Bangalore District Court
State By Ncb vs Parimalagan Arumugam on 29 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 29th DAY OF FEBRUARY 2020
SPL.C.C. NO.1/2017
COMPLAINANT : State by NCB, Bangalore
(By Spl. Public Prosecutor)
V/S.
ACCUSED : Parimalagan Arumugam,
S/o.Sh.S Arumugam,
R/at.No.H52/9, Kotturpuram,
Chennai 600 107,
Tamil Nadu 600 085.
(By Sri CMKG., Adv.)
1. Date of Commission of offence: 14.7.2016
2. Date of report of offence: 14.7.2016
3. Arrest of the accused : 15.7.2016
4. Date of release of accused on 9.1.2017
bail:
5. Period undergone in custody: 5 months 24 days
6. Date of commencing of 18.2.2019
2
recording Evidence :
7. Date of closing of Evidence : 18.12.2019
8. Name of the complainant: Sri Vivek Kumar Pandey,
IO
9. Offence complained of : U/s.8(c) R/w.Sec.21, 23
& 27(A) of NDPS Act
10. Opinion of the Judge : Offence not proved
11. Order of sentence : As per final order
JUDGMENT
The Police Inspector, NCB., Bangalore has filed complaint against accused in NCB.F.No.48/1/07/2016/BZU for the offence punishable U/Sec.8(C) R/w.Sec.21, 23 & 27(A) of N.D.P.S. Act.
2. Brief facts of the case are as under:
The case of the prosecution is that, on 14.7.2017 at about 2.07 am., complainant received call from Kempegowda International Airport, Bangalore stating that one person by name Parimalagan Arumugam who was to travel to Kuala Lumpur, Malaysia through Malaysian Airlines Flight No.MH CCH33
3 SPl.C.C.01/2017 193 has been detained by CISF personnel on suspicion of carrying some narcotics substance and accordingly the team of NCB along with panchas reached the control room of CISF and CISF officials handed over the accused along with his luggage. On search of the accused they found 6 packets of Ketamine weighing 12.2 Kgs., and 98 MDMA files weighing 20 grams. They arrested accused and produced before Court. Thereafter, accused is remanded to judicial custody. Later 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.8(C) & 9A R/w.Sec.21, 23, 25A & 27A 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.8 and got marked Exs.P1 to P.27 and M.Os.1 to
24. After closure, accused are examined U/Sec.313 of Cr.P.C., 4 he denied the incriminating circumstances appeared against him and not chosen to adduce evidence for his defence.
5. Heard the arguments on both sides.
6. The points for consideration are as under:
1. Whether the prosecution proves that on 14.7.2016 at about 2.07 pm., a person was traveling to Kuala Lumpur, Malaysia through Malaysian Airlines Flight No.MH193 from Kempegowda International Airport, Bengaluru and was in illegal possession of 12.2 Kgs., Ketamine and 20 grams of MDMA which are narcotic substances without license or permit, there by accused has committed the offence U/s.8(C) & 9A R/w.Sec.21, 23, 25A an 27A 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:
CCH33 5 SPl.C.C.01/2017 REASONS
8. POINT NO.1 : The learned P.P. vehemently argued that as per evidence of PWs.1 to P.W.8 and Exs.P.1 to P.27 and M.Os.1 to 24, the prosecution proved the guilt. Learned counsel for accused argued that no mandatory provision 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 3, 5 to 8.
P.W.2 has stated that on 14.7.2016 at about 2.00 to 7.00 am., during early morning he received call from airport, that a person by name Parimalagan Arumugam who is traveling to Kuala Lumpur, Malaysia through Malaysian airlines in Flight No.MH 193 from KIA, Bengaluru is carrying narcotic drugs. He informed the said information to his superior and reduced the same in writing as per Ex.P1 and took permission from C.W.2 to conduct raid. He took all the necessary items and 6 went to the airport at 3.30 am. He secured CWs.7 and 8 as panchas. Then he met C.W.6 who took him to the control room. In the control room the accused and two trolley bags were there. He issued notice to accused Ex.P4 and explained the legal right of the accused to be searched before Gazetted officer or Magistrate. The accused given the answer in the said notice. On personal search of the accused they did not find any thing. But on enquiry it was found that the date of journey was 14.8.2016 but the accused was in the airport on 14.7.2016 itself. He was traveling in the Malaysian Airlines in the name of one Arunkumar. His passport was already verified at immigration center. Even though there was difference in the date of journey and the name of the accused, but the Airlines staff had given the boarding pass to the accused. immediately when they came to know about the mistake the secured the accused. the CISF staff brought the trolley bags of the accused and when scanned they found that there was suspected drugs. On checking the trolley bags they found the documents of accused Parimalagan Arumugam and Ashrivad and Pillsbury Atta packets & mixed veg packets of 1 Kg., each.
