Bangalore District Court
State By Intelligence Officer vs A1; H.N.Syed Ahmed S/O Nazeer Ahmed on 15 September, 2021
IN THE COURT OF THE XXXIII ADDL.CITY CIVIL &
SESSIONS JUDGE & SPL. JUDGE (NDPS), BENGALURU.
(CCH.33)
Present : Smt.B.S.JAYASHREE, LL.M.,
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BENGALURU.
DATED: THIS THE 15th DAY OF SEPTEMBER 2021
SPL.C.C. No.504/2016
COMPLAINANT : State by Intelligence Officer, NCB.
(By Special Public Prosecutor)
V/s
ACCUSED : A1; H.N.Syed Ahmed S/o Nazeer Ahmed,
R/at 1261, 9th Cross, Hegadenagar,
Opp Balaji International School,
Bengaluru.
A2; K.Manjunath S/o K.Tirupathi, R/at
Parthsarathi Colony, Hindupura Main
Road, Kadari Taluk, Ananthpura,
Andra Pradesh.
(A1 & A2 by Sri JVS., Adv.,)
1. Date of Commission of offence: 16.9.2016
2. Date of report of offence: 16.9.2016
3. Arrest of the accused : A1 A2 - 17.9.2016
A2 - 5.12.2018
A2: 24.3.2021
4. Date of release of accused on A1 & A2 - 19.10.2016
bail: A2 - 13.8.2020
A2 - in JC
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5. Period undergone in custody: A1 : 1 month 2 days
A2: 1 year 9 mths 10
days
again A2 arrested on
24.3.2021 and in JC till
date
6. Date of commencing of 14.6.2019
recording Evidence :
7. Date of closing of Evidence : 5.3.2020
8. Name of the complainant: Sri Amith Kumar
Thomar, IO
9. Offence complained of : U/s.8(c) R/w.Sec.20(b),
27A, 29 & 32B(d) of
NDPS Act, 1985.
10. Opinion of the Judge : Offence proved
11. Order of sentence : As per final order
JUDGMENT
The Intelligence Officer, NCB, Bengaluru filed complaint against accused persons in NCB F No.48/1/9/2016/BZU for the offences punishable U/Sec.8(c) R/w.Sec.20(b), 27A, 29 & 32B(d) of NDPS Act, 1985.
2. The allegations leveled in the complaint against the accused herein reads as here under: 2(a) That on 16.9.2016 at about 12.00 hours CW.1 has received credible information that the accused No.1 herein 3 CCH.33 Spl.C.C.504/2016 is going to receive huge quantity of ganja at about 1.45 pm., from someone in his Indica car bearing registration No.KA 05 AA 3122 near Devanahalli Doddaballapur cross on NH
07. He has reduced the information into writing, informed the same to the Superintendent, NCB, after obtaining permission he has mounted surveillance for the observation of the said vehicle movement at Devanahalli Doddaballapur crossing on NH07 in the presence of one independent witness. At about 2.00 pm., a white colour Indica car with KA 05 AA 3122 reached the spot. At the same time, a person alighted from the bus. He was carrying two big sized white colour plastic gunny bags containing some thing. He has approached the car. The driver of the car came out and the other person handed over the two white colour plastic gunny bags to the driver. The driver opened both the bags and checked. After checking the bags he has put both the bags in the back seat of the car and sat on the driver seat. The other person who has handed over the bag to the driver also sat on the front seat, at that time, NCB team surrounded the car No.KA 05 AA 3122. After surrounding the car it was found that the person sitting beside the driver 4 was counting cash. The NCB team introduced themselves to both the persons in the car by showing identity cards and told them about the purpose of checking and asked them to introduce themselves. On enquiry, they voluntarily disclosed their name as H N Sayeed Ahmed, who was driving the car, K Manjunatha who was sitting on the left side of the H N Sayeed Ahmed and gave their personal details. The NCB officials informed that the team will carry out the search of the car bearing registration No.KA 05 AA 3122 for which they voluntarily consented. The NCB team officials informed about personal search for which they declined. Both persons were given notice U/s.50 of NDPS Act and explained the contents of the notice for personal search in the presence of a gazetted officer or Magistrate. On being asked, both persons voluntarily disclosed that they have kept ganja in two white coloured plastic gunny bags at the backseat of the car.
