Bangalore District Court
State By Basavanagudi P.S vs Athik Pasha on 27 February, 2020
THE COURT OF THE XXXIII ADDL.CITY CIVIL & SESSIONS
JUDGE & SPL. JUDGE (NDPS),
BANGALORE. CCH.33.
PRESENT:
Sri. G.M.SHEENAPPA, B.A., LL.B.,
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BENGALURU.
DATED: THIS THE 27th DAY OF FEBRUARY 2020
SPL.C.C. NO.629/2018
COMPLAINANT : State by Basavanagudi P.S.
(By Public Prosecutor)
V/S.
ACCUSED : Athik Pasha, S/o.Amjad Pasha, 37
years, R/at.Noors Rent House, near
Government Urdu School, Rehamat
Nagar, Kolar district, Karnataka.
(By Sri KSP., Adv.)
1. Date of Commission of offence: 6.5.2017
2. Date of report of offence: 6.5.2017
3. Arrest of the accused : 7.5.2017
4. Date of release of accused on 13.6.2017
bail:
5. Period undergone in custody: 1 month 6 days
6. Date of commencing of
30.7.2019
recording Evidence :
2
7. Date of closing of Evidence : 20.1.2020
8. Name of the complainant: Sri Shashidhar, PI
9. Offence complained of : U/s.21, 25A, 28 and
Sec.3, 4 & 5 of NDPS Act
10. Opinion of the Judge : Offence not proved
11. Order of sentence : As per final order
JUDGMENT
The Police Inspector, Basavanagudi Police Station, Bangalore filed charge sheet against accused in Cr.No.140/17 for the offence punishable U/s.21, 25A, 28 and Sec.3, 4 & 5 of NDPS Act
2. Brief facts of the case are as under:
The case of the prosecution is that, on 6.5.2017 at about 6.00 pm., complainant received information that at R V Road, near Shanthinagar Hotel, below Metro station a person was selling ganja to public. He informed the said information to his superior officer. He secured panchas and staff members and went to the spot and apprehended a person. On personal search they seized 2 Kgs., of ganja from accused. They seized CCH33
3 SPl.C.C.629/18 cash of Rs.800/ and an auto bearing No.KA 01 AG 188. They drew panchanama, arrested the accused and produced before Magistrate and remanded to judicial custody. Later the accused is enlarged on bail.
3. After taking cognizance registered the case. Copies of the prosecution papers were supplied to accused U/Sec.207 of Cr.P.C. After hearing, charge framed U/Sec.20(B) of N.D.P.S. Act, read over and explained to him. Accused pleaded not guilty and claimed to be tried.
4. In support of the case, prosecution has examined P.Ws.1 to P.W.7 and got marked Exs.P1 to P.15 and M.Os.1 to
3. Prayer of PP for reissue NBW to C.W.2 & 3 is refused as sufficient time was given. PP has given up C.W.4. After closure, accused are examined U/Sec.313 of Cr.P.C., he denied the incriminating circumstances appeared against him and not chosen to adduce evidence for his defence. 4
5. Heard the arguments on both sides.
6. The points for consideration are as under:
1. Whether the prosecution proves that on 6.5.2017 at about 6.00 pm., beside Shanthi Sagar Hotel, Metro Station, RV Road, Basavanagudi, Bengaluru accused was in illegal possession of 2 Kgs., of ganja, which is a narcotic drug without license or permit, there by accused has committed the offence u/S.20(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: See the final order for the following:
REASONS
8. POINT NO.1 : The learned P.P. vehemently argued that as per evidence of PWs.1 to P.W.7 and Exs.P.1 to P.15 and M.Os.1 to 3, the prosecution proved the guilt. Learned counsel for accused argued that no mandatory provision CCH33 5 SPl.C.C.629/18 complied and so many contradictions and discrepancies found in the prosecution witnesses.
9. On careful perusal of the materials placed on record, the prosecution mainly relied on the testimonies of P.Ws.1 to 4, 6 & 7.
