TaxTMI 
TaxTMI 
2003 (12) TMI 54
X X X X Extracts X X X X
X X X X Extracts X X X X
....und that there was non-compliance with the requirement of Section 50 of the Act as he was not made aware of his right to be searched before a gazetted officer or a Magistrate before the search was conducted. It was also held that the requirement of Section 42(2) to submit the gist of information to higher officer immediately was also not established. The accused was acquitted of all the charges. The prosecuting agency filed an appeal before the Bombay High Court which by the impugned judgment held the accused guilty for offences punishable under Section 8(c) read with Section 21 of the Act for which custodial sentence of 10 years imprisonment and fine of Rs. 1 lakh for default stipulation was awarded. Further for offence relatable to Sections 28 read with Section 23 of the Act a similar sentence was awarded. Though he was convicted under Section 135(1)(a)(ii) of the Customs Act, but no separate sentence was awarded. The High Court held that Section 50 was not attracted to the facts of the case. Similarly, it was held that there was compliance of requirements of Section 42(2) of the Act. 2.Said judgment of the High Court is under challenge in this appeal. 3.In support of the appea....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., who was also an empowered officer disclosed his identity to the accused and his intention to search his baggages. This officer along with the accused, panchas and 3 baggages of the accused went to the Air Traffic Room of Air India for the purpose of search of those baggages. In that room PW-1 took charge of the travel document of the accused consisting of his passport, ticket etc. Accused opened blue coloured suitcase with his keys. The same was filled with old and new garments and one bedsheet. Two polythene bags containing brown powder were found in the folds of bed sheet. Small quantity of the brown powder was taken out for the purpose of testing which, when tested on testing kit, answered positive for heroin. Both the polythene bags were emptied in one big polythene bag. The total quantity of powder found in the said bags weighed 990 grams. Three samples were drawn in separate small polythene bags. Those bags were sealed by heating and were put in separate paper bags which were closed. All these samples packets were sealed with office seal bearing No. 03-NCB in the presence of panchas whose signatures were obtained after putting particulars and marked S-1, S-2 and S-3. Sample....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he relevant documents like copy of the information reduced to writing, Seizure panchnama, Chemical Analyst's Report etc. 9.The first aspect which needs to be considered is whether there was any non-compliance of Sections 42 and 50 of the Act as pleaded. So far as these two provisions are concerned, they read as follows : "Section 42 : Power of entry, search, seizure and arrest without warrant or authorization : Any such officer (being an officer(1) superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or contro....
X X X X Extracts X X X X
X X X X Extracts X X X X
....h person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. (5) When an officer duly authorized under Section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, pr....