2(b) During the search of the white coloured Indica car bearing No.KA 05 AA 3122, NCB team found two white coloured plastic gunny bags containing 03 packets in one bag and 04 packets in another bag totaling 07 packets 5 CCH.33 Spl.C.C.504/2016 wrapped in brown tape on the back seat of the vehicle. NCB officer checked all the packets and found that they all were containing dried parts of ganja plant. Small quantity of the substance was tested from each packet with drug detection kit and each test gave positive result for ganja. Both the persons were asked, if they had any valid licence to carry, sale and possess the said contraband, to which they replied negatively and said that they were carrying it illegally. On the reasonable belief that the entire substance is "ganja" a narcotic substance, the entire packets were seized. The 07 packets wrapped in brown tape were found to be similar in weight and packing. The whole substance from these 07 packets were kept in two plastic gunny bags, properly mixed and weighed that came out to be 14 Kgs. The said contraband, kept in polythene pouches, heat sealed, put in paper envelop, pasted and marked as S1 and S2 respectively. The remaining substance was kept in two separate gunny bags respectively and marked as P1 and P2 respectively. The gunny bags marked as P1 and P2 with remaining substance were properly stitched, covered with marlin cloth, properly stitched.
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2(c) When they were informed their rights of personal search by a gazetted officer they have stated that they are inclined to get their personal search done by the Intelligent officer. During personal search of K Manjunatha Rs.42,060/ and from H N Sayeed Ahmed Rs.1120/ were found. White colour Indica car bearing No.KA 05 AA 3122 was also seized and key was retained with the seizing officer. NCB officer took the possession of all seized materials. Summons was issued to HN Sayeed Ahmed and K Manjunatha on 16.9.2016 to appear before the Intelligence Officer at NCB office and render his voluntary statement. Thereafter voluntary statements of accused Nos.1 and 2 were recorded. The accused were produced before the court on 17.9.2016 and were remanded to judicial custody. The samples which were seized were sent to Director, CSFL, Ramanthpur, Hyderabad for qualitative and quantitative analysis and report. Thereafter, the complaint is presented before this court on 18.11. 2016 by the IO NCB. CFSL report submitted later.
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3. After taking cognizance, this court on perusing the complaint averments and the annexed documents taken cognizance of the offences punishable U/s.8(c) R/w.Sec.20(b), 27A, 29 & 32B(d) of NDPS Act, 1985.
3(a) A1 and A2 were arrested on 17.9.2016 and released on bail on 19.10.2016. later A2 remained absent. It is reported that he is judicial custody in UTP No.2570 of District Jail, Ananthpur. This court has issued body warrant to secure accused No.2 for trial on 14.3.2018. On 5.12.2018 A2 was produced under body warrant. The Jail superintendent, District Jail, Ananthpur has sent a letter to this court stating that accused No.2 who was an accused in S.C.No.154/2018 on the file of I Addl. District and Sessions Judge, Ananthpura was acquitted in the said case as per judgment dated 24.7.2018 and there are no other cases pending against him. Hence, body warrant issued came to be returned. Thereafter, again accused No.2 remained absent and this court has issued Non bailable warrant to accused No.2. On 3.11.2018 he was produced under non bailable warrant before this court and remanded to JC. Thereafter he has moved a bail application before this court. 8
He has been granted bail by this court in Crl.Misc.1860/2019 and he was enlarged on bail on 4.4.2019. Again accused No.2 remained absent and he is produced under non bailable warrant on 23.10.2019 before this court and he is remanded to judicial custody. Again this court has granted bail to the accused No.2 in Crl.Misc.3193/2020 on 22.6.2020. As per the order accused No.2 is released on bail on 13.8.2020. Again he remained absent. Non bailable warrant was issued. On 24.3.3021 he was produced before the court under warrant. Since then he is in judicial custody.
4. The copy of the complaint filed by IO., NCB and the Annexures were furnished to the accused as provided U/Sec.207 of Cr.P.C. After hearing the accused, Charge framed against accused Nos.1 & 2 for the offences punishable U/Sec.8(c) R/w.Sec.20(b), 27A, 29 & 32B(d) of NDPS Act, 1985, by my Predecessor in office on 8.3.2019. the contents of accusation read over and explained to them. Accused pleaded not guilty and claimed to be tried.
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5. To prove the allegation leveled against the accused, prosecution has examined P.Ws.1 to 5 and got marked Exs.P1 to P.20 and properties were marked as M.Os.1 & 2. After closure of prosecution evidence, accused were examined U/Sec.313 of Cr.P.C., by putting the incriminating circumstances available against them. The case of the accused is that of a total denial. On perusal of the evidence available on record and the statement of the accused, this court is of the considered view that the accused is not entitled for an order of acquittal U/s.232 of Cr.PC. Therefore, the accused were called upon to lead evidence if any. The accused have submitted that they have no evidence to lead on their side.
