TaxTMI 
TaxTMI 
2008 (7) TMI 855
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.... a.m. in village Dadari Jamalpur. The house of the respondent was searched and from his house 29 bags containing poppy straws were recovered. The respondent could not explain legal possession of poppy straws weighing 309 kgs. The respondent was arrested and after investigation charge sheet was submitted against him. The respondent denied the possession and ownership of the property in question and claimed trial. The trial Court found the evidence adduced to be clear and cogent and directed conviction and imposed sentence as afore-noted. In appeal, the High Court directed acquittal by a practically non-reasoned order holding that there was non-compliance of Sections 42(2) and 50 of the Act. It was noted that the Narcotics Department has given licence to the father of the respondent for cultivation of opium and if there had been recovery of poppy straws it might be relatable to the ownership of father of the respondent. 3. Learned counsel for the appellant submitted that the trial Court had relied upon the confession of the accused respondent and the grounds on which the High Court directed acquittal are (i) non examination of independent witnesses; (ii) lack of evidence to ....
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....minal Procedure, 1973 (in short the `Code') while answering question No.4 it was stated that there was no confession. The confessional statement was recorded on 20.11.1992 and the statement under Section 313 of the Code was recorded on 6.2.1999. Therefore, there has been no retraction at any point of time. The position is also clear from Section 57 of the Code. At the time of production before the Magistrate, there was no allegation of any torture as presently submitted. In this connection a few decisions of this Court need to be noted. 8. In Kanhaiyalal v. Union of India (2008 (1) SCALE 165) at para 7 it was noted as follows: "7. Since the appellant Kanhaiyalal was convicted on the basis of the statement made by him under Section 67 of the NDPS Act, a question has been raised whether such statement made to an officer within the meaning of Section 42 of the said Act could be treated as a confessional statement and whether the accused could be convicted on the basis thereof in the absence of any other corroborative evidence." 9. Similarly in A.K. Mehaboob v. The Intelligence Officer, Narcotics Control Bueau (JT 2001 (1) SC 614) it was observed as follows: "4. Smt. Ma....
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....levant to take note of that has been stated by this Court in T. Thomson v. State of Kerala and Anr. At para 5 it was observed as follows: "5. Learned Senior counsel further argued that the record alleged to have been prepared by PW-1 on getting information regarding the movement of the appellants has not been produced in court. But he conceded that no motion was made on behalf of the appellants to call for the said record. There is no statutory requirement that such a record should be produced in the Court as a matter of course. We are, therefore, not disposed to upset the finding on that score either." 12. So far as the applicability of Section 42 is concerned few decisions need to be noted. 13. In M. Prabhulal v. The Assistant Director, Directorate of Revenue Intelligence (JT 2003 (2) Supp SC 459) it was noted as follows: "8. Now, we come to the last and rather more serious objections raised on behalf of the appellants regarding the non-compliance with Section 42 of the NDPS Act vitiating the conviction which looks quite formidable but only on the first impression and not on its deeper examination. The contention of Mr R.K. Jain is that the view of the High Cour....
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....at 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 the 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 any 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 an 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 pro....