P.W.1 has stated that on 6.5.2017 at about 6.00 pm., he received information that besides Shanthi Sagar Hotel, Metro Station, RV road, Basavanagudi, Bengaluru a person is selling ganja illegally. He reduced the information to SHD as per Ex.P1 and submitted requisition Ex.P2 to DCP and obtained permission. He secured panchas to station through his staff. He informed the information to the panchas and issued notice as per Ex.P3 and P4. Further he secured staff members and informed the information and they searched themselves and confirmed that they have no drugs and then went in office vehicle and reached to spot at 6.30 pm., and watched at a distance. A person standing near an auto was selling ganja in a white cover kept inside auto. They apprehended him and 6 explained the legal right of the accused to be searched before Gazetted officer or Magistrate. Accused agreed to be searched before Gazetted Officer. He sent letter Ex.P5 through his staff to ACP to come to the spot. Then ACP came to the spot at 7.30 pm., and issued notice to accused and conducted personal search of the accused and seized mobile, cash of Rs.800/ and 2 Kgs., of ganja. They took 100 grams for sample and packed separately. They seized auto. He gave the sample seal to C.W.2 to produce before court. They drew mahazar as per Ex.P6. He brought the accused along with property to P.S., and lodged complaint Ex.P7 and sent success report to DCP as per Ex.P8.
10. In his cross examination, P.W.1 has stated that immediately he got the information he sent requisition to ACP. He do not remember who secured panchas on that day. He denied that his staff members did not secure panchas. He denied that before going to raid they have not conducted personal search of themselves. It is true that they have not mentioned in the records that they went to the spot in a private vehicle. He denied that he did not go to the spot, CCH33 7 SPl.C.C.629/18 apprehended the accused and seized M.Os. He denied that they have not explained the legal right of the accused. He denied that he has not given requisition in writing to ACP. He denied that ACP did not come to the spot, not questioned the accused and conducted search of the accused and drew mahazar. he denied that he has not sent report for success of raid to DCP and that he is deposing falsely.
11. P.W.2 raiding member has stated that 6.5.2017 C.W.1 secured him along with other staff members and informed the information received by him. They secured panchas to station at 6.30 pm., and they conducted personal search of themselves. They informed the information to ACP through phone and went to the spot in a private vehicle and reached at 6.40 pm. They watched from a distance a person standing near auto selling some packets. They apprehended the accused and explained the legal right of the accused to be searched before Gazetted officer or Magistrate. accused agreed to be searched before Gazetted Officer. P.W.1 sent letter and called over phone to ACP and requested to come to the spot. 8 ACP to come to the spot at 7.30 pm., and issued questionnaires and on his instructions P.W.1 conducted personal search of the accused and seized M.Os.1 to 3 and drew mahazar .
12. In his cross examination P.W.2 has stated that on the call of ACP he came to station at 6.00 pm. They left the police station at 6.30 pm. P.W.1 had secured panch already. He do not remember who has drawn the mahazar. he denied that he had not gone to the spot, apprehended the accused and seized drugs from him and drew mahazar. he denied that ACP did not come to the spot and issued notice to accused and seized M.Os.
13. P.W.3 ACP has stated that on 6.5.2017, P.W.1 submitted requisition regarding information received by him and accorded permission. He permitted to conduct raid. On the same day at P.W.1 called him through phone and requested to come to the spot and act as Gazetted Officer. He went to the spot and issued questionnaires Ex.P9 to accused.
CCH33 9 SPl.C.C.629/18 On personal search of the accused they seized M.Os.1 to 3 and drew mahazar ExP6.
14. In his cross examination he has stated that P.W.1 did not informed him about the information and requested to conduct raid, that he did not given permission to raid. He denied that accused was not at spot, they did not conducted personal search of the accused and drew mahazar. He denied that panchas were not at spot.
15. P.W.4 has stated that on 3.3.2018 he received the FSL report and samples and produced before P.W.1 and gave his report as per Ex.p10. In his cross examination he has denied that he has not gone to FSL office and bought the samples.
