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2000 (3) Crimes 279
RAJASTHAN HIGH COURT
Arun Madan, J.
Paramjit Singh and Anr. -Appellants
versus
Union of India - Respondent
Criminal Appeal No. 780 of 1998
Decided on 1-7-1999
Counsel for the parties:
For the Appellants: Mr. S.R. Bajwa, Sr. Advocate with Mr. V.P. Bishnoi and Mr. V.R. Bajwa, Advocates.
For the Respondent: Mr. Bhanwar Bagri, Advocate.
IMPORTANT POINT
Statement of accused recorded under Section 67 of NDPS Act by Investigating Agency following their arrest is not admissible in evidence being hit by Article 20(3) of Constitution of India.
Headnote:(i) Narcotic Drugs and Psychotropic Substances Act. 1985 - Sections 42. 50 and 52 - Recovery of 10.800 kgs of opium from car in which appellants were present - Conviction challenged on ground of noncompliance of mandatory provisions - Search Officer had not invited option from accused when they were apprehended as to be taken before Gazetted Officer or Magistrate – No evidence that prior authorisation of appropriate authority before search party proceeded to the place of occurrence was taken - Investigating Officer having recorded grounds of his belief that he had reason to believe that a search warrant or authorisation could not be obtained without affording opportunity for concealment of evidence, by itself was not plausible and sufficient to inspire confidence Report of Chemical Examiner was cryptic and did not contain de tails regarding requisite tests - No probative value could be attached to the report - Conviction was liable to be set aside. (Paras 16, 19, 29 and 32)
(ii) Narcotic Drugs and Psychotropic Substances Act. 1985 - Section 67 - Statements recorded by Investigating Officer of accused under Section 67 of the Act are not admissible in evidence being hit by Article 20(3) of Constitution of India. (Para 27)
Result: Appeal allowed.
JUDGMENT
Arun Madan, J. - Appellants have preferred this criminal appeal against the judgment dated 21-11-1998 passed by the learned Special Judge, NDPS Cases, Bundi in Sessions/Criminal Case No. 190/98; whereby each of the appellants has been convicted under Sections 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the NDPS Act") and sentenced to undergo RI for ten years and a fine of Rs. one lac each in default of payment fine, to further undergo two years' RI. Maruti car seized during investigation, bearing No. DL/IC/B/1117 was ordered to be confiscated.
2. The facts relevant for deciding the appeal briefly stated are that on 23-11-1991 at about 11.00 a.m. a Maruti Car No. DL-IC-B-1117 was apprehended by the raiding party of the Narcotics Department near Talera petrol pump of Bundi town. The raiding party was headed by Anand Singh Negi. Superintendent, and consisted of Satpal Singh Sabbarwal SI, Bajranglal, Behari Singh, Jahin Ahmad and Manohai Singh (Driver), Upon interception of the car, appellants were found to have been sitting inside it and search was conducted in the presence of two independent witnesses. During search, 11 packets containing opium in all weighing 10.800 kgs. were found duly concealed inside cavities of doors of the car. Samples weighing 24 gms. each from those packets were taken and sealed separately in cigarette cases and rest of the opium from the seized packets was packed in a white cloth and then sealed with a seal vide memo Ex. P.5 by Satpal Singh S.I. During usual investigation, seizure memo Ex. P.1 of the opium was prepared, appellants were arrested vide memos (Ex. P.2 and P.3) intercepted Maruti car was seized vide memo Ex. P.4 and site plan of the place of incident was also prepared vide memo Ex. P.6. Thereupon, written report (Ex. P.7) was submitted by Satpal Singh SI and crime was registered by the Superintendent Narcotics Bureau who handed over the matter to Shiv Narain Inspector for further investigation during which statements of various witnesses so also of the appellants were recorded under Section 67 of the NDPS Act, and the samples taken from the seized opium were sent for chemical examination to Government Opium and Alkaloid Works. Neemuch (MPJ, which sent its report dated 30-i-1992 (Ex. P. 12) confirming the substance to be opium. After completion of usual investigation, a complaint was filled before the concerned Magistrate on 19-2-1992 who committed the case for trial to the Court of Sessions. The charges were framed for offence under Sections 8/18 of the NDPS Act against the appellants who denied the same and claimed trial.
3. During trial prosecution examined as many as 11 witnesses namely. PW1 Satpal Singh Sub - Inspector - scribe of Panchnama, FIR and part of investigation; PW. 2 Surendra Singh and PW.3 Abid Hussain both 'motbirs' but declared hostile; PW 4 Constable Bajranglal, witness to search and seizure; PW 5 Superintendent Anand Singh Negi - witness to search and seizure; PW 6 Inspector Shiv Narain who conducted investigation in part; PW 7 SHO Surjit Singh who conducted search of residence of Abdul Sattar; PW 8 Sahadat Ali and PW 9 Dharamchand who were motbirs of search of residence of Abdul Sattar but were declared hostile; PW.10 Mool Singh was motbir of search of residence of Abdul Sattar; and PWl1 Inspector Nandlal who was also witness for search of residence of Abdul Sattar. The appellants were examined under Section 313. Cr. P.C. and in their explanation, they denied the allegations and pleaded fast implication. In defence statement of Surjit Singh was got exhibited as Ex. D.1. After hearing the parties the learned Trial Court convicted and sentenced the appellants as indicated above. Hence this appeal.
4. I have heard Mr. S.R. Bajwa the learned Senior Advocate for the accused appellants and Mr. Bhanwar Bagri the learned Public Prosecutor for the respondent - Union of India and have also examined relevant documents on record as well as
