LACHHU ALIAS LAXMI NARAIN Vs. UNION OF INDIA

JUDGEMENT

(1.) INSTANT appeals impugn the judgment dated October 16, 2001 of the learned Special Judge, N. D. P. S. Cases, Pratapgarh whereby the appellants were convicted and sentenced as under:- (i) Lachhu @ Laxmi Narain under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short N. D. P. S. Act, 1985) N. D. P. S. Act, 1985 to suffer rigorous imprisonment for ten years and fine of Rs. 1,00,000/-; in default, to further suffer rigorous imprisonment of two years. (ii) Nathu Lal under Section 8/29 of the N. D. P. S. Act, 1985 to suffer rigorous imprisonment for ten years and fine of Rs. 1,00,000/-, in default, to further suffer rigorous imprisonment of two years.

(2.) THE prosecution story runs as under:- A complaint was filed by one N. L. Paned with the averments that on receiving secret information, a search party was constituted comprising of the officials of Narcotics Department, that got bus No. RJ-03 P-0177 haulted on March 30, 1999 near village Chiklad on Pratapgarh-Dhariyavad road. During the course of search, a passenger namely Lachhu @ Laxmi Narain was found sitting on seat No. 20 having a black coloured plastic bag (pipe type) on his lap. On being given written option under Section 50 of the N. D. P. S. Act Lachhu @ Laxmi Narain volunteered to be searched by Kishan Lal Inspector, Central Bureau of Narcotics. When the black coloured plastic bag was searched, opium weighing 4. 050 Kgs. was found in it. Statement of Lachhu @ Laxmi Narain under Section 67 of the N. D. P. S. Act came to be recorded. Necessary memo with regard to arrest, recovery, option etc. were drawn. Lachhu @ Laxmi Narain informed that he had purchased opium from Nathu Lal. A complaint, therefore, was filed against Lachhu @ Laxmi Narain and Nathu Lal on June 24, 1999, showing Nathu Lal as absconder. Charges under Section 8/18 of the N. D. P. S. Act against Lachhu @ Laxmi Narain on July 28, 1999 and after arrest of Nathu Lal, under Section 8/18 read with Section 8/29 of the N. D. P. S. Act were framed. Lachhu @ Laxmi Narain and Nathu Lal denied the charges and claimed to be tried. THE prosecution in support of its case examined as many as 10 witnesses. In their explanation under Section 313 Cr. P. C. , Lachhu @ Laxmi Narain and Nathu Lal claimed innocence. Two witness were examined in defence. On hearing the final submissions, learned trial Judge convicted and sentenced Lachhu @ Laxmi Narain and Nathu Lal as indicated herein above.

(3.) IN view of ratio propounded in Veera Ibrahim (supra), and Bhanabhai Khalpa Bhai (supra), the statements of the appellants recorded under Section 67 of the N. D. P. S. Act can undoubtedly be used against them if they are recorded prior to institution of complaint and before taking them in custody. As already noticed, the statement of Nathu Lal was recorded much after the institution of the complaint, whereas, Lachhu @ Laxmi Narain was examined while he was in custody. IN these circumstances, the statements cannot be used against the appellants. SECTION 50 OF THE N. D. P. S. ACT-