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2014 (9) TMI 973 - HC - CustomsAttempt to export Heroin through Courier - Lapse on the part of prosecution to record the information - offence punishable under Section 23(C) and 28 of NDPS Act - Blue Dart Express Office and persons booking the parcel - Held that:- In the instant case on hand, PW-2 had admittedly received the information when he was in his office chamber. It would have required a few minutes of his time to reduce the same into writing. Assuming there was a pressing urgency to rush to the spot where the seizure was successfully made, he then had sufficient time to record not only the fact of such seizure, the reason for not having recorded the information received and his intention to conduct the search and seizure could also have been given. Further, there was no reason forthcoming to also have recorded the discovery of five other air way bills, requiring PW.3 to immediately proceed to conduct a further search and seizure at Shivaji Nagar. To compound the glaring lapse, the requirement is not complied with at all entirely, even though sub-section (2) of Section 42 of the NDPS Act, provides that such information could be recorded and conveyed with appropriate reasons at least within 72 hours of the search and seizure being affected. This was a mandatory requirement to have been complied with The reasoning of the trial Court (which is extracted earlier above), in its endeavour to interpret and distinguish the circumstance of non-compliance with the mandatory provisions of law, is not tenable. - The entire proceedings would come to naught, by virtue of the search and seizure conducted being vitiated, as the material gathered at such proceedings form the very basis of the prosecution. - Consequently, the appeals filed by the accused are allowed.
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