Bangalore District Court
I.O/Ncb/Bzu/Blr vs Mohammed Naeem on 4 July, 2025
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 4th DAY OF JULY 2025
SPL.C.C. NO.500/2021
COMPLAINANT : IO., NCB., BZU,
Bangalore.
(By Spl. Public Prosecutor)
V/S.
ACCUSED : Sri. Mohammad Naeem,
S/o.Abdul Nizar,
R/at.No.6-T-24/7, Zahir Mension,
6th Block, Krishnapura,
Surathkal, Mangaluru,
Karnataka-575104
(Rep. by Sri DRS/MR., Adv.)
1. Date of Commission of offence: 8.7.2020
2. Date of report of offence: 8.7.2020
3. Arrest of the accused : Produced through Body
warrant on 9.9.2020
through VC
2
4. Date of release of accused on In judicial custody
bail:
5. Period undergone in custody: In judicial custody
6. Date of commencing of 20.12.2022
recording Evidence :
7. Date of closing of Evidence : 23.02.2024
8. Name of the complainant: Sri Pradeep Kumar,
Inspector of SSB
9. Offence complained of : U/s.22(C) , 23(C) & 27
of NDPS Act
10. Opinion of the Judge :
Charges not proved
11. Order of sentence : Acquitted
::JUDGMENT::
The Intelligence Officer, NCB., Bengaluru filed complaint filed complaint against the accused in NCB.F.No.48/1/7/2020/BZU for the offences punishable U/Sec.22(c), 23(c) & 27 of NDPS Act.
2. The case of the prosecution in nutshell is as under:-
The Intelligence Officer., NCB., Bengaluru is the complainant here. On 8.7.2020 the complainant received information that a parcel received at Chamarajpet Post CCH-33
3 Spl.C.C.500/2021 office contain narcotic drugs. They went to the said post office and seized 90 grams of Amphetamine booked by one Mariya Gracia Nicotra to the person by name Mohammed Nayeem, Zaheer Mansion, VI block, Krishnapura, Suratkal, Mangaluru, Dakshina Kannada district and drawn mahazar. They traced the address on the parcel on 10.7.2020 and served summons on the accused. But he did not appear. Again summons was issued on 20.7.2020 to appear for the investigation on 24.7.2020. He did not appear. Subsequently, he was produced through video conferencing from Mangalore prison on 9.9.2020 under body warrant. The complainant IO., has sought NCB custody of the accused for 5 days. After apprehending the accused, his statement came to be recorded. On the basis of his statement incriminating substances were seized. He was produced before the court and was remanded to judicial custody. The sample which was sent to Central Revenues Control Laboratory, New Delhi gave positive result for MDMA (Methylenedioxymethamphetamine Hydrochloride). 4 The IO., NCB., filed a complaint before this court in NCB No.48/1/07/2020/BZU alleging commission of offences punishable U/Sec.8(c) R/w. Sec.22(c), 23(c) & 27 of N.D.P.S. Act.
3. On presentation of complaint, accused was secured from judicial custody. Copies of prosecution papers were furnished to him. The learned Predecessor-in-office on perusing the contents of the complaint and the annexed documents, took cognizance of the offences punishable under sections 22(c), 23(c) & 27 of NDPS Act, 1985. 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, this Court's predecessor-in-office heard the learned counsel for the accused and Special Prosecutor on the question of Charges. She found that, the materials placed on record by the prosecution make out a case for trial against the accused. Thereafter, the Learned CCH-33 5 Spl.C.C.500/2021 Predecessor-in-office framed Charges against the accused for the offences punishable under sections 22(c), 23(c) & 27 of the NDPS Act, 1985 on 8.12.2021. Then the Charges read-over, and explained to the accused in the language known to him. He, after understood the contents of the Charges, pleaded not guilty and claimed to be tried. The learned predecessor in office recorded the plea and then posted the case for recording the evidence for the prosecution.
4. The prosecution to prove the Charges levelled against the accused six witnesses examined as P.W.1 to P.W.6 and got marked 20 documents as Exs.P1 to P.20 and the material objects were marked as M.Os.1 to 5. After closure of prosecution evidence, accused was examined U/Sec.313 of Cr.P.C., by putting the incriminating circumstances available against him. However, he denied the incriminating statements made against him and did not offer defence evidence.
