Bangalore District Court
State By Parappana Agrahara P.S vs Imran Khan on 9 February, 2023
KABC010183512020
THE COURT OF THE XXXIII ADDL.CITY CIVIL & SESSIONS
JUDGE & SPL. JUDGE (NDPS),
BANGALORE. CCH.33.
PRESENT:
Smt.B.S.JAYASHREE, LL.M.,
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BENGALURU.
DATED: THIS THE 9th DAY OF FEBRUARY 2023
SPL.C.C. NO.750/2020
COMPLAINANT : State by Parappana Agrahara P.S
(By Public Prosecutor)
V/S.
ACCUSED : 1. Imran Khan, S/o. Late Amir
Jhan, Aged about 28 years,
Residing at Rashid House,
Behind Gangamma Devi
Temple, Mangammanapalya,
Bommanahalli Post,
Bengaluru City.
2. Mohammed Esmayil, S/o
Mohammed Noor Sab, Aged
about 23 years, Residing at
Rafeeq's Rent house, Beside
2
Petty shop, Near Khans
house, 1st Cross, Malluru,
Tumakuru City.
(Rep. by Sri DAJ and KAZ., Adv.)
1. Date of Commission of offence: 20.09.2018
2. Date of report of offence: 20.09.2018
3. Arrest of the accused : A1 & A2: 20.09.2018
4. Date of release of accused on A1 & A2: 06.10.2018
bail:
5. Period undergone in custody: A1 & A2: 17 days
6. Date of commencing of 05.01.2022
recording Evidence :
7. Date of closing of Evidence : 12.01.2023
8. Name of the complainant: Sri Shivappa Rayappa
Kanavi, PSI
9. Offence complained of : U/s.20(B) of NDPS Act.
10. Opinion of the Judge : Offence not proved
11. Order of sentence : As per final order
JUDGMENT
This is a charge sheet submitted by the Police Sub Inspector, Parappana Agrahara Police Station, Bangalore against the accused no 1 and 2 on the allegation that they have committed the offence punishable U/Sec.20(B) of N.D.P.S. Act.
CCH33 3 Spl.C.C.750/2020
2. The brief facts of the prosecution case are as follows: On 26.09.2018 at 9.20 am., when the complainant was discharging duties in the Police Station, he has received credible information that in a road which leads from Hosa road to Kudlu Road, in front of Manjunatha Bar Road two persons are standing near the passenger Auto and are showing some small plastic covers containing Ganja to the passersby. He has informed the matter to the police inspector, DCP Electronic City Sub Division, ACP and obtained permission to conduct raid. He has called panchas to the police station at 9.40 am, he has been to the spot along with staffs, Panchas and reached the spot at 10.10 am. He has mounted surveillance in the spot. The said two persons were selling Ganja in small packets to the public. They were surrounded and apprehended by the complainant PSI and his team. On enquiry they have revealed that they are selling Ganja to the public, they have also revealed their names and addresses. Accused No.2 has told them he has purchased Ganja from one person of Tumkuru for 4 a sum of Rs.5,000/. The Ganja which was in the hand cover of accused was weighed, it is containing 660 grams of Ganja. Out of that sample of 60 grams was taken. Similarly hand bag of A2 was weighed containing Ganja, it was found to contain 540 grams of Ganja. The sample was taken SKB seal was affixed on the said articles. A detail mahazar was drawn in the spot. The Ganja and vehicle were seized under a mahazar. A detail report has been prepared by the PSI., Parappana Agrahara PS., which is the basis to register the case in the Cr.No.302/2018 for the offence punishable U/s.20(B) of NDPS Act. Accused No.1 and 2 were arrested, produced before the court and remanded to JC
3. Thereafter accused persons are released on bail. The investigating agency on conclusion of investigation filed charge sheet against the accused Nos.1 and 2. This court on perusing the contents of police final report and the annexed documents taken cognizance of the offences punishable U/s.20(B)(ii)(b) of NDPS Act, 1985. The copy of the charge sheet filed by PI., Parappana Agrahara PS., and the Annexures were furnished to CCH33 5 Spl.C.C.750/2020 the accused as provided U/Sec.207 of Cr.P.C. After hearing the accused, Charge framed against the accused for the offence punishable U/Sec.20(B)(ii)(b) of NDPS Act, 1985, on 08.09.2021. The contents of accusation read over and explained to them. Accused pleaded not guilty and claimed to be tried.
