Karnataka High Court
Hanumantha vs State Of Karnataka on 10 September, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
-1-
NC: 2024:KHC:37322
CRL.P No. 11994 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF SEPTEMBER, 2024
R
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 11994 OF 2023
BETWEEN:
1. HANUMANTHA
S/O SHIVANNA,
AGED ABOUT 25 YEARS,
NEAR SHANIMAHATHMA TEMPLE,
GUNJUR, VIRTHUR,
BENGALURU - 560 087.
2. MANJUNATHA
S/O PAPANNA,
AGED ABOUT 29 YEARS,
RESIDING AT NO. 272,
NEAR DODDAMMA TEMPLE,
GUNJUR, VARTHUR,
Digitally signed BENGALURU - 560 087.
by NAGAVENI
Location: HIGH ...PETITIONERS
COURT OF
KARNATAKA (BY SRI SHASHI KIRAN V., ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY VARTHUR POLICE STATION,
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU.
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NC: 2024:KHC:37322
CRL.P No. 11994 of 2023
2. RAJ KUMAR
PROBATIONARY POLICE OFFICER,
VARTHUR POLICE STATION,
BENGALURU - 560 087.
...RESPONDENTS
(BY SRI JAGADEESHA B.N., ADDL.SPP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C.,(528 OF BNSS) PRAYING TO QUASH THE ENTIRE
PROCEEDINGS AGAINST THE PETITIONERS HEREIN WHO ARE
ARRAYED AS ACCUSED NO.1 AND 2 IN C.C.NO.8250/2021
VIDE ANNEXURE-A PENDING NOW BEFORE THE 2ND A.C.J.M
BENGALURU RURAL DISTRICT AT BENGALURU VARTHUR P.S.,
HAVING REGISTERED THE CHARGE SHEET UNDER SEC.27 OF
THE NDPS ACT.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE M.NAGAPRASANNA
ORAL ORDER
The petitioners/accused 1 and 2 are knocking at the doors of this Court in the subject petition calling in question proceedings in C.C.No.8250 of 2021 pending before the II Additional Chief Judicial Magistrate, Bengaluru Rural District, Bengaluru arising out of crime No.227 of 2019 registered for offences punishable under Section 27 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('the Act' for short).
-3-NC: 2024:KHC:37322 CRL.P No. 11994 of 2023
2. Facts, in brief, adumbrated are as follows:-
The 2nd respondent is the complainant, a police officer who was on probation at the relevant point in time and had not yet been confirmed in service. A complaint comes to be registered by the 2nd respondent against the petitioners. The gist of the complaint is that the complainant receives information through a credible informant that few persons are consuming ganja near Krupanidhi College within the jurisdiction of Varthur Police Station. The complainant is said to have informed the higher officials and is said to have caught the petitioners consuming ganja by exchanging chimneys.
Therefore, a complaint comes to be registered for offence punishable under Section 27 of the Act. As necessary in law, blood samples of these petitioners were drawn, as the fulcrum of the complaint was consumption of ganja. It is opined by the Forensic Science Laboratory ('FSL') on testing of blood sample that the blood did not contain any contraband substance -
ganja. After receipt of FSL report, the 2nd respondent files the charge sheet against these petitioners for offence punishable under Section 27 of the Act. Filing of the charge sheet, -4- NC: 2024:KHC:37322 CRL.P No. 11994 of 2023 cognizance being taken and issuance of summons to these petitioners is what has driven them to this Court in the subject petition.
3. Heard Sri V. Shashi Kiran, learned counsel appearing for petitioners and Sri B.N. Jagadeesha, learned Additional State Public Prosecutor appearing for respondents 1 and 2.
4. The learned counsel appearing for the petitioners would vehemently contend that the offence that is laid against the petitioners is under Section 27 of the Act. It deals with consumption of ganja for which blood samples were taken. The FSL report clearly indicates that there was no ganja found in the blood that was sent for examination. Notwithstanding the said report of FSL, the Police file the charge sheet that blood sample did contain ganja and its confirmation by the report of FSL. He would submit that the petitioners are deliberately framed in the case at hand, only to harass and due to such framing, the petitioners have lost several opportunities of employment and is now getting employment offers from USA but unable to travel because of pendency of narcotic case.
