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18. Mr. Moitra, Ld. Senior Advocate appearing for the petitioner sub-
mitted that the deposition of PW4, i.e. the complainant shows that he only re-
ceived the photocopies of the documents from the Customs Authority and not
the original documents in respect of seizure which were produced before the Ld.
Trial Court and the complainant being the IO only performed the duty of send-
ing the seized articles of the DRI Authority to the Zoological Survey of India for
identification. The complaint was filed pursuant to the order dated 31-8-1995
passed by the Ld. CMM, Calcutta and the same was filed on 9-4-1996. The inves-
tigation so conducted by the complainant was not in accordance with law and
the documents so relied upon by the Ld. Courts below were inadmissible materi-
als which were marked as Exhibits. The very foundation of the Courts below in
arriving at the finding of guilt was the statement of the accused/petitioner under
Section 108 of the Customs Act and the statements so produced before the Ld.
Trial Court was a photocopy which even after being objected by the defence was
admitted in evidence by the Ld. Trial Court. The petitioner faced trial for charges
being framed under Sections 9, 40(2), 49 and 43 of the 1972 Act and the Ld. Trial
Court on appreciation of the evidence found the accused to be not guilty of the
charges under Sections 9, 43 and 49 of the 1972 Act. However, the Ld. Trial Court
was pleased to hold the petitioner guilty under Section 40(2) of the 1972 Act read
with Section 51(1A) of the 1972 Act. According to the Ld. Advocate Section 51A
is applicable only in the case of offence under Chapter VA the punishment under
Section 40(2) of the 1972 Act do not come under Chapter VA but under Chapter
V of the 1972 Act and as such the sentence passed by the Ld. Trial Court and af-
firmed by the Ld. Appellate Court is not sustainable. In order to substantiate his
submission the Ld. Advocate for the petitioner relied upon State of Punjab v. Bal-
bir Singh, 1994 SCC (Cri) 634 = 1994 (70) E.L.T. 481 (S.C.); Noor Aga v. State of Pun-
jab & Anr., (2008) 16 SCC 417; and The State of Gujarat v. Anwar Osman Sumbhani-
ya & Ors., MANU/SC/0286/2019.
19. Mrs. De Ghosh, Ld. Advocate appearing for the State submitted
that the factum of seizure in respect of the elephant tusks, tiger skins, rhino horn,
tiger nails and plastic eye balls are proved beyond any reasonable doubt as the
seizure lists support the same. The statement of the accused/petitioner under
Section 108 of the Customs Act also corroborates the factum of seizure regarding
the communications which are available in the record, the same are in original
and it reflects that the seized materials were acknowledged by a communication
on 7-8-1995. According to Mrs. De Ghosh as the seized articles qualified “un-
cured trophy” of animals following under Schedule-I Part I as Article 12B, 30 and
39 of the 1972 Act, charge was framed under Section 15 of the 1972 Act, which is
not a complete code and the DRI Authorities have jurisdiction to investigate such
offences. Mrs. De Ghosh relied upon Moti Lal v. Central Bureau of Investigation &
Anr., AIR 2002 SC 1691 and State & Ors. v. NMT Joy Immaculate, 2004 (5) SCC 729
on the issue of mere irregularity will not vitiate the proceedings.
20. In Balbir Singh’s case (supra) relied upon by the Ld. Advocate for
the petitioner in paragraph 25, which is held as follows :-
“25. The questions considered above arise frequently before the trial
courts. Therefore we find it necessary to set out our conclusions which are
as follows :
(1) If a police officer without any prior information as contem-
plated under the provisions of the NDPS Act makes a search
or arrests a person in the normal course of investigation into
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