9911796707
TMI Blog2014 (1) TMI 740X X X X Extracts X X X X X X X X Extracts X X X X ..... ubstances Act, 1985 (hereinafter called as 'the Act') has been filed by Commissioner of Customs, Customs Preventive Commissionerate, Amritsar through Inspector of Customs, Land Customs Station, Attari Rail, Amritsar for recovery of 3.022 kgs of Heroin. In paragraph 9 of the complaint, it has been so stated that F.I.R bearing No. 6 dated 02.02.2010 u/s 21/29/61/85 of the Act is against accused Harprit Singh upon the recovery of 1 kg of heroin. During the investigation, the said accused Harprit Singh has made a statement (A-6) wherein he admitted the said 3 packets of heroin recovered/seized by the custom official on 11.12.2010, also belonged to him. It was also admitted that the said 3 packets of heroin was sent by Abad Ali, one heroin smugg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held to be unnatural and the Court set aside the order of his conviction and sentence by giving him benefit of doubt. Mr. Sharma, learned counsel for the respondent on the other hand has argued that the accused in his confessional statement (A-6) has made reference to recoveries one relating to 3 kg of heroin recovered on 11.12.2009 and the other admission with regard to 1 kg of heroine from Armitsar and the petitioner is facing trial on account of that recovery. So, the admissions made by the accused, cannot be discarded. Once the petitioner admitted in his statement (A-6) that 3 kg of heroine which was recovered on 11.12.2009, the presumption under Section 54 of the Act can be read against the petitioner. Learned counsel for the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as follows :- (i) Adjudication proceeding and criminal prosecution can be launched simultaneously; (ii)Decision in adjudication proceeding is not necessary before initiating criminal prosecution; (iii)Adjudication proceeding and criminal proceeding are independent in nature to each other; (iv)The finding against the person facing prosecution in the adjudication proceeding is not binding on the proceeding for criminal prosecution; (v)Adjudication proceeding by the Enforcement Directorate is not prosecution by a competent court of law to attract the provisions of Article 20 (2) of the Constitution or Section 300 of the Code of Criminal Procedure; (vi)The finding in the adjudication proceeding in favour of the person facing trial for i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Following the law laid down by Hon'ble the Supreme Court in case of Radheyshyam Kejriwal vs. State of West Bengal and another, 2011(3) SCC 581, the continuation of the trial against the petitioner would be an abuse of the process of Court. In view of the above, the petition is allowed. Order d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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