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State through Narcotics Control Bureau Versus Yusuf @ Asif & Ors.

2016 (1) TMI 727 - SUPREME COURT

High Court acquitted the respondent - Conviction for commission of offence under section 8(c) read with sections 21, 25 and 29 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (NDPS) - Held that:- The High Court has not considered the other material on record which according to trial court established identity of sample sent for chemical examination with the contraband which was seized, and has also overlooked the effect of forwarding memo to godown which contained seal No.12, and effec .....

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he judgment and order of the High Court to be unsustainable. Same is hereby quashed and we remit the case to the High Court to decide the appeal afresh in accordance with law duly considering the reasoning employed by the trial court and the entire evidence. - Criminal Appeal No.1219 OF 2009 - Dated:- 18-1-2016 - M.Y. Eqbal And Arun Mishra, JJ For the Petitioner : Ms. Sushma Suri, Adv. For the Respondent : Mr. Sanjay Sharawat, Adv. ORDER ARUN MISHRA, J. 1. The appeal is directed against the judg .....

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nts were sitting inside on 28.3.2000 at 2 a.m. Lorry was parked in front of Puzhal Jail, it was intercepted by Rajasekhar PW-1, Jaberia Nazir PW- 2, P.Saran PW-6, all Intelligence Officers of NCB headed by Mr. K. Raghavan PW-8, an officer of the Gazetted rank, in the presence of the witnesses - Naveenraj, PW-5 and Vinobaraj. Two jute hand-bags containing 26 packets were seized. They were marked as S1 and S2 and seal No.12 was affixed thereon. Statements under section 67 were recorded. The accuse .....

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memo sent along with it mentioned that seal No.12 was affixed. However, it was mentioned due to inadvertence in the godown receipt that it contained seal No.11. The trial court convicted the respondents. On appeal, the High Court has acquitted them on the ground that the prosecution has not proved that the seized articles were in fact sent for chemical analysis due to the discrepancy in Seal number as on receipt of godown seal number 11 was mentioned. 4. We have heard learned counsel appearing f .....

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41 was obtained from the Superintendent Mansore Police. On that basis, he ordered P.W.6 Saran to enquire into it. Then P.W.6 on that basis, he ordered P.W.6 Saran to enquire into it. Then P.W.6 gave complaint in the court for taking action against accused 1 to 4 and two accused of the separated case under section 89(c) r/w 21, 25, 28 and 29 of the NDPS Act. Ex. D-1 is the receipt given at the godown on 29.3.2000. Ex.D-2 is the letter written from the court to the Chemical Laboratory. Ex.D- 3 is .....

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inted to by the defence side. During Prosecution argument, prosecution reply that P.Ws.1, 2, 6 and 8 were authorized officers and that on the basis of written document Ex.1, after giving information to the superior officer they went to the scene of occurrence and that when P.W.1 questioned accused 1 he produced M.O.30 Heroin voluntarily from the lorry cabin and that P.W.1 being intelligent officer, though he need not leak out information he made endorsement on Ex.P.1 and giving information to Su .....

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bove Act and they obtained Ex.P.2 to 5 wherein accused stated that they need not do so and that further, articles were recovered from cabin of the lorry section 50 need not be enforced and the prosecution witnesses did not transgress provisions of 41(1) and 4a (2) of the Act or section 50 of the above Act and therefore the contention that the case is vitiated is not acceptable and that seized articles were marked as NCB 12 and were handed over as Ex.P.29. Therefore it was subjected to chemical a .....

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out citations (2001) Supreme Page 363, (2001) (3) Crimes page 377, J.T. 2001 S.T.330 and 2000 Supreme Court Cases Criminal Page 506 and Chennai High Court Criminal Appeal N.898/98 order dated 12.6.2001 and Notification dated 6/86 F.No.664/75/ Opium- 1.11.86 and Notification No.8/86 dated 1.11.86. x x x x x 23. Next though the witnesses deposed that they put NCB seal 12 on the seized articles but as per Ex.P.1 NCB seal 11 was affixed and the before benefit of doubt be given to the accused and in .....

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e attached to it and further in the Ex.P-30 document requesting to send articles for chemical analysis it was mentioned and Ex.P-20 in copy of letter to chemical laboratory and in Ex.P-21 Test Memo, it was mentioned and that in Ex.P-1 it was wrongly mentioned as NCR seal 11 instead of 12 and that articles sent for chemical analyzing are not concerned in this case it not acceptable and that further regarding that D.Ws.8 and 9 gave evidences and therefore the contention that the seized articles of .....

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t, special court judge ordered to handover Ex.P.1 to 3 and 5 to intelligent officer and he received the same. Before that as per Ex.P.29. On 203.2000 night at 21.30 on the basis of forwarding memo No.8/2000 he handed over in the NCB godown incharge, Southern Zone. As per Ex.P.30 he requested to send the articles for chemical analysis as per Ex.P-29 for entrusting the articles, he received receipt Ex.P1 in it on 29.3.2001 receipt No.8/2000 was received as per Ex.P.29 and seal No.12 was mentioned. .....

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4 examined the above said articles and gave Ex.P-22 report stating that the above articles were Heroin regarding the mark 12 in the articles produced by the accused 1, P.Ws. 1, 2 and independent witnesses 5 and P.W.8 gave evidence. x x x x x 27. He sent Ex.P-35 summons to manager of the Hotel where the accused 1 and 2 stayed and obtained Ex.P-36 statement from him. Further he examined accused - 1 and obtained Ex.P-37 from the accused 1. Further P.W.8 obtained reports from P.W.1, 2 and 6 and as p .....

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t s permission and possessed the same for the purpose of selling. 5. The trial court has given various reasons, considered statement of witnesses, effect of various documents including of sending them to the chemical analyst and trial Judge also compared the seals and came to the conclusion that the same articles which were seized were sent for chemical examination. The High Court has not considered the other material on record which according to trial court established identity of sample sent f .....

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