CHO-IE-2764 which was coming towards Oachghat. The information was reduced by him into writing. He gave directions to the SHO, Police Station, Solan to send the information to the Superintendent of Police and thereafter proceeded towards the spot where the car was expected to come. On reaching the spot, he formed a raiding party consisting of Jainarain (PW-1) and Ashwani Kumar Gupta (PW-2) and the car was stopped by the raiding party. Accused, Manjit Singh was driving the car and the remaining accused persons were sitting therein. In the presence of witnesses, Jainarain (PW-1) gave an option to the accused persons as to whether they wanted to be searched by a Magistrate or by him. Accused appellants consented for the search by Jainarain (PW-1). On personal search of the accused persons n....
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....nally submitted that he was only the driver of the vehicle and was not supposed to know what the other occupants were bringing. In response, it was submitted by learned Additional Advocate General appearing for the State of Himachal Pradesh that all the points presently urged were considered by the Trial Court and the High Court, and after detailed analysis of the legal and factual position have been rightly rejected. The first aspect which needs to be considered is whether there was any non-compliance of Sections 42 and 50 of the Act as pleaded. So far as these two provisions are concerned, they read as follows: "Section 42: Power of entry, search, seizure and arrest without warrant or authorization: (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable)of the revenue, drugs control, excise, police or any....
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....rovisions 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 departments mentioned in section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. (5) When an officer duly authorized under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the....
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....rded the reasons for rejecting the same. It has been noted that the seals were intact and there was no tampering. The view has been endorsed by the High Court. On considering the reasoning indicated that there was very minimal and almost ignorable variation in weight, we find no reason to interfere with the findings. The other plea which was emphasized was the alleged statement of accused Goyal Nath that he alone was in possession of the contraband bags. The plea centers round a statement of search witness PW-1, who stated that Goyal Nath told him that contraband articles belonged to him. The statement was made totally out of context and no credence can at all be attached to the statement. The accused Goyal Nath in his examination under Section 313 of the Code of Criminal Procedure, 1973 (in short the 'Code') did not state that he was alone in possession of the contraband articles. On the contrary, he stated that he did not know anything about the alleged seizure. Whether there was conscious possession has to be determined with reference to the factual backdrop. The facts which can be culled out from the evidence on record is that all the accused persons were traveling in a v....