6
5. Heard the arguments of Spl.P.P., and learned counsel for the accused. Perused the Written arguments submitted by the learned counsel for accused and the Citations referred to by both the parties.
6. Having heard the learned Special Public Prosecutor, the learned Senior Counsel for the accused and also the learned counsel for the accused No.1 and on perusal 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 8.7.2020 at about 4.00 p.m., accused illegally procured Narcotic Drugs and Psychotropic substance from a foreign Nation Italia via Indian Post parcel bearing No.RC101152589IT in the name of the accused, thus violated the provision of Sec. 8(c) and committed the offences punishable under Secs.22(c), 23(c) & 27 of NDPS Act ?
Point No.2: What Order ?
CCH-33
7 Spl.C.C.500/2021
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 his case got the CW.1/complainant examined as PW.1. PW.1 Pradeep Kumar was the then Intelligence Officer, NCB., Bengaluru Zonal Unit. According to him on 8.7.2020 at around 4.00 p.m., he had received an information that, a parcel bearing No. RC101152589IT is received at Foreign Post Office, Bengaluru suspected to contain Amphetamine psychotropic substance. The parcel is addressed to Mohammed Nayeem resident of 6T, 24/7, Jaheer Mansion, 6th Block, Krishnapura, Suratkal, Mangaluru. He had noted the said information in NCB Form-1 and submitted before Superintendent of NCB. The information report is marked as Ex.P.1 and signature as Ex.P.1(a). He had submitted information to CW.2 at 4.20 8 pm., on the same day. The copy of the information was also given to CW.2. He had made a shara on Ex.P.1 directing him to constitute a team and to take necessary action.
Immediately, he had collected all the seizing materials like DD kit, portable printer, Laptop, he had collected NCB Seal No.3 at 4.37 p.m., he had left the office at 4.40 p.m., along with his staff to the Foreign Post Office and reached there at 5.30 p.m., in his office vehicle. After reaching the Foreign Post Office, he introduced himself to Post Master of Foreign Post Office and shared the information with him about suspected parcel No.RC101152589IT. He had requested the Post Office staffs i.e., CW.6 and 7 to be independent witnesses during the search and seizure proceedings. He had shared the information with them and gave written notice to them. The said Notices are marked as Ex.P.2 & P3. He requested the Post Master to produce the parcel bearing No. RC101152589IT, he has produced the same before him. On enquiry, it was found that, the said parcel was booked in the name of Mohammed Nayeem resident of CCH-33 9 Spl.C.C.500/2021 6T, 24/7, Jaheer Mansion, 6th Block, Krishnapura, Suratkal, Mangaluru. It was sent by one Mariagrazia Nicotra via Immacolta 35, 95123 Catania Ct, Italia. After that, he had opened the parcel and found two number of plastic CD covers, on opening the said CD plastic cover one by one, found silver coloured sealed polythene pouches were found, when the said silver pouches were cut opened, off-white coloured crystal powder in both the pouches. He had tested the said powder by taking small pinches from both the covers separately through DD kit, which gave positive answer for Amphetamine. Both the powders were looking similar, he had homogeneously mixed and put into a single transparent polythene cover and weighed it, the weight came around 90 grams. He had taken 5 grams of two samples from the bulk, he had put it into a separate polythene pouch, heat sealed it and put into brown coloured envelope and it was marked as S1 and S2 and sealed with NCB seal No.3. The remaining 80 grams of contraband was put it into a separate polythene pouch, heat sealed it and 10 put into brown coloured envelope and it was marked as P1 and sealed with NCB seal No.3. The packing material, postal cover are packed & sealed and numbered as P2. Test memo prepared in triplicate on the spot and he along with independent witnesses affixed signatures on the test memo. A detail panchanama drawn in the spot as per Ex.P.4.
9. This witness has also been subjected for cross examination by learned counsel for the accused. During the course of cross examination the learned counsel elicited from him that he know the meaning of control delivery under NDPS Act and the present case is not a case of control delivery and also the learned counsel questioned the PW.1 regarding the procedure followed by him while following the procedure of seizure of the questioned article.