6. Heard the arguments of Spl.P.P., and learned counsel for the accused.
7. The points that arise for my consideration are as here under:
1. Whether the prosecution proves that on 16.9.2016 at about 12.00 hours on Devanahalli - Doddaballapur crossing on NH 7 accused Nos.1 and 2 were found in illegal 10 possession of 14 Kgs., of ganja without having any licence or permission to sell the same and thereby they have committed an offence punishable U/s.20(B) of NDPS Act?
2. What order?
8. My findings on the above points are as under:
Point No.1: In the Affirmative Point No.2: See the final order for the following:
REASONS
9. POINT NO.1 : The complaint averments indicates that on 16.9.2016 at 12.00 hours CW.1 has received credible information that accused No.1 herein is going to receive huge quantity of ganja at about 1.45 pm., in his Indica car bearing No.KA 05 AA 3122 near Devanahalli - Doddaballapur crossing on NH 7. After reducing the information into writing, obtaining permission from Superintendent, mounted surveillance on Devanahalli - Doddaballapur crossing on NH 7, surrounded the vehicle and seized the baggage found in the car containing narcotic substance. Though there is a presumption under Sec.54, which lays down a rule of statutory presumption and rule of 11 CCH.33 Spl.C.C.504/2016 evidence which empowers the court to raise a presumption against the accused, the initial burden of proof that the accused is found in possession of narcotic substance on the date of conducting raid is on the prosecution. To establish the charges, the prosecution has examined the material witnesses to the case. Let me now dwell upon the testimony of material witnesses in regard to the search, seizure, investigation and the expert who has issued scientific report.
10. PW.3 is the Intelligence Officer, NCB., Bengaluru who has received credible information of receipt of huge quantity of ganja by A1 on Devanahalli - Doddaballapur crossing NH7. He has deposed that on 16.9.2016 the information he has received about accused No.1 who is going to receive huge quantity of ganja has reduced the information into writing and submitted the same to Superintendent, NCB, Bengaluru which is at Ex.P2. PW.2 has directed him to form a team to conduct raid. Along with investigating tools and staff, panchas he has been to the spot, surveillance mounted there. A vehicle bearing No. KA 12 05 AA 3122 came there and another private bus came there. Accused No.2 got down from the bus carrying two bags handed it over to A1 who has kept the bag in the car, immediately they were surrounded by the NCB officials. They have revealed their identity to the accused persons, as provided u/s.50 of NDPS act notice was issued to them which is at Ex.P8 and 9. They were informed about their rights to be searched through the gazetted officer or Magistrate. They have informed that they are intending to be searched by the NCB officials. During personal search cash of Rs.1120/ from A1 and Rs.42060/ from A2 were recovered. During car search 2 bags containing three packets and 4 packets in all 7 packets were found in a packed condition. It was looking like ganja. Through the test kit he has examined and confirmed about the substance as ganja. It was weighing 14 Kgs., out of it, 24 grams were taken as sample, S1 and S2 marking was given. Thereafter samples were seized by affixing NCB seal. Signature of accused and panchas were taken on the sealed articles. Vehicle key, NDPS substance, cash was seized. Detail mahazar is drawn. Thereafter, summons was issued 13 CCH.33 Spl.C.C.504/2016 to the accused as provided u/s.67 of NDPS Act. The statement of accused 1 and 2 were recorded. Arrest memo were issued to them. Properties were forwarded with a memo to godown. He has identified the accused before the court. He has also identified the sample which was sent for forensic examination. The seizure report is at Ex.P6 is also identified.
11. PW.3 is cross examined by the defence counsel. In the cross examination, it is brought out that he is not acquainted with Kannada or Telugu language. Further when he was questioned in regard to the written order of Superintendent to conduct raid, he states he has produced the order before the court. He does not know the number of the bus from where the accused No.2 is alighted. During interrogation, he has taken the assistance of police who is acquainted with both the languages Kannada and Telugu. He could not recall the number of the notes which were seized. He has not collected the vehicle documents. Accused No.1 is not having acquaintance in English language.
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12. PW.1 is the Investigating officer of NCB who has spoken about the part investigation conducted by him. He states on 25.10.2016 he has issued notice to CW.4. On 4.11.2016 statement of CW.4 is recorded. CW.6 has translated the statement to English. He has collected the CFSL report and MOs., and submitted to court. He is not cross examined by the defence counsel.
