B B HUGAR Vs. NAUSHAD HASAN PATHAN

JUDGEMENT

(1.) The respondents were charged, tried, but acquitted of the offence under Sections 18,25,20 (b) (i) of the Narcotic drugs and Psychotropic Substances Act, 1985 [for short "ndps Act"]. Therefore, present appeal against acquittal by the appellant.

(2.) As per the prosecution, on 9th october, 1988, on information, a raid was conducted by the Officers of the appellant- central Excise and Customs Preventive, Pune, of the premises, comprising of two rooms, having its Municipal House No. 7 and owned by respondent No. 2, in Village- Phaltan, and found 1.340 kgs. of "ganja" under the sofa, and opium, weighing 52 gms. , in the pocket of respondent No. 1. After receiving the information, completed the formalities, including issuance of an authorisation under section 41 (2) of the NDPS Act by the competent authorities only in the name of respondent No. 2, without mentioning the house number. The detail and purpose of the raid was explained to the Panchas. The Panchas were also searched. Nothing was found in the course of the said search. The raiding team reached to the premises in question. The door of the house was open. When called, respondent No. 1 naushad Hasan Pathan came out of the room. P. W. 1 Mr. Sable, after disclosing his identity and authorisation, explained the purpose of their visit, in presence of two Panchas and also explained the contents of the authorisation and obtained left hand thumb mark of respondent no. 1 on the said authorisation letter. Respondent No. 1, thereafter took the search of p. W. 1 and other officers, including of the two panchas. After completion of these formalities, p. W. 1 along with the other Officers entered into the room.

(3.) P. W. 1 Sabale thereafter asked respondent No. 1 to give search of his person. The Superintendent Tatawade, a Gazetted officer, asked respondent No. 1 whether he by Inspector, Central Excise and Customs, an officer under Customs Act - confessional statement in given facts and circumstances raising various doubts especially when admittedly it was recorded after 2-1/2 months from date of the incident such a statement requires supportive corroboration from other evidence adduced by the prosecution - It is also essential that such statement must be true and correct and was not obtained by threat, dures or promise. (1997) 1 SCC 508 and 2000 ALL mr (Cri) 1701 (S. C. ) - Referred to. Evidence act (1872) , Ss. 24, 25, 26. Criminal P. C. (1973) , S. 164. (Para 20) wanted to be searched in presence of the gazetted Officer or in presence of any magistrate. Respondent No. 1 consented for the search in presence of Tatawade. In the right side pocket of the pant of respondent No. 1, a plastic bag containing 52 gms. opium was found. In the course of the search of the room, they also found two cloth bags under the sofa. One sealed bag weighed 1 kilogram and another, partly open, weighed 330 gms. They also found ganja in 17 small plastic bags under the sofa. A list of articles (Exhibit-15) was prepared, which included one scale with three weights and small empty plastic bags. The opium, as seized, was separately packed in two plastic bags, weighing 24 gms. each and sealed.