CCH33 7 SPl.C.C.01/2017 When they opened the Atta packets they found crystalline powder. He tested the same with DD kit and ascertained that it was Ketamine. In mixed veg packets they found 98 tablets. They took samples from each packet and packed separately. They drew mahazar Ex.P5 and test memo at Ex.P6. Issued notice to accused as per Ex.P7 and brought the accused and property to the NCB office and produced before C.W.2. the accused gave his voluntary statement in his own handwriting as per Ex.P8 and he has mentioned in his voluntary statement that he had purchased the said drugs from one Sameer and one Kalanidi introduced Sameer to him. he arrested the accused as per arrest memo Ex.P9 and deposited the M.Os., in the godown vide letter, forwarding Memo as per Ex.P10 to 12. He sent Ex.p2 and 3 to C.W.2. Passport of accused is at Ex.P13, Election ID card is at Ex.p14, Aadhaar card at Ex.P15, Axis Bank ATM card at Ex.P16, Ex.P17 boarding pass and FRRO letter Ex.P18.
10. In his cross examination P.W.2 has stated that if any person enters the boarding area he should show Passport and 8 air ticket. He denied that they have not explained the legal right of the accused and forcibly obtained his signature. He denied that accused has not voluntarily given his statement. He denied that on 13.7.2016 at 11.30 pm., he was at Airport only and that they had apprehended the accused at 11.30 pm., itself near the ticket booking counter. He denied that accused had not carrying any contraband with him. He denied that on 13.7.2016 the accused was apprehended at ticket counter and he had passport and ticket for 14.8.2016, since he had the ticket for 14.8.2016 he had come to the airport to buy ticket for 14.7.2016. he denied that the luggage bags belonged to one Arun Kumar and instead of arresting him, intentionally arrested the accused. he has stated that he do not remember who has informed him that the accused had the ticket of Arun Kumar. He denied that he is deposing falsely only for the purpose of this case. he denied that intentionally he has added the names of Sameer and Kalaneedhi in the voluntary statement. He denied that he had not secured panchas, taken the signatures of the accused on mahazar and forged the documents against the accused.
CCH33 9 SPl.C.C.01/2017
11. P.W.1 has stated that on 14.7.2016 at about 2.15 am., C.W.1 informed him about the drug trafficking at Kempegowda International Airport and accorded permission through letter as per Ex.P1. he gave NCB Seal No.4 along with Ex.P1 and mentioned the same in the register. C.W.1 followed the procedure as per NDPS Act and produced the accused and property before him along with seal. On 15.7.2016 they arrested the accused. C.W.1 submitted seizure report and arrest memo as per Ex.P2 and 3. C.W.1 produced the M.Os., and he handed the same to C.W.3.
12. In the cross examination of P.W.1 he has stated that on 14.7.2016 at about 2.07 pm., he has not received the information and accorded permission to C.W.1. he denied that Ex.p1 is prepared on the next day i.e., 14.7.2016. he has admitted that when he checked the baggage and boarding pass they were in the name of different person. He denied that he is deposing falsely.
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13. P.W.3 has stated that on 14.7.2016 he was incharge of the godown. He received Ex.P11 letter and godown receipt Ex.P10 and mentioned the same in the godown register as per Ex.P12. the said witness is not cross examined by the prosecution.
14. P.W.5 has stated that on 20.7.2016 he received the records from C.W.1 for further investigation. he issued summons to C.W.7 to 26.7.2016 as per Ex.P21 and recorded C.W.7 statement as per Ex.P22. he issued summons to C.W.8 on 26.9.2016 and recorded his statement as per Ex.P34. on 2.11.2016 he issued notice to C.W.6 and recorded his statement as per Ex.P25 & 26. He wrote letter to NCB, Chennai to secure the address of the accused and received the reply from NCB, Chennai as per Ex.P27 on 5.8.2016. he wrote letters to the various banks regarding the account details of accused. he wrote letter to FRRO regarding the traveling details of the accused. All the said letters are xerox copies.