13. PW.2 who is the Asst. Director of NCB the then In charge Superintendent, NCB., Bengaluru testifies that, on 16.9.2016 when he was working as In charge Superintendent of NCB he has received information through CW.1. As per the said information accused No.1 herein who is going to receive huge quantity of ganja at Devanahalli Doddaballapur NH 07 road. Cw.1 has given written intimation seeking permission to conduct raid. He has issued an order to conduct raid by forming a team. The said letter is at Ex.P2. He has made a note in the movement register. On the same day, CW.1 has produced MOs., and test memo and seal No.4 along with the accused before him. Godown receipt is also produced. He has prepared arrest reports on 17.9.2016. Seizure report he has received which 15 CCH.33 Spl.C.C.504/2016 is at Ex.P6. The seized articles were sent to CFSL, Hyderabad by him. He has send the articles to Zonal director for chemical analysis. The accused who are produced before him were produced before the court. He has identified the accused before the court. In the cross examination it is suggested that, accused No.1 is a driver by profession, he pleads ignorance. When it is suggested that A1 and A2 were not known to each other, the said suggestion is admitted. It is brought out that he has not received the articles and document through CW.1 as provided U/s.57 of NDPS Act.
14. PW.4 is the surveillance assistance of NCB testified that he was one of the member of raiding team constituted by Superintendent NCB. On 16.9.2016 at 1.00 pm., they have been to Doddaballapur connecting road at 1.30 pm., he was informed about the raid which is going to be conducted there on that day. He was informed that one person is transporting the ganja in his Tata Indica car bearing No.KA 05 AA 3122. He was appointed to do surveillance duty. His colleague officer has contacted a 16 person to act as pancha who has agreed. Panchas was also informed about the raid. At about 2.00 pm., Tata Indica car came to the spot. One person came in a private bus got down from the bus holding two plastic bags, brought the bags near the car and gave it to the inmate of the car. Immediately he and his colleagues surrounded the car shown the ID card to them. In regard to the personal search accused was informed to be searched through the gazetted officer or Magistrate. Accused has stated that since the CW.1 himself is a gazetted officer he is intended to be searched by CW.1. On searching the vehicle there was gunny bags in that packets were found covered with brown colour tape in that there were leaf, stick and flowers were found. After examining them through DD kit it was found to be ganja. The total amount of ganja is found to be 14 Kgs., out of which 24 grams were taken as sample and packed, NCB4 seal was affixed and given number as S1 and S2 and the remaining ganja packed, NCB4 seal affixed and given number as P1 and P2. The signatures of panchas and CW.1 was taken on the said samples. On further enquiry accused has revealed that, they are not having 17 CCH.33 Spl.C.C.504/2016 licence to sell ganja. During personal search accused No.2 was found in possession of Rs.4042000/ and A1 Rs.1120/ the said cash was also packed and sealed with NCB4 seal. The mobile phone, credit card, watch and Aadhaar card was also packed and sealed. Car is also seized. A detail mahazar was drawn and translated in Telugu language and explained to accused. Accused were identified before the court and the sample ganja. In the cross examination made by defence, it is brought out that he has not given permission in writing to do surveillance work in the place of incident and there were no public. He does not know in which bus accused No.1 came to the spot.
15. P.W.5 C.F.S.L officer testified that on 17.9.2016 a sealed brown colour envelop was received from NCB office bearing NCB seal No.4 S1 article. On 19.9.2016 Deputy director has received the same. In S1 packet dark green colour flowering, fruiting of the vegetative material kept in a sealed polythene packet. Weight of the material is 24.2 grams including polythene packet stated to be ganja weight 24 grams. The exhibits were analyzed by physico chemical 18 examination colour test fast blue B salt, para amino phenol, microscopic examination thin layer chromatography (TLC) and Gas Chromatograph - Mass spectrometry (GCMS) methods. After conducting the various tests on the sample articles and she has opined that ganja was detected in S1 article. Thereafter, the remnants were packed and sealed and CFSL Hyderabad Seal was affixed. The report is at Ex.P20. The report speaks that the sample articles responded positive for ganja. In her cross examination she has stated that she has not separated the seeds, stem, flowers and leaves of ganja while weighing it. She herself has conducted the examination. She has denied the suggestion that she has not personally conducted tests on the sample articles and issued false report.
16. It is vehemently argued by the prosecution that accused were found in possession of 14 Kgs., of ganja which is an intermediate quantity. The Intelligence officer seized the contraband and other articles under the mahazar. During the raid the accused were found in possession of 14 Kgs., of ganja and in personal search Rs.1120/ and 19 CCH.33 Spl.C.C.504/2016 Rs.42,060/ amounts were seized from accused Nos.1 and
2. The vehicle where the ganja was kept was also seized by the intelligence officer. The investigating agency by following the procedures contemplated U/s.42 of NDPS Act has conducted seizure of contraband. The witnesses who were examined particularly PW.2 and 3 have spoken about the raid and seizure in unequivocal terms. Further PW.5 who is a surveillance officer has also spoken about the raid and seizure which amply establishes that accused were found in possession of 14 Kgs., of ganja without holding licence. Therefore, the offence alleged against the accused particularly Sec.20(b) of the Act stands proved.