10. CW.2 Sumit Arya, the then Superintendent, NCB., BZU., has been examined as PW.2. According to this witness on 8.7.2020 CW.1 Pradeep Kumar had given information regarding the receipt of parcel containing CCH-33 11 Spl.C.C.500/2021 concealed Amphetamine which is addressed to a person by name Mohammed Nayeem (accused) who is the resident of Mangalore, that in view of the information report received by him he discussed the said information with the Zonal Director, Bangalore and directed CW.1 to proceed with the matter by constituting a team. Further he also deposed that on 9.7.2000 he issued search authorization to CW.3 to conduct the search of the house of accused in Mangalore, that the said search authorization has been marked as Ex.P11, that after conducting search of the house of the accused at Mangalore, CW.1 had submitted seizure report before him and the said seizure report is at Ex.P8, that on 14.9.2020 arrest report was submitted by PW.3 and the said report is at Ex.P12, that the seized article had been forwarded to CRCL., New Delhi for chemical analysis, the forwarding letter is marked as Ex.P13.
During the course of cross examination this witness very strangely deposed that the parcel in question is booked by a foreigner and the learned counsel for accused cross 12 examined him in length about the procedure followed by him.
11. CW.3 Mustkim Ahamed the then Intelligence Officer, NCB., Bangalore has been examined as PW.3. According to this witness he had obtained search authorization from Cw.2 for searching the house of the accused and on 10.7.2020 he went to Mangalore and searched the house of accused, that at the time of search in the house of accused he was not there and the PW.3 could not get any incriminating articles in his house. He has also deposed that at that time the accused was in judicial custody in a case registered against him under the provisions of POCSO Act.
Further, he deposed that on 13.9.2020 he had written letter to the Post Office, Surathkal to ascertain the details of the parcel received by the accused if any, that on 27.11.2020 he received reply from the Sr. Superintendent of Post Office, Mangalore that the accused had received a parcel bearing No.RC0949817861T on 17.4.2020 and CCH-33 13 Spl.C.C.500/2021 according to the information gathered from the Superintendent of Post Office the said parcel had also been received from Italy. That he has also collected documents relating to Cr.No.203/2016, in Cr.No.119/2019 of Surathkal police station and in Cr.No.16/2020 of Dakshina Kannada Women police station.
This witness has also been cross examined by learned counsel for accused in length. It has been elicited from him that though Sr. Superintendent of Post Office, Mangalore had replied to his letter on 27.11.2020 he had not provided any document relating to the information given by the Sr. Superintendent of Post Office. It has also been elicited that in the year 2020 in the month of June and July there was lock down, that in spite of lock down he had visited the house of the accused.
12. The prosecution has also examined CW.4 Kamelesh Kumar as PW.4. Kamelesh Kumar is also an intelligence officer he is working in NCB., Bangalore. But 14 this witness has not investigated the matter as he got transferred he handed over the investigation to CW.3.
13. CW.5 Dr.Poornima Mishra has been as PW.5. this witness is the chemical examiner working in Mumbai and she deposed about the analysis of MDMA and also about the filing of report Ex.P9. According to her report the questioned article had contained Methylenedioxymeth- amphetamine.
14. CW.7 K.A.Pehelomina Saled who is the post master of Bellundur post Office has been examined as PW.6. This witness deposed about the parcel received in their post office and seizure of the parcel as it contained suspected article. She has also identified Mos.1 to 4 which were said to be seized by the Intelligence officer. This witness has also been cross examined by learned counsel for accused.
15. The learned Special Public Prosecutor has relied on a number of decisions reported in :-
CCH-33 15 Spl.C.C.500/2021
1. (2015) 6 SCC 222 in the case of Mohan Lal Vs., State of Rajasthan
2. (2015) 6 SCC 674 in the case of Kulwinder Singh and anr., Vs., State of Punjab
16. The learned counsel for the accused has relied on a number of decisions:-
1. 2014 SCC online ALL 16096 Sabha Shankar @ Lalta Prasad Dubey Vs., The State of UP
2. 1973 SCC online SC 286 Kali Ram Vs., The State of HP
3. Crl.Petition No.6497/2024 dated 12.7.2024 in the case of Mohammed Nayeem and Anr., Vs., State of Karnataka
4. Crl. Petition No.5906/2024 dated 5.7.2024 in the case of Nahim Vs., State of Karnataka
5. 1992 Crl.L.J.3206 in the case of Soorajmal Vs., The State of Madhya Pradesh
6. Crl.Appeal No.1973/2014 dated 16.1.2025 in the case of Rakesh Kumar Raghuvanshi Vs., State of MP
7. (2002) 7 SCC 419 in the case of Avtar Singh and others Vs., State of Punjab
8. Crl.Petition No.6863/2023 of Hon'ble High Court of Karnataka in the case of Junaid Hussain Haveri Vs., Union of India
9. (2021) 4 SCC 1 in the case of Tofan Singh Vs., State of Tamil Nadu 16
17. Before touching the merits of the case, this Court shall verify whether the prosecution complied the statutory provisions as mandated under the NDPS Act which are to be followed during the course of investigation. The PW.1 in his examination in chief specifically deposed as on 8.7.2020 at around 4.00 pm., he had received the information and as soon as he received the information he noted the information in NCB Form No.1 and submitted before the Superintendent of NCB. The said report also got marked as Ex.P1. Therefore, it is the considered opinion of this Court that the IO., has complied the provisions of Sec.42 of NDPS Act.