-5-NC: 2024:KHC:37322 CRL.P No. 11994 of 2023
5. The learned Additional State Public Prosecutor appearing for the State would accept the fact of FSL report and the charge sheet filed by the respondent/Police being contradictory to each other. But, he would add that panchanama reveals that the petitioners were found in possession of 15 grams of ganja. He would further admit that though 15 grams of ganja was a small quantity found, it was not sent to FSL as is required in law. He would contend that it was a clear case of offence under Section 20 of the Act, that is not even laid against the petitioners, what is laid is consumption. Nonetheless, he would seek dismissal of the petition.
6. The learned counsel for the petitioners would join issue to contend that panchanama is drawn deliberately and the contraband is not seized in terms of Section 50 of the Act which ought to have been done before a Gazetted Officer or a Magistrate. The learned Additional State Public Prosecutor would admit that there has been violation of Section 50 of the Act even in the case at hand.
-6-NC: 2024:KHC:37322 CRL.P No. 11994 of 2023
7. Owing to the deliberate act in filing of the charge sheet, the then Station House Officer was summoned and the Station House Officer accepts that there has been a mistake on the part of the Police in filing the charge sheet contrary to the report of FSL.
8. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.
9. The afore-narrated facts lie in a narrow compass. On the night of 31-08-2019 the 2nd respondent claiming to be in receipt of certain credible information that there were students consuming ganja near Krupanidhi College is said to have informed higher officials as is necessary in law and conducts a search on the said place. It is alleged that the petitioners were caught consuming ganja by exchange of chimneys.
Accordingly, panchanama was drawn at the time of search and a complaint is registered. The panchanama so drawn of the search conducted between 8.15 p.m. and 9.15 p.m. reads as follows:
-7-NC: 2024:KHC:37322 CRL.P No. 11994 of 2023 "¥ÀAZÀ£ÁªÉÄ ¸À£ï 2019£Éà E¸À« DUÀ¸ïÖ ªÀiÁºÉAiÀÄ vÁjÃRÄ 31 gÀAzÀÄ, EzÉà ¨ÉAUÀ¼ÀÆgÀÄ £ÀUÀgÀ ªÀvÀÆðgÀÄ ¥Éưøï oÁuÁ ¸ÀgÀºÀzÄÀ Ý, PÀÈ¥Á¤¢ü PÁ¯ÉÃeï §½ F PɼÀPÀAqÀ ¥ÀAZÁAiÀÄÄÛzÁgÀgÁzÀ £ÀªÄÀ äUÀ¼À ¸ÀªÄÀ PÀëªÄÀ ºÉý §gɹzÀ ªÀĺÀdgï PÀæªÀÄ.
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1) ºÀ£ÀÄAvÀ ©£ï ²ªÀtÚ 22 ªÀµÀð ªÁ¸À £ÀA E¯Áè ±À¤ªÀĺÁvÀä zÉêÀ¸ÁÜ£ÀzÀ ºÀwÛgÀ UÀÄAdÆgÀÄ, ªÀvÀÆðgÀÄ ºÉÆç½ ¨ÉAUÀ¼Æ À gÀÄ £ÀUÀgÀ
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F ¸ÀܼÀzÀ ZÉPÀÄ̧¢AiÀÄÄ UÀÄAdÆgÀÄ ¥Á¼ÀPÌÉ ºÉÆÃUÀĪÀ gÀ¸ÛÉ GvÀÛgÀQÌzÄÀ Ý zÀQëtPÉÌ SÁ° eÁUÀ EgÀÄvÀÛzÉ. ¥ÀƪÀðPÉÌ ¨É¼îÀAzÀÆjUÉ ºÉÆÃUÀĪÀ gÀ¸ÛÉ ¥À²ÑªÀÄPÉÌ Cwy §¯ïì C¥ÁmïðªÉÄAmï EgÀÄvÀÛzÉ.