CCH33 11 SPl.C.C.01/2017
15. In his cross examination he has denied that he has not issued summons to CWs.6 to 8 and not recorded their statements as per Ex.P21 to 23. he denied that he has not sent letters to various bank pertaining to the and not received any reply from the concerned banks. He denied that he has not written any letter to FRRO and received the reply. He denied that accused was not traveling. He denied that only to help his superior he is deposing falsely.
16. P.W.6 has stated that on 14.7.2016 he got information that one of the passenger names is wrongly mentioned in the boarding pass. He went to the Malaysian counter and enquired the passenger. He got suspicion and searched the luggage bags of the said passenger. They found powder and tablets which were in the form of drugs inside the Ashrivad Atta packets. the accused admitted tat he was transporting drugs. He secured the accused and luggage and took him to the control room. He called NCB officers. They came to the control room at 3.00 am., the officers searched the 12 luggage of the accused and found that he was transporting Ketamine and MDMA. He handed over the accused and M.Os., to the NCB officers. Later the NCB issued notice to him to come to the office as per Ex.P25 and they recorded his statement as per Ex.P26.
17. In the cross examination of P.W.6 has stated that he do not know who has given the boarding pass of Arun Kumar to accused. he has stated that he has not enquired about it. He has sated that at about 12.00 in the midnight he received the information from Malaysian airlines. He denied that they had secured one Arun Kumar and his boarding pass and luggage and the same are not concerned to the accused. he denied that they took the accused to the Malaysian Airlines cabin and forcibly filled the form by the accused. he denied that earlier the form of one Arun Kumar was filled, by concealing it they have filed this accused. he denied that the accused was not carrying any contraband with him and the drugs seized is belonging to one Arun Kumar and not the CCH33 13 SPl.C.C.01/2017 accused. he denied that on that day he met only C.W.1. he denied that he is deposing falsely.
18. P.W.7 has stated that on 14.7.2016 at about 3.00 am., when he was in Boarding Management, CISF officers and NCB came and told that they have suspicion on some luggage bags and that they have to search them. Then the NCB officers took him to the control room. The accused was there along with his bags. The accused opened the bag and they found that he was having drugs. The accused had air tickets for 14.8.2016, but he had boarded the flight on 14.7.2016 by showing that ticket. The inspecting officers had given the boarding pass of one Arun Kumar by oversight. When one Arun Kumar came and contacted them they came to know the real fact. when they searched the luggage bags they found Ashrivad Atta, Pillsbury Atta, soup packets etc. When they opened the packets they found powder like drug. The accused agreed that it was drug. They found that it was Ketamine. They took for sample and packed separately. They seized the documents of the accused. they drew mahazar Ex.P5, 14 prepared test memo as per Ex.P6. Issued summons as per Ex.P7 and recorded his statement as per Ex.P22.
19. In the cross examination of P.W.7 he has stated that on 14.7.2016 at about 3.05 am., he came to know about this case for the first time. He has admitted that he had not seen the accused who had come one month earlier and was sitting in the immigration. He denied that NCB officials have not issued Ex.P20 summons to him and not informed the information of the accused. he denied that accused did not gave the contraband which he was having, the NCB officials have not seized the same and drew mahazar. he further denied that on 24.7.2016 he has signed the mahazar at NCB office. he denied that except signing on mahazar he do not know what is written in it. He denied that he is deposing falsely.
20. P.W.8 has stated on 13.7.2016 from 9.00 pm., to 14.7.0216 till 7.00 am., he was at the ticket checking counter at KIA Bengaluru - Malaysian Airlines. At 1000 to 10.30 pm., CCH33 15 SPl.C.C.01/2017 when he was took busy by over sight he issued the boarding pass of Arun Kumar to accused. after 20 minutes the person Arun Kumar came and enquired about his boarding pass. They came to know about the mistake. He immediately informed to CISF and Immigration. Then they went to boarding area and verified the ticket of the accused. The said ticket was not of that date. The immigration authority cancelled the passport of the accused. when enquired with the accused he told that he tried to travel before 1 month of the ticket date. Then they scanned the luggage of the accused they found many packets. then NCB officers came to the control room and checked the packets and found Ketamine. They drew mahazar Ex.p5, test memo Ex.p6. NCB officers issued notice to him as per Ex.P7 & P23 and recorded his statement as per Ex.P24. the passport of the accused is at Ex.P13.
