Bangalore District Court
Customs Intelligence Unit (Ciu) vs Amarla Oliver Benson Uba @ Luke Ampara on 12 August, 2025
KABC010112442021
IN THE COURT OF THE XXXIII ADDL. CITY CIVIL &
SESSIONS JUDGE & SPL. JUDGE (NDPS),
BANGALORE. CCH.33.
: P R E S E N T:
SMT.LATHA,
XXXIII ACC & SJ & SPL. JUDGE (NDPS)
BENGALURU.
DATED: THIS THE 12th DAY OF AUGUST 2025
SPL.C.C. NO.700/2021
COMPLAINANT : The Inspector of Customs,
Customs Intelligence Unit (CIU),
Airport & Air Cargo Complex,
Bangalore - 560 300.
(By Spl. Public Prosecutor)
V/S.
ACCUSED : Sri. Amarla Oliver Benson Uba,
S/o.Uche Uba,
Aged about 38 years,
R/at.No.119, Katha No.222,
House No.1, Ground Floor,
Near Shiva Temple, Horamavu Agara,
Horamavy Post,
Bengaluru 43.
(Rep. by Sri KSV., Adv.)
1. Date of Commission of offence: 28.10.2020
2. Date of report of offence: 28.10.2020
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3. Arrest of the accused : 2.11.2020
4. Date of release of accused on In judicial custody
bail:
5. Period undergone in custody: In judicial custody
6. Date of commencing of 16.5.2022
recording Evidence :
7. Date of closing of Evidence : 27.6.2024
8. Name of the complainant: Sri M J Chethan, Addl.
Commissioner, GST,
Mysore
9. Offence complained of : U/s.21(c), 23(c), 28 & 29
R/w. Sec.8(c) of NDPS
Act & Sec.468 of IPC
10. Opinion of the Judge :
Charges not proved
11. Order of sentence : Acquitted
::JUDGMENT::
The Inspector of Customs, Bengaluru filed complaint against the accused in O.R.No.15/2020-2021 dated 28.10.2020 (File C.No.GEN/INV/07/2020 CIU) for the offences punishable U/Sec.21(c), 23(c), 28 & 29 R/w.
Sec.8(c) of NDPS Act CCH-33 3 Spl.C.C.700/2021
2. The case of the prosecution in nutshell is as under:-
2a. The Inspector of Customs, Customs Intelligence Unit, Airport & Airport Cargo Complex, Bengaluru is the complainant here. On 28.10.2020, the Intelligence Officer had received credible information from the Deputy Commissioner, Courier Section, about some concealed items contained in the package imported under the AWB No.200151164, arrived from Cotonou Cadjehoun Airport (COO), consigned by Gbaha Gbedognide Berenger Paola, C/SB Ounvenoumede, Cotonou, Benin. Tel +22996983508 to Mr. Lauke Ampara G, 59 Ring Rd, CMR Colony, Babusapalya, Second left Karnataka Bank, Bangalore 560113, at DHL Express India P Ld, Bangalore (hereinafter referred to as "DHL), which said to contain 5 Pairs shoes.
The officers of CIU proceeded to the DHL at KIAL, Bangalore to examine the consignment. Thereafter, the Superintendent, CIU in the presence of 2 independent witnesses requested Shri Anil, (Supervisor 4 DHL Express) to retrieve the said consignment under AWB No.2005151164 Shri Anil of DHL, handover the package contained in the AWB No. 2005151164, the copies of invoice (value of XOF 9000), AWB & KYC Documents (as presented by the importer) of the package. The KYC documents included copy of Passport No. H5037617 of Republic of Ghana, date of issue 07.08.2018 and date of expiry 06.08.2023, and Rental Agreement dated 03.12.2019. The said Superintendent and his colleagues proceeded to carry out detailed examination of the imported consignment with the assistance of the DHL staff. The gross weight of the box wrapped in black plastic cover with DHL tape was 4465 grams, which on x- ray revealed various items. On opening the black plastic cover there was a carton box with marking "BEST Shortening (Stearin-50-52) 20 KG", which contained 5 pairs of shoes and one multi-coloured cotton African shawl with marking "new fashion original high quality print 5.486 mts 6 yards". The officers of Customs put each of the shoes into CCH-33 5 Spl.C.C.700/2021 X-ray, which revealed that in one foot wear with maroon insole with marking FASHION on the insole heel and khaki colour outer (mickey mouse print) there appeared to contain some concealment inside the sole. The officers weighed the footwear which was 855 grams. Upon strong suspicion of concealment, the CIU officers decided to cut open the bottom portion of the foot wear. The officers with the assistance of the workers of DHL meticulously opened up the bottom (soles) of the footwear, where it revealed that there was a transparent packet containing some powder like substance in each foot of the footwear.
The officers weighed the concealed transparent packet together, it weighed 251 grams. The net weight of the footwear was 604 grams after removing the concealed transparent packet. The officers then proceeded to open the concealed transparent packet and on opening it, a white coloured powder like substance was noticed and the officers tested it with the testing kit and it indicated that the 6 product has strong presence of cocaine or Methaqualone. The net weight of the contraband was 241 grams.
2b. On follow up action, the address of the importer was traced but it was not in existence. Thereafter, the DHL personnel called the importer over phone, he informed him to wait near Karnataka Bank ATM. The importer came to collect the parcel. When the DHL personnel asked his ID proof he refused to show ID proof. At that time the Customs team came and apprehended the accused. His statement came to be recorded. On the reasonable belief that the accused is doing drug trafficking he has been apprehended and produced before the Court. The seized sample was sent to CFSL and report from CFSL was received. On conclusion of investigation, the complaint came to be filed against the accused for the offences punishable U/s.8(c) R/w. Sec.21(c), 23(c), 28 & 29 of NDPS Act and Sec.468 of IPC. He is in Judicial Custody since the date of arrest.
3. On presentation of complaint, accused was secured from judicial custody. The learned Predecessor-in-office of CCH-33 7 Spl.C.C.700/2021 this Court, on perusing the contents of the complaint and the annexed documents, took cognizance of the offences punishable under sections 21(c), 23(c), 28 & 29 R/w. Sec.8(c) of NDPS Act, 1985 and Sec.468 of IPC. The copy of the complaint and annexed documents were furnished to the learned counsel appearing for the accused as provided under Sec. 207 of the Criminal Procedure Code, 1973. Since the offences levelled against the accused are cognizable in nature, the predecessor-in-office of this Court heard the learned counsel for the accused and Special Prosecutor before charge and framed Charges against the accused for the offences punishable under section 21(c) of the NDPS Act, 1985 on 2.3.2022, read-over and explained to the accused in the language known to him. He pleaded not guilty and claimed to be tried. Therefore, posted the case for recording the evidence for the prosecution.
4. The prosecution to prove the Charges levelled against the accused examined eleven witnesses as P.W.1 to P.W.11 and got 15 documents marked as Exs.P1 to P.15 8 and got two material objects marked as M.Os.1 & 2. After conclusion of prosecution evidence, the accused was examined U/Sec.313 of Cr.P.C. He denied the incriminating statements made against him and did not offer defence evidence.
