TaxTMI 
TaxTMI 
2003 (9) TMI 710
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....dergo 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. 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, Madhya Pradesh along with his parents. The father of accused Nos. 1 and 2 used to cultivate opium and their brother Durga Shankar used to get opium and heroin and send the same to Trichy. The consignment in question was to be received and sold with the help of accus....
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....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. 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 observing that prudence dictates that evidence of police witnesses need to be subjected to strict scrutiny, it was also observed that their evidence cannot be discarded merely on the ground that they belong to police force and are either interested in the investigating or prosecuting a....
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....ling 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. 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 information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior. This was the statutory provision at the relevant time. By the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001....
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...., if this car is followed from national Hotel, Salem we may be able to seize the contraband." 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 squarelly 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 contentiion of Mr. Jain is that if Section 42(2) had been complied with, it would have been so pleaded by the respondent before the High Court when bail application came to be considered and the respondent would also have filed the requisite docu-ment along with challan to show compliance of Section 42(2) of the NDPS Act. The learned counsel submits that the do....
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....icer 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 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, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may f....
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....(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 proceedure and power of entry, search seizure and arrest withuot 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 terms of this provision a copy of information taken down in writing under sub-section (1) or ground recorded for the belief under proviso thereto, is required to be sent by the officer to his immediate official superior. It is clear from Section 41(2) that the Central Government or State Government, as the case may be, can only empower an officer of a gazetted rank who can either himself act or authorize his sub....