4. To prove the allegation leveled against the accused, prosecution has examined P.Ws.1 to 5 and got marked Exs.P1 to P.9 and properties were marked as M.O.1 & 2. After closure of prosecution evidence, accused is examined U/Sec.313 of Cr.P.C., by putting the incriminating circumstances available against them. The case of the accused persons are that of 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.P.C. Therefore, the accused was called upon to lead evidence if any. The accused has submitted that he has no evidence to lead on his side.
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5. Heard the arguments of P.P., and learned counsel for the accused.
6. The points that arise for my consideration are as here under:
1. Whether the prosecution proves that beyond reasonable doubt that on 20.09.2018 at 09.20 am., with in the limits of Parappana Agrahara Police Station on the Kudlu Hosa road in front of Manjunath Spirit Bar, Bangalore accused Nos.1 & 2 were found in illegal possession of 1 Kg., 200 grams of ganja without having any licence or permission to sell the same and thereby accused Nos.1 and 2 have committed the offence punishable U/s.20(b)(ii)(B) of NDPS Act?
2. What order?
7. My findings on the above points are as under:
Point No.1: In the Negative Point No.2: As per the final order for the following:
REASONS
8. POINT NO.1 : As Per Sec.20 of NDPS Act even possession of ganja is an offence U/s.20(B) of the NDPS Act. As per Sec.54 of NDPS Act which lays down a rule of statutory CCH33 7 Spl.C.C.750/2020 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 Section 54 is to lighten the burden which rests on the prosecution to prove every ingredient of the offence under Chapter IV by calling in aid the presumption under Section 54 of the said Act. The object behind this provision is to subordinate the interest of an ordinary citizen to the wider social and economic interest of the 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. Presumption under this section - if an accused is found to be in possession of a narcotic drug, it is for him to account for such possession satisfactorily otherwise, the presumption under Section 54 comes into play. The initial 8 burden of proof that the accused is in conscious possession of contraband drug is on the prosecution. Once, the burden of proof is discharged by the prosecution then the accused has to account for such possession satisfactorily otherwise, presumption prevails.
9. Now, let me dwell upon the testimony of prosecution witnesses who have conducted raid, who were present at the time of raid to assess the allegation of illicit sale of contraband by the accused herein.
10. PW.2 is the complainant/PSI who is the search and seizing officer has testified that on 20.09.2018, when he was discharging duties in his office received credible information that near Hosa road kudlu road, adjacent to Manjunatha Bar some 2 persons are selling ganja to the public. He has informed the matter PI Parappana Agrahara, ACP Electronic City, DCP North East and obtained permission to conduct raid. He has called the panchas to the station, apprised them about the information he has received. He has served notices to CCH33 9 Spl.C.C.750/2020 them. He along with DD kit, panchas and staff had been to the spot at 10.10 am., he has mounted surveillance in the spot. The informant has shown suspects to them and left the place. The said two persons were found carrying a plastic cover and they were some articles to the public. The said persons were surrounded around 10.20 am., and were apprehended. On enquiry they have revealed their names as Imran Khan and Mohammed Ismile and they are the residents of Bengaluru Mangammanapalya and Tumkur. When they were questioned about the bag which was in their hand, they have stated that they have purchased Ganja from one person at Tumkur for a sum of Rs.5,000/ per 1 kg., 200 grams and he do not know his address.
11. They have apprised of their right to have personal search through a gazetted officer. The ACP of Electronic City was called to the spot to conduct personal search of accused. The ACP who is the gazetted officer has apprised the accused about their right to have personal search before a gazetted 10 officer or a magistrate. Their personal search was conducted. The ganja which was in the hand cover of the accused No.1 in 4 small packets was weighed. The weight of the Ganja came around 660 grams out of that 60 grams was taken for sample. It was seized SKB seal was affixed on it. The signature of panchas was taken on it. During personal search of accused No.2 660 grams of ganja was found, out of that 60 grams was taken for sample. It was seized SKB seal was affixed on it. The signature of panchas was taken on it. A detail mahazar had been drawn in the spot. He has produce the accused before the PI along with seized articles and a report. He has identify the accused and seized Ganja before the court. He has handed over further investigation to PI.
12. In the cross examination, it is brought out that the informant has not stated about the features of accused and the auto number. The place of incident is a public place. He has seen the accused from a distance of 50 mtrs and they were shown by the informant. The personal search is conducted by CCH33 11 Spl.C.C.750/2020 CW6 and ACP as per the instruction of him. It is suggested that sample is not collected in the spot and seal is not also affixed on it, and the said suggestion is denied. It is suggested that he has seen the accused first time before the court and not on the day of incident, the said suggestion is denied. It is suggested that no raid is conducted on that day, no seizure of Ganja is affected from the accused persons, and a false case is foisted against him, the said suggestion is denied.