5. Heard the arguments of Spl.P.P., and the learned counsel for the accused. Perused the written arguments submitted by learned Spl. Public Prosecutor and also the Citations referred to by the learned counsel for the accused. After having heard the arguments, this Court found that the Charge for the offence punishable U/s.23(c) of NDPS Act has not bee framed. Accordingly, it was necessitated to frame Addl. Charge under Section 23(c) of NDPS Act. Hence, framed Addl. Charge, read over to the accused through VC and he pleaded not guilty and claimed to be tried. Since, evidence on the said charge has already been recorded.
6. Having heard the learned Special Public Prosecutor, the learned Senior Counsel for the accused and on perusal CCH-33 9 Spl.C.C.700/2021 of the above rulings, the following points that arise for consideration is as follows :-
Point No. 1 : Whether the prosecution has proved beyond all reasonable doubt that on 28.10.2020 accused illegally procured 241 grams of Cocaine Hydrochloride Narcotic Drugs and Psychotropic substance from a foreign Nation Benin, West Africa via DHL Express India Pvt., Ltd., Bangalore courier bearing AWB No.2005151164 by giving his mobile number and imported the same from West Africa thus violated the provision of Sec. 8(c) and committed the offences punishable under Secs.21(c) & 23(c) of NDPS Act ?
Point No.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:- The prosecution in order to substantiate its case got the CW.2 Dr.Nirmal Joy the Dy.
Commissioner, GST, Bangalore, South Commissionerate 10 Bangalore examined as PW.1. According to him on 28.10.2020 the Dy. Commissioner, Courier Section at Air Cargo complex, Bangalore had followed an information regarding suspected concealment of contraband item in a package which arrived from Benin, West Africa in the name of Mr.Luke Ampara G, that he passed the said information to Cw.4 the Superintendent of customs and he proceeded to conduct search and seizure of contraband item from the package. He further deposed that he made reference to City Customs preventive Unit to make a search at the premises as per the address and the said officers found that the address was not in existence and person was contacted over phone, that subsequently, he has been apprehended and arrested by Cw.6 on 3.10.2020.
9. In the cross examination it has been elicited from him that he has not reduced the information into writing, that there is no written document to show that on 28.10.2020 he had received information from DCC, that it is also elicited from him that there is no document for CCH-33 11 Spl.C.C.700/2021 directing CW.4 to conduct search and seizure of contraband.
10. CW.3 Sri Nithin Krishna Shenoy, the Dy. Commissioner Bangalore Airport and Air cargo has been examined as PW.2. He deposed that he was working as Dy. Commissioner of Courier Cell at the time of the incident relating to this case, that the courier cell is dealing with the import and export clearance of the goods, that there are multiple officers of Customs who are posted in courier cell, that during x-ray of the shipment relating to this case, he came to know that the parcel was imported in the name of Luke Ampara with the Airway bill No.2005151164 belonging to M/s. DHL who is one of the authorized couriers, that as he came to know that some contraband has been concealed in the said shipment he forwarded the said information to PW.1, that on verification there was contraband substance in the said shipment which was 241 grams of white colour substance and the same was tested to be cocaine hydrochloride.
12
11. CW.4 Sri Rakesh V Giri, Superintendent of GST., Bangalore has been examined as PW.3. This witness is the witness who received the information from PW.1 and he visited the DHL courier terminal at about 17.30 hours on 28.10.2020, that he met Mr.Anil, Supervisor of DHL and informed about the information received by them and accordingly he conducted seizure procedure in the presence of mahazar witnesses. This witness has also been subjected to thorough cross examination by the learned counsel for the accused.
12. Cw.17 Sri Anil Kumar M, supervisor of DHL Express India Pvt., Bangalore has been examined as PW.4. This witness in his evidence has deposed that on 28.10.2020 a shipment was arrived, that when it was scanned they found some suspicious articles, that the same was informed to Customs department, that the Customs officers came to their office, opened the parcel and found some personal items like footwear, that some cavity was found in the said footwear, on opening the cavity some CCH-33 13 Spl.C.C.700/2021 white coloured powder was found, they weighed the said powder conducted the test with the help of field kit and came to know that it was contraband. This witness has also been subjected to cross examination by the learned counsel for accused regarding the procedure followed by the seizing officer in his presence.
13. CW.6 Sri Amey V Patankar, Superintendent of GST., has been examined as PW.5. This witness deposed that on 28.10.2020 he received seized articles from CW.4 and deposited the said articles in safe custody, that on 2.11.2020, on the basis of letter of the Dy. Commissioner of Customs addressed to Asst. Commissioner, HPU city customs, they proceeded to the address mentioned in the Airway bill by the importer, but on reaching the location, exact address was untraceable, therefore, they called the importer over phone through DHL personnel, that the importer told them to come near Karnataka Bank ATM which is half a kilometer away from the location, that they reached the said ATM and called the importer, the importer 14 came after five minutes and asked to show the consignment, when they approached him he rode away with his two wheeler without collecting the consignment, that again the DHL personnel called him and told that if the parcel is not collected the same shall be collected from the nearest service center to that the importer requested them to wait for few minutes and came on the two wheeler and requested them that only one person should come and deliver the parcel and collect the custom duty in cash, that in the said process on asking for ID proof, he did not show any document to them, at that time other officers approached near him and apprehended him, that thereafter, the importer took them to the address bearing No.119, Katha No.222, House No.1, ground floor, near Shiva Temple, Horamavu post, Agara, Bangalore 43, that on reaching the said address called the owner of the said premises, one Jayanth appeared and introduced himself as nephew of the owner, on asking him about one Luke Ampara he said that he does not know any person by that name, that he CCH-33 15 Spl.C.C.700/2021 identified the importer as the tenant, that his name is Amarla Loiver Benson Uba, that he is staying there since January 2020 with one lady by name Ogechi Christine Kalu under whose name rental agreement was executed, that on search of the said house no incriminating article was found, that therefore, they took the accused to Hennur police station and typed the mahazar at Hennur police station, recorded the statement of accused on 2.11.2020 before CW.4, that the accused has stated that he has imported the contraband by submitting forged documents to Customs Department, that on 3.11.2020 at 3.30 am., accused was arrested and issued arrest memo, sent the samples for CRCL, Chennai for chemical analysis and recorded the statement of nephew of the owner of the accused. This witness has also been subjected for cross examination to test his credibility by the learned counsel for the accused.
14. CW.7 Sri Parteek Chugh, Superintendent of Central Taxes has been examined as PW.6. He deposed that on 28.10.2020 the Superintendent/CW.4 directed him to 16 assist him in examining a doubtful consignment, that they all proceeded to DHL courier terminal at around 5.30 pm., in the presence of two independent witnesses they scanned the consignment containing footwear and shawl, that they scanned each and every item in the consignment, that there were five pairs of footwear and a shawl. One footwear having Micky mouse picture appeared to be containing some concealment, that they cut open the said footwear and they found a transparent packet insole of the footwear, that it was containing white powder, when tested with the field testing kit, it was methaqualone or cocaine, that CW.4 instructed to draw sample of the said contraband and its gross weight was 251 grams, that they had also drew mahazar and that he collected test report from CRCL, Chennai. This witness has also been cross examined by the counsel for the accused.
15. CW.16 Sri. Raj Kishore, Asst, Chemical Examiner, Central Excise laboratory, Gujrath has been examined as PW.7. He deposed about the analysis of cocaine CCH-33 17 Spl.C.C.700/2021 hydrochloride and also about the filing of report as per Ex.P14. According to his report the questioned article had contained cocaine hydrochloride.