18. In so far as compliance of mandatory provision of Sec.50 of NDPS Act is concerned, the legal position has been laid down by the Hon'ble Supreme Court in the decision reported in 1999 AIR (SC) 2378 in the case of State Vs., Baldev Singh that the compliance of the provisions of Sec.50 of NDPS Act is mandatory and it is also held in the said decision that compliance of the said provision is not CCH-33 17 Spl.C.C.500/2021 necessary where recovery was effected without prior information and where it was the case of a chance recovery. In Para-11 of the said decision it is held as under:-
11. On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the Narcotic Drugs And Psychotropic Substances Act is also recovered, the requirements of Section 50 of the Act are not attracted.
In so far as this matter is concerned, there was no need to the empowered officer to conduct personal search of the accused.
19. According to the evidence of PW.1 he had received information of receipt of parcel contained suspected 18 contraband at Foreign Post office, Bangalore and after seizure of the said parcel in continuation of the investigation, PW.3 intelligence officer, NCB., Bangalore after obtaining authorisation for search from Cw.2 had conducted search of the house of the accused at Krishnapura, Surathkal, Mangalore and PW.3 had also deposed in his examination in chief that he came to know that the accused was in judicial custody relating to a POCSO case and he obtained PC custody from the Court and after obtaining him under body warrant from the concerned Court he interrogated the accused and recorded the voluntary statement of the accused, that in the voluntary statement the accused had stated that he did not booked the parcel. Accordingly, in this matter there was no need for personal search of the accused.
20. However, as could be seen from the evidence of prosecution witnesses especially the evidence of PW.1, the PW.1 has followed the procedure that has to be adopted at the time of search and recovery of the contraband. Though CCH-33 19 Spl.C.C.500/2021 the learned counsel for accused cross examined PW.1 nothing has been elicited to show that PW.1 has failed to comply the provision of law required to be followed.
21. The PW.1 followed the required procedure at the time of seizure of the contraband from the post office PW.1 in paragraphs 2 to 5 deposed as under :-
2. On 8.7.2020 at around 4.00 p.m., I have received an information that, a parcel bearing No. RC101152589IT is received at Foreign Post Office, Bengaluru suspected to contain Amphetamine psychotropic substance. The parcel is addressed to Mohammed Nayeem resident of 6T, 24/7, Jaheer Mansion, 6th Block, Krishnapura, Suratkal, Mangaluru. I have noted the said information in NCB Form-1 and submitted before Superintendent of NCB. The information report is marked as Ex.P.1 and signature as Ex.P.1(a). I have submitted information to CW.2 at 4.20 p.m. on the same day. The copy of the information was also given to CW.2. He has made a shara on Ex.P.1 directing me to constitute a team and to take necessary action.
3. Immediately, I have collected all the seizing materials like DD kit, portable printer, Laptop, I have collected NCB Seal No.3 at 4.37 p.m., I have left the office at 4.40 p.m., along with my staff to the Foreign Post Office and reached there 5.30 p.m., in my office vehicle. After reaching the Foreign Post Office, I introduced myself to Post Master of Foreign Post Office and shared the information with him about suspected parcel No. RC101152589IT. I have requested to Post Office staffs ie., CW.6 and 7 to be a independent witnesses during the search and seizure proceedings. I have shared the information with them. I 20 have given written notice to them. Notices are marked as Ex.P.2 & P3. I have told the Post Master to produce the parcel bearing No. referred above before me, he has produced the same before me.