21. In the cross examination of P.W.8 he has stated that when the passengers give eticket if the same tally with the computer then only they give the boarding pass. He denied 16 that he is deposing falsely that by miss he had issued boarding pass of Arun Kumar to accused. he has denied that he has given the boarding pass and check in bags tag to one Arun Kumar and not to the accused. he denied that on 13.7.2016 from 9.00 pm., to 14.7.2016 he was in the boarding counter only and that he had not gone to any CFSL boarding area. He denied that accused had not given any contraband; NCB officials did not seize the same and drew mahazar. He denied that on the request of NCB officials he has issued another boarding pass to Arun Kumar. He denied that the NCB officials forcibly cancelled the passport of accused. he denied that the accused did not come to the Airport and by showing the eticket took the boarding pass and produced the check in bags. He denied that the signatures on M.Os. are taken on NCB office. He denied that the baggage of the accused was not checked before him. He denied that he do not know what was written in Ex.p5. He denied that samples were not taken before him and that the same were not tested by DD kit.
CCH33 17 SPl.C.C.01/2017
22. P.W.4 C.F.S.L officer stated that he conducted various tests on the sample articles and issued report Ex.P19 and opined that the sample articles responded positive for ephedrine, Ketamine & Nitrzepam. In his cross examination denied the suggestion that he has not personally conducted tests on the sample articles and issued false report. Of course as per the evidence of P.W.4, the sample article may respond positive for ephedrine, Ketamine & Nitrzepam, but the said sample articles are seized from the possession of the accused is not proved.
23. Ex.P1 is the information report U/s.42 of NDPS Act. Ex.P1 reveals that C.W.1 has reduced the information in writing. But it is difficult to believe that whether it is reduced in writing immediately or created later as Ex.P1 is a single sheet. Ex.2 seizure report U/s.57 of NDPS Act submitted to superintendent 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 18 requirement of Ss.42 and 50. Ex.P3 arrest report, Ex.P4 notice U/s.50 of NDPS Act issued to accused. Where in the I.O has asked whether the personal search of the accused can be conducted before Gazetted officer or Magistrate. But the answer given by the accused is that "any one from your team can search" is not admissible. Sec.50 Part 1 of the NDPS Act does not provide for it and when such option is given it would frustrate the provisions. In this regard, the learned counsel for the accused relied on the decision reported in LAWs (SC) 2018(4) 156, Criminal No.273/2007 D.D.27.4.2018 in Arif Khan Vs., Stat of Uttarakhand.
The facts and circumstances of the above decision is aptly applicable to the case on hand.
24. Ex.P5 mahazar, Ex.P6 test memo, Ex.p7 summons, Ex.P8 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.P9 arrest memo, Ex.P10 godown receipt, Ex.p11 forwarding memo, Ex.P12 receipt, CCH33 19 SPl.C.C.01/2017 Ex.P13 passport, Ex.P14 voter ID, Ex.P15 Aadhaar card, Ex.P16 ATM card, Ex.P17 boarding pass, Ex.P18 letter from FRRO, Ex.P19 CFSL report, Ex.P20 letter of CFSL, Ex.p21 summons, Ex.P22 Statement, Ex.p23 summons, Ex.P24 statement, Ex.p25 summons, Ex.P26 statement and Ex.P27 letter from NCB, Chennai.
25. It is pertinent to note here that the case of the complainant is that the accused had come to the Airport on 14.7.2016 one month earlier of his ticket dated 14.8.2016 to travel to Kuala Lumpur. Further by showing his passport and the said ticket he entered the Airport and went in check in counter of Malaysian airlines and got the boarding pass of one Arun Kumar to travel to Kuala Lumpur. As per the evidence of P.W.8 who is an independent witness has stated that he had issued the boarding pass of one Arun Kumar to the accused by mistake. The said evidence of P.W.8 is unbelievable. Even in spite of tight security in the Kempegowda International Airport, Bengaluru whether it is possible for a person to enter the check in area and take some others boarding pass that too by 20 carrying alleged contraband with him. The case of the accused is that he had come to the ticket counter to change his ticket from 14.8.2016 to 14.7.2016, at that time the complainant arrested him.