16. CW.1 Sri M J Chethan, then then Joint Commissioner, Customs has deposed about the credible information received by him on 28.10.2020 about concealment in the courier from Dy. Commissioner of Courier Section KIAL., Bangalore and also deposed that he granted permission to intercept the consignment and that as per his order, Dy. Commissioner intercepted the consignment.
17. CW.13 Sri Jayanth L, is said to be Law Student and nephew of the owner of the rented house in which the accused said to be residing, has been examined as PW.11. He deposed that on 2.11.2020 at about 5.00 pm., the Customs officers called him over phone and enquired about the accused as to whether he is staying in their house as a tenant, that at 7.00 pm., the customs officers came to their house and informed that they had an information about the 18 accused committing an offence under NDPS Act and searched the house where the accused was living, that on search of the house they recovered some documents, cash of Rs.3590/- and two mobile phones and that they seized the said articles under a mahazar.
18. During the course of arguments the learned Spl. Public Prosecutor vehemently argued apart from filing written arguments. In the argument, the learned Spl.PP., submitted about the compliance of mandatory statutory provisions of NDPS Act, which are followed by the officers while seizing the suspected contraband and also while apprehending the accused. Per contra, learned counsel for the accused highlighted the legal flaws in the investigation of the case and in support of his arguments, the learned counsel has also relied on various decisions as under:-
[
1. AIR 2013 SC 357 Kishan Chand Vs., State of Haryana,
2. AIR 2013 SC 953 Sukhdev Singh Vs., State of Haryana,
3. 2016 Crl.L.J. 3336 State of Rajasthan Vs., Jag Raj Singh, CCH-33
19 Spl.C.C.700/2021
4. AIR 1994 SC 1872 State of Punjab Vs., Balbir Singh,
5. 2008 (2) SCC 370 Directorate of Revenue Vs., Mohammed Nisar Holia,
6. Crl.Petition No.917/2024 of Hon'ble High Court of Karnataka, Abhay Kumar Vs., Union of India,
7. Crl.Petition No.6853/2023 of Hon'ble High Court of Karnataka, Junaid Hussain Haveri Vs., Union of India,
8. 2001 Crl.L.J., 165 Roy VD State of Kerala
9. 2007(1) SCC 450 Dilip & anr Vs., State of MP
10. 1994 SCC (Crl.) 785 Directoate of Enforcement Vs., Deepak Mahajan and anr.,
11. 1962 MYS L J 656 Abbas Abdulkarim Vs., State of Mysore,
12. 2022 Livelaw (SC) 1002 Amar chand Vs., State of Himachal Pradesh,
13. 2002(1) SCC 606 Bahadur singh Vs., State of MP,
14. 2018(1) SCC 222 Kishan chand Vs., State of Himachal Pradesh
15. AIR 2001 SC 1002 Gurbax Singh Vs., State of Haryana
16. 2023 Livelaw (SC) 890 Yusuf @ Asif Vs., State by NCB., chennai
17. 2023 Livelaw (SC) 570 Simrnjit singh Vs., State of Punjab
18. 2023 Livelaw (SC) 549 Mangilal Vs., State of Madhya Pradesh,
19. AIR 2020 SC 5592 tofan Singh Vs., State of Tamil Nadu,
20. AIR 1956 SC 217 Aher Raja Khima Vs., State of Saurashtra 20
19. The learned counsel for accused relied on the decision reported in AIR 1994 Supreme Court 1872 in the case of State of Punjab versus Balbir Singh wherein it is observed as under:-
"If a police officer, without any prior information as contemplated under the provisions of the NDPS Act, makes a search or arrest of a person in the normal course of investigation into an offence or suspected offence as Provided under the provisions of Cr.P.C., and when Such search is completed at that stage Section 50 of NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or Psychotropic substance, then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act."
In the aforesaid decision, it is also observed that:
the provisions of the Cr.P.C., are applicable where an offence under the Indian Penal Code or under any other law is being inquired into, tried and otherwise dealt CCH-33 21 Spl.C.C.700/2021 with. From the word "Otherwise dealt with" in Section 4 of Cr.P.C., it does not necessarily mean something which is not included in the investigation, inquiry or trial and the word " otherwise" points to the fact that the expression "dealt with" is all comprehensive and that investigation, inquiry and trial are some of the aspects dealing with the offence. Consequently the provisions of the CrPC shall be applicable insofar as they are not inconsistent with the NDPS Act to all warrants, searches, seizures or arrests made under the Act. But when a police officer carrying on the investigation including search, seizure or arrest empowered under the provisions of the CrPC comes across a person being in possession of the narcotic drugs or psychotropic substances then two aspects will arise. If he happens to be one of those empowered officers under the NDPS Act also then he must follow thereafter the provisions of the NDPS Act and continue the investigation as provided thereunder. If on the other hand, he is not empowered then the obvious thing he should do is that he must inform the empowered officer under the NDPS Act who should thereafter proceed from that stage in accordance with the provisions of the NDPS Act. But at this stage the question of resorting to Section 50 and informing the accused person that if he so wants, he would be taken to a Gazetted Officer and taking to Gazetted Officer thus would not arise because by then search would have been over. As laid down in Section 50 the steps 22 contemplated thereunder namely informing and taking him to the Gazetted Officer should be done before the search. When the search is already over in the usual course of investigation under the provisions of CrPC then the question of complying with Section 50 would not arise.
Under Section 41(1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act etc. when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal. Likewise only empowered officers or duly authorized officers as enumerated in Sections 41(2) and 42(1) can act under the provisions of the NDPS Act. If such arrest or search is made under the provisions of the NDPS Act by anyone other than such officers, the same would be illegal. Under Section 41(2) only the empowered officer can give the authorisation to his subordinate officer to carry out the arrest of a person or search as mentioned therein. If there is a contravention, that would affect the prosecution case and vitiate the conviction. Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily CCH-33 23 Spl.C.C.700/2021 be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief. To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial. The object of NDPS Act is to make stringent provisions for control and regulation of operations relating to those drugs and substances. At the same time, to avoid harm to the innocent persons and to avoid abuse of the provisions by the officers, certain safeguards are provided which in the context have to be observed strictly. Therefore these provisions make it obligatory that such of those officers mentioned therein, on receiving an information, should reduce the same to writing and also record reasons for the belief while carrying out arrest or search as provided under the proviso to Section 42(1). To that extent they are mandatory. Consequently the failure to comply with 24 these requirements thus affects the prosecution case and therefore vitiates the trial.
If the afore mentioned decision is carefully gone through one can understand the scope of Sec.50, Sec.42(1) and Sec.42(2) of NDPS Act.
