TaxTMI 
TaxTMI 
TaxTMI 
2018 (1) TMI 61
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....Bureau, Ghazipur filed complaint before Court, who was appointed investigating officer under section 53 of the NDPS Act, 1985 by order dated 30/9/2014 of Deputy Commissioner, Narcotics, Lucknow. He had started investigation after being handed over this matter by the seizing officer/arresting officer, Inspector RS Ram. On 26/9/2014 Shri D K Singh, Office Superintendent, Ghazipur had received an information that Suresh Kumar Gupta alias Chandu, resident of Raj Mandir, PS Kotwali, Varansi was coming by Honda Sine motorcycle bearing registration No. U.P. - 65 BH 6186 who had with him 3000 - 4000 illegal narcotic injections which he would be selling to retail as well as wholesale sellers, if on 26/9/2014 between 14 hours and 16 hours an eye be kept on the route between Chauka Ghat to Nadesar, these injections could be recovered. After getting the secret information Shri D K Singh reduced the same into writing and held talks with Deputy Commissioner, Narcotics, Lucknow on phone and for acting upon the said information a team was constituted which comprised, apart from him, the complainant Shri K K Srivastava, Inspector, Shri RS Ram, Inspector, P N Ram, Vipin Kumar, Satendra Pathak, all H....
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.... ML = 6.800 kg Buprenorphine Psychotropic substance. The accused could not show the valid papers to possess these injections. From out of the recovered Buprenorphine injections, as per their company, 2 injections each were taken out and were wrapped in cotton and thereafter were kept in a yellow coloured envelope and were sealed, which were marked as S - 1 and S - 2 for Norfin and S - 3 and S - 4 for Lupigesic and the remaining Buprenorphine injections were kept in wrappers of 10-10 each and were kept in the same carton and were sealed. The motorcycle which was recovered from the accused which was used in transportation of the contraband substance was also taken into custody. All this was done at 15:30 hours. All the proceedings of recovery were done in presence of witnesses, officers and accused. The seal which was used on all the panchnama and recovery memo and samples, the same seal was also affixed on each page of panchnama in the margin. The recovery memo was read out and signatures of all were obtained thereon. The statement of accused under section 67 of NDPS Act was taken by the Inspector, in which he stated voluntarily in his own handwriting that he had kept the recovered ....
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....on the law laid down in State of Rajasthan vs Jag Raj Singh alias Hansa, (2016) 11 Supreme Court cases 687 and the paragraphs 13 to 18 were read out by the learned counsel word by word. It was hammered by him that in this case secret information recorded and the information sent to the circle officer were found to be different, as the same copy of secret information was not sent which was reduced into writing, rather a separate memo was found to have been sent and hence this was found to be a breach of section 42 (2) of the NDPS Act. The other breach in this case was found of non-compliance with proviso to section 42 (1). It was mentioned that section 42 (1) indicates that only authorised officer can carry out search between sunrise and sunset without warrant or authorisation. The scheme indicates that in the event the search has to be made between sunset and sunrise, the warrant would be necessary unless the officer has reason to believe that a search warrant or authorisation cannot be obtained without affording the opportunity for escape of the offender, which grounds of his belief have to be recorded. In this case there was no case that any ground for belief as contemplated by t....
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....ompliance of section 55 of NDPS Act has not been made because the seal on the recovered contraband substance of Incharge of the police station was not affixed. 6. Next argument made by the learned counsel for the appellant is that the confession recorded of the accused appellant under section 67 of the NDPS Act cannot be held to be valid because the same was not recorded before independent witnesses. The officers of the raiding party would be treated to be police officials in the presence of whom such a confession would be held to be invalid confession. 7. Further, he argued that no independent witness was taken to prove recovery. For transparency and credibility of the said recovery an endeavour ought to have been made to take the accused appellant before the nearest Magistrate as was laid down by the Supreme Court in Jadeja's case. All the Exhibits have not been signed by the officer before whom they were proved, hence they cannot be taken into consideration and it would be treated to be no evidence case. It is also argued that the date of occurrence is 26/9/2014 while Shri K K Srivastava had written a letter on 29/11/2014 to ADJ, Varansi for sending the specimen of contrab....
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....ived secret information he need not send it to the higher authorities. The compliance of section 50 of NDPS Act has also been made in totality because written consent was taken from the accused appellant after apprising him of his legal right that if he desired he could be searched in presence of the Gazetted Officer or a Magistrate but he consented in writing to be searched in presence of the Gazetted Officer Shri D K Singh. It is also argued by him that the accused appellant had made confessional statement under section 67 of NDPS Act and never ever he retracted the same, nor did he ever state that the same was obtained from him by force, not even at the time when he was presented before the Court of Additional District and Sessions judge/Special Judge NDPS Act for remand. He has further stated that sufficient explanation has been given of delay in sending the samples of contraband substance to the Forensic Science Lab which finds mention in the judgment itself. It is also stressed by him that no application was ever moved by the accused appellant being dissatisfied with the report of Forensic Science Lab that any officer of the lab be called for being examined in Court, which am....
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....se at the level of bail the Court is not supposed to go deep into the merits of the case and is supposed to see broadly whether the Court was satisfied that there were reasonable grounds for it to believe that the accused appellant was not guilty of such offence and whether accused appellant, if released on bail was not likely to commit any offence, as these are the two important ingredients to be taken into consideration while considering bail to be granted to the accused appellant. Therefore the Court would take only important aspect into consideration for forming its opinion in this case. 11. First of all the matter of non-compliance of section 42 of the NDPS Act is being taken up which has been argued with much force by the learned counsel for the appellant, relying upon State of Rajasthan vs Jagraj Singh alias Hansa (supra). Before proceeding to analyse as to whether The benefit of above ruling may be given to the appellant or not, it would be pertinent to refer to the law laid down by the Supreme Court in Gyan Chand and others vs State of Haryana, 2014 4 SCC (criminal) 226 in which it has been laid down that each case depends on its own facts and a close similarity between o....
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....des for procedure and power of entry, search, seizure and arrest without warrant or authorisation. 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 between sunset and sunrise without obtaining a search warrant or authorisation, in terms provided in the proviso to sub section (1) of section 42. Sub-section (2) of section 42 is mandatory provision. In terms of this provision a copy of information taken down in writing under sub-section (1) or ground recorded for belief under the proviso thereto, is required to be sent by the officer to his immediate superior official. It is clear from section 41(2) that the Central Government or the State Government, as the case may be , can only empower an officer of Gazetted rank who can either himself act or authorise subordinate on the terms stated in the section. Under sub-section (1) of section 42, however, there is no restriction on the Central Government ....
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....reliance upon Noor Aga vs State of Punjab, 2008 16 SCC 417, in which it has been held that section 53 of the Customs Act empowers the customs officers with the powers of the Station House Officer. An officer invested with the power of a police officer by reason of a special statute in terms of sub-section (2) of section 53 would, thus, be deemed to be police officer and for the said purposes section 25 of the Evidence Act shall be applicable. In rebuttal the learned counsel for the Union of India has placed reliance upon Ram Singh vs Central Bureau of Narcotics (2011) 11 Supreme Court Cases 347, in which it has been clearly held that the officers of the Central Bureau of Narcotics, though have been conferred powers of an officer in charge of police station, but that by itself shall not make them police officers within the meaning of section 25 and 26 of the Indian Evidence Act, because they have not been conferred with power to submit report under section 173 of the Criminal Procedure Code. Such officers are required to lay complaint in Court of the Special Judge for prosecuting accused; hence they cannot be treated as police officers. In view of this it is argued by him that the c....