17. The learned counsel for defence has vehemently argued that the investigating agency has not followed the mandatory requirement provided under the act to conduct raid. There is no compliance of sec.42 & 50 of NDPS Act. The search and seizure held is not in accordance with law. Therefore, the entire investigation is vitiated and accused are entitled to be acquitted.
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18. With the back drop of aforesaid rival contentions, let me appreciate the oral and documentary evidence placed on record by the prosecution. PW.3 is the intelligence officer of NCB who was heading the raiding team and he has received the information about illegal transport of narcotic substance. The relevant say of PW.3 during the course of chief examination which reads that he has informed the accused about conducting personal search through a gazetted officer or a Magistrate. For the said query accused have informed that they are inclined to get their personal search through PW.3. The contention of the accused that there is no mandatory compliance of Sec.42 & 50 of NDPS is unsustainable. Even otherwise, the incriminatory narcotic substance is recovered from the back seat of the car. It is not from the pant pocket or during the personal search of the accused. During the personal search of accused No.1 a sum of Rs.1120/ and from accused No.2 a sum of 42060/ cash was seized. The narcotic substance is not seized during the personal search of accused Nos.1 and 2. On looking to the cross examination there is no specific suggestion made to the witness that the search conducted 21 CCH.33 Spl.C.C.504/2016 by the intelligence officer is not in accordance with law. Therefore, the contention raised during the course of argument that there is noncompliance of Sec.42 and 50 of NDPS Act is unsustainable. It is also necessary for me to note that when the intelligence officer has conducted raid accused Nos.1 and 2 who were sitting in the car, in the back seat of the car two white bags were found and narcotic substance is seized. The said seizure is in the presence of PW.4. At this stage, let me now refer to the case law of Hon'ble Apex Court which vindicate the contention of the prosecution that search and seizure held is in accordance with law. In the case of Joesph Fernandez Vs., state of Goa reported in AIR 2000 SC 3502 the Hon'ble Apex Court upheld the decision of trial court and High court. In the said case the officer has served the appellant an offer to be searched before gazetted officer or Magistrate which an appellant had not favourably reciprocated. The Hon'ble Apex Court stated that the said offer is a communication about the information that appellant has a right to be searched so. It must be remembered that the searching officer had only sec.50 of the Act then in mind unaided by 22 the interpretation placed on it. Even then, the searching officer informed him that "if you wish you may be searched in the presence of gazetted officer or a Magistrate'. This according to us is in substantial compliance with the requirement of Sec.50. There is no violation of section 50 of the act and no question of non compliance of mandatory provision. Appeal was not allowed.
Here in the present case as per the complaint averments, the Intelligence officer has informed the accused persons whether they are inclined to get their personal search through the gazetted officer or the Magistrate. For the said query, the accused persons have informed that they are inclined to get their personal search through the intelligence officer. The personal search notice issued to the accused persons which are at Ex.P8 & P9. It is pertinent to note that during the course of cross examination of PW.3, there is no suggestion made to PW.3 that he has not informed the accused about his right to conduct the search through a gazetted officer or Magistrate. There is no single suggestion made to PW.3 that the personal search conducted is not in accordance of sec.50 of NDPS Act. It is also pertinent for me 23 CCH.33 Spl.C.C.504/2016 to note that when the Intelligence officer on surrounding the vehicle of accused No.1 who was sitting along with accused No.2 and disclosed their identity and questioned about the possession of narcotic substance. The accused persons voluntarily have taken out a plastic bag and handed it over to the intelligence officer stating that they are in possession of narcotic substance. After receipt of the said plastic bag and on conducting test and measuring the contraband they have noticed that the said bag contains 14 Kgs., of ganja. Out of that, 24 grams was taken as sample for chemical examination. In the said two white bags there are 3 packets and 4 packets in all 7 packets containing the contraband.
19. PW.2 who being the Superintendent of NCB after receiving information that there is illicit transport of ganja, he has given permission to PW.3 to conduct raid and to seize the narcotic substance. The letter submitted to PW.2 is at Ex.P2. On the said letter PW.2 has made an endorsement by permitting the PW.3 to conduct raid. During the cross examination of PW.2, there is no suggestion made disputing the receipt of Ex.P2 document which is the first information received by PW.2 through 24 PW.3 in regard to the illicit transport of ganja. On scrutiny of cross examination of PW.3 nothing worthwhile has been elicited to disbelieve the raid conducted by him and to disbelieve the seizure. It is suggested that PW.3 is not acquainted with Kannada and Telugu languages. In regard to the said aspect, prosecution has examined PW.1 who is intelligence officer of NCB who is well acquainted with Telugu language as well as Kannada. He has translated the statement of PW.6 as well as the contents of mahazar.