In the present case, the Inspector of Customs, Customs Intelligence Unit, Airport and Air Cargo Complex Bangalore is the complainant. As seen from the averments made in the complaint on 28.10.2020, the Intelligence Officer had received credible information from the Deputy Commissioner, Courier Section, about some concealed items contained in the package imported under the AWB No.200151164, arrived from Cotonou Cadjehoun Airport (COO), consigned by Gbaha Gbedognide Berenger Paola, C/SB Ounvenoumede, Cotonou, Benin. Tel +22996983508 to Mr. Lauke Ampara G, 59 Ring Rd, CMR Colony, Babusapalya, Second left Karnataka Bank, Bangalore 560113, at DHL Express India P Ld, Bangalore (hereinafter referred to as "DHL), which said to contain 5 Pairs shoes, that thereafter, the officers of CIU proceeded to the DHL at CCH-33 25 Spl.C.C.700/2021 KIAL, Bangalore to examine the consignment, that the Superintendent (CIU) in the presence of 2 independent witnesses requested Shri Anil, (Supervisor DHL Express) to retrieve the said consignnent under AWB No.2005151164 Shri Anil of DHL, provided the package contained in the AWB No. 2005151164, the copies of invoice (value of XOF 9000), AWB & KYC Documents (as presented by the importer) of the package, that the KYC documents included copy of Passport No. H5037617 of Republic of Ghana, date of issue 07.08.2018 and date of expiry 06.08.2023 and Rental Agreement dated 03.12.2019 had been filed to the Courier Company, that the said Superintendent and his colleagues proceeded to carry out detailed examination of the import consignment with the assistance of the DHL staff, that the gross weight of the box wrapped in black plastic cover with DHL tape was 4465 grams, which on x- ray revealed various items, that on opening the black plastic cover there was a carton box with marking "BEST 26 Shortening (Stearin-50-52) 20 KG", which contained 5 pairs of shoes and one multi-coloured cotton African shawl with marking "new fashion original high quality print 5.486 mts 6 yards", that the officers of Customs put each of the shoes into X-ray, which revealed that in one foot wear with maroon insole with marking FASHION on the insole heel and khaki colour outer (mickey mouse print) there appeared to contain some concealment at the inside portion of the sole, that the officers weighed the footwear which was 855 grams, that on suspect the CIU officers decided to cut open the bottom portion of both foot wear to verify if there is any concealment, that the officers with the assistance of workers from DHL opened the bottom (soles) of the footwear, where they found a transparent packet containing some powder like substance, that the officers together weighed the concealed transparent packet, it weighed 251 grams and the net weight of the footwear was 604 grams after removing the concealed transparent packet.
CCH-33 27 Spl.C.C.700/2021
20. The prosecution has examined the Superintendent of GST, Bangalore who is CW4 as PW3. In his examination in chief, he deposed as under;
On 28.10.2020, I was told by Dy. Commissioner that there was a intelligence information regarding the cargo at DHL Courier Terminal which contains some concealment of contraband and which needs to be examined. There upon, I along with my team and panch witnesses assembled in the premises of DHL Courier Terminal at about 1730 hours on 28.10.2020. There one Mr. Anil Supervisor of DHL met us and we have introduced ourselves and told our purpose of examination of a cargo that arrived from Cotonou, Benin an African country which was consigned in the name of Luke Ampara G of Babusapalya, Bengaluru, the parcel was sent by one Gbedognide Berenger Paola (French name) of Benin. The parcel was said to contain five pairs of footwear and clothe which was described in French language.
We have asked Mr. Anil of DHL to produce the parcel for examination. There upon, we put the parcel into the X-ray machines for preliminary scrutiny. The X-ray machine picture revealed some concealment in the said box. Then, we opened the box which was black in colour, there upon, we have found five pairs of footwear along with one shawl. We have subjected each of the footwear for X-ray examination. In one of the footwear, there appeared to be 28 some concealment in the heel part of the footwear. There upon we took the footwear for weighment which weighed about 855 grams. We then cut opened the footwear and in the heel there was a cavity which contained a plastic packet containing white powder stuffed in the cavity of the foot-ware. The said plastic packets were found in both left and right leg of the footwear. Both the packets were taken out from the footwear and weighed. The weight of the packets came around 251 grams. We then transferred the white powder into another empty packets, the weight of the packet is around 8 grams. The net weight of the white powder was about 241 grams. Including the cover, the weight is 249 grams.
From the contents of complaint as well as from the evidence of PW3, it is clear that as soon as the information was received from PW1, without complying the mandatory provisions of Section 42(1), the officers proceeded to the Air Cargo Complex, Bangalore.
21. PW.1 is the Dy. Commissioner evidently superior office to PW.3, Superintendent of GST. PW-3 in the cross examination unequivocally admitted that he has not maintained official diary, that he orally received the information from PW.1 and that he did not reduce the CCH-33 29 Spl.C.C.700/2021 information into writing. It is also clear that he did not obtain authorization from his superior officer for search and seizure. PW.3 specifically admitted the fact in his cross examination that PW.1 did not give authorisation U/s.41(2) of NDPS Act and not prepared any memorandum consisting of officers who were proceeding for raid. The learned counsel for the accused highlighted those lapses on the part of seizing officers and submitted that the non-compliance of mandatory provisions are fatal to the case of the prosecution. In support of his submission the learned counsel for the accused also relied on the decision reported in AIR 2013 SC 953 in the case of Sukhdev Singh Vs., State of Haryana, it is held as under:-
(B) Narcotic Drugs and Psychotropic Substances Act (61 of 1985), S.42 - Search and seizure - On receipt of secret information - Requirement to reduce information in writing and send it forthwith to superior officer - Is mandatory - Needs strict compliance - Some delay in compliance is permissible only for special reasons but compliance should be prior to recovery.
The provisions of Section 42 are intended to provide protection as well as lay down a procedure which is mandatory and should be followed positively by the Investigating Officer. He is obliged to furnish the 30 information to his superior officer forthwith. That obviously means without any delay. But there could be cases where the Investigating Officer instantaneously, for special reasons to be explained in writing, is not able to reduce the information into writing and send the said information to his superior officers but could do it later and preferably prior to recovery. Compliance of Section 42 is mandatory and there cannot be an escape from its strict compliance.
(C) Narcotic Drugs & Psychotropic Substances Act (61 of 1985), S.42, S.15 - Search conducted hours after receipt of information - No effort was made by I.O., to reduce information in writing and inform his authorities instantaneously or even after or reasonable delay - No evidence produced to show as to what prevented I.O., from recording information and sending it to superior - Total non-compliance with provisions of S.42 - Such defect is incurable - Accused liable to be acquitted.
22. The learned counsel for the accused on the same point of law has also relied on the decision reported in 2008 (2) SCC 370 Directorate of Revenue Vs., Mohammed Nisar Holia, wherein it is held as under :-
A. Narcotic Drugs and Psychotropic Substances Act, 1985 - Ss. 42, 43 and S.43 Expln. -Search in place not open to the public though situated in public place (a room of a hotel) based on prior information -Applicability of S. 42 or S. 43- Room in hotel if a "public place" under S. 43 Expln. Held, whereas hotel is a public place, a room thereof occupied by a guest may not be-information as to offence in question received by office of Directorate CCH-33 31 Spl.C.C.700/2021 of Revenue Intelligence- Said information not reduced into writing by officer who received it but by PW 1 who was later on conveyed the message by the said office High Court setting aside conviction of respondent accused on basis that statutory requirements of S. 42 had not been complied with -Sustainability- Held, in the instant case, statutory requirements under S. 42 had not been complied with - Hence, judgment of High Court does not suffer from any legal infirmity Words and Phrases -"Public place"
B. Narcotic Drugs and Psychotropic Substances Act, 1985 -S. 43- Strict compliance with Necessity of C. Narcotic Drugs and Psychotropic Substances Act, 1985 - S. 42 Requirement under, of reducing to writing the information received Fulfillment of Condition for - Duty of officer receiving the information - Though the officer at office of Directorate of Revenue Intelligence received the information as to offence in question, the said information was not reduced to writing by him but by PW 1 who was later on conveyed the message by the said office Held, there was non-compliance with the statutory requirements of S. 42.
