TMI Blog2003 (4) TMI 608X X X X Extracts X X X X X X X X Extracts X X X X ..... ne of rupees one lakh. In default of payment of fine, two years' rigorous imprisonment has been awarded. 2. Sri Ajay Bhanot, learned Counsel for the Appellant, and the learned A.G.A. appearing for the Union of India, have been heard. 3. According to the prosecution case, P.W. 1 Rajesh Kumar Singh and P.W. 2 P. D. Gupta along with others were posted in customs office at Sonauli, Maharajganj. On 5.2.1992 at about 8 a.m. P.W. 1 Rajesh Kumar Singh received secret information that the Appellant is coming from Nepal bringing heroin hidden in his shoes. The information was taken down in writing and was taken to the Superintendent of Customs at Nautanwa by P.D. Gupta P.W. 2. According to the prosecution case, the Superintendent of Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Narain Tripathi, a public witness, has not supported the prosecution case and has been declared hostile. According to the prosecution case, search of the Appellant and seizure of the contraband was made on the basis of secret information. Section 42 of the Act provides that search, seizure and arrest can be made when the officer had reason to believe on information given by any person and taken down in writing that an offence punishable under Chapter IV in respect of psychotropic substance has been committed. The information which is given by any person should be taken down in writing as is provided in Section 42(1) of the Act. It has not come in evidence that the information which was given to P.W. 1 Rajesh Kumar Singh was taken down in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would amount to non-compliance of Section 50 of the Act as has been held in the case of State of Punjab v. Balbir Singh, (supra). In the case of State of Punjab v. Baldev Singh 1999 (2) ACR 1694 (SC): AIR 1999 SC 2378, it has been held that it is imperative for the empowered officer to inform the concerned person of his right under Sub-section (1) of Section 50 of the Act of being taken to a nearest Gazetted Officer or a nearest Magistrate for making the search. It is further held that failure to inform the concerned person of his right as emanating from Sub-section (1) of Section 50 of the Act, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law. 8. In the presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r on record to show that search of the Appellant was carried in pursuance of the oral order of the Superintendent. Rajesh Kumar Singh has admitted that he is telling in the Court for the first time that written information was sent to the Superintendent and on his direction and in his presence the search was carried out. Curiously enough, P.W. 2 P. D. Gupta has stated that the information which was received from the informant was reduced to writing and he went to Nautanwa and gave the same to the Superintendent. He has further stated that he returned to Sonauli along with the Superintendent. If P. D. Gupta P.W. 2 had gone to Nautanwa along with the written information, Rajesh Kumar Singh P.W. 1 would also have stated so. Rajesh Kumar Singh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, it is doubtful if the Superintendent of Customs was present at the time of search and seizure or that the Appellant gave alleged voluntary statement before him. 10. P.W. 1 Rajesh Kumar Singh has stated that he had sealed the contraband. He has also stated that no sample seal was prepared by him. He has also stated that the packet was kept in the customs office Godown at Sonauli. The witness admits that there is no document on record to show that the contraband was kept in the malkhana of the customs office. He admits that there is no receipt on the record evidencing the fact that recovered contraband was deposited by him. P.W. 2 P. D. Gupta has stated that in Sonauli office there is a box wherein contrabands are kept and the box i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AIR 1968 Bom 127. In Madan Gopal Kakkad v. Naval Dubey and Anr. (1992) 3 SCC 204, it has been held that the expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the Court although not an expert may form its own judgment on those materials after giving due regard to the expert's opinion because once the expert's opinion is accepted, it is not the opinion of the medical officer but of the Court. In the present case, the materials inclusive of the data have not been mentioned in the report. In Section 2(v) of the Act 'coca derivative' has been defin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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