26. The learned SPP relied on the decisions reported in (2008) 4 SCC 668 in Kanhaiyalal Vs., Union of India & 2003 Crl.L.J. 3372 in Ram Bilas Baba Vs., State. wherein it is held that: (B) illegal possession of contraband - search and seizure - accused persons were given option to be searched by I.O or by Magistrate or Gazetted Officer - accused exercised the option of being searched by I.O - there was substantial compliance with S.50.
With due respect, I have gone through the above decision. But this is pertaining to the year 2003. In view of the recent decision reported in 2014 Crl.L.J. 1756 in the case of State of Rajasthan Vs., Parmanan and another wherein it is held that: CCH33 21 SPl.C.C.01/2017
(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 party Would frustrate provisions of S.50 (1) Search conducted therefore, is vitiated."
Thus, I hold the decision relied by the learned SPP is not helpful to the case on hand.
27. The learned counsel for the accused relied on the decisions reported in 2013 (2) SCC 67 in Ashok Kumar Sharma Vs., State of Rajasthan, 2011 (1) SCC 392 in NCB Vs., Sukh Dev Raj Sodhi, 2011 (1) SCC 609 in Vijaysini Chandubha Jadeja Vs., State of Gujrat, C.R.A.820DB 2018 (P & H) in Hardeep singh @ Deepa Vs., State of Haryana, AIR 2007 SC 369 in Dilip and anr Vs., State of MP, 2000 Crl.L.J. 3181 (SC) in C Ali Vs., State of Kerala, 1994 Crl.L.J.3702 (SC) in State of Punjab Vs., Balbir 22 Singh and 1993 Crl.L.J. 2310 (KARN) in Babu Rao Vs., State of Karnataka.
The facts and circumstances of the above decisions are applicable to the case on hand.
28. 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 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'.
29. Point No.2: In the result, following:
ORDER CCH33 23 SPl.C.C.01/2017 Acting under Section 235(1) of Cr.P.C.
accused is acquitted for the offence punishable under Section 8(c) & 9A R/w.Sec.21, 23, 25A & 27A of N.D.P.S. Act.
Bail bond of the accused shall stands cancelled.
M.Os.1 to 7, 11 to 24 bulk and sample are ordered to be returned to the complainant to produce before Drug Disposal Committee for disposal in accordance with law.
M.Os.8 to 10 packing material, cover, and packet are ordered to be destroyed.
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 29th day of February 2020) 24 (G.M.SHEENAPPA) XXXIII ACC & SJ & SPL.JUDGE (NDPS) BANGALORE.
ANNEXURE
1. List of witnesses examined for the:
(a) Prosecution:
P.W.1 : Sri V.V.Singh
P.W.2 : Vivek Kumar Pandey
P.W.3 : Pankaj Kumar Dwivedi
P.W.4 : Sudhakar P
P.W.5 : Sameran Paul
P.W.6 : Promad Kumar singh
P.W.7 : Parthivan J
P.W.8 : Patan Basukhan
(b) Defence :
NIL
CCH33
25 SPl.C.C.01/2017
2. List of documents exhibited for the:
(a) Prosecution:
Ex.P.1 : Information
Ex.P.2 : Seizure report
Ex.P.3 : Arrest report
Ex.P.4 : Notice U/s.50
Ex.P.5 : Mahazar
Ex.P.6 : Test memo
Ex.P.7 : Summons
Ex.P.8 : Voluntary statement
Ex.P.9 : Arrest memo
Ex.P.10 : Godown receipt
Ex.P.11 : Forwarding memo
Ex.P.12 : Receipt
Ex.P.13 : Passport of accused
Ex.P.14 : Voter ID
Ex.P.15 : Aadhaar card
Ex.P.16 : ATM card
Ex.P.17 : Boarding pass
Ex.P.18 : FRRO letter
Ex.P.19 CFSL report
Ex.P.20 Letter of CFSL
Ex.P.21 Summons
Ex.P.22 Statement
Ex.P.23 Summons
Ex.P.24 Statement
Ex.P.25 Summons
Ex.P.26 Statement
Ex.P.27 Letter from NCB Chennai
(b) Defence:
NIL
3.List of Material Objects admitted in evidence:26
M.O.1 - 7 : Bulk M.O.8 : Packing material M.O.9 : Packet M.O.10 : Empty cover M.O.1124 : Samples (G.M.SHEENAPPA) XXXIII ACC & SJ & SPL.JUDGE (NDPS) BANGALORE.
CN/*