DIRECTORATE OF REVENUE Vs. MOHAMMED NISAR HOLIA

JUDGEMENT

(1.) Interpretation of the provisions of Sections 42 and 43 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) calls for our consideration in this appeal which has been filed by the Directorate of Revenue against the respondent herein aggrieved by and dissatisfied with a judgment and order dated 19 and 20 December, 2000 passed by a learned Single Judge of the High Court of Judicature at Bombay in Criminal Appeal No.462 of 1999 whereby and whereunder the judgment of conviction and sentence passed by a Special Judge at Mumbai in NDPS Special Case No.221 of 1997 was reversed.

(2.) An information was received in the office of the appellant on 23.1.1997 that one person staying in Room No.305 or 306 at Hotel Kalpana Palace, Grant Road, Mumbai was in possession of a fax copy of consignment note under which Mandrex tablets were being transported from Delhi to Mumbai. The said information was passed on to PW-1, Parmar. He reduced the same in writing. He in turn passed it placing same by reducing it to writing before A.D. Patekar, Senior Intelligence Officer (PW-10) allegedly as advised by Assistant Director, Atul Dixit, Assistant Director. PW-1 along with two other officers, namely, Dhani and Petkar visited the said hotel. They came to know that the accused was staying in Room No.306. Two of the employees of the said hotel were asked to be panch witnesses. The door of the said room was knocked; Appellant opened it. He allegedly was given an option to get himself searched in presence of a Gazetted Officer or a Magistrate. He opted for the former. He was searched by the said officers. A sum of Rs.4,25,000/- in cash and a fax copy of a receipt of Green Carriers from Delhi showing the consignment of medicine was found in the said room. A xeroxed copy of the said fax message was retained.

(3.) It appears that the statement of the accused was also recorded in terms of Section 67 of the Act. The consignment arrived as per the said receipt within a couple of days. Respondent herein was arrested on 27th January, 1997, inter alia, relying on or on the basis of recovery of the said fax message which was marked as Exhibit-8 and the purported xerox copy thereof which was marked as Exhibit-8A.