2015 (10) TMI 330

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....a secret information (reduced into writing) on 02.01.2009. The accused was intercepted in a TATA Sumo Vehicle at Singhu Border at about 2.00 a.m. on 03.01.2009. Two public witnesses had been asked to join the raid. The vehicle was asked to stop, initially it did not stop, but thereafter on chasing it was stopped. On checking the vehicle the appellant was apprehended. There was one more person Shera who was a passenger in the car but he managed to flee. Notice under Section 50 of the NDPS Act (Ex.PW-4/A) was served upon the accused informing him about his right to get his search conducted before a Gazetted Officer or a Magistrate. He declined the same. From a cavity behind the tail light of the TATA Sumo Vehicle, Heroin/diacetylmorphine was recovered which after weighing was found to be 7.896 kg. Accused was apprehended and arrested. His statement under Section 67 of the NDPS Act was recorded. The case property was seized; from the case property 5 gram samples were taken at the spot. Test memos were prepared at on spot. The case property was deposited in the Malkhana and thereafter sent to the CRCL; which on analysis, tested positive for diacetylmorphine. 4. On the basis of the a....

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....ed informing him about his right to have his search conducted either before a Gazetted Officer or a Magistrate and the same was explained to him. This option was also reduced into writing. It was read over to him and the endorsement of PW-4 was identified by him at point A. Accused declined to get his search conducted either before a Gazetted Officer or a Magistrate. Endorsement by accused has been identified at point B. PW-4 was not cross-examined. 10. Before adverting to the testimony of other members of the raiding party a perusal of Ex.PW-4/A shows that it bears an endorsement of the appellant at point A. Ex. PW4/A was prepared by PW-7 and witnessed by PW-4. Even otherwise it would be relevant to state that the recovery had been effected not from the person of the appellant but from the cavity behind the left tail light of TATA Sumo Vehicle which the appellant was driving. As such in view of the judgment of the Apex Court reported in 3(1999) 6 SCC 172 State of Punjab V. Baldev Singh and 2005 SCC (Cri.) 943 State of H.P.V. Pawan Kumar notice under Section 50 of the NDPS Act was not a mandate which was required to be followed by the Investigating Agency. In this context, the f....

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....n of PW-7 is that pursuant to the secret information two public witnesses Hari Om and Ashok Giridhar were asked to join the raid. On reaching the spot the Tata Sumo Vehicle No.PB 02X 6373 was found approaching from Singhu Border. A signal was given to stop the vehicle but the vehicle did not stop. The vehicle was chased and thereafter when the vehicle took a U turn and started proceedings towards the Singhu Border at a high speed, the vehicle suddenly stopped near Yadav Greens situated at GT Karnal Road, Delhi. One of the two persons sitting in the vehicle managed to escape. He was chased on foot but the effort was fruitless. The second accused i.e. the appellant was apprehended. He was informed about the purpose for which he had been apprehended. He disclosed his identity as Tarsem Singh. Notice under Section 50 of the NDPS Act (Ex.PW-4/A) was served upon him. He declined to get his search conducted before a Gazetted Officer or a Magistrate. Reply was given by the accused to the said effect at point B on Ex.PW-4/A. His search was conducted. Nothing was recovered from his personal search. On the examination of the vehicle 8 cloth packets having similar rubber stamping which were co....

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....rlier criminal activity. He denied the suggestion that Shera, co-passenger, had been given this vehicle on an earlier occasion and Shera was known to him. 16. Although an argument has been propelled before this Court about the statement of the accused under Section 67 of the NDPS Act has since been retracted and thus cannot be read against him. This Court notes that the appellant has retracted this statement on 14.02.2009 i.e. after a lapse of 40 days. In his statement recorded under Section 67 of the NDPS Act, the appellant had revealed the information which was only written on his own personal knowhow. He had stated that he was working as a driver and had taken this vehicle to Delhi to drop the contraband. This piece of evidence was disclosed by him in his statement (Ex.P4/B). It was retracted more than 1 month and 10 days later after he had made this statement which was clearly only after a legal advice. Even otherwise it is relevant to note that this statement recorded under Section 67 of the NDPS Act although is a piece of evidence against the accused yet it is not a substantive piece of evidence and has been used by the Trial Judge only for the purposes of corroboration. T....