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He has further deposed that it is correct to say that two other accused persons were standing near the police peoples.

Upadhyay PW in this respect has deposed in para 27 of his cross-examination that at the time when C.

He does not remember today that who was sitting and who was standing with him below the truck. The procedure of seizure started after the arrival of C.

In this way, the statement of both these witnesses, who are members of the raid party is discrepant in this manner but one thing is confirmed that two persons were standing below the Truck with the police and one person entered the cabin of the Track where the secret cabin was opened and then the contraband article was recovered from it.

Since, the cabin behind the seat of the Truck was a secret cabin hence caution was to be taken by the police that really who was the person who was knowing the secret cabin where the Heroin was hidden.

The person from the possession it was recovered was the actual culprit but in seizure memo Ex. From the statement of Shri R. Parihar PW it is clear that it was the Liyaqat, who handed over the Heroin to police was in the conscious possession of the Heroin.

He is absconding. Under these circumstances, it was not proved that the seizure was made from the Appellants Hujul Akbar and Yusuf. Hence, in the light of law laid down in Mohd.

Aslam Khan v. It has also been argued by the Appellants that Appellants were not knowing Hindi and they are South Indians. The whole of the proceedings were taken up in Hindi language, hence the Appellants have wrongly been roped in this case.

Parihar PW C. Upadhyay told him that they are Madrasi South Indians and the Translator was not called. At that time accused Hujul Akbaf and Yusuf were not understanding Hindi or they were not speaking in it.

Liyaqat was speaking Hindi. They were not knowing writing in Hindi. Their consent for personal search under Section 50 of the Act was recorded through Sanjay with the help of Liyaqat.

The consent of Yusuf was received through Liyaqat and which was written by Sanjay on the dictation of Liyaqat.

He put the question in Hindi to Yusuf then Liyaqat asked it in Tamil from Yusuf and he replied in Tamil and then Sanjay wrote the consent.

This shows that all the persons were not knowing the writing of Hindi. Sanjay was not examined in this respect, hence the consent for the personal search of accused persons was not proved.

The investigation in this respect was defective. The panchanamas were to be prepared in the same language which was understandable to the accused persons and their true translation in Hindi or English must have also been attached to it.

Under these circumstances, in view of the law laid down in Ramaswami v. It has been argued that there is non-compliance of the Section 55 of the N. The property was not resealed at the time of its deposition in the Malkhana of the Police Station.

He has not deposed that the property was resealed before its deposition. Upadhyay PW has deposed that on returning to the Police Station he again sealed the property and then handed over it to Head Constable Mohrir for its deposition in the Police Station.

But this procedure has wrongly been adopted. The property was to be resealed by the Incharge of the Malkhana with his personal seal which was not done.

It is not required that Seizing Officer shall reseal it. Hence, there was non-compliance of Section 55 of the N. Hence, the possibility of tempering cannot be ruled out.

It has also been argued that the property was sent to court with a delay of 5 months which has not been explained. It is also notable that in the Malkhana Register Ex.

In this respect Shri Ramnarayan PW-5 has deposed that there is no entry in the Malkhana Register about the deposition of the seal and the impression of the seal.

He has further deposed that the property was deposited on Why there is delay of 5 months, no explanation has been given.

Under these circumstances, there was non-compliance of Section 55 of the N. Act and the possibility of tempering cannot be ruled out. Therefore on the basis of the above discussion, I am of the view that at the time of the evidence before the trial court the seizure memo and other panchanamas were not supported by the independent witnesses.

The conscious possession of the Appellants over the contraband item Heroin was not proved. For personal search there was non-compliance of Section 50 of the N.

The Appellants were South Indians and not knowing Hindi language but no Translator was procured to complete the proceedings and on the basis of the papers prepared in Hindi the Appellants cannot be roped in the case.

There was non-compliance of Section 55 of the Act and there is no explanation of 5 months delay in sending the seized property to court. The impression of seal was not deposited in the Malkhana.

Under these circumstances, the Appellants are not liable to be convicted. Hence, the appeal deserves to be allowed.

They be released, if not required in any other offence. Fine if deposited be returned to them. Advocates List.

