TaxTMI 
TaxTMI 
TaxTMI 
2015 (8) TMI 339
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....at Singh and other as Kamal Singh and both were having bags in their hands. On search of bags, 11 packets of charas were found in the bag hold by Jugat Singh weighing 10.850 kg. and 5 packets of charas were found in the bag hold by Kamal Singh weighing 5 kg. The samples were taken and were sent for chemical examination. After completion of investigation, filed charge-sheet against the appellants-accused on 23.11.1987 in the court of Munsif and Judicial Magistrate, Barmer for the offences under Sections 20, 21, 23 and 29 of the NDPS Act. Thereafter, the case was committed to the court of learned Additional Sessions Judge, Barmer (for short 'the learned trial court'). After hearing on charge, the learned trial court framed charges for the offences under Sections 20(ii), 23 and 29 of the NDPS Act against the appellants-accused, to which they denied and claimed trial. To substantiate the charges, the prosecution examined as many as 5 witnesses. The appellants-accused were thereafter examined under Section 313 Cr.P.C., wherein they denied the prosecution case and examined five witnesses in defence. After trial, the learned trial court, convicted and sentenced the appellants-acc....
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....g who were stopped and on their search, 16 packets containnig charas were recovered, which was seized and sealed after taking samples and prepared seizure memo (Ex.P/1). Thereafter, the statements of appellants-accused (Ex.P/2 and Ex.P/3) were recorded. Sohanraj Khandelwal (PW-2), Inspector Customs Department, Barmer and RS Meena (PW-3) Revenue Intelligence Officer, Revenue Intelligence Directorate, Sub Division Jaisalmer also corroborated the statement of Virendra Narang (PW-1). Chainaram (PW-4) is a motbir, in-front-of whom, recovery was made and he proved seizure memo (Ex.P/1), arrest memo of appellants-accused (Ex.P/7 and Ex.P/8). Hameera Ram (PW-5) also corroborated the statement of Virendra Narang (PW-1). Hukma Ram (DW-1), in his statement, deposed that on 28.08.1987, he was posted as Constable, Customs Department, Barmer. On that day, Inspector Hameera Ram and RS Meena came to the office and bring 16 packets of charas, which was weighed and sealed and papers were prepared. It was also stated by him that the appellants-accused were not brought with the articles but they were brought thereafter. Jaswant Singh (DW-2), in his statement, deposed that he know Jugat Singh. On ....
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.... believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V A of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,- (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding....
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....itted an offence punishable under the NDPS Act. In the case in hand, on receiving secret information, the team went at the place from where the appellants-accused were to come and when they reached, they were searched and were found in possession of illegal contraband. Hence, the search was made on public place in transit and not in a building or place. Thus, there is no non-compliance of any statutory provision. In the matter of Sukhdev Singh (supra), the Hon'ble Supreme Court held that Section 42 of the NDPS Act is a mandatory provision and should be complied with strictly. As discussed above, it is clear that the search was not made in a building or place. The search was made in a public place, therefore, Section 42 of the NDPS Act does not come into play and Section 43 of the NDPS Act comes into play, which was complied with. Hence, the submission of the learned counsel for the appellants that there was non-compliance of Section 42 of the NDPS Act has no legs to stand. The next submission of the learned counsel for the appellants that the link evidence is missing. From the perusal of the record, it reveals that Sohanraj Khandelwal (PW-2), who was the malkhana incharge, cl....