4. On enquiry, it was found that, the said parcel was booked in the name of Mohammed Nayeem resident of 6T, 24/7, Jaheer Mansion, 6th Block, Krishnapura, Suratkal, Mangaluru. It was sent by one Mariagrazia Nicotra via Immacolta 35, 95123 Catania Ct, Italia. After that, I have opened the parcel and found two number of plastic CD covers, on opening the said CD plastic cover one by one, found silver coloured sealed polythene pouches were found, when the said silver pouches were cut opened, off-
white coloured crystal powder in both the pouches. I have tested the said powder by taking small pinches from both the covers separately through DD kit, which gave positive answer for Amphetamine. Both the powders are looking similar, I have homogeneously mixed and put into a single transparent polythene cover and weighed it, the weight came around 90 grams. I have taken 5 grams of two samples from the bulk, I have put it into a separate polythene pouch, heat sealed it and put into brown coloured envelope and it was marked as S1 and S2 and sealed with NCB seal No.3. The remaining 80 grams of contraband was put it into a separate polythene pouch, heat sealed it and put into brown coloured envelope and it was marked as P1 and sealed with NCB seal No.3. The packing material, postal cover are packed & sealed and numbered as P2.
5. Test memo prepared in triplicate on the spot and I along independent witnesses affixed signatures on the test memo. A detail panchanama drawn in the spot. Panchanama is marked as Ex.P.4.
22. On the other hand, the learned counsel for the accused elicited from PW.1 that he had not issued notice CCH-33 21 Spl.C.C.500/2021 U/s.67 of NDPS Act to mahazar witnesses and Post Master and also recorded the statement of CW.6 & Cw.7, that there was lock down due to Covid 19 and there was partial movement of public.
23. This Court has gone through Ex.P2 and P3 they are the notices issued to the witnesses Cws.6 and 7. Prior to seizing the suspected parcel in view of that the IO., followed per-seizure and post seizure procedures as contemplated under law.
24. Further, on merits of the case, the learned Spl. P.P., voluntarily argued that the parcel is addressed to the address of the accused, that though he was not in physical possession as it was addressed in his name, he alone ordered the said contraband with the knowledge that he is ordering for contraband and he is liable for the prosecution and he has committed the offence under the Act.
25. The learned Spl.P.P., while arguing on conscious possession relied on the decision reported in (2015) SCC 22 222 in the case of Mohan Lal Vs., State of Rajasthan wherein it is observed as under:-
A. Narcotic Drugs and Psychotropic Substances Act, 1985-- Ss.13 to 22, 25 and 35-- Possession of contraband-- Contraband hidden away in secret place by accused-- Absence of physical control over the contraband, but accused exercising requisite control over contraband to give rise to culpable mental state--"Possession, held, is a flexible concept, and its meaning depends upon the contextual purpose and objective of statute concerned and an appropriate meaning has to be assigned to the word to effectuate the statutory object--Ordinarily, elements of possession are physical control and animus to control the thing concerned/contraband--However, even in absence of physical control of the contraband, culpable mental state of accused can arise if the accused still has the requisite degree of control over the contraband--Accused's conscious possession, in view of his special knowledge of location or site of contraband article, with animus and intention to retain exclusive control or dominion over it, would constitute offence punishable under S.18--Fact that accused after stealing opium form Magistrate Court's malkhana concealed it in a secret place and later led police party to discover the same, shows his conscious possession--Words and Phrases
-- "Possession"," conscious possession"--"Possession" when possible without actual physical control.
The concept of possession is basically connected to "actus of physical control and custody". Attributing this meaning in the strict sense would be understanding the factum of possession in a narrow sense. With the passage of time there has been a gradual widening of the concept and the quintessential meaning of the word "Possession". There is a degree of flexibility in the use of the said term and that is CCH-33 23 Spl.C.C.500/2021 why the word "Possession" can be usefully defined and understood with reference to the contextual purpose for the said expression. Over the years, courts have refrained form adopting a doctrinaire approach towards defining Possession. A functional and flexible approach in defining and understanding the possession as a concept is acceptable and thereby emphasis has been laid on different possessory rights according to the commands and justice of the social policy. Thus, the word "possession" in the context of any enactment would depend upon the object and purpose of the enactment and an appropriate meaning has to be assigned to the word to effectuate the said object.