F ªÀĺÀdgï£ÀÄß gÁwæ 8:15 UÀAmɬÄAzÀ gÁwæ 9.15 UÀAmÉAiÀĪÀgÉUÉ dgÀÄV¹gÀÄvÉÛ."
In terms of the panchanama so drawn, it appears the body is searched on a bleak consent, blood samples of the petitioners are drawn and were sent to FSL for a report. The report of FSL is as follows:
"RESULT OF EXAMINATION Residues of Volatile poisons, Narcotics drugs, Barbiturates, Benzodiazepine group of drugs were not detected in all the above stated articles."
(Emphasis added) -9- NC: 2024:KHC:37322 CRL.P No. 11994 of 2023 The report of FSL is, residues of volatile poisons, Narcotics drugs or any group of drugs were not detected in all the above stated articles. The articles that were sent underwent following processes for arriving at the result:
"1. Blood samples were subjected to steam distillation and the distillate was collected.
2. Blood samples were subjected to liquid liquid extraction (LLE) with dichloromethane/ diethylether/ethylacetate at acidic, neutral and basic pH. After phase separation, the organic layer was purified evaporated to dryness and reconstituted with methanol."
(Emphasis added) Therefore, it was clear that blood samples of these petitioners did not contain any contraband substance, much less, a narcotic drug or psychotropic substance or its derivatives. What shocks the conscience of the Court is, notwithstanding the FSL report, charge sheet is filed. Column No.7 of the charge sheet reads as follows:
"F zÉÆõÁgÉÆÃ¥ÀuÁ ¥ÀnÖAiÀÄ ¸ÁQë-1 gÀªÀgÀÄ ¢£ÁAPÀ:31-08-2019 gÀAzÀÄ gÁwæ ¸ÀĪÀiÁgÀÄ 7-45 UÀAmÉAiÀÄ°è ªÀvÀÆðgÀÄ ¥Éưøï oÁuÉAiÀÄ°èzÁÝUÀ ¨ÁwäÃzÁgÀgÀÄ ªÀvÀÆðgÀÄ ¥Éưøï oÁuÉ ¸ÀgÀºÀzÀÄÝ, PÀÈ¥Á¤¢ü PÁ¯ÉÃdÄ §½ PÉ® ºÀÄqÀÄUÀgÀÄ ªÀiÁzÀPÀ ªÀ¸ÀÄÛªÁzÀ UÁAeÁªÀ£ÀÄß ¹UÀgÉÃmï ¥ÀÄrAiÉÆA¢UÉ ¸ÉÃj¹PÉÆAqÀÄ aªÀÄtÂAiÀÄ°è ¸ÉÃzÀÄwÛzÁÝgÉ JA§ RavÀ ªÀiÁ»wAiÀÄ£ÀÄß PÉÆnÖzÀÄÝ, ¸ÀzÀj ªÀiÁ»wAiÀÄ£ÀÄß ¸ÁQë-1 gÀªÀgÀÄ ¸ÁQë-2 & 3 gÀªÀjUÉ w½¹, ¸ÀzÀj ¸ÀܼÀzÀ ªÉÄÃ¯É zÁ½ ªÀiÁr PÁ£ÀÆ£ÀÄ PÀæªÀÄ dgÀÄV¸À®Ä ¸ÁQë-4 & 5 gÀªÀgÀ£ÀÄß ¥ÀAZÀgÀ£ÁßV £ÉêÀÄPÀ ªÀiÁrPÉÆAqÀÄ vÀ¤SÁ ¥ÀjPÀgÀUÀ¼ÉÆA¢UÉ, ¸ÁQë-2 jAzÀ 5 gÀªÀgÉÆA¢UÉ gÁwæ 8-00 UÀAmÉUÉ oÁuÉAiÀÄ£ÀÄß
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NC: 2024:KHC:37322 CRL.P No. 11994 of 2023 ©lÄÖ SÁ¸ÀV ªÁºÀ£ÀzÀ°è ªÉÄîÌAqÀ ¸ÀܼÀPÉÌ ºÉÆÃV, ¨ÁwäÃzÁgÀjAzÀ §A¢gÀĪÀ ªÀiÁ»wAiÀÄ£ÀÄß RavÀ¥Àr¸ÀPÉÆAqÀÄ aªÀÄtÂAiÀÄ£ÀÄß ¸ÉÃzÀÄwÛzÀÝ PÁ®A £ÀA.04 gÀ°è £ÀªÀÄÆzÀÄ ªÀiÁrgÀĪÀ 1 & 2£Éà DgÉÆæUÀ¼À£ÀÄß ¸ÉgÉ»rzÀÄ DgÉÆæUÀ¼À ªÀ±ÀzÀ°èzÀÝ ¦.J¥sï £ÀA 68/2019 gÀ°è £ÀªÀÄÆzÀÄ ªÀiÁrgÀĪÀ ªÀ¸ÀÄÛUÀ¼À£ÀÄß gÁwæ 8-15 jAzÀ 9-15 UÀAlAiÀĪÀgÉUÉ ©Ã¢ «zÀÄåvï ¢Ã¥ÀzÀ ¨É¼ÀQ£À°è CªÀiÁ£ÀvÀÄÛ¥Àr¹PÉÆAqÀÄ ªÁ¥À¸ï oÁuÉUÉ §AzÀÄ DgÉÆæUÀ¼À «gÀÄzÀÝ ¥ÀæPÀgÀt zÁR®Ä ªÀiÁrgÀÄvÀÛzÉ. DgÉÆæUÀ¼ÀÄ UÁAd JA§ ªÀiÁzÀPÀ ªÀ¸ÀÄÛªÀ£ÀÄß ¸ÉêÀ£É ªÀiÁrgÀĪÀÅzÀÄ J¥sïJ¸ïJ¯ï ªÀgÀ¢AiÀÄ°è zÀÈqÀ¥ÀnÖgÀÄvÀÛzÉ.
