TMI Blog2000 (10) TMI 948X X X X Extracts X X X X X X X X Extracts X X X X ..... wn sugar had been given to him pursuant to the said offer nor did appellant - Mehaboob part with any money as consideration thereof. Thus it is very difficult to convict appellant - A.K. Mehaboob (A3) on the strength of the statement contained in Exhibit P-9. We allow Criminal Appeal filed by A.K. Mehaboob (A3) and set aside the conviction and sentence passed on him by the High Court. - - - - - Dated:- 10-10-2000 - THOMAS K.T., J. ORDER K.T. Thomas, J. These two appeals are by second accused (P.K. Naushad) and third accused (A.K. Mehaboob) in a case wherein three persons were arraigned before the trial court to face a charge for the offence under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad been recovered from a suit case kept in that house. All the three accused were arrested. Their statements were recorded under Section 67 of the Act. The case against appellant - Naushad depends entirely on Exhibit P-8 statement made to the officer under Section 67. There is no dispute that if the said statement is found to be genuine and reliable - Naushad has no escape from conviction, for, it contained vivid description of the transaction he entered into with Divakaran in the trafficking of narcotics drug "heroin" and "brown sugar". Smt. Malini Poduval, learned Counsel for the appellants contended that Exhibit P-8 cannot be relied on for more than one reason. One is that the said statement had been retracted by the accused him-self ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke such a statement. The learned Single Judge had rightly repelled the contentions made on behalf of appellant - Naushad relating to Exhibit P-8. Smt. Malini Poduval, learned Counsel for the appellants then contended that there was violation of Sections 42 and 57 of the Act. Both contentions cannot be countenanced by us for two reasons. One is that they were not seriously pressed into service before the High Court. Second is that there is no factual basis for such contentions. On the other hand, PW-2 has said in so many words that he has recorded the information in his personal diary as well as in the official diary as soon as he got the information that narcotic drugs were being transacted in the house of appellant - Naushad PW-2 had adm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Narcotics Control - Bureau made a last bid to sustain the conviction of appellant - A.K. Mehaboob by resorting to Section 30 of the Act. We are not inclined to go into that Section since the same was not included in the charge nor in the discussion made by the trial court or the High Court as against that appellant. It will not be fair for us to ferret out a new provision from the Act to fasten the appellant with a, penal liability which may visit him with very serious consequences. In the result, we allow Criminal Appeal No. 980 of 1999 filed by A.K. Mehaboob (A3) and set aside the conviction and sentence passed on him by the High Court. We, therefore, order that he be set at liberty forthwith unless he is required in any other case. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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