TaxTMI 
TaxTMI 
2015 (1) TMI 933
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....rous imprisonment for 15 years with fine of Rs. 1 lac. In default of payment of fine each of accusedappellant has been ordered to undergo further rigorous imprisonment for 1 1/2 years. The learned Special Judge has directed that period of detention already undergone by accused-appellants shall be set off against sentence of imprisonment awarded to accused-appellants. Learned counsel Sri Arun Kumar Tewari appeared for accusedappellants. Learned AGA appeared for State of U.P. Learned Special Counsel Sri Sanjay Kumar Singh appeared for Union of India. I have heard learned counsel for the parties and perused records. In brief relevant fact for determination of this appeal is that complaint has been filed on behalf of Union of India through Assistant Collector (Prevention) Customs & Central Excise and Incharge of Narcotics Cell, Sarvodaya Nagar, Kanpur Nagar under Section 20/29 of Narcotic Drugs and Psychotropic Substances Act, 1985 before Chief Metropolitan Magistrate, Kanpur Nagar against accused Anil Kumar Jaiswal, Ram Chandra Yadav, Jagram, Shri Mohan Yadav and Shri Ram. According to complaint version of prosecution is that a reliable information was received that contra....
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....rugs were kept in house by one Badkau. They are paid sevents of said Badkau and they are engaged in illegal trade of contraband. Thereafter, having completed necessary formalities all the above five accused were arrested and produced before competent officer on the same day and sealed contraband goods were deposited in godown of department. Later on, all arrested accused were produced on 26.8.1988 before Chief Metropolitan Magistrate for judicial remand along with necessary papers and case properties. Thereafter, on 31.8.1988, complaint (Ex. Ka-9) was filed by Sri R.P.Tamta, Assistant Collector (Prevention) Customs & Central Excise, Kanpur Nagar before Chie Metropolitan Magistrate, Kanpur Nagar whereupon C.M.M., Kanpur Nagar took cognizance and summoned all accused but accused Mohan Yadav and Shri Ram did not turn out and were absconding. Therefore, their case was separated and after compliance of Section 207 Cr.P.C., Chief Metropolitan Magistrate, Kanpur Nagar committed the case of accused Anil Kumar Jaiswal, Ram Chandra Yadav and Jagram to the court of session for trial whereupon Session Trial No. 509 of 1992, State of U.P. Vs. Anil Kumar Jaiswal and others was registered. Lat....
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.... Rathore Vs. State of U.P., 2014 (1) JIC 954 (All). 4. Suresh & Others Vs. State of Madhya Pradesh, 2013 (1) JIC 745 (SC). 5. Sukhdeo Singh Vs. State of Hayana, 2013 (1) JIC 846 (SC). Learned Special counsel for Union of India contended that conviction recorded by trial court is based on evidence and is in accordance with law. Learned Special counsel further contended that provisions of Sections 42 and 50 of N.D.P.S. Act are not applicable on the facts of this case. Learned Special counsel contended that accusedappellants have made confession before departmental authorities under Section 67 of N.D.P.S. Act and confession made by accused-appellants under Section 67 of N.D.P.S. Act can be relied upon to convict accused-appellants. Learned Special counsel for Union of India has relied upon following judicial pronouncements. 1. Raj Kumar Agarwal Vs. Union of India and another, 1990 ACC 443. 2. Kanhaiyalal Vs. Union of India, 2008 (1) JIC 230 (SC). 3. Pon Adithan Vs. Dy. Director, Narcotics Control Bureau, Madras, 1999 ACC 330. 4. Ram Singh Vs. Central Bureau of Narcotics, 2011 (3) SCC (Crl.) 181. 5. State of Haryana Vs. Jarnail Singh and others, 2004 (49) ....
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.... interrogation statements of accused were also recorded. P.W. 2, J.S. Saxena, Superintendent has stated in his statement on oath that on 25.8.1988, he was posted as Inspector. He has further stated that on that date, on the direction of his officers, he along with Inspector R.K. Nigam, M.W. Henari, Ramesh Kumar, S.S. Chauhan, Ramesh Chandra, C.B. Pandey, K.P. Singh, R.C. Shukla, U.C. Shukla, A.K. Sharma and A.K. Dixit took position behind Rawatpur railway station in Mohalla R.S. Puram. P.W. 2, J.S. Saxena, Superintendent has fully supported the statement of P.W. 1 Moris William Henari regarding arrest of accused-appellants and deceased co-accused Ram Chandra Yadav as well as recovery of Charas and Ganja from car in possession of accused-appellants and deceased co-accused. P.W. 2, J.S. Saxena, Inspector has proved recovery memo (Ex. Ka-1), deposit memo (Ex. Ka-8) and arrest memo of accusedappellants and deceased co-accused Ram Chandra Yadav (Ex. Ka-5, 6 and 7) in his statement of oath. P.W. 3, Ramesh Chandra Shukla, Superintendent Central Excise Division-I, Kanpur Nagar has also supported the arrest of accused-appellants along with deceased co-accused Ram Chandra Yadav a....
