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TMI Blog2024 (8) TMI 1048X X X X Extracts X X X X X X X X Extracts X X X X ..... offences punishable under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'the NDPS Act'). The case of the prosecution is that the Narcotics Control Bureau (for short, 'NCB') received secret information on 21st December 2013 that a consignment of pentazocine, a psychotropic substance, was being transported illegally from Hajipur to Lucknow by train for being sold in the market as an intoxicating item. The NCB team mounted surveillance near the parcel house of Hajipur station. When accused no.1 - Jasvinder Singh reached there, he was intercepted. According to the prosecution case, accused no.1 identified the consignment he had booked from the railway parcel house. During the search of the booked consignment, 30 cartons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and to pay a fine of Rs. 1,00,000/-. Separate punishment was not imposed for the offence punishable under Section 29 of the NDPS Act. The conviction of the appellant has been confirmed by the High Court by the impugned judgment. SUBMISSIONS 3. The first submission of the learned senior counsel appearing for the appellant is that the charge framed against the appellant and accused no.1 was only for the offence punishable under Section 22(c) of the NDPS Act. The allegation, as stated in the charge, was that on 21st December 2013, the appellant and accused no.1 gave cartons of Fortwin injections for interstate transportation without any valid licence and in contravention of Section 8(c) of the NDPS Act. He submitted that no charge was fram ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed no.3 at the instance of the appellant has been established through evidence. She submitted that there is enough evidence on record to show that the contraband was supplied to accused no.1 at the instance of the present appellant by the accused no.3. CONSIDERATION OF SUBMISSIONS 5. We have perused the notes of evidence and considered the submissions. Under Section 8(c), there is a complete prohibition on possessing and transporting any narcotic drug or psychotropic substance. Section 22 of the NDPS Act reads thus: "22. Punishment for contravention in relation to psychotropic substances.-Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufactures, possesses, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f such criminal conspiracy, and notwithstanding anything contained in Section 116 of the Indian Penal Code (45 of 1860), be punishable with the punishment provided for the offence. (2) A person abets, or is a party to a criminal conspiracy to commit, an offence, within the meaning of this section, who, in India, abets or is a party to the criminal conspiracy to the commission of any act in a place without and beyond India which- (a) would constitute an offence if committed within India; or (b) under the laws of such place, is an offence relating to narcotic drugs or psychotropic substances having all the legal conditions required to constitute it such an offence the same as or analogous to the legal conditions required to constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of Section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of Section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act. 158.2. That a statement recorded under Section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act." ( emphasis added ) Therefore, the appellant's statement recorded under Section 67 of the NDPS Act is not admissible in evidence and cannot be read in evidence. 10. The High Court, in paragraph 37 of the impugned judgment, has noted that a statement of the transporter ought to have been recorded to prove that the delivery o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and white packets in each carton for transportation the same interstate without any valid license and in contravention of S. 8(c) of the NDPS Act. You thereby committed an offence. And that hereby committed an offence under 22(c) of the N.D.P.S. Act punishable of the Indian Penal code and within any cognizance. And hereby direct that you be tried by me on the said charge." In the charge, there is no reference to the allegation of commission of an offence under Section 29 of the NDPS Act. 13. However, it is not necessary for us to go into the question of whether non-framing of charge under Section 29 of the NDPS Act has resulted in the failure of justice. The reason is that there is absolutely no legal evidence on record to show th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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