E. Interpretation of Statutes - Particular statutes or provisions - Penal statutes - Provisions as to search and seizure Interpretation of Act concerned leading to harsh/stringent punishment Mode of construction - Held, an interpretation which strikes balance between enforcement of law and protection of valuable human right of accused (right to privacy herein) must be resorted to - Considering that NDPS Act prescribes stringent punishment, held, a balance must be struck in regard to mode and manner in which statutory requirements are to be complied with vis-à-vis the place of search and seizure- Narcotic Drugs and Psychotropic 32 Substances Act, 1985, Ss. 42 and 43 Constitution of India, Art. 21 - Criminal Trial - search and seizure.
Similarly, in the present case also as pointed out by the learned counsel for the accused, the so called information received by PW.3 had not been reduced into writing and intimated to his superior officer. Accordingly, the statutory requirements under Sec.42 of the NDPS Act had not been complied with. The officer who received such information was bound to reduce the same in writing and not for the person who hears thereabout. The non compliance of the said provision rendered the so called search and seizure bad under law.
23. It is also to be noted that the learned counsel for the accused has also pointed out about non compliance of Sec.57 of NDPS Act. PW.3 during the course of cross examination clearly admitted that he has not submitted the report U/s.57 of NDPS Act to the superior officer. The learned counsel for the accused in support of his arguments has relied on the decision reported in AIR 2001 SC 1002 in CCH-33 33 Spl.C.C.700/2021 the case of Gurbax Singh Vs., State of Haryana, wherein it is held as under :-
(B) narcotic drugs & psychotropic substance Act (61 of 1985), S.15, S.57 - search and seizure - Failure of investigation officer (IO) to make full report of all particulars to his immediate superior and to comply procedure under S.57 - conduct of Panch witness was unusual as he offered himself to be witness -
contradiction as to nature of seal used by IO., - Conviction of accused in circumstances, not proper. It is true that provisions of Sections 52 and 57 are directory. Violation of these provisions would not ipso- facto violate the trial or conviction. However, I.O. cannot totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the article. In the present case, I.O. has admitted that the seal which was affixed on the muddamal article was handed over to the witness P.W.1 and was kept with him for 10 days. He has also admitted that the muddamal parcels were not sealed by the officer in charge of the police station as required under Section 55 of the N.D.P.S. Act. The prosecution has not led any evidence whether the Chemical Analyser received the sample with proper intact seals. It creates a doubt whether the same sample was sent to the Chemical Analyser. Further, it is apparent that the I.O. has not followed the procedure prescribed under Section 57 of the N.D.P.S. Act of making full report of all particulars of arrest and seizure to his immediate superior officer.
Similarly, in the instant case also there is no material to show that in compliance of Sec.57 the raid success report is 34 submitted to the immediate superior officer of PW.3 within the stipulated time. Therefore, it is to be considered that the said mandatory provision also not complied with and the non compliance of the said provision is also fatal to the case of the prosecution.
24. The learned counsel for the accused also pointed out about non compliance of Sec.52A of NDPS Act and submitted that the investigating officer has not drawn the sample before the Magistrate and absolutely there are no material to establish the said fact. On this question of law also, the learned counsel for the accused relied on the decision reported in 2023 LiveLaw (SC) 570 in the case of Simrnjit singh Vs., State of Punjab and also the decision reported in 2023 LiveLaw (SC) 549 in the case of Mangilal Vs., State of Madhya Pradesh. In both these decisions highlighted the importance of compliance of Sec.52A of NDPS Act.
In Mangilal's case it is observed as under:-
Narcotic Drugs & Psychotropic Substance Act, 1985; Section 52A of the NDPS Act is a mandatory rule of evidence which requires the physical presence of a CCH-33 35 Spl.C.C.700/2021 Magistrate followed by an order facilitating his approval either for certifying an inventory or for a photograph taken apart from list of samples drawn - Before any proposed disposal/destruction mandate of Section 52A of the NDPS Act requires to be duly complied with starting with an application to that effect. A Court should be satisfied with such compliance while deciding the case. The onus is entirely on the prosecution in a given case to satisfy the Court when such an issue arises for consideration. Production of seized material is a factor to establish seizure followed by recovery. One has to remember that the provisions of the NDPS Act are both stringent and rigorous and therefore the burden heavily lies on the prosecution. Non-production of a physical evidence would lead to a negative inference within the meaning of Section 114(g) of the Indian Evidence Act.
Accordingly, here also inventory of seized property has not been done in the presence of the concerned Magistrate and no steps were taken by the investigating officer to that effect. Therefore, the fact of seizure property has not been established.
25. When matter stood so, when the empowered officers did not comply the statutory provisions as discussed herein above the entire process of seizure of the so called contraband is to be vitiated.
36
26. Apart from that, PW.4 who is the supervisor of DHL Express India Pvt., Ltd., Bangalore in his cross examination deposed that he could not recollect the name of the officer who has packed and done the procedures, that on M.O.Nos.1 and 2 the description of article is not mentioned and the seal affixed on M.O.1 and 2 has not been handed over to him. However, the law mandates to hand over the metal seal to one of the mahazar witnesses. When such being the case it is clear that none of the mandatory provision is complied by the officers and the officers followed the so called procedure for search and seizure arbitrarily.
27. It is also to be noticed that PW.6 Sri. Parteek Chugh, the Superintendent of Central Taxes, GST in his cross examination admits that in DHL office there is CCTV, that he has not taken the CCTV footage which witnessed seizure procedure followed by them. It is also admitted by him that they did not photographed and video graphed the proceedings. In this regard in the decision reported in the decision of Shafhi Mohammed vs State of Himachal CCH-33 37 Spl.C.C.700/2021 Pradesh reported in (2018)5 SCC 311, the Hon'ble Supreme Court has lied guidelines after holding as under:-
9. We are in agreement with the Report of the Committee of Experts that videography of crime scene during investigation is of immense value in improving administration of criminal justice. A Constitution Bench of this Court in Karnail Singh v. State of Haryana3, SCC para 34 noted that technology is an important part in the system of police administration. It has also been noted in the decisions quoted in the earlier part of this order that new techniques and devices have evidentiary advantages, subject to the safeguards to be adopted.