For Respondent S. Vani B. Sunita Rao Sushil Kumar Pathak. Bench List. Justice I. Eq Citation. ILR MP Thank you for subscribing!

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SC In Abdul Gani v. Therefore, I conclude that the seizure panchanamas were not proved. From perusal of the seizure memo Ex.

It has been argued that the statement of K. Upadhyay PW and R. Parihar PW are discrepant with each other.

Shri R. Parihar PW has deposed in para No. He has further deposed that it is correct to say that two other accused persons were standing near the police peoples.

Upadhyay PW in this respect has deposed in para 27 of his cross-examination that at the time when C. He does not remember today that who was sitting and who was standing with him below the truck.

The procedure of seizure started after the arrival of C. In this way, the statement of both these witnesses, who are members of the raid party is discrepant in this manner but one thing is confirmed that two persons were standing below the Truck with the police and one person entered the cabin of the Track where the secret cabin was opened and then the contraband article was recovered from it.

Since, the cabin behind the seat of the Truck was a secret cabin hence caution was to be taken by the police that really who was the person who was knowing the secret cabin where the Heroin was hidden.

The person from the possession it was recovered was the actual culprit but in seizure memo Ex. From the statement of Shri R. Parihar PW it is clear that it was the Liyaqat, who handed over the Heroin to police was in the conscious possession of the Heroin.

He is absconding. Under these circumstances, it was not proved that the seizure was made from the Appellants Hujul Akbar and Yusuf.

Hence, in the light of law laid down in Mohd. Aslam Khan v. It has also been argued by the Appellants that Appellants were not knowing Hindi and they are South Indians.

The whole of the proceedings were taken up in Hindi language, hence the Appellants have wrongly been roped in this case. Parihar PW C. Upadhyay told him that they are Madrasi South Indians and the Translator was not called.

At that time accused Hujul Akbaf and Yusuf were not understanding Hindi or they were not speaking in it. Liyaqat was speaking Hindi. They were not knowing writing in Hindi.

Their consent for personal search under Section 50 of the Act was recorded through Sanjay with the help of Liyaqat. The consent of Yusuf was received through Liyaqat and which was written by Sanjay on the dictation of Liyaqat.

He put the question in Hindi to Yusuf then Liyaqat asked it in Tamil from Yusuf and he replied in Tamil and then Sanjay wrote the consent.

This shows that all the persons were not knowing the writing of Hindi. Sanjay was not examined in this respect, hence the consent for the personal search of accused persons was not proved.

The investigation in this respect was defective. The panchanamas were to be prepared in the same language which was understandable to the accused persons and their true translation in Hindi or English must have also been attached to it.

Under these circumstances, in view of the law laid down in Ramaswami v. It has been argued that there is non-compliance of the Section 55 of the N.

The property was not resealed at the time of its deposition in the Malkhana of the Police Station. He has not deposed that the property was resealed before its deposition.

Upadhyay PW has deposed that on returning to the Police Station he again sealed the property and then handed over it to Head Constable Mohrir for its deposition in the Police Station.

But this procedure has wrongly been adopted. The property was to be resealed by the Incharge of the Malkhana with his personal seal which was not done.

It is not required that Seizing Officer shall reseal it. Hence, there was non-compliance of Section 55 of the N.

Hence, the possibility of tempering cannot be ruled out. It has also been argued that the property was sent to court with a delay of 5 months which has not been explained.

It is also notable that in the Malkhana Register Ex. In this respect Shri Ramnarayan PW-5 has deposed that there is no entry in the Malkhana Register about the deposition of the seal and the impression of the seal.

He has further deposed that the property was deposited on Why there is delay of 5 months, no explanation has been given. Under these circumstances, there was non-compliance of Section 55 of the N.

Act and the possibility of tempering cannot be ruled out. Therefore on the basis of the above discussion, I am of the view that at the time of the evidence before the trial court the seizure memo and other panchanamas were not supported by the independent witnesses.

The conscious possession of the Appellants over the contraband item Heroin was not proved. For personal search there was non-compliance of Section 50 of the N.

The Appellants were South Indians and not knowing Hindi language but no Translator was procured to complete the proceedings and on the basis of the papers prepared in Hindi the Appellants cannot be roped in the case.

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