20. PW.4 who is the surveillance officer who was mounted surveillance on DevanahalliDoddaballapur crossing on NH07 he has noticed the arrival of Tata Indica car and after arrival of the said car one person alighted from a private bus carrying two bags and handed over the said bags to the person who was sitting in the said car. Immediately NCB officials surrounded the car and have shown their identity and have also informed the right of the accused to get their personal search through the gazetted officer or the Magistrate. For that matter, accused have been informed that they are inclined to get their personal 25 CCH.33 Spl.C.C.504/2016 search through the intelligence officer. Thereafter, accused Nos.1 and 2 have taken out the gunny bags which were in the back seat of the car and handed it over to the intelligence officer. Further on verifying the same and conducting the test, it is revealed that the said article is a narcotic substance. Accused have also revealed that they were not having licence to sell the said narcotic substance. After that the seizure mahazar was drawn and the contents of the mahazar was translated to the accused to his known language Telugu. PW.4 has translated the statement of one Veerappa which is at Ex.P1. He has also identified the accused before the court. During the course of cross examination of this witness, except denying the surveillance conducted by him, nothing has been elicited to disbelieve his say with regard to his presence in the spot and also seizure of narcotic substance in the spot.
21. The Asst. Director of CFSL., Hyderabad who has examined the narcotic substance and has given opinion stating that the substance which was sent to chemical examination is a narcotic substance ganja. During the 26 course of cross examination of PW.5 it is suggested that while examining the contraband she has not separated the seeds, steam, flowers and leaves. The said statement elicited in the cross examination of PW.5 is of no assistance to the defence in disbelieving the report of forensic expert. Let me now refer to the judgment of Hon'ble Apex Court where it is held that when the opponent declining to avail him self an opportunity to put his case in cross examination, evidence tendered on that issue ought to be accepted. In the case of Sarwan Singh Vs., State of Punjab reported in AIR 2002 SCC 3652 the Hon'ble Apex Court is pleased to observe at para8 it is a rule of essential justice that whenever the opponent is declining to avail himself of opportunity to put his case in cross examination, evidence tendered on that issue ought to be accepted.
Here in the present case on looking to the cross examination made by the defence there is no suggestion made to intelligence officer and the raiding team about non compliance of seizure procedure and personal search 27 CCH.33 Spl.C.C.504/2016 procedures. When there is no denial about the assertion of prosecution in conducting search and seizure as per the prevailing procedure, the assertion of prosecution about they following the procedure in seizing the contraband has to be accepted.
22. At another material contention of defence is no independent witnesses were examined. It is pertinent to note that non examination of independent witness would not vitiate the evidence of official witnesses. Merely because prosecution did not examine any independent witness would not necessarily lead to conclusion that accused was falsely implicated. The evidence of officials witnesses cannot be distrusted and disbelieved merely on account of their official status.
23. The learned Spl.PP has referred to the judgment of Hon'ble Apex Court reported in 2020 Supreme Appeals Reporter (Crl.) 199 in the case of Surinder Kumar Vs., State of Punjab. In the said judgment the Hon'ble Apex Court has held in categorical terms that: 28 evidence of official witnesses cannot be distrusted and disbelieved merely on account of their status. It is further discussed at para15 of the said judgment that in the case of Jarnail singh Vs., State of Punjab relied on by the counsel for the respondent State also supports the case of the prosecution. In the said judgment, the Hon'ble Apex Court has held that merely because prosecution did not examine any independent witness, would not necessarily lead to conclusion that accused was falsely implicated. The evidence of their official status. Further in the case of State of Govt., of NCT of Delhi Vs., Sunil and anr., has held that " it is an archaic notion that actions of the police officer, should be approached with initial distrust. It is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the courts cannot start with the presumption that the police records are untrustworthy. As a presumption of law, the presumption would be the other way round. The official acts of the police have been regularly performed is a wise principle of presumption and recognized even by the legislature.
The dictum referred to by the learned Spl.PP would aptly be made applicable to the present case in holding that mere non examination of independent witness would not in any way prejudice the case of the prosecution as the official witnesses who were examined before the court unequivocally have stated that about the seizure of narcotic 29 CCH.33 Spl.C.C.504/2016 substance from the vehicle of accused herein. Ex.P1 information in writing which was reduced to writing by PW.3 and the said information was submitted to PW.2 for permission to conduct raid. Ex.P1 information clearly refers to the fact that PW.3 on receipt of information reduced into writing and has submitted it to higher officer as provided U/s.42 and has made strict compliance of Sec.42.