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....rsons carried them towards Devki Talkies in the vehicle. In the case of Suresh & Others Vs. State of Madhya Pradesh 2013 (1) JIC 745 (SC) relied upon by learned counsel for the accused-appellants. Hon'ble Apex Court has held that : "Provision of Section 50 of N.D.P.S. Act is mandatory and requires strict compliance. Failure to comply the provision would render the recovery vitiated and conviction unsustainable". Section 50 of N.D.P.S. Act deals with provisions regarding search of person. Therefore, provisions of Section 50 of N.D.P.S. Act are not applicable on recovery made from car in possession of accused-appellants. Perusal of impugned judgement of learned trial court shows that trial court has considered this issue and has drawn conclusion that Section 50 of N.D.P.S. Act is applicable only on search of person. Learned trial court has relied upon judicial pronouncements published in 1994 Cr.L.J. 1987, 2003(1) JIC 74, 2000 (2) JIC 807, 2000 (1) JIC 140, 2001 (1) JIC 930. After having gone through whole facts and evidence on record as well as above judicial pronouncements, it is apparent that trial court has rightly held that Section 50 of N.D.P.S. Act is not ap....
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....thorisation in terms of Section 41(1) or 41(2). The requirement of informing the immediate official superior under Section 42(2), in our view, has to be confined to cases where the action is without authorisation by officers below the rank of gazetted officers". In the case of Sukhdeo Singh Vs. State of Hayana 2013 (1) JIC 846 (SC) relied upon by learned counsel for the accused- appellants. Hon'ble Apex Court has held that : "The legislature in its wisdon had made the provisions of Section 42 of N.D.P.S. Act mandatory and not optional as stated by this Court (Hon'ble Apex Court) in the case of Karnail Singh Vs. State of Haryana, 2010 (1) JIC 1 (SC)". Perusal of impugned judgement passed by learned trial court shows that learned trial court has considered the provisions of Section 42 of N.D.P.S. Act and has drawn conclusion that provisions of Section 42 of N.D.P.S. Act are not applicable on seizure made in public places. Learned trial court has drawn this conclusion in view of principles laid down by Hon'ble Apex Court in the case of Narayanaswamy Ravishankar Vs. Assistant Director, Directorate of Revenue Intelligence, 2003 (1) JIC 74. Learned trial court has fu....
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....he same was done only at the office of the customs department while the accused persons were very much present throughout, there was no allegation or suggestion that the contraband article was, in any way, meddled with by the officers. Therefore, we are of the view that the appellant has rightly been found to be in possession of the opium. We find no reason to interfere with the conviction and sentence entered against the appellant. The appeal is dismissed accordingly". Perusal of statements of accused-appellants Anil Kumar Jaiswal and Jagram recorded under Section 313 Cr.P.C. shows that they have admitted arrest by party of Customs and Excise Department at the time and place alleged by prosecution and this fact has been supported by statement of D.W. 1 Ram Chandra Yadav. According to accused-appellants as well as their witness D.W. 1 Ram Chandra Yadav, accused-appellants Anil Kumar Jaiswal and Jagram were not with car. They were going to their shop. In the way where Ambassdor car was standing, Officers of Customs and Excise Department asked them to become witnesses but they declined to become witnesses, thereafter, accused-appellants were brought with car to office of Customs a....
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....-examination that the bags produced before court do not contain his as well as his colleague's signature but he has stated that the bags contain mark of seal of godown incharge. He has further stated in crossexamination that there is no slip on the bags containing signature of gazetted officer of department or accused-appellants. In the case of Roshan Vs. State of U.P., 2003 Legal Eagle (ALD) 2007 relied upon by learned counsel for the accusedappellant, recovered contraband articles were not produced before any witness and police officer has not made full report of all the particulars of the arrest and seizure to immediate superior officer. In such circumstances, this Court has set aside the conviction and sentence recorded by trial court but as discussed above, provisions of Section 42 of N.D.P.S. Act are not applicable on the facts of this case and Charas and Ganja alleged to have been recovered from the possession of accused-appellants have been produced before trial court during examination of P.W. 3 Ramesh Chandra Shukla, therefore, the facts of this case is distinguishable from the facts of aforesaid case Roshan Vs. State of U.P. (supra). It is relevant to mention a....
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....from all the 29 packets recovered from the bags with which the accused-appellant was sitting and only one sample was taken. In such circumstances this Hon'ble Court has drawn conclusion that recovery of contraband article from the possession of appellant appears to be doubtful. Perusal of recovery memo as well as statements of witnesses examined by prosecution shows that Charas has been recovered in two bags kept on back seat of car and Ganja has been recovered from the dicky of the car kept in packets and small bag. Perusal of recovery memo as well as statement of witness examined by prosecution shows that the car was in possession of accused-appellants as well as deceased co-accused Ram Chandra Yadav. Recovery memo as well as statement of witness P.W. 1, Moris William Henari shows that samples were taken from recovered Charas and Ganja and were kept in sealed envelopes and signature as well as thumb impression of accused-appellants were also obtained on said envelopes. Chemical examination report (Ex. Ka-15 and 16) of said sample shows that articles recovered from the car were Charas and Ganja. It is relevant to mention at this stage that defence has not challenge....