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2016 (7) TMI 43 - SUPREME COURT

2016 (7) TMI 43 - SUPREME COURT - TMI - Conviction u/s 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS) - Held that:- Since PW-7 himself was the gazetted officer, it was not necessary for him to ensure compliance of Section 42 - The High Court was right in upholding the procedure followed by the raiding party for ensuring compliance of Section 50 and rightly held against the appellant on this issue. We find no ground to take a different view than the one taken by the High Co .....

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llant herein and affirmed the orders dated 11.04.2002 and 12.04.2002 of the Special Judge, N.D.P.S. Act and VIth Bench, City Sessions Court at Calcutta in N.D.P.S. Case No. 11 of 1998 convicting the appellant herein under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( hereinafter referred to as the NDPS Act ) and sentencing him to suffer rigorous imprisonment for ten years and to pay a fine of ₹ 1,00,000/-, in default, to suffer further rigorous imprisonment for o .....

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officer or a Magistrate and informed the appellant that one Gazetted officer was already with them and if he so desired, he might be searched by the said Gazetted officer as well. 3) After search being done by the raiding party, a polythene packet containing brown coloured powder weighed 250 grams of heroin was recovered from the left side pocket of his wearing trouser. Thereafter, the appellant was arrested on the same day at 22.30 hrs. 4) As a follow up action of the said recovery, one Anjan D .....

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onvicted him thereunder and sentenced him to suffer rigorous imprisonment for ten years and to pay a fine of ₹ 1,00,000/-, in default to suffer further rigorous imprisonment for one year. However, the appellant was acquitted of the offence charged under Section 29 of the NDPS Act. So far as another accused- Anjan De was concerned, he was not found guilty of both the offences under Sections 29 and 21 of the NDPS Act and was accordingly acquitted thereof. 7) Challenging the said order of con .....

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nted by an amicus curiae - Mr. Mulkh Raj, who later stopped appearing for the appellant after leave was granted by this Court. Thereafter Mr. Abhijit Sengupta, learned counsel appeared for the appellant and bail was granted by this Court on 17.09.2007. On 10.12.2015, Mr. Abhijit Sengupta, learned counsel also filed application for discharge of advocate of the appellant. By order dated 15.12.2015, this Court allowed the application filed by Mr. Abhijit Sengupta and discharged him from acting as A .....

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r Mr. Aniruddha P. Mayee for his valuable services in arguing the case of the appellant. 12) In these circumstances, we are of the opinion that the appellant is sufficiently and duly represented throughout in these proceedings and it is not necessary to issue any fresh notice to the appellant and give him another opportunity to engage a counsel of his choice. 13) The submission of the learned counsel appearing for the appellant (accused) was only one and that was in regard to non- compliance of .....

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on that compliance of the requirements of Sections 42 and 50 of the NDPS Act has been done in letter and spirit and both the Courts rightly held the same to have been done and hence there arises no case to interfere in the impugned order. 15) Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in this appeal. 16) The point urged by the learned counsel for the appellant was dealt with by the High Court as under: Now, we come to the main area .....

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r, Directorate of Revenue Intelligence: (2003) 8 SCC 449 that where a search is conducted by a gazetted officer himself acting under Section 41 of the NDPS Act, it was not necessary to comply with the requirement of Section 42. For this reason also, in the facts of this case, it was not necessary to comply with the requirement of the proviso to Section 42 of the NDPS Act. Such being the position the argument of Shri Jash so far as infraction of Section 42 of the said Act is concerned has no meri .....

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y to be searched in presence of a Magistrate or a Gazetted Officer or a Gazetted Officer accompanying the raiding party. He agreed to be searched before the accompanying Gazetted Officer. Prior to search, we gave offer to him if he likes he can search the Gazetted Officer, N.C.B. Officers etc. But he declined. P.W.6, conducting the raid on the relevant date and time of seizure, supported the said version and stated: We gave written offer that we want to search and disclosed to him whether he wou .....

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mpanied the raiding party. The accused agreed to be searched in presence of the accompanying Gazetted officer. The decision of KRISHNA KANWAR (SMT) ALIAS THAKURAEEN (supra), relied upon by the Revenue has full application in the fact situation of the instant case (see also Prabha Shankar Dubey Vs. State of M.P. [(2003) 8 Supreme 565. From a broad analysis of the entire evidence and other materials on record we find from the Seizure List (Ext.9) which discloses seizure of contraband articles from .....

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.6.98) that he was forced to write his confessional statement on the threat and torture. It is also his allegation that his signature on more or less 18 blank papers were taken by the prosecution we find that the other evidence on record is quite sufficient to prove the Charge against the Appellant. We find that the Prosecution has been able to prove its case beyond any shadow of doubt against the Appellant and the points canvassed by Shri Jash have no manner of application in view of the discus .....

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