13. PW.3 & 4 are witnesses to panchanama have not supported the case of prosecution. Except identifying the signature in the panchanama they have not stated any thing about search and seizure and drawing of mahazar. They have been treated as hostile witnesses and were cross examined by the prosecution in length. In the cross examination nothing has been brought out in proof of their presence at the time of incident.
14. PW.1 is the Scientific officer of FSL, Madiwala, Bangalore. She has testified that on 02.11.2018 she has 12 received sealed article from Parappana Agrahara PS., in Cr.No.302/2018 through PI. At the time of receipt of the article the seal was intact. She has opened the seal and taken out the article which was sent for chemical analysis. After taking out the sample she has conducted microscopic examination, duquenois Levine test, para amino phenol test, thin layer chromatography and UV spectro photometric analysis. After conducting the said scientific tests, she has arrived at a conclusion that the article which was submitted for chemical analysis is a contraband ganja. She has issued report as per Ex.P1. After chemical examination the contraband was sealed and packed and their office seal was affixed and it was sent to the investigating agency. She has identified the sample seal at Ex.P2. In the cross examination it is brought out that the ganja which was sent for chemical analysis is not segregated and examined. It is suggested that she has filed a false report at the instance of police, the said suggestion is denied.
CCH33 13 Spl.C.C.750/2020
15. PW.5 is the ACP Electronic City Sub Division and he is the Gazetted officer in the case in whose presence search and seizure is held. His testimony before this court is, on 20.09.2018 CW1, has submitted a requisition to him stating that two persons are selling Ganja on Hosur Kudlur Road and have sought permission conduct raid. After conducting raid he had sent a requisition to him to conduct personal search of accused. He has gone to the spot and found the accused persons therein and when they were questioned about possessing Ganja, they have admitted that they were in possession of ganja. They were informed about their right to have their personal search through a Gazetted officer or Magistrate. They have consented to have their personal search through a gazetted officer. When he has conducted the personal search of the accused No.1 and 2, they were found in possession of 660 and 440 grams of Ganja respectively, the said ganja was seized, detailed mahazar has been drawn. He has identified the accused before the court. Auto which was there in the spot was also seized.
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16. CW13 is the PI who has conducted at the investigation in the case. He is in judicial custody in some other case and CW14 Nandish who has filed charge sheet is dead. Since PW5 is the assistance commissioner of police and CW13 and 14 are the police inspector who have worked under him, he was examined further to speak about the investigation conducted by him. He has stated that CW13 has conducted further investigation in the case, recorded the statement of CW10, sent the sample to FSL. CW14 has filed the charge sheet in the case on conclusion of investigation and after receipt of FSL report. He has identified the accused and the properties before the court.
17. In the cross examination it is brought out that the place of incident is a public place. Further in the mahazar the seized Ganja is showed as a powder. It is suggested that he has not been to the spot, accused were not there in the sport, no seizure is affected from the accused persons and they are no way connected to the crime, the said suggestion is denied.
CCH33 15 Spl.C.C.750/2020 It is suggested further that CW13 and CW14 have not conducted further investigation in the case nor have filed the charge sheet in the case.
18. The prosecution vehemently argues that ganja seized from the public place from the conscious possession of accused to the tune of 1 Kg., 200 grams, accused failed to give explanation satisfactorily as to how they came into possession of the contraband. The prosecution witnesses particularly PW.2, PW.5 have spoken in unequivocal terms about the seizure of contraband from the accused. CW14 has filed the Charge sheet and CW.13 has conducted part investigation. PW5 has spoken about the investigation conducted by CW13 and CW14. CW14 is dead, CW13 is in Jail in some criminal case, therefore their part of investigation is spoken to by PW5. PW2 is the search and seizure officer, IO on complying the statutory provisions of NDPS Act has seized the articles. The charges against the accused stands proved. 16
19. On the other hand, it is the vehement contention of defence that the initial requirement of search and seizure has not been followed by the IO. The entries made in the SHD Ex.P3, exact copy has to be forwarded to the higher officer, but in this case it has not been done. There is non compliance of sec.42(2) of NDPS Act. Under the definition of ganja, stem, stick would not fall, flower and stalk has to be segregated out of the bulk, then only the contraband would fall within he definition of cannabis would attract. Here in this case, no such procedure is adopted. Articles seized must reach FSL safely. Here in this case there is inordinate delay in sending the articles for FSL. Impression of seal should not be retained with the IO. Seizure of MO.1 and 2 is doubtful. There are serious lacuna in the case of prosecution which creates doubt about the case projected. Therefore, the benefit of doubt has to be extended to the accused.