24. That apart in 313 Cr.P.C. statement accused did not give plausible explanation to the incriminating circumstances proved against him. The Hon'ble Apex Court in Ganesh lal Vs., State of Rajasthan reported in 2002 (1) SCC 731 had convincingly clarified the proposition. If an accused fails to offer any explanation for his possession of the stolen property in a case built solely on circumstantial evidence that would held the trial court to draw an inference against the accused in the case, the fact omitted by him to answer being one within his exclusive knowledge. Therefore, a dual purpose is contemplated by the examination of the accused U/s.313 (1)(b) of Cr.P.C., rather than offering an opportunity to the accused to explain incriminatory circumstances against him, it would also help the court in the matter of appreciation of the entire evidence adduced during trial, on the basis of the answer furnished.
30Here in the present case, during the course of recording 313 statement, accused herein have failed to give plausible explanation as to how they were in possession of the contraband. Except denial of incriminatory statement made against them there is no explanation by them in regard to their false implication in the case.
25. It is pertinent for me to state that as provided U/s.54 of the NDPS Act which lays down a rule of statutory presumption and rule of evidence which empowers the court to raise a presumption against the accused that until and unless contrary is proved that the accused has committed an offence under Chapter IV of the said Act in respect of possession of any Narcotic Drugs and Psychotropic Substances, possession of which he fails to account satisfactorily. The object of Sec.54 is to lighten the burden less on the prosecution to prove every ingredients of the offence under Chapter IV by calling in aid the presumption under Sec.54 of the said Act. The object behind this provisions is to subordinate the interest of an ordinary citizen to the wider social and economic interest of the 31 CCH.33 Spl.C.C.504/2016 community and the needs of the law enforcement agencies. The stage for raising the presumption arises when the prosecution proves that the accused had dealt with or had physical possession of the contraband drug. If the accused is found to be in possession of the narcotic drug, it is for him to account for such possession satisfactorily otherwise the presumption under section 54 comes into play. NDPS Act provides for a revers burden of proof upon accused, contrary to normal rule of criminal jurisprudence for presumption of innocence unless proved guilty. This however does not dispense with requirement of prosecution to having first establish a prima facie case, only where after, burden will shift to accused. Mere registration of a case under NDPS act will not ipso facto shift burden on to accused from the very inception. Compliance with statutory requirements and procedures shall have to be strict and scrutiny stringent. If there is any iota of doubt, benefit shall have to be given to accused. Here in this case, accused has failed to discharge the burden that they were not in possession of the narcotic substance.
32
26. On careful scrutiny of the materials placed on record by the prosecution I proceed to hold that prosecution has proved that accused Nos.1 and 2 were found in possession of 14 Kgs., of ganja by placing cogent, probable convincing evidence before this court. In the result I am constrained to answer the point for consideration in the affirmative.
27. Point No.2: In the result, following:
ORDER Acting under Section 235(2) Cr.P.C accused Nos.1 & 2 are convicted for the offence punishable U/Sec.20(b) of N.D.P.S. Act.
To hear regarding Sentence.
[Dictated to the Stenographer directly on computer, typed by her, corrected, signed and then pronounced by me in Open Court on this the 15th day of September 2021) (B.S.JAYASHREE) XXXIII ACC & SJ & SPL.JUDGE (NDPS) BANGALORE.
33 CCH.33 Spl.C.C.504/2016 HEAR BEFORE SENTENCE Heard the accused and learned prosecutor regarding sentence.
It is submitted by learned counsel for accused that accused No.2 is in judicial custody. Accused No.1 is on bail and his conduct during trial has to be taken into consideration. Accused No.1 is aged - and accused No.2 is aged -. They are the sole bread earners of the family. They hails from poor families and have to look after their family. If they are convicted and sentenced to undergo imprisonment their reputation would be tarnished in the society. They have no bad antecedents. On looking to the conduct of the accused through out the trial, lenient view may be taken in the matter.
On the other hand, it is submitted by the prosecution that the accused have committed the offence punishable under NDPS act, which affects the younger generation and interest of the society. Therefore, the accused being guilty are liable for maximum punishment prescribed under the act.