Such techniques and devices are the order of the day. Technology is a great tool in investigation. By the videography, crucial evidence can be captured and presented in a credible manner." The Court further held time was ripe to introduce videography in investigation particularly for crime scene as a desirable and acceptable "best practice" as suggested by the Committee to strengthen the rule of law. It approved the Centrally Driven Plan of Action prepared by the Committee and the timelines mentioned therein. The observations made in Shafhi Mohammad (supra) as well as the guidelines in the Field Officers' Handbook issued by the Narcotics Control Bureau reinforce our view regarding mandatory videography of recovery proceedings under NDPS Act. Technology has advanced 38 considerably and equipments like smartphones and other electronic devices enabling videography are ordinarily available with seizing officers. Hence, lack of availability of technology or awareness is a non-issue. Accordingly, we direct as follows:-
(i) In all cases involving recovery of narcotic substance particularly recovery of narcotic above commercial quantity, seizing officers shall make a video recording of the entire procedure unless for reasons beyond the control of seizing officers, they are unable to do so;
(ii) Reasons for failing to videograph the recovery proceeding must be specifically recorded in the investigation records particularly contemporaneous documents including seizure/inventory list;
(iii) Superior Police Officer not lower than the rank of Additional Superintendent of Police shall monitor recovery of narcotic substance above commercial quantity within their territorial jurisdiction and ensure due compliance of statutory provisions regarding search and seizure including compliance of the directives (i) and (ii) relating to videography of recovery and/or recording of adequate reasons for departure from such procedure;
(iv) Non-compliance of the directives (i) and (ii) relating to videography of recovery and/or failure to record just reasons in contemporaneous documents for its non-
CCH-33 39 Spl.C.C.700/2021 compliance would attract departmental proceeding so far as the seizing officer is concerned;
(v) Director General of Police shall issue necessary directions for due compliance with the aforesaid directives;
(vi) Superintendent of Police/Commissioner of Police in each district/commissionerate shall undertake training programmes to spread awareness and capacity building of officers regarding compliance of statutory requirements in the matter of search and seizure of narcotic substance under NDPS Act and compliance of the aforesaid directives relating to videograph of recovery including collection, preservation and production of such electronic evidence in Court. As seen from the guidelines issued by the Apex Court, in all cases involving recovery of narcotic substance particularly recovery of narcotic above commercial quantity, seizing officers shall make a video recording of the entire procedure unless for reasons beyond the control of seizing officers, they are unable to do so. They shall also marked reasons for failing to v ideograph the recovery proceedings. 40
28. However, in the present matter, no such procedure is followed and no photography or videography was recorded during the recovery proceedings. Though the directions issued in the year 2018 itself by Hon'ble Apex Court, in the present case, neither the photographs were take or video was recorded nor reasons for not taking videography recorded during the course of investigation. The said aspect is also fatal to the case of the prosecution.
29. It is also significant to mention here that CW.9 who has been examined as PW.9, namely Sri Murali Mohan, being an independent witness did not support the case of the prosecution and other independent witness has not been examined by the prosecution. As such, except the interested witnesses no other witnesses supported its case. Therefore, naturally it leads to suspect the case of the prosecution.
30. According to the case of the prosecution on 2.11.2020, based on the letter issued by Dy. Commissioner of Customs addressed to Asst. Commissioner, HPU., PW.3 CCH-33 41 Spl.C.C.700/2021 and his team proceeded to take the custody of the accused. PW.3 in his examination in chief deposed as under :-
7. I have not enquired who is the official who has suspected the concealment in the parcel. I have not recorded the statement of the said official. I have not taken the soft copy of the mahazar from the DHL computer system. I have given the copy of mahazar to PW.4 and took the signature. It is correct to suggest that, there is no endorsement of PW.4 in the mahazar, but he has signed it.
8. It is false to suggest that on 28.10.2020, no seizure proceedings drawn in DHL office as per Ex.P.2 mahazar and the parcel was taken to our office and the parcel was opened in our office. I have not given any requisition to DHL office to collect the documents in writing. My signature does not finds place in Ex.P.5 to
10. It is false to suggest that I have not collected any official document in regard to the parcel from DHL office. It is false to suggest that I have not collected any documents and I am deposing falsely. I have not recorded the statement of PW.4 on 28.10.2020 immediately after the search and seizure.
9. We might have returned around early morning hours of 29.10.2020 to our office. I have not handed over the documents and seized properties to my Higher Officer immediately on my return to office. Witness states, it was early morning, hence, I could not. I have not handed over the documents and the seized articles to the Higher Officer on the next day.42
31. The learned counsel for the accused has also cross examined this witness about the procedure followed by them for taking custody of the accused. In paragraph 10 of the cross examination of PW.3, it has been elicited as under:-
10. There is no order of PW.1 for further investigation in the case. My office is situated in Devanahalli and CIU office is situated in Queens Road. In CIU office, there is post of Dy. Commissioner of Customs. It is correct to suggest that, on 29.10.2020, PW.1 has written a letter to Dy. Commissioner of Customs at CIU Office. I do not know that the said letter reached the office of Dy. Commissioner of Customs on 31.10.2020. There is no written order, it is only a oral order of Higher Officer for follow-up action on 2.11.2020. On 2.11.2020, I was also one of the team members in the follow-up action team, but there is no record.
11. It is correct to suggest that, some of our officers disguised as DHL delivery staff along with DHL staff.
I have not stated who are all officers have disguised as DHL staff. I am not a signatory to the mahazar, I have not drawn the mahazar. It is correct to suggest that, in the mahazar there is no recital about the untoward incident happened at the time of apprehension of accused on 2.11.2020. Witness volunteers that, I am not a party to the mahazar proceedings.
CCH-33 43 Spl.C.C.700/2021
32. PW.4 also deposed in his examination in chief about the follow up investigation as deposed by PW.3. In the cross examination it has been elicited from him that he had no authorization to go for follow up action with HPU team. The learned counsel for the accused also elicited from him regarding non compliance of Sec.50A of NDPS Act which reads as under:-
Sec.50A. Power to undertake controlled delivery.--
The Director General of Narcotics Control Bureau constituted under sub-section (3) of section 4 or any other officer authorised by him in this behalf, may, notwithstanding anything contained in this Act, undertake controlled delivery of any consignment to--
(a)any destination in India;
(b)a foreign country, in consultation with the competent authority of such foreign country to which such consignment is destined, in such manner as may be prescribed.
From the plain reading of Sec.50A it is clear that it is mandatory to be complied with before undertaking the exercise of "controlled delivery".
33. In this regard the learned counsel for the accused placed reliance on the decision of Hon'ble High Court of 44 Karnataka of Karnataka rendered in Crl. Petition No.6853/2023 in the case of Junaid Hussain Haveri Vs., Union of India, in paragraph 23 of the said decision it is observed as under:-
Since the consignment/parcel was opened even before it was delivered to the addressee and the contraband article found in the consignment/parcel was seized under a panchanama in the absence of accused, the only option open for the NCB officers to connect the accused to the crime was by identifying them through the technique known as "controlled delivery". However, since the NCB officers have not complied with mandatory requirements of section 50A of the NDPS Act before undertaking the exercise of "controlled delivery", the report of "controlled delivery" on which reliance has been placed by the prosecution cannot be considered since the exercise of "controlled delivery" gets vitiated for non-compliance of the mandatory requirement under section 50A of the NDPS Act.
Apart from the above decision the learned counsel for the accused has also relied on the decision of Hon'ble High Court of Karnataka rendered in Crl.Petition No.917/2024 in the case of Abhay Kumar Vs., Union of India, wherein it is discussed as under:-
Sub-section (3) of Section 4 directs constitution of an authority by the Central Government with specified CCH-33 45 Spl.C.C.700/2021 powers. Section 50A refers to Section 4(3). It is the officer who has been authorised has to undertake such controlled delivery. 'Controlled delivery' in the case at hand is undertaken in the manner that is described herein above.
9. The contention of the learned counsel for the petitioner is that controlled delivery has to be mandatorily undertaken by the Director General of NCB or an officer authorised by him. Here, the respondent/Investigating Officer is neither the Director General nor the officer authorised by him, has undertaken controlled delivery.
