IMPORTANT POINTS
Connection of contraband with appellant having been established, it was for the appellant to show that he had effected sale to an authorized person.
Concurrent findings of courts below should not be interfered with.
In case of recovery of contraband in open, public place section 43 shall apply and not section 42.
Adequate compliance of section 43 rather than strict compliance is sufficient.
Section 67 requires satisfaction of the court about voluntariness of the statement and that the person making such statement was not made accused at that time.

JUDGMENT

ADARSH KUMAR GOEL, J

1. These appeals have been preferred by the appellant against his conviction under Section 15 read with Section 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “the Act”) and sentence to undergo rigorous imprisonment for four years and to pay fine of Rs.20,000/-, to further undergo rigorous imprisonment for six months, in default of payment of fine, for illegal sale of 30 Kgs. of poppy straw to the co-accused-A-2, who did not have valid licence as per the Maharashtra NDPS Rules, 1985.

2. Case of the prosecution is that the Inspector of Customs, NCCP Customs, Mumbai received intelligence information on 26th February, 2004 that the appellant was selling crushed opium poppy straw without any bills on cash basis from his premises at 6, Pravin Chambers, Keshvji Naik Road, Mumbai. Co-accused-Karim Patel was to purchase 30 kgs. of poppy straw. A raid was organized and Karim Patel was apprehended with 30 Kgs. of poppy straw. The raid was conducted by PW1-Bhaskar Shetty, Inspector of Customs, along with others including PW5-Canute Menezes. The said accused stated that he had purchased the poppy straw without any bill on cash payment of Rs.5400/-. On search of the premises belonging to the appellant, some documents were recovered. Appellant was found in the shop and stated that he was proprietor and a lady present there was the manager of the firm. Co-accused-Karim Patel, who was also brought by the raiding party with it, opened the bag which had colored powder in a polythene bag. A small quantity was tested on the Field Testing Kit and result was positive for the presence of opium. The powder was weighed and found to be 30 Kgs. Three samples of 24 grams each were collected and sealed. Remaining powder was sealed and kept in the same bag. The label with signatures of panchas and the investigating officer PW1-Bhaskar Shetty was affixed on the bag. Co-accused-Karim Patel identified the appellant as the person who had sold the powder to him without bill on cash payment.

It is not relevant to mention about the rest of stock of opium kept in the shop and thereafter recovery of cash amount from the house of the appellant as conviction of the appellant has been upheld only for the charge mentioned earlier. Co-accused-Karim Patel also stated that he had purchased poppy straw powder on several occasions from the appellant and sold the same.

3. Statement of the appellant was recorded under Section 67 of the Act on 27th February, 2004 to the effect that he had sold 30 Kgs. powder to A-2 without receipt and without medical prescription. A-2 did not have valid permit. After completion of investigation, both the accused were sent up for trial.

4. The prosecution examined 11 witnesses which included investigating officer who effected recovery of the contraband, Superintendent of Customs who received information, Assistant Chemical Examiner, the landlord of the premises in possession of the appellant as a licensee/ tenant and the PSI of the State Excise.

5. The trial court convicted and sentenced the appellant not only for the offence mentioned above but also for illegal possession of commercial quantity of poppy straw powder.

6. On appeal, the High Court partly allowed the appeal, quashed and set aside the conviction and sentence for illegal possession of commercial quantity of poppy straw powder but upheld the conviction and sentence for illegal sale transaction of 30 kgs. of poppy straw powder. The High Court also upheld the conviction of co-accused for abetment of the said offence by purchasing 30 kgs. of poppy straw powder from the appellant without any valid licence and permit. The co-accused has not preferred any appeal as stated by the learned counsel. The appellant has undergone the sentence during pendency of the proceedings.

7. Learned counsel for the appellant has taken the Court through the evidence on record and submitted that conviction and sentence awarded to the appellant was un