TMI Blog2011 (7) TMI 1026X X X X Extracts X X X X X X X X Extracts X X X X ..... N SUDHA, JJ. JUDGMENT This appeal is directed against the concurrent judgments of the courts below whereby the appellant has been sentenced to undergo 10 years R.I. and to pay a fine of rupees one lakh and in default to undergo RI for two years for having violated the provisions of Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the 'Act'). The facts of the case are as under: During the course of a joint Naka held on the 4th January, 1999 by a party comprising officials from the Customs Preventive Staff, the Punjab Police and the CIA Staff, Majitha, set up at the T-crossing near Saki Bridge, Ajnala, a Maruti car bearing registration No. PB-02-P-5595 was seen coming from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PW.1 Jagtar Singh, Inspector of Customs and PW.4 Prem Singh and the confession of the appellant made to him as also the circumstantial evidence in the case. The accused was also examined under Section 313 of the Cr. P.C. and he stated that he had been -3-roped in on account of his animosity with Swaran Singh-DSP and his brother Kartar Singh-SP as he had been involved in the murder case of their brother, Ranjit Singh. He also produced several witnesses in defence. The Trial Court, on a consideration of the evidence, held that the case against the appellant had been proved beyond doubt more particularly as he had made a confession to PW.4 which was admissible in evidence as PW.4 was not a police officer. It was also found that the provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onfession made by an accused could result in a conviction and sentence, such a confession was hit by the embargo placed by Section 25 of the Evidence Act, 1872, and was, therefore, not admissible in evidence. On the other hand, Mr. R.P. Bhatt, the leaned senior counsel for the respondent - Department, has pointed out that Ext. P.A. the consent memo in fact conveyed information to the appellant that he had a right to be searched in the presence of a Magistrate or a Gazetted Officer and that this amounted to full compliance with Section 50 of the Act. He has also pointed out that although Noor Aga's case did say that a confession made to a Custom Officer was hit by Section 25 of the Evidence Act -5-and was therefore not admissible in the ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether the suspect would like to be searched in the presence of a Magistrate or a gazetted officer can be said to be due compliance with the mandate of the said section? This was answered in paragraph 29 in the following terms: In view of the foregoing discussion, we are of the firm opinion that the object with which the right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be searched before a Gazetted Officer or a Magistrate as noted in Ex.P.A. In the light of the judgment in Vijaisingh's case (supra) we find that there has been complete non-compliance with the provisions of Section 50 of the Act. We also see that the Division Bench in Kanahiya Lal's case had not examined the principles and the concepts underlying Section 25 of the Evidence Act vis.-a- vis. Section 108 of the Customs Act the powers of Custom Officer who could investigate and bring for trial an accused in a narcotic matter. The said case relied exclusively on the judgment in Raj Kumar's case (Supra). The latest judgment in point of time is Noor Aga's case which has dealt very elaborately with this matter. We thus feel it would be proper ..... X X X X Extracts X X X X X X X X Extracts X X X X
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