TaxTMI 
TaxTMI 
2003 (9) TMI 710
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.... with Section 18 and Section 8(1), 29 read with section 21 of the NDPS Act and awarded on each appellant the sentence of 10 years' rigorous imprisonment and also fine amount of Rs. 1 lakh and in default of payment fine for each offence, they were directed to undergo further rigorous imprisonment for two years. The substantive sentences were, however, directed to run concurrently. Accused Nos. 6 was also found guilty for offence under Sections 8(c), 29 read with Section 21 of the NDPS Act and sentenced to undergo 10 years' rigorous imprisonment and fine of Rs. 1 lakhs and in default of payment of fine, to undergo further rigorous imprisonment for two years. 2. In brief, the case of the prosecution is that on 15th May, 1993, a truck and car were apprehended. Accused No. 6 was in truck and accused Nos. 2 and 3 were in car. From them heroin weighing 66.1 kg. was seized. Accused No. 1, the main kingpin, is the brother of accused No. 2. Both were resident of Trichirappali. Accused No. 1 has been receiving narcotics from Mandasore, Madhya Pradesh, a place to which he belonged. Another brother of accused No. 1 named Durga Shankar was staying in the village Khonti in Mandasore District, ....
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....ng regard to the large quantity of the heroin, the said vehicles with accused Nos. 2, 3 and 6 were brought to the Customs Office. Further accused Nos 1 and 2 did not know Tamil. A Hindi knowing officer had to be arranged. There was under the circumstances no delay in recording the statements of the appellants. Further, it is also to be borne in mind that the appellants did not make any complaint before the Magistrate before whom they were produced complaining of any torture or harassment. It is only when their statements were recorded by the trial judge under Section 313 of Code of Criminal Procedure that a vague stand about the torture was taken. Under these circumstances, the confessional statements cannot be held to be involuntary. The statements were voluntarily made and can, thus, be made the basis of appellants' conviction. 6. Next, learned counsel contends that the independent witnesses of the recovery of the contraband having not been examined and only police witnesses having been examined, the recovery becomes doubtful. Reliance is placed upon the decision in Pradeep Narayan Madgaonkar and Ors. v. State of Maharashtra, [1995] 4 SCC 255. In the decision relied upon while....
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....ce of the Customs Department, it was found that the accused were very much present throughout and there was no allegation or suggestion that the contraband article was, in any way, meddled with by the officers. The position in the present case is also same. Here too, no allegation about meddling with the contraband has been made, in our view, on the facts of the case, there is no illegality in the seizure of the contraband either on account of non examination of the independent witnesses or by effecting the seizure at the office of the Customs Department, the appellants having failed to establish that any prejudice was caused to them. 8. Now, we come to the last and rather more serious objections raised on behalf of the appellants regarding the non-compliance of Section 42 of the NDPS Act vitiating the conviction which looks quite formidable but only at the first impression and not on its deeper examination. The contention of Mr. R.K. Jain is that the view of the High Court that when a Gazetted Officer himself conducts a search it is not necessary to comply with Section 42(2) of the Act, is clearly erroneous. Section 42(2) provides that where an officer takes down any informatio....
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....ly to receive huge quantity of Heroin from Mahammed Shabir of Madhya Pradesh on 15.5.1993 who is accompanying the said consignment in a lorry from North India. Shivanarain and Loganathan are likely to travel in a car bearing Registration No. TNB 9346 to meet the lorry earring the contraband Heroin at the outskirts of Salem, if this car is followed from national Hotel, Salem we may be able to seize the contraband." 12. A xerox copy of the gist of intelligence was furnished to the appellants during the proceeding under the preventive detention law through the Superintendent, Central Prison, Salem on 22.6.1993. A learned Single Judge of the High Court considering this writing to be a definite information about the definite commission of the offence under the NDPS Act with reference to car number, persons, lorry expected to arrive at that place and holding that Section 42 of the NDPS Act was squarely applicable and that it being a mandatory provision not having been complied with the petitioners were entitled to be released on bail. The view expressed in the order, deciding bail application was of course prima facie. In the background, the further contention of Mr. Jain is that if S....
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....fence has been kept or concealed in any building, conveyance or place, may authorise any officer subordinate to him but superior in rank to a peon, sepoy, or a constable, to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest a person or search a building conveyance or place. (3) The officer to whom a warrant under sub-section (1) is addressed and the officer who authorised the arrest or search or the officer who is so authorised under sub-section (2) shall have all the powers of an officers acting under Section 42. 42. Power of entry, search, seizure and arrest without warrant or authorisation.- (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 or of the Border Security Force 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 other department of a State Government as is empo....
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....t 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 sub-section (1) is addressed, (ii) the officer who authorized the arrest or search under sub-section (2) of Section 41, and (iii) the officer who is so authorized under sub-section (2) of Section 41. Therefore, an empowered Gazetted Officer has also all the powers of Section 42 including power of seizure. Section 42 provides for procedure and power of entry, search seizure and arrest without warrant or authorization. An empowered officer has the power of entry into and search of any building, conveyance or place, break open door, remove obstruction, seize contraband, detain, search and arrest any person between sunrise and sunset in terms provided in sub-section (1) of Section 42. In case of emergent situation, these powers can also be exercised even between sunset and sunrise without obtaining a search warrant or authorization, in terms provided in the proviso to sub-section (1) of Section 42. Sub-section 2 of Section 42 is a mandatory provision. In te....