The term "possession" ordinarily consists of two elements. First, it refers to the corpus or the physical control and the second, it refers to the animus or intent which has reference to exercise of the said control. Coming to the context of section 18 of the NDPS Act, it would have a reference to the concept of conscious possession. The legislature while enacting the said law was absolutely aware of the said element. The word "possession" refers to a mental state as is noticeable from the language employed in Section 35 of the NDPS Act. It includes knowledge of a fact. That apart, Section 35 raises a presumption as to knowledge and culpable mental state from the possession of illicit articles. The expression "possess or possessed" is often used in connection with statutory offences of being in possession of prohibited drugs and contraband substances. Conscious or mental state of possession is necessary and that is the reason for enacting Section 35 of the NDPS Act, 1985.
26. The learned Spl.P.P., has also relied on the decision reported in (2015) 6 SCC 674 in the case of 24 Kulwinder Singh and another Vs., State of Punjab wherein it is observed as here under:-
A. Narcotic Drugs and psychotropic Substances Act, 1985--Ss. 35 and 15--Recovery of contraband from truck--factum of conscious possession--Invocation of presumption of culpable mental state--Expressions 'conscious' and 'possession'--Meaning of, restated-- Conviction confirmed--Held, once possession of contraband is established, accused is presumed to be in conscious possession--Further, if accused takes a stand that he was not in conscious possession, he has to establish the same--Herein, defence plea that both appellant-accused were only traveling in truck and had no knowledge of what the bags contained, rejected.
D. Narcotic Drugs and psychotropic Substances Act, 1985
--S. 15--Recovery of contraband from truck--No independent witness examined to substantiate allegation of prosecution as they had been allegedly won over by accused--But, evidence of official witnesses, trustworthy and credible--Prosecution case, trustworthy--Held, no reason not to rest conviction on basis of such evidence of official witnesses--Conviction confirmed.
This Court has gone through both the decisions carefully, as held in the case of Mohan Lal -
The concept of possession is basically connected to "actus of physical control and custody". Attributing this meaning in the strict sense would be understanding the factum of possession in a narrow sense. With the passage CCH-33 25 Spl.C.C.500/2021 of time there has been a gradual widening of the concept and the quintessential meaning of the word "Possession".
There is a degree of flexibility in the use of the said term and that is why the word "Possession" can be usefully defined and understood with reference to the contextual purpose for the said expression.
When the possession also refers mental state as noticeable from the language employed in Sec.35 of NDPS Act, the initial burden of establishing that the contraband ordered by the accused and he continuously ordered for it, is on the prosecution. No doubt the parcel seized was in the name and address of the accused. However, he specifically denied the fact that he himself ordered for it. When he said to be given voluntary statement that he does not know about the said parcel, it was the duty of the investigating agency to investigate further to ascertain whether the accused himself ordered it or not. As seen from the evidence of PW.1 it was sent by Mariagrazia Nicotra Via Immacolta 35, 95123 Catania CT, Italia. However, the investigating agency did not make enquiry with the said addressor, the PW.1 or PW.3 during the course of investigation did not collect material to 26 show that the accused himself ordered for the said parcel. When the investigating agency apprehend a person with the allegation of serious offence, it has to ascertain at least who had made payment for the said order, whether payment was made or not? If payment was made who had made payment and what is the mode of payment? Is there any document to that effect? All these aspects had to be verified by the investigating agency. The learned counsel for the accused also pointed out these aspects during the course of arguments. The learned counsel apart from oral arguments has also filed written arguments and relied on the decisions in support of his arguments. There are as under:-
7. The trial Court vide its order dated 29-6-91 has framed a charge against Surajmal only on the ground that the contraband opium was found in possession of Surajmal as the field belonged to him. The trial Court has solely relied on Section 54 of the N.D.P.S. Act. It has failed to notice that possession for the purpose of Section 54 of the N.D.P.S. Act has to be a conscious possession and not a constructive possession alone. It is true that it is not necessary that the contraband must be found on the person of an accused person or in his house alone. A person could be held responsible for something which was found on the premises, which are in his control but in such a case there should be something in the circumstances that it was not likely that the accused-person had no knowledge of the CCH-33
27 Spl.C.C.500/2021 existence of the contraband on the premises. In the present case, there is absolutely no evidence collected by the police, which could show that Surajmal had any knowledge of the contraband being concealed in his field. The circumstances do not indicate that the contraband could not have been kept on the field of Surajmal without his having knowledge of it. It is after all; an open field, to which anyone could have had an access in the absence of the owner and especially when the owner had engaged a servant for looking after the field, the possibility of a servant engaging himself in illegal activities without the knowledge of his master cannot be ruled out. As no evidence to connect the master with the contraband has been collected, it appears that the police have implicated Surajmal solely because he is the owner of the field from which contraband opium was recovered.