The issue now would be whether Section 50A of the Act is mandatory insofar as it directs a particular officer or a particular officer authorised by the Director General to be the only person to undertake controlled delivery. It is also significant to note here that in the aforesaid decision the Hon'ble High Court of Karnataka also relied on the decision rendered in the case of Mr. Junaid Hussain and finally came to the conclusion as under:-
11. I am in complete agreement with the reasons so rendered by the coordinate Bench while granting bail.
Since the only submission made by the learned counsel appearing for the petitioner was with regard to controlled delivery and that having found favour with the petitioner, all further proceedings in the aftermath of 46 undertaking controlled delivery, would become contrary to law, and lead to obliteration of the crime against the petitioner.
Likewise, in the present matter also absolutely there are no materials to show that the officers who tried for "controlled delivery" had taken permission from the authorized officer as defined under Sec.50A of NDPS Act. Hence, the entire procedure of "controlled delivery" is bad under law.
34. That apart on facts, to establish the apprehension of accused in house No.1, ground floor, near Shiva Temple, Horamavu Post, Agara, Bangalore, the PW.5 Superintendent of GST, Hassan deposed as under:-
3. On reaching the location, exact address was untraceable. Therefore, call was made to the importer by the DHL personal who had accompanied us.
Importer has told to come near Karnataka Bank ATM which was 1/2 km away from our location. Upon reaching near Karnataka Bank ATM, importer was called again, to which, he said us to wait for few minutes. After 5 minutes, importer approached there on two wheeler and asked us to show the consignment. As I approached towards him, he rode away without collecting the consignment. Therefore, DHL personal again called and informed that, if parcel is not collected, same should be collected from nearest Service Center, to which, importer requested us to wait for few CCH-33 47 Spl.C.C.700/2021 minutes and arrived after some time. He was on two wheeler which was around 40 feet away from DHL van. He has requested that, only one person should deliver the parcel and collect custom duty in cash from him. Upon asking for ID proof, he has not shown it. At that time, other officers approached near the importer and together apprehended him.
4. We have shown our ID cards and asked him to take us to his residential premises to conduct search. He took us to the address bearing No. 119, Katha No. 222, House No.1, ground floor, near Shiva Temple, Horamavu Post, Agara, Bengaluru-560043. On reaching the address, we have called the owner of the premise, there one person by name Jayanth appeared and introduced as nephew of the owner. We have asked him whether he knows a person by name Luke Ampara, to which, he said he does not know any person by this name, but he has identified the accompanied importer as the tenant staying in the premises. We have requested to show the rental agreement of the premises. Mr. Jayanth told the importer name is Mr. Amarla Oliver Benson Uba staying as a tenant along with one lady by name Ogechi Christine Kalu under whose name rent agreement was executed, they were staying in the premises from January 2020.
5. We have asked the importer to open the door of the premise and he did so. We have conducted the search of the premises, during search, we have found photo copy of Visa with name Amarla Oliver Benson Uba, his few passport size photographs, rental agreement, undertaking, one SAMSUNG mobile phone, one Infinix mobile phone, cash of Rs. 3,590/- which was collected 48 as customs duty were seized. Nothing else incriminatory was found during search.
6. On conclusion of search, importer was taken to the Hennuru Police Station. I have typed the mahazar as narrated by the witnesses at Hennuru Police Station. On oral S/S given to the importer, he has appeared in the CIU Section, I have recorded his statement on 2.11.2020 before CW.4. In his statement, he has agreed that, he has imported the contraband and also submitted forged documents as KYC to the Customs Department. The mahazar dtd 2.11.2020 is marked as Ex.P.11 and signature as Ex.P.11(a). The statement of the accused is already marked as Ex.P.3.
35. The prosecution has also examined the nephew of the owner of the said house namely Mr.Jayanth-PW.11. As per the evidence of PW.5 the accused was apprehended by following the procedure of "controlled delivery" by noting the address mentioned in the Airway bill. As seen from Ex.P10 proforma invoice the address of Destinataire is mentioned as under:-
Luke Ampara G, Luke Ampara G, Bangalore, 59 Ring Rd, CMR colony, Babusapalya second left, Karnataka bank 560 113, Bangalore 560100, Karnataka, India, Telephone: +919108397295 CCH-33 49 Spl.C.C.700/2021 However, as deposed by PW.5 and PW.11, the alleged residential address of accused is different and he is staying along with a woman Ogachi Christine Calu in the rented house of the uncle of PW.11. But the investigating officers did not attempt to examine the said woman. Here except the self serving statements of officers of the department, no other evidence to show that the accused was apprehended through controlled delivery. The prosecution has much relied on the statement of accused rendered under Sec.67 of NDPS Act. However, how much reliance can be given on the voluntary statement of the accused and what is the evidentiary value of the statement of accused, can be gathered from Tofan Singh's case. The learned counsel for the accused also placed reliance of the said decision reported in AIR 2020 SC 5592 in the case of Tofan Singh Vs., State of Tamil Nadu wherein it is held as under:-
155. We answer the reference by stating:
.................50
158.1. That the officers who are invested with powers under Section 53 of the NDPS Act are "police officers"
within the meaning of Section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of Section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act.
158.2. That a statement recorded under Section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act."
In view of the ratio laid down in the afore mentioned decision, when there is no recovery of material object from the accused on the basis of voluntary statement, the said statement is not admissible under law. If the said statement is taken out from the records there are no materials to connect the accused with the so called seized contraband.
37. However, the learned Spl., Public Prosecutor in the further reply written arguments dated 12.12.2024 commented much on the arguments advanced by the learned counsel for accused and relied on various earlier CCH-33 51 Spl.C.C.700/2021 decisions to Tofan Singh's case and made futile exercise to convince the Court to accept the voluntary statement of the accused in evidence. But in the latest decision rendered in Crl.Appeal No.1136/2014 dated 22.9.2023 by the Hon'ble Apex Court in the case of Balwinder Singh Vs., NCB., wherein it is observed as under:-
11.Now that it has been declared in Tofan Singh's case36 (supra) that the judgments in the case of Kanhaiyalal33 (supra) and Raj Kumar Karwal35 (supra) did not state the correct legal position and they stand overruled, the entire case set up by the prosecution against Balwinder Singh3, collapses like a House of cards. It is not in dispute that Balwinder Singh3 was not apprehended by the NCB officials from the spot where the naka was laid and that Satnam Singh5 alone was apprehended in the Indica car. The version of the prosecution is that after Satnam Singh5 was arrested, his statement13 was recorded under Section 67 of the NDPS Act wherein he ascribed a specific role to the co-accused -
Balwinder Singh3 and the Sarpanch. The NCB officers claimed that they were on the lookout for both of them since they had managed to run away from the spot. While Sarpanch could not be apprehended, the NCB officers learnt from reports in the newspaper that Balwinder had been arrested by the Amritsar Police in an NDPS case and was lodged in the Central Jail, Amritsar. Permission was taken from the concerned Court to take Balwinder Singh3 into custody in the instant case and he was arrested. A notice was served on him under Section 67 of the NDPS Act and his statement was recorded. Treating his statement22 as a confessional statement, Balwinder Singh3 was arrested.