16. P.W.6 has stated that on 6.5.2017 P.W.1 produced the accused, property and documents and lodged complaint Ex.P7. He registered the case and submitted FIR Ex.P13, he 10 arrested the accused and recorded the voluntary statement of accused as per Ex.P14 and produced before court, subjected the property to PF. He recorded the statements of witnesses. He sent the samples to FSL through C.W.10. Prepared inventory as per Ex.p15 and handed over the records to Madhu PSI for further investigation. In his cross examination he has denied that P.W.1 has not produced the accused, property and documents and lodged complaint. He further denied that he has filed a false complaint. He denied that accused has not given his voluntary statement and he has not recorded the statements of the witnesses. He denied that he has not sent the samples to FSL and filed false complaint.
17. P.W.7 has stated that he took the records from C.W.14 for further investigation and after completion of investigation submitted charge sheet. In his cross examination he has denied that even though accused has not committed any offence he has filed false charge sheet without proper investigation.
CCH33 11 SPl.C.C.629/18
18. P.W.5 F.S.L officer stated that she conducted in all 5 tests on the sample articles and issued report Ex.P11 and opined that the sample articles responded positive for ganja. In her cross examination denied the suggestion that she has not personally conducted tests on the sample articles and issued false report. Of course as per the evidence of P.W.5, the sample article may respond positive for ganja, but the said sample articles are seized from the possession of the accused is not proved as none of the panch witnesses examined by the prosecution.
19. CWs.2 and 3 independent panch witnesses are not examined in spite of sufficient opportunity was given. In the absence of corroborated evidence of independent witnesses, the testimony of official witnesses is not reliable and credit worthy.
12
20. Ex.P1 SHD to that C.W.1 has reduced the information in writing. But on careful perusal of the same there is no entry regarding the receipt of the information at 6.00 pm. Whereas it contains the case registered against the accused after raid and seizure at about 8.45 pm. Thus, it is clear that the prosecution has not complied the mandatory provision U/s.41 of NDPS Act. Ex.P2 letter to ACP regarding the information received by C.W.1 and permission to conduct raid. But the said letter is not accompanied with the copy of information. Ex.P3 & 4 notices to panchas. But to prove the same both the witnesses are not examined by the prosecution. Ex.P5 is request letter given to ACP to act as Gazetted Officer. Ex.P.6 mahazar is not proved as none of the independent panch witnesses have been examined by the prosecution. Ex.P7 complaint lodged by P.W.1 wherein existing legal right of the accused is not mentioned. Ex.P8 report submitted to DCP for success of raid. In the absence of complying mandatory provisions U/s.42 and 50 of NDPS Act, compliance U/s.57 is not a valid compliance. Compliance with provisions of Sec.57 does not dispense compliance with requirement of Ss.42 and CCH33 13 SPl.C.C.629/18
50. Ex.P9 body search notice issued to accused wherein ACP has put questions and typed the answers on behalf of accused. Further 3rd option is given to the accused. Sec.50 Part 1 of the NDPS Act does not provide for it and when such option is given it would frustrate the provisions. Ex.P10 report of P.W.4, Ex.p11 FSL report, Ex.p12 sample seal, Ex.P13 FIR submitted to court reveals that delay in submitting the FIR to court is not properly explained. Ex.P14 voluntary statement of accused has no presumptive value and it is not admissible in evidence as it is recorded after search, seizure and arrest. No further contraband seized on the basis of his statement. Ex.P15 submission of inventory to destroy the MO., and issued certificate U/s.52A of NDPS Act. Thus the mandatory provisions U/s.41, 42, 50 and 57 of NDPS Act is not complied by the prosecution.
21. In view of the decisions reported in 2009 Crl.L.J. 4299 in Karnal Singh Vs., State of Haryana, (2007) 1 Supreme Court Cases (Cri) 744 in Ritesh Chakarvarti Vs., 14 State of MP, (1999) 7 SCC 280 in State of HP Vs., Jailal and others and in AIR 2013 Supreme Court 357 in the case of Krishan Chand Vs., State of Haryana wherein it is held that: (A) Narcotic Drugs and Psychotropic Substances Act (61 of 1985), Ss 42, 50, 57 - Search - Pre search requirement of recording information received and sending it to superior officerDemands exact and definite compliance as opposed to substantial compliance - So is requirement of S.50 - Compliance with provisions of S.57 does not dispense compliance with requirements of Ss.42 and 50.
