2005 (10) TMI 549

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....y the Addl. Sessions Judge, Banaskantha in Gujarat, for the offence punishable under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act). All the accused were found guilty of the offence under Section 17 of the NDPS Act. They preferred an appeal before the High Court of Gujarat and by the impugned judgment the High Court dismissed the appeal. Aggrieved by the same, the present appeals are filed by the appellants. The facts of the case are that on 1.7.1989 PSI, L.U. Pandey, along with other police constables, was on patrol duty in the night of 1.7.1989 and at about 5.30 A.M., they noticed a tanker lorry bearing registration number GRS 6407 crossing the Palanpur railway crossing line. They signaled t....

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....for the search, but he had not recorded this information anywhere and that he had also not informed his superior officers about the proposed seizure. In the present case, the officer who conducted the search was examined as PW-2. What he stated in the evidence was that the D.I.G. had instructed him that intoxicant materials were being transported illegally from the States of Rajasthan and Uttar Pradesh and the vehicles had been passing through Banaskantha district. This was only a general information given by the D.I.G. to PW-2 and such information is not bound to be recorded as a source of information as contemplated under Section 42 of the NDPS Act. Section 42 of the NDPS Act provides that a specific information alone need be recorded by ....

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.... It is important to note that no narcotic substance was recovered on the person of the appellant. Even if it is assumed that a search was made on the person of the appellant by PW-2, no evidence in that behalf was made use of by the prosecution to sustain the charge against the appellant. The counsel for the appellant placed reliance on State of Punjab vs. Baldev Singh (1999) 6 SCC 172. That decision has no application to the facts of the present case and even according to the said decision, if at all there is any violation of Section 50, it will not vitiate the trial but would render the recovery of the illicit article suspect. In the present case no article was found on the person of the appellant but was recovered from the tanker lorry. ....