20. With the back drop of aforesaid evidence, and the assertions made by the rival parties let me dwell upon the CCH33 17 Spl.C.C.750/2020 material in depth as to whether the prosecution has succeeded in proving the allegation of conscious possession of contraband from the accused, whether the investigating agency followed the mandatory requirement for the seizure as contemplated under the law. It is well settled law that keeping in mind the grave consequences which are likely to follow on proof of possession of illicit articles from the accused, namely the shifting of the onus of the accused and the severe punishment to which he becomes liable, legislature has enacted and provided certain safe guards in various provisions of the accused including Secs. 42 and 50 of the Act. The harsh provisions of the act cast a duty upon the prosecution to strictly follow the procedure and compliance of the safeguards. Herein the case on hand, this court has to appreciate whether the provision of 42 and 50 of the Act have been strictly complied by the complainant police. PW.2 has received the information through an informant about the sale of contraband ganja in a public place. After confirming about the information he has informed the matter to PI of the station, 18 ACP and DCP, obtained permission to conduct raid. The Police SubInspector who has received the information has not noted the same in any of the registers maintained in the office.
21. As per the enunciation of law in the case of State of Punjab Vs., Balbeer Singh reported in 1994 (3) SCC 299 where the Hon'ble Apex Court has held that: "under Sec.42(2) the empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(10 should forthwith send a copy thereof to his immediate official superior. If there is total non compliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case."
There is no material placed by the investigating agency that he has made a separate note about the information he has received. As per the Drug law enforcement field officers hand book if a complainant receives information from a person he should get it recorded in writing in the first person, preferably in the handwriting of the informer duly signed by him or by CCH33 19 Spl.C.C.750/2020 putting his left thumb impression. The officer would then seal the recorded information after endorsing "recording by me" and sign it mentioning his name, designation and the time and date of recording. The next step involves filling in other entries including the gist of information in proper format and sending the same along with sealed envelop to his superior officer, if possible, immediately, or within 72 hours of such recording. The compliance of Sec.42(2) is mandatory. Here in the case on hand, PW.2 as per her testimony before this court he has not made a note in any register and has not sent the verbatim information to the higher officer. As per the Manual the information recorded has to be sealed and sent to the superior. Whether the report is submitted to superintendent in sealed cover or any separate information is submitted to him there is no record. As per the dictum of Hon'ble Apex Court when there is non compliance of Sec.42 and 50, the evidence collected is inadmissible. The entire seizure stands vitiated. Thus the fundamental requirement of compliance of noting the information in a separate register and verbatim intimating the 20 higher officer about the information has not been followed by PW.2.
22. The empowered officer is PW.2 he ought to have informed the accused about their right to have personal search before a gazetted officer. PW2 has appraised the accused about their right to have personal search before a Gazetted officer. The sample seal which was taken in the spot was not handed over to panchas. PW.5 is the gazetted officer has stated that in the four small packets which were seized from A1, powder Ganja was found, but as per the mahazar report there is no recital about the present of powder Ganja in the plastic cover. Further more the permission letter sent to PW5 does not contain first information. CW13 is not examined who has conducted part investigation in the case. CW13 is in judicial custody in some other case. CW14 who has filed the charge sheet is dead. PW5 has spoken about the investigation conducted by CW13 and CW14 in the case. The Ganja which was seized from the conscious possession of accused No.1 and CCH33 21 Spl.C.C.750/2020 2 was not segregated and weighed. As admitted by PW5 he has not noted in the mahazar about the presence of powder Ganja in the packets which were seized from the accused herein.
23. Yet another essential aspect in the case is articles seized must reach FSL safely within the stipulated period of 72 hours. Here in this case, articles seized were sent to FSL only on 02.11.2018 i.e., after 1 and Half month of seizure which is bad in law. The contraband was subjected to examination from 1.4.2020 to 7.4.2020. FSL report is received in the office on from 27.3.2019 to 01.04.2019. There is inordinate delay in subjecting the samples for chemical analysis. There is inordinate delay in receipt of FSL report. The sample must reach FSL within the stipulated period of 72 hours. In this case, that has not been complied. This rule is salutary because any attempt at tampering with the sample recovered from the accused can have fatal consequences to the case of the prosecution. Strict compliance has to be insisted upon in such an event.
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24. At another aspect to be noted is the seal which is going to be affixed on the article should not be used repeatedly. The seal is not handed over to panchas after the seizure of contraband.
25. Let me now refer to Sec.2(ii) cannabis (hemp) means:
(b) ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever, name they may be known or designated.
