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2016 (9) TMI 668 - SUPREME COURT

2016 (9) TMI 668 - SUPREME COURT - 2016 (344) E.L.T. 803 (SC) - Conviction under Section 15 read with Section 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 - sentence of rigorous imprisonment for four years and to pay fine of ₹ 20,000/- further rigorous imprisonment for six months, in default of payment of fine - poppy-straw - contraband goods - sale to co-accused who did not have valid license - Maharashtra NDPS Rules, 1985 - raid - search of premises - testing of color .....

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ntraband to the co-accused- Karim Patel who did not have any licence to purchase thereof. - At the time of production of gunny bag no objection was raised on behalf of the appellant that the bag did not carry any label or sign of identity - the absence of label and sign of identity could not be presumed - no serious infirmity in the findings recorded by the courts in convicting and sentencing the appellant - appeal dismissed - decided against appellant. - Criminal Appeal Nos. 1020 - 1021 of .....

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; 20,000/-, to further undergo rigorous imprisonment for six months, in default of payment of fine, for illegal sale of 30 Kgs. of poppy straw to the co-accused- A-2, who did not have valid licence as per the Maharashtra NDPS Rules, 1985. 2. Case of the prosecution is that the Inspector of Customs, NCCP Customs, Mumbai received intelligence information on 26th February, 2004 that the appellant was selling crushed opium poppy straw without any bills on cash basis from his premises at 6, Pravin Ch .....

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pellant was found in the shop and stated that he was proprietor and a lady present there was the manager of the firm. Co-accused- Karim Patel, who was also brought by the raiding party with it, opened the bag which had colored powder in a polythene bag. A small quantity was tested on the Field Testing Kit and result was positive for the presence of opium. The powder was weighed and found to be 30 Kgs. Three samples of 24 grams each were collected and sealed. Remaining powder was sealed and kept .....

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Karim Patel also stated that he had purchased poppy straw powder on several occasions from the appellant and sold the same. 3. Statement of the appellant was recorded under Section 67 of the Act on 27th February, 2004 to the effect that he had sold 30 Kgs. powder to A-2 without receipt and without medical prescription. A-2 did not have valid permit. After completion of investigation, both the accused were sent up for trial. 4. The prosecution examined 11 witnesses which included investigating o .....

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e conviction and sentence for illegal possession of commercial quantity of poppy straw powder but upheld the conviction and sentence for illegal sale transaction of 30 kgs. of poppy straw powder. The High Court also upheld the conviction of co-accused for abetment of the said offence by purchasing 30 kgs. of poppy straw powder from the appellant without any valid licence and permit. The co-accused has not preferred any appeal as stated by the learned counsel. The appellant has undergone the sent .....

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004 during investigation of an earlier case while it was recorded only on 26th February, 2004 and not immediately. There are contradictions in time and manner of recording of information, Ex.18, while there is another note which is contradictory. Reliance has been placed on Abdul Rashid Ibrahim Mansuri v. State of Gujarat (2000) 2 SCC 513 , State of Rajasthan v. Jag Raj Singh (2016) 6 SCALE 32 and Sukhdev Singh v. State of Haryana (2013) 2 SCC 212. It was further submitted that the gunny bag pro .....

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6 SCC 31, Union of India v. Bal Mukund (2009) 12 SCC 161, Raju Premji v. Customs NER Shillong Unit (2009) 16 SCC 496 and Noor Aga v. State of Punjab (2008) 16 SCC 417. Even if the statement of the appellant under Section 67 was admissible, it was a weak piece of evidence and had only corroborative value. No independent witness was joined while recording the statement. The appellant was in custody at the time of recording the statement. The statement was not voluntary. Its contents were not read .....

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ion. It was pointed out that the contentions advanced by the learned counsel for the appellant are not shown to have been raised before the High Court. He next submitted that Section 42 applies only when recovery is to be effected from a building, conveyance or enclosed place. Present case is covered by Section 43 as recovery is from a public place. As regards the plea of absence of label, neither any question was raised at the time of production of the bag nor the fact of recovery of the contra .....

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cused had no licence to purchase the contraband and thereby the appellant contravened the conditions of his licence. He was not in custody when his statement was recorded as is clear from the statement of PW2- Gerard Joseph, who recorded the statement. 9. After due consideration, we do not find any merit in the submissions on behalf of the appellant. Both the courts below have concurrently held that the appellant was found to have sold the contraband to the co-accused without any licence. The sa .....

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lished after which the burden was on appellant to show that he had effected sale to an authorized person. Recovery from the co-accused was from an open place to which Section 42 of the Act is not attracted. At the time of production of gunny bag no objection was raised on behalf of the appellant that the bag did not carry any label or sign of identity. Thus, the absence of label and sign of identity could not be presumed. The samples were duly tested by the chemical analyzer and were found to be .....

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veyance or enclosed place. Where recovery is from a public place, Section 43 applies. This Court reconciled the view taken in Abdul Rashid Ibrahim Mansuri (supra) and Sajan Abraham v. State of Kerala (2001) 6 SCC 692 in larger bench judgment in Sukdev Singh (supra). It was held that in view of technological advancements, it may not be possible to record information as per the requirement of Section 42. Strict compliance by the investigating agency should not be required in an emergency situation .....

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