52
12. Once the confessional statement13 of the co-accused, Satnam Singh5 recorded by the NCB officers under Section 67 of the NDPS Act, who had attributed a role to Balwinder Singh and the subsequently recorded statement of Balwinder Singh himself under Section 67 of the NDPS Act are rejected in the light of the law laid down in Crl. Appeal No. 1136 of 2014 a/w Crl. Appeal 1933 of 2014 Tofan Singh36 (supra), there is no other independent incriminating evidence that has been brought to the fore by the prosecution for convicting Balwinder Singh3 under the NDPS Act. On ignoring the said confessional statements13&22 recorded before the officers of the NCB in the course of the investigation, the vital link between Balwinder Singh3 and the offence for which he has been charged snaps conclusively and his conviction order cannot be sustained.
13. As a result of the above discussion, we are of the opinion that Balwinder Singh3 deserves to be acquitted of the charge of being in conscious possession of commercial quantity of heroin under the NDPS Act. Ordered accordingly.
In view of the observation in the afore mentioned decision, it is the firm option of this Court that the reply arguments submitted by the learned Spl., Public Prosecutor does not stand in view of the observations of the Hon'ble Apex Court in the aforesaid decision and it does not support the case of the prosecution and the voluntary statement of the accused cannot be taken into consideration in the present case also.
CCH-33 53 Spl.C.C.700/2021
38. Further it is also pertinent to note here that from the evidence of official witnesses especially PW.5, after conducting search in the so called house of the accused, after recovering few passport size photographs, rental agreement, undertaking, one Samsung mobile phone one In-phenix mobile phone, cash of Rs.3590/- he took the accused to Hennur police station. He got typed the mahazar as narrated by the witnesses at Hennur police station and the said mahazar is at Ex.P11. It is to be noted that the learned counsel for accused cross examined on the said aspect also. In the cross examination it has been elicited that they did not had computer with them and the mahazar was drawn in Hennur police station, that they did not take the signature of SHO of Hennur police station to the mahazar. During the course of arguments the learned counsel for accused submitted that the mahazar ought to have drawn in the place of so called seizure, that though the witnesses deposed that since an untoward incident occurred they could not draw the mahazar in the place where they 54 seized the articles, the PW.11 Jayanth L who is said to be a law student and nephew of owner of the accused in which the accused was said to be the tenant deposed that no untoward incident occurred on the date of the so called visit of the officers. When such being the case and as there is no material to show that a bitter incident occurred in the said place, the officers ought to have drawn the mahazar in the very same place. During the course of arguments the learned counsel specifically submitted that the mahazar ought to have drawn in the very same place where the articles said to be seized. In support of his arguments he has relied on the decision reported in 1962 Mysore L J page 656 in the case of Abas Abdul Kareem Vs., State of Mysore the Hon'ble High Court of Mysore held that the preparation of the panchanama at the police station and not at the spot where the seizure was made and the accused was apprehended, is an extremely serious infirmity in the case of the prosecution. The aforesaid dictum of Hon'ble High Court of Mysore still holds good and in view of the said dictum, in CCH-33 55 Spl.C.C.700/2021 the present case also the Ex.P11 panchanama cannot be considered as a piece of evidence on behalf of prosecution.
39. Further, it is also necessary to be noted that the prosecution contends that PW.11 Jayanth is said to be the nephew of the owner of the so called rented house in which the accused said to be residing. However, the prosecution to substantiate that PW.11 is the nephew of the owner of the said house has not produced any document. Further, there is no explanation why the owner of the said house has not been examined. At the same time no evidence of independent witness to show that the officers apprehended the accused at the so called place, that the accused himself showed the said house, that from the said house, officers had recovered certain material under a mahazar. Absolutely there is no evidence to hinge the PW.11 with the said house and absolutely there are no material to connect the accused with the said house. The prosecution ought to have examined the woman who was residing in the said house to establish that the accused was residing with her. 56 Moreover, if at all the investigating officers had seized those articles from the said house in the presence of the accused, they ought to have drawn mahazar in the very same house. It is also clear that if at all the investigating officers took the accused and seized articles to Hennur police station as contended by them, definitely the Station House officer of the said police station would have been a witness or at least the officers would have taken the signature of the Station House officer of the aid police station to the mahazar. In the absence of all these material evidence as explained herein above it is hard to accept the contention of prosecution witnesses that the accused was apprehended near so called ATM and on showing the place by the accused, the officers seized certain articles and in Hennur police station they drew mahazar as per Ex.P11. The prosecution utterly failed to prove it with positive evidence.
40. In view of the reasons assigned in the aforesaid paragraphs, it is the considered view of this Court that the prosecution failed to prove that the concerned officers of CCH-33 57 Spl.C.C.700/2021 DRI., complied the mandatory statutory provisions as contemplated under the NDPS Act during the Court of investigation. The prosecution failed to prove that there was search and seizure of the contraband as contended by PW.3. the prosecution also failed to prove that the samples of so called seized contraband had been sent for scientific analysis. The prosecution has also failed to prove beyond reasonable doubt that the very same accused is the importer of the said consignments and he is involved in this case. Accordingly, the prosecution failed to discharge its initial burden of proof beyond reasonable doubt that the accused is guilty of the alleged offences and therefore, the question of shifting the burden on the accused to prove his innocence does not arise. Since, the prosecution failed to prove its case with cogent evidence, the accused is entitled to be acquitted for the offences punishable U/s.8(c) R/w.Sec.21(c) & 23(c) of NDPS Act. Accordingly, the Point for consideration is answered in the Negative.
41. Point No.2: In the result, following: 58
::ORDER::
Acting under Section 235(1) of Cr.P.C. accused Amarla Oliver Benson Uba is acquitted for the offences punishable under Sections 8(c), 21(c) & 23(c) of NDPS Act.
Accused shall be set at liberty if he is not required in any other case subject to the compliance of Sec.437A of Cr.P.C.
M.O.1 & 2 contraband is ordered to be returned to complainant 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 12th day of August 2025) (LATHA) XXXIII ACC & SJ & SPL.JUDGE (NDPS) BANGALORE.
ANNEXURE
1. List of witnesses examined for the:
(a) Prosecution:
P.W.1 : Dr. Nirmal Joy
P.W.2 : Nithin Krishna Shenoy
P.W.3 : Rakesh V Giri
CCH-33
59 Spl.C.C.700/2021
P.W.4 : Anil Kumar M
P.W.5 : Amey V Patankar
P.W.6 : Parteek Chugh
P.W.7 : Rak Kishore
P.W.8 : Gangaraju
P.W.9 : Murali Mohan
P.W.10 : M J Chethan
P.W.11 : Jayanth L
(b) Defence :
NIL
2. List of documents exhibited for the:
(a) Prosecution:
Ex.P.1 : Letter to Dy. Commissioner intimating
seizure
Ex.P.2 : Mahazar (a) (b) signatures
Ex.P.3 : Voluntary statement (a) signature
Ex.P.4 : Statement (a) signature
Ex.P.5 : Rental agreement
Ex.P.6 : Passport of accused
Ex.P.7 : E-FRRO of accused
Ex.P.8 : Courier receipt
Ex.P.9 : Rental agreement
Ex.P.10 : Invoice for booking the parcel
Ex.P.11 : Mahazar
Ex.P.12 : Arrest memo
Ex.P.13 : Complaint
Ex.P.14 : Test report
Ex.P.15 : Information letter
(b) Defence:
- NIL -
60
3.List of Material Objects admitted in evidence:
M.O.1 : Sample
M.O.2 : Sample
(LATHA)
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BANGALORE.
CN/*