Therefore, as held in the said decision the 'possession' is not a legal concept but also a matter of fact i.e., as a relationship between a person and a thing. The test for determining whether a person is in possession of any thing is whether he is in general control of it.
27. If the principles laid down in the aforesaid decision is taken into consideration, as already noted herein above the investigating agency did not ascertain whether actually the accused himself ordered for the parcel. No iota of evidence to come to the conclusion that the accused with 28 an intention to get contraband, ordered for it by paying money. Further, as per the evidence of PW.3 when he conducted search in the house of accused he could not find any incriminatory material in his house and not collected any material from the Superintended of Post Office, Mangalore to show the accused had ordered for contraband even earlier to this case. When such being the case where is the material to connect the accused with the said parcel. Except the fact that the said parcel contains the address of the accused nothing more on record to connect him with the said parcel. The investigating agency had to work out more in this regard and had to collect relevant documents to show that the accused ordered for it. When there is no material to show that he himself with conscious ordered for it, it cannot be concluded that he himself ordered for it and he is the conscious possessor of the said article. On the same point of law the learned counsel has also relied on the decision rendered in Crl.Appeal No.1953/2014 in the case CCH-33 29 Spl.C.C.500/2021 of Rakesh Kumar Raghuvanshi Vs., State of MP wherein it is observed as under :-
Thus, before the Court holds the accused guilty of the offence under the NDPS Act, possession is something that the prosecution needs to establish with cogent evidence. If the accused is found to be in possession of any contraband which is a narcotic drug, it is for the accused to account for such possession satisfactorily, if not, the presumption under Section 54 comes into place.
Therefore, as envisaged by the provision itself, unless and until the contrary is proved in trials of cases involving offences coming within the purview of the NDPS Act, it may be presumed that the accused has committed an offence under the Act in respect of any articles prohibited to be possessed by him and for the possession of which, he failed to account satisfactorily. Therefore, it is the burden of the prosecution to establish that the contraband was seized from the conscious possession of the accused. Only when that aspect has been successfully proved by the prosecution, the onus will shift to the accused to account for the possession legally and satisfactorily. Conscious possession refers to a scenario where an individual not only physically possesses a narcotic drug or psychotropic substance but is also aware of its presence and nature. In other words, it requires both physical control and mental awareness. This concept has evolved primarily through judicial interpretation since the term "conscious possession"
is not explicitly defined in the NDPS Act. This Court through various of its decisions has repeatedly underscored that possession under the NDPS Act should not only be physical but also conscious. Conscious possession implies that the person knew that he had the illicit drug or psychotropic 30 substance in his control and had the intent or knowledge of its illegal nature.
Similarly, the learned counsel has also relied on the decision reported in (2002) 7 SCC 419 in the case of Avtar Singh Vs., State of Punjab.
From the observations made in the aforesaid decisions it is clear that the possession of contraband shall be conscious possession. When once the prosecution initially establishes the ingredients of the offences alleged against the accused the burden shift on the accused to give explanation about his possession of the article. However, in the present matter, as already noted herein above the prosecution failed to establish the conscious possession of the alleged contraband with the accused. Hence, the reverse burden did not shift on the accused.
28. The learned counsel for accused has also highlighted the procedure that has to be followed U/s.50A of the NDPS Act. During the course of cross examination of CCH-33 31 Spl.C.C.500/2021 PW.1 and PW.2 the learned counsel had posed certain questions about controlled delivery. However, in the present matter admittedly, the investigating agency has not followed the procedure U/s.50A of NDPS Act. If at all they had followed the procedure of controlled delivery definitely the said line of investigation would have thrown light to arrive at proper conclusion in the matter. However, as already noted herein above the investigating agency has not even verified who is the sender of the suspected parcel. The said aspect is definitely fatal to the case of the prosecution.