2014 Crl.L.J. 1756 in the case of State of Rajasthan Vs., Parmanan and another wherein it is held that:
(c) Narcotic Drug and Psychotropic Substances Act (61 of 1985), S 50 - Search and seizure - Option to be searched before Gazetted officer or Magistrate -third option given to accused persons viz., to be searched before Superintendent who was part of raiding partyWould frustrate provisions of S.50 (1) Search conducted therefore, is vitiated."
CCH33 15 SPl.C.C.629/18 2002 Crl.L.J. 4502 in the case of Koyappakalathil Ahamed Koya Vs., A.S.Menon and another, wherein it is held that:
(c) Narcotic Drug and Psychotropic Substances Act (61 of 1985), S 50 - Search an seizureprocedure Right given to accused to get searched in presence of Gazetted officer or Magistrate -fact that members of raiding party informed accused that Gazetted Officer is present in raiding partyIt is allurement given to accused prompting him for expressing no objection for being searched in presence of said Gazetted officer - An not for asking to be searched in presence pf any other Gazetted officer or Magistrate
-Sai procedure is against safeguard provided by S.50 to accused.
AIR 2013 Supreme court 953 in the case of Sukhdev Singh Vs., State of Haryana wherein it is held that: (B) Narcotic Drug and Psychotropic Substances Act (61 of 1985), S 42 - Search an seizure - On receipt of secret informationRequirement to reduce information in writing and sent it forthwith to superior officer Is mandatoryNeeds strict 16 complianceSome delay in compliance is permissible only for special reasons but compliance should be prior to recovery.
(c) Narcotic Drug and Psychotropic Substances Act (61 of 1985), S 42, 15 - Search conducted hours after receipt of informationno effort was made by I.O to reduce information in writing and inform his higher authorities instantaneously or even after or reasonable delayNo 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.
2009 Crl.L.J. 2407 in the case of UOI Vs., Bal Mukund and others wherein it is held that: (B) Narcotic Drug and Psychotropic Substances Act (61 of 1985), Ss.8, 18, 67 - Recovery of narcotics confessional statements by accusedAdmissibility purported raid conducted early in morningLarge number of police officers including high ranking officers were presentaccused were found to be in possession of 10 Kgs., of narcoticsDocuments categorically show that accused were interrogated CCH33 17 SPl.C.C.629/18 Therefore, confessional statements cannot be said, in the back drop of aforementioned events, to be made by them although they had not been put under arrestcourt while weighing evidentiary value of such statements cannot lose sight of ground realities circumstances attendant to making of such statements should be taken into consideration. On careful reading of the above said decisions, the fact, circumstances and ratio is similar with case on hand.
2014(4) Crimes 304 (P&H) - Ram Lubhaya vs. State of Punjab, 2011 (3) Crimes 210 (SC) - Rajendra Singh vs. State of Haryana, 2013 (1) Crimes 51 (SC) Suresh and others vs. State of Madhya Pradesh, 2011 (4) Crimes 26 (SC) - State of Delhi vs. Ram Avtar @ Rama, 2011(1) Crimes 508 (Karnataka) - K.K. Rejji and others vs. State by Murdeshwar Police Station, Karwar.
