TMI Blog2013 (8) TMI 1130X X X X Extracts X X X X X X X X Extracts X X X X ..... to be conducive for search, the Appellant was taken to the office of the Respondent at ITO where a notice under Section 50, NDPS Act was given to him vide Ex.PW1/B. As per the notice under Section 50, NDPS Act it was stated that there was a specific information and there were reasons to believe that the Appellant was carrying narcotic drugs i.e. heroine on his person or in his shoulder bag. Thus, the so-called secret information was a total farce and before giving notice under Section 50 NDPS Act and conducting the search, the investigating agency was aware that the narcotic drug was heroine. The introduction of the word heroine‟ in the notice under Section 50 NDPS Act belies the version of the prosecution totally. Allegedly two public witnesses were called, however no member of the raiding party knew who called them and from where they were called. As per the prosecution case, the panchnama Ex.PW1/C was prepared at 1.30 PM, summons were served on the Appellant at 2.00 PM and a statement under Section 67 NDPS Act was recorded. He was formally arrested at 5.30 PM. On the same day between 4.00 PM to 6.00 PM, Room No. 9 of Virat Tourist Lodge at Pahar Ganj was searched where t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... izure of heroine as Room No. 9, Virat Tourist Lodge. The alleged statement under Section 67 of the NDPS Act cannot be said to be voluntary as the same was recorded by the seizing officer PW1 himself. The Appellant sent his retraction vide letter dated 3rd January, 2006 from the jail at the earliest available opportunity. In view of the serious infirmities in the prosecution case the Appellant is entitled to be acquitted. 4. Learned counsel for the Respondent contends that the conviction of the Appellant can be based solely on his voluntary statement tendered under Section 67 of the NDPS Act Ex.PW1/F wherein he admitted the recovery, seizure and other incriminating facts. The voluntariness of the statement is evident from the fact that he was medically examined and no injury was found on him. Further when he was produced before the Court on 23rd December, 2005 he neither made any grievance nor filed any retraction application nor alleged false implication. The retraction application DW1/B forwarded along with letter Ex.DW1/A is meaningless, as the Appellant has not entered the witness box to prove this retraction application. Further the retraction, if at all, is highly belated, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion case in nutshell as per the statement of PW1 Shri D.P. Saxena, Intelligence Officer DRI Headquarter, the complainant in the case is that an information was received in the morning of 22nd December, 2005 that at about 9.30 AM a person of African Origin would be crossing the roundabout at Roop Nagar, near Delhi University and would be carrying a red and black colour shoulder bag containing some narcotic drug. A team was constituted and the raid was conducted. At about 9.45 AM a person matching the description as available in the information was seen at the spot apparently waiting for conveyance. After introducing themselves, the raiding party stopped the Appellant and asked whether he was carrying any narcotic drug, to which he replied in the negative. He was informed about the specific information with regard to narcotic drug and since the place was not conducive for conducting search being a public place, the Appellant was asked to accompany the DRI officers to the office at I.P. Estate. At the DRI office again the Appellant was asked whether he was carrying narcotic drug to which he replied in the negative. A notice under Section 50 NDPS Act was prepared and the contents of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stioned: (1) to test his veracity, (2) to discover who he is and what is his position in life, or (3) to shake his credit by injuring his character, although the answer to such questions might tend directly or indirectly to incriminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture. 14. The oft-quoted observation of Lord Herschell, L.C. in Browne v. Dunn [(1893) 6 R 67] clearly elucidates the principle underlying those provisions. It reads thus: I cannot help saying, that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in crossexamination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which, it is suggested, indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd some foreign exchange and documents were recovered which were taken into possession by the officers concerned. The inference from the testimony of PW9 and from the noting in notice Ex.PW1/B under Section 50 NDPS Act at best arises that without giving the notice under Section 50 NDPS Act the bag was checked from which heroine was recovered. In the present case the recovery of the contraband is from a shoulder bag and not from the personal search of the Appellant. In such a situation, requirement of a notice under Section 50 NDPS Act was not essential. The contention of the learned counsel that different seal No.10 was used in both the proceedings by different officials and the seal was handed back at 1.30 PM is incorrect. PW2 in his cross-examination clarified that there was only one seal of DRI No.10 and he handed over the same after 1.30 PM but could not say whether it was at 2.30, 5.30 or 8.30 PM . Thus only one seal of DRI No.10 was used. The discrepancies pointed out by the learned counsel for the Appellant are minor in nature. The prosecution has proved beyond reasonable doubt that the case property and the samples were properly secured with the seals and they were found in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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