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2014 (1) TMI 740 - PUNJAB & HARYANA HIGH COURTDischarge of the offences - Recovery of 3.022 kgs of Heroin - Contravention of the provisions of the Act - Held that:- it is found on merit that there is no contravention of the provisions of the Act in the adjudication proceeding, the trial of the person concerned shall be in abuse of the process of the court - there was a recovery of 3.022 kgs of Heroin at Attari Rail, Amritsar by the Inspector, Customs. The petitioner was arrested in F.I.R No. 6 dated 02.02.2010 under Section 21/23/28/29 of NDPS Act upon conscious possession and recovery of 01 kg of heroine. As per his disclosure statement made before the police (A-6), he submitted that 03 packets of heroine sized by the Customs Official on 11.12.2009 from LCS, Attari Rail, Amritsar belonged to him., On the basis of this statement, the petitioner was taken into custody. Thereafter, his statement under Section 67 of the Act and 108 of the Customs Act was recorded(A-7). While making this statement, the petitioner denied 03 kg of heroine which was recovered by the Customs Staff from Attari Rail, Amritsar on 11.12.2009, was to be delivered to him. Since the recovery of 01 kg of heroine had been effected, he is facing trial in F.I.R No. 6 dated 02.02.2010 with regard to the fact that in his disclosure statement, he had admitted the recovery of 03 kg of heroine in December, 2009, belonged to him. This statement was not made as per Section 67 of the NDPS Act. The statement was made before the Interrogating Officer Bawa Singh Sub Inspector. Subsequently, when he appeared before the Court on 01.05.2010,he denied the contents of the statement made by him (A-6). The question for consideration is that whether the statement made on 04.02.2010 (A-6) which was not as per Section 67 of the Act, can be used against him and thereafter, charges under Section 21/23/28/29 of the Act can be framed against him. Petitioner had made a disclosure statement (A-6) before Bawa Singh Sub Inspector. This statement cannot be used against him, as made under Section 67 of the Act so as to charge him with the offence of recovery of 03 packets of heroin recovered/seized by the custom official on 11.12.2010. The statement made (A-6) by the petitioner is not admissible in evidence, as per Section 26 of the Evidence Act. Moreover, penalty proceedings had been initiated against the petitioner and he has been acquitted by the department in these proceedings - continuation of the trial against the petitioner would be an abuse of the process of Court - Following decision of Radheyshyam Kejriwal vs. State of West Bengal and another [2011 (2) TMI 154 - Supreme Court of India] - Decided in favour of Appellant.
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