Here in this case the contraband seized with seeds, flowers, stem, stick is not segregated. Actually what is the percentage of contraband there is no detail report.
26. The witnesses to seizure panchanama have not supported the case of prosecution. The respectable localities were not called to be present at the time of seizure. In the judgment reported in 1995 (4) SCC page 255 in Pradeep Narayan Madgaonkar Vs., State of Maharashtra in the said dictum Hon'ble Apex Court held that: CCH33 23 Spl.C.C.750/2020 "independent and respectable inhabitants of locality have to be examined as provided U/s.100(4) of Cr.P.C., panch witnesses not belonging to the locality where search was conducted. Inconsistent versions given by them regarding purpose of their visit to justify their presence at the place of occurrence. One of the witnesses found to be a pocket witness and other witness being his friend and associate their friendship having developed during their days of gambling. His conduct of giving false address to the police on more than one occasions rendering him untrustworthy. No serious attempt made by the raiding party to join independent and respectable inhabitants of the locality. In the said circumstances panch witness not reliable. It is also held in the said dictum that: "testimony of official witnesses cannot be discarded for that reason, but his evidence needs to be subjected to strict scrutiny and as far as possible should be corroborated in material particulars. On facts, evidence of official witnesses would not be acted upon without there being any independent corroboration of their testimony. Further, it is held that but prudence dictates that their evidence needs to be subjected to strict scrutiny and as far as possible corroboration of their evidence in material particulars should be sought. Their desire to see the success of the case based on their investigation requires greater care to appreciate their testimony. In the present case the police officials did not joint any independent witnesses of the locality and made an attempt to create an impression on the courts that both the witnesses were witnesses of locality and were independent knowing fully well that one of the witnesses was under their influence and available to them, as he has been joining the raids earlier also. The very fact that the police officers joined these witnesses in the raid creates a doubt about the fairness of the investigation."
24Here in the instant case, the independent panch witnesses though were examined have not supported the case of prosecution. Respectable localities were not examined. As held by the Hon'ble Apex Court in the aforesaid dictum that two local independent witnesses respectable persons of the locality has to be examined as provided U/s.100(4) of Cr.P.C., when the independent and respectable inhabitants of locality were not examined seizure held to be not proved. The complainant raiding officer has not made a note in any of the registers about the information he has received. Further he has not sent the said information to the higher officer seeking permision to conduct raid. The evidence collected during search is in clear violation of procedure contemplated under the Act. Thus, to tie the strings together, there has been delayed submission of contraband to FSL. There is no compliance of Sec.42 of NDPS Act. Based on the above detailed discussions, I proceed to hold that prosecution has failed to prove beyond reasonable doubt that the accused Nos. 1 and 2 have committed an offence U/s.20(B)(ii)(b) of NDPS CCH33 25 Spl.C.C.750/2020 Act. Therefore, they are entitled for benefit of doubt. Hence, I answer the point for consideration in the negative.
27. Point No.2: In the result, following:
ORDER Acting under Section 235(1) of Cr.P.C. accused No.1 - Imran Khan and accused No.2 - Mohammed Ismile are acquitted for the offence punishable under Section 20(b)(ii)(B) of N.D.P.S. Act.
M.O.1 & 2 contraband are ordered to be returned to complainant PI., Parappana Agrahara PS., for producing before the Drug Disposal committee for disposal.
[Dictated to the Stenographer, directly on the computer, typed by her, corrected, signed and then pronounced by me in Open Court on this the 9th day of February 2023) (B.S.JAYASHREE) XXXIII ACC & SJ & SPL.JUDGE (NDPS) BANGALORE.
ANNEXURE
(a) List of witnesses examined for the:
Prosecution:
P.W.1 : Smt. Suma S
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P.W.2 : Sri Shivappa Rayappa Kanavi
P.W.3 : Sri Nandish
P.W.4 : Sri Yeselraj
P.W.5 : Sri K.N. Ramesh
(b) Defence :
NIL
(b) List of documents exhibited for the:
2. Prosecution:
Ex.P.1 : FSL Report
Ex.P.2 : Sample seal
Ex.P.3 : Request letter
Ex.P.4 : Panchas notice
Ex.P.5 : Request letter
Ex.P.6 : Panchanama
Ex.P.7 : Complaint
Ex.P.8 : Sample seal
Ex.P.9 : Body search memo
b) Defence:
NIL
3.List of Material Objects admitted in evidence:
M.O.1 & M.O.2 : Sample of Ganja
(B.S.JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BANGALORE.
CCH33
27 Spl.C.C.750/2020