Punishment must defeat the crime. The duty of the court to impose proper punishment depending upon the degree of criminality and desirability to impose such punishment. As a measure of social necessity and also as a means of deterring other potential offenders, the sentence should be appropriate defeating the crime. 34
Punishment is the coercion use to enforce law of the land, which is one of the pillars of modern civilization providing a peaceful society and life is the duty of the state. Lack of punishment causes the law to lose its force and eventually creates a society unable to maintain law and order and government tunable to protect its people. To administer the justice punishment is needed. Thus, philosophy behind the concept of punishment is not only to prove justice to the aggrieved, but besides this to maintain a security and safety in the society. To punish a criminal is not only to give torture to him or to humiliate but there is a higher objective to be achieved and that is to establish a peaceful society. The object of punishment should be to bring about the moral reform of the offender. While awarding the punishment judge should study the character, age of the offender, his early breeding, his education and environment, the circumstances under which he committed the offence; the object with which committed the offence and other factors. The object of doing so to acquaint the court with the exact nature of the circumstances so that he may give punishment which suits the circumstances. The purpose of punishment is to reform the offender as a person so that he may become a normal law abiding member of the community once again.
The Hon'ble Apex court in State of M.P V/s Surendra Singh AIR 2015 SC 3980 based on the theory of proportionality it is laid down that "undue sympathy to 35 CCH.33 Spl.C.C.504/2016 impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of the every court to award proper sentence having regard to the nature of offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. The court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment. Meager sentence imposed solely on account of lapse of time without considering the degree of the offence will be counter productive in the long run and against the interest of the society. One of the prime objectives of criminal law is the imposition of adequate, just, proportionate punishment which commensurate with gravity , nature of crime and the manner in which the offence is committed. One should keep in mind the social interest and conscious of the society while considering the determinative factor of the sentence with the gravity of crime.
With the backdrop of guidelines of Hon'ble Apex court in the above referred decision if the case on hand is scrutinized, in the instant case the accused herein were found in possession of 14 Kgs., of ganja which is an offence punishable U/s.20(b) of NDPS Act with an imprisonment which may extend to 10 years and with fine which may 36 extend to Rs.1 lakh. The quantity of contraband recovered from accused is 14 Kgs. As per Notification S.O.1055(E) dated 19.10.2001 at Sl.No.55 ganja above 20 Kgs., is commercial quantity. In the case on hand, the quantum contraband seized is 14 Kgs., which is below the commercial quantity and above the small quantity and it is intermediate quantity. This court has to consider the age, occupation, responsibility of the accused towards his family members which has to be considered by this court as one of the mitigating circumstances to show leniency. Accused No.2 is in judicial custody that aspect also has to be taken into consideration.
On considering the material available on record, I proceed to hold that the accused herein are entitled for leniency. In the result , I proceed to pass the following :
ORDER Accused Nos.1 & 2 are sentenced to undergo rigorous imprisonment for 4 years and to pay fine of Rs.20,000/ each in default, they shall undergo 1 year SI for the offence punishable U/s.20(b) of NDPS Act.
The period of detention already undergone by the accused shall be given set off in terms of Sec.428 of Cr.P.C.
M.Os.1 & 2 sample is ordered to be returned to the complainant to produce before Drug Disposal Committee for disposal in accordance with law.
37 CCH.33 Spl.C.C.504/2016 The amount kept in FD shall be confiscated to State.
Further office is directed to send a copy of findings and sentence imposed in this case to District Magistrate as required U/s.365 of Cr.P.C.
Office is directed to supply free copy of judgment to accused forthwith.
[Dictated to the Stenographer directly on computer, typed by her, corrected, signed and then pronounced by me in Open Court on this the 16th day of September 2021) (B.S.JAYASHREE) XXXIII ACC & SJ & SPL.JUDGE (NDPS) BENGALURU.
ANNEXURE
1. List of witnesses examined for the:
(a) Prosecution:
P.W.1 : Sri Sabir Ali
P.W.2 : Sri Pankaj Kumar Dwivedi
P.W.3 : Sri Amit Kumar Tomar
P.W.4 : Sri S B Sabi
P.W.5 : Smt.Seema Srivastav
(b) Defence :
NIL
List of documents exhibited for the:
38
(a) Prosecution:
Ex.P1 Statement of Veerappa
Ex.P2 Information
Ex.P3 Godown receipt
Ex.P4 Arrest report
Ex.P5 Arrest report
Ex.P6 Seizure report
Ex.P7 Acknowledgement of FSL
Ex.P8 Notice
Ex.P9 Notice
Ex.P10 Panchanama
Ex.P11 Summons
Ex.P12 Summons
Ex.P13 Voluntary statement
Ex.P14 Voluntary statement
Ex.P15 Arrest memo
Ex.P16 Arrest memo
Ex.P17 Forwarding memo to godown
Ex.P18 Certificate U/s.52A
Ex.P19 Photos
Ex.P20 CFSL report
(b) Defence: Nil
3.List of Material Objects admitted in evidence:
M.O.1 : Sample
M.O.2 : Sample
(B.S.JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BANGALORE.
CN/*