2014(2) Crimes 234 (Kar) in Ravi and others Vs., State by MannaEKhelli Police, Bidar district wherein it is held that: 18 "Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 20(b)(ii)(c) and 42 - Recovery of 5 bags of ganja weighing 45 kilograms from possession of appellants - Conviction by Trial Court - Appeal against conviction - Failure to comply with procedure under section 42 of Act - absence to record in writing the information received in first instance - No emergent situation which warranted postponement of said Act of recording the information received in writingNor any such record in writing at a later point of time - Held entire proceedings Vitiated by virtue of failure to record circumstances in writing - Quantity of ganja indicated as having been in possession of appellants was also inaccurate as the weighment was of stalks, leaves seeds and possibly the flowering and fruiting tops - inaccurate weighment would have a telling effect on the degree of punishment that could be imposedthis was because NDPS Act provides for a schedule which prescribes the degree of punishment dependent on the weight of substance involved -m hence, held that there was a failure in the charges being framed accurately against accused - impugned judgment of court below set aside - Appeal allowed."
CCH33 19 SPl.C.C.629/18 2014 (1) Crime 324 (SC) State of Rajasthan Vs., Parmanand and another wherein it is held thus:
(a) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 50 - Provision is mandatory - but it applies to search of the person of the accused only -
does not apply to search of a bag carried by him - However, if the bag carried by him is searched and his person is also searched, Section 50 applies.
"(b) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 50 - Two accused persons - not informed of their rights individually - Joint notice communicated - one of the accused signing for both -
conviction vitiated."
On careful reading of above decisions, facts, circumstances and ratio is applicable to case on hand, as prosecution has not followed mandatory provisions.
22. For the above, in the absence of corroborated evidence the testimony of prosecution witnesses cannot be reliable to prove the guilt of the accused. So many considerable contradictions and discrepancies found in the 20 prosecution witnesses. There is no link of chain found in the circumstantial evidence. Serious doubt arises in the mind of the Court to believe that accused has committed the offence. So accused is entitled for the benefit of doubt. Hence prosecution has utterly failed to prove the guilt beyond reasonable doubt. Accordingly, I answer point No.1 in the 'Negative'.
20. Point No.2: In the result, following:
ORDER Acting under Section 235(1) of Cr.P.C. accused is acquitted for the offence punishable under Section 20(B) of N.D.P.S. Act.
Bail bond of the accused shall stands cancelled.
M.Os.2 and 3 mobile and cash is ordered to be confiscated to State after appeal period is over.
CCH33
21 SPl.C.C.629/18 M.O.1 sample is ordered to be returned to the complainant to produce before Drug Disposal Committee for disposal in accordance with law.
Accused is released U/Sec.437(A) of Cr.P.C., on execution of bond for Rs.50,000/ with a surety for likesum, for the purpose of his/their appearance before Appellate Court, in the event of filing of any appeal by the State. [Dictated to the Stenographer directly on the computer, typed by her, corrected, signed and then pronounced by me in Open Court on this the 27th day of February 2020) (G.M.SHEENAPPA) XXXIII ACC & SJ & SPL.JUDGE (NDPS) BANGALORE.
ANNEXURE
1. List of witnesses examined for the:
(a) Prosecution:
P.W.1 : Sri Shashidar SD
P.W.2 : Balaram Nayak R
P.W.3 : Kantharaj G M
P.W.4 : Sadashiva Daboli
P.W.5 : Smt.Suma
22
P.W.6 : Rajashekaraiah B C
P.W.7 : Vajramuni K
(b) Defence :
NIL
2. List of documents exhibited for the:
(a) Prosecution:
Ex.P.1 : SHD
Ex.P.2 : Request letter
Ex.P.3 : Panch notice
Ex.P.4 : Panch notice
Ex.P.5 : Letter to ACP
Ex.P.6 : Panchanama
Ex.P.7 : Complaint
Ex.P.8 : Success report
Ex.P.9 : Body search notice
Ex.P.10 : Report of P.W.4
Ex.P.11 : FSL report
Ex.P.12 : Sample seal
Ex.P.13 : FIR
Ex.P.14 : Voluntary statement
Ex.P.15 : Letter to court
(b) Defence:
NIL
3.List of Material Objects admitted in evidence:
M.O.1 : Sample
M.O.2 : Mobile
M.O.3 : Cash
CCH33
23 SPl.C.C.629/18
(G.M.SHEENAPPA)
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BANGALORE.
CN/*