Saroj Bala, J. - (1.) The Criminal Misc. Bari Applications No. 20250 of 2006 and 20295 of 2006 in Case Crime No. N.C.B. 2 of 2006 under sections 18, 20, 23, 27-A and 29 of N.D.P.S. Act, Police Station Kotwali, district Fatehpur moved on behalf of the applicants Smt. Dulari Devi alias Manju and Smt. Kiran Tiwari alias Buwa having arisen out of the same crime number are being disposed of by a common order.
(2.) Heard Sri B.S. Rathore, the learned Counsel for the applicants and Sri Sanjai Kumar Singh, the learned Counsel for opposite party and have perused the record.
(3.) The learned Counsel for tine applicants submitted that recovered 100 Kg. charas belonged to co-accused Santosh Kumar Gupta. The learned Counsel pointed out that co-accused Santosh Kumar Gupta in his statement recorded under section 67 of N.D.P.S. Act has claimed the recovered charas as his property. The learned Counsel urged that the statements of the applicants were recorded under section 67 of N.D.P.S. Act mechanically showing their involvement in the trafficking and transportation of charas. The learned Counsel argued that the searching officer was not an authorised officer under sections 41 and 42 of N.D.P.S. Act. According to the learned Counsel compliance of mandatory provisions of sections 41, 42, 50, 51, 52, 52-A, 55 and 57 of N.D.P.S. Act was not made. The learned Counsel pointed out that secret information was not reduced into writing by searching officer as required under section 42(i) of N.D.P.S. Act. The learned Counsel canvassed that copy of information was not sent to the superior officer within 72 hours. The learned Counsel vehemently argued that the applicants were not in exclusive and conscious possession of alleged recovered charas. According to the learned Counsel the applicants boarded the vehicle as passenger for going to Kanpur for making purchases of ready-made garments and sweets for their business at Motihari, State of Bihar. The learned Counsel argued that offer of search by gazetted officer was given jointly to all the accused persons aboard the vehicle. The learned Counsel urged that the drawn samples of charas each weighing 24 gram are not in accordance with the prescribed procedure. The learned Counsel submitted that public witnesses are interested and pocket witnesses of the arresting officer. The submission of the learned Counsel was that statements under section 67 of N.D.P.S. Act having not been recorded by an authorised officer they cannot be read in evidence against the applicants. The learned Counsel argued that no special report was sent by the arresting and searching officer within 48 hours to the superior officer as required under section 57 of the N.D.P.S. Act. The learned Counsel urged that Narcotics Control Bureau is not empowered to perform the functions under sections 41, 42, 53 and 67 of the N.D.P.S. Act. The learned Counsel lastly submitted that the applicants had boarded the vehicle as a passenger without knowledge about charas kept concealed in the cavity of the vehicle. The learned Counsel for the applicants placing reliance on Kulwant Singh v. State, 2001 Cri LJ 1021 argued that N.C.B. cannot be termed as a department of the Government and is not an authority empowered to perform the functions regarding investigation, recovery, search and seizure under the N.D.P.S. Act, therefore, search and seizure effected by N.C.B. is illegal.;