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2014 (4) TMI 100 - HC - CustomsConviction and sentence – movement of opium - Whether association of public witness mandatory – Statement u/s 67 of NDPS Act in contrary to statement u/s 313 Cr.P.C. - Held that:- Appellant in his statement u/s 313 Cr.P.C. denied the allegations against him, claimed to be innocent and claimed not be the owner of the truck though he knew driving - A perusal of the record would show that neither Mahender Singh was found residing at the Rangpuri address given by him nor was Neki Ram found at the Chhawla Village address - Obviously either the witnesses gave wrong address to NCB or they shifted from the place where they were earlier residing without intimating the new address to the NCB officials - The NCB cannot be held responsible for not producing them in the witness box - Moreover, since the recovery was effected at a public place in a day time, it was not mandatory to associate public witnesses with the search of the truck in which the contraband was found. Proof of recovery – Proof beyond reasonable doubt – Held that:- The appellant in his statement u/s 313 Cr.P.C. did not even admit either that he was driving the aforesaid truck or that the said truck was stopped and seized by NCB officials at Kapashera border - The deposition of PW5 with respect to seizure of the opium from the truck being driven by the appellant finds full corroboration from PW6 Vikas Kumar in whose presence the seizure was effected - Therefore, the respondent NCB has proved beyond reasonable doubt that the appellant was driving the truck from which the substance in question was recovered by its officials, in the morning of 4.3.2006, at Kapashera border. Whether statement u/s 67 of the NDPS Act can be basis of conviction when it was denied u/s 313 Cr.P.C. Held that:- The seizure of the drug from the truck being driven by the appellant finds corroboration from the statement which he made under Section 67 of the NDPS Act - Though the aforesaid statement was denied by him in his statement u/s 313 Cr.P.C., the statement has been duly proved by PW5 who had recorded the same, and this is not the case of the appellant that it is not signed by him - The appellant does not even claim that the aforesaid statement was obtained from him by subjecting him to any kind of duress or inducement - Therefore, the said confessional statement having been voluntarily made, can be safely used for convicting the appellant - Since the conviction of the appellant is not based solely upon the statement made by him u/s 67 of the NDPS Act, the same being only a piece of corroborative evidence, there is no merit in the contention that the conviction of the appellant could not have been based on the said statement. Whether the notice u/s 50 of the NDPS Act was meaningless since the appellant did not know reading or writing either English or Hindi – Held that:- A perusal of the said notice Ex.PW5/B would show that the it is a printed document in Hindi as well as English - It has come in evidence that the contents of the aforesaid notice were duly explained to the appellant and the meaning of the expression “Gazetted Officer” was also explained to him - There is no reason to disbelieve the deposition of NCB officials in this regard - Vide aforesaid notice, the appellant was clearly informed of his legal right to be searched in the presence of a Magistrate or a Gazetted Officer - Therefore, there was due compliance with the requirement of Section 50 of the NDPS Act - No ground for interference with the conviction of the appellant and the fine imposed on him - It is, however, directed that in case of default of payment of fine, the appellant shall undergo SI for three (3) months as against one year awarded by the trial court - Appeal disposed of – Decided against appellant.
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