29. Yet another aspect is that the accused is in the habit of consuming narcotics. Though PW.3 in his examination in chief has stated that while recording the voluntary statement of accused, he has stated that he has consumed MDMA, but in this regard no medical report is collected. In the absence of medical report about consumption of narcotics by accused, the allegation against him does not stands proved.32
30. The learned counsel for accused has relied on the decision of Tofan Singh Vs., State of Tamil Nadu reported in (2021) SCC 1 especially to consider the value of the confession statement said to be given by the accused before the investigating agency. Ex.P14 is the so call confessional statement of the accused. The statement was recorded on 11.9.2020 but the accused signed the statement on 13.9.2020. When such being the case, it is the duty of the investigating officer to explain why the signature of accused has not been taken immediately after recording the so called confession statement. The learned counsel for accused has also submitted that under law the confession statement must be recorded at once or if taken over multiple sessions, it must be signed separately on each day. However, in the present case as submitted by learned counsel for accused after 2 days from the date of recording so called confession statement the signature of accused was obtained and it gives room to suspect the alleged confession statement.
.... .... ....
CCH-33 33 Spl.C.C.500/2021
158. We answer the reference by stating:
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."
31. In view of the observation in the above said decisions no much credence can be given to the voluntary statement of the accused in the absence of recovery of material object from him on the basis of his voluntary statement. In view of the decisions in the foregoing paragraphs, it is the considered view of this Court that though the parcel was addressed in the name of accused there is no iota of evidence to come to the conclusion that he himself had ordered for the said parcel, that the 34 investigating agency miserably failed to establish that the suspected article found in the conscious possession of the accused. Absolutely there are no material to connect the said article with the accused. The pendency of other criminal cases against the accused does not come to the rescue of investigating agency to minimize their task of investigation and it does not help the Court to arrive at the conclusion that the accused has committed the alleged offences punishable U/s. 22(c), 23(c) & 27 NDPS Act without legal acceptable evidence in the present case. In view of that the accused is entitled to be acquitted for the offences punishable U/s. 22(c), 23(c) & 27 of NDPS Act. Accordingly, the Point for consideration is answered in the Negative.
32. Point No.3: In the result, following:
ORDER Acting under Section 235(1) of Cr.P.C. accused Mohammed Nayeem is acquitted for the offences CCH-33 35 Spl.C.C.500/2021 punishable under Sections 22(c), 23(c) & 27 of NDPS Act.
Accused is set at liberty if he is not required in any other case subject to 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. M.Os.3 to 5 is ordered to be destroyed as worthless.
[Dictated to the Stenographer, directly on the computer, typed by her, corrected, signed and then pronounced by me in Open Court on this the 4th day of July 2025) (LATHA) XXXIII ACC & SJ & SPL.JUDGE (NDPS) BANGALORE.
ANNEXURE
1. List of witnesses examined for the:
(a) Prosecution:
P.W.1 : Sri Pradeep Kumar
P.W.2 : Sri Sumit Arya
P.W.3 : Sri Mustkin Ahamad
P.W.4 : Sri Kamlesh Kumar
36
P.W.5 : Dr.Poornima Mishra
P.W.6 : Smt. K A Philomena Shalit
(b) Defence :
NIL
2. List of documents exhibited for the:
(a) Prosecution:
Ex.P.1 : Information (a) Sig., of PW.1 Ex.P.2 : Notice to panch witness Ex.P.3 : Notice to panch witness Ex.P.4 : Panchanama (a) Sig., of PW.1 Ex.P.5 : Forwarding Memo Ex.P.6 : Godown receipt Ex.P.7 : Seal register extract Ex.P.8 : Success Report U/s.57(A) (a) Sig. Of PW.1 Ex.P.9 : Test Memo (a) Sig., of PW.1 Ex.P.10 : Malkhana Register Ex.P.11 : Search authorisation Ex.P.12 : Arrest Report (a) sig., of PW.2 Ex.P.13 : Forwarding sample seal to CRCL Ex.P.14 : Voluntary statement Ex.P.15 : Arrest Memo (a) sig., of witness Ex.P.16 : Complaint Ex.P.17 : Letter sent to Surathkal Post Office Ex.P.18 : Letter sent to Surathkal Post Office Ex.P.19 : Notice U/s.67 of NDPS Act Ex.P.20 Statement of PW.6 (b) Defence: - NIL - CCH-33 37 Spl.C.C.500/2021
3.List of Material Objects admitted in evidence:
M.O.1 : Sample contraband
M.O.2 : Sample contraband
M.O.3 : Packing cover
M.O.4 : Postal cover
M.O.5 : Cover
(LATHA)
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BANGALORE.
CN/*