DzÀÝjAzÀ CgÉÆæUÀ¼À «gÀÄzÀÝ ªÉÄîÌAqÀ PÀ®A jÃvÁå zÉÆõÁgÉÆÃ¥Àt ¥ÀnÖ."
(Emphasis added) The last two lines of the charge sheet is what is abominable as it records the reason for filing the charge sheet. It is indicated that FSL report has confirmed narcotic drugs in the blood samples of the petitioners. The offence alleged is the one punishable under Section 27 of the Act, which is completely contrary to the FSL report supra.
10. Section 27 of the Act reads as follows:
"27. Punishment for consumption of any narcotic drug or psychotropic substance.--Whoever consumes any narcotic drug or psychotropic substance shall be punishable,--
(a) where the narcotic drug or psychotropic substance consumed is cocaine, morphine, diacetyl-morphine or any other narcotic drug or any psychotropic substance as may be specified in this behalf by the Central Government by notification in the Official Gazette, with rigorous imprisonment for a
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NC: 2024:KHC:37322 CRL.P No. 11994 of 2023 term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both; and
(b) where the narcotic drug or psychotropic substance consumed is other than those specified in or under clause (a), with imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both."
(Emphasis supplied) Section 27 makes it an offence of any person consuming any narcotic drugs or psychotropic substance. The punishment that is imposable is one year with or without fine. But, nonetheless, it is an offence under the Act. If consumption has to be proved, the primary evidence would be the presence of contraband substance in the blood sample. The blood sample is drawn and sent to FSL and the report of FSL indicates no contraband substance of any kind in the blood samples of the petitioners.
The charge sheet, therefore, with mala fide intention, is deliberately filed by the Station House Officer and the Police Sub-Inspector of Varthur Police Station.
11. The Station House Officer who was summoned admits that there was a mistake. For the mistake committed by the Station House Officer or the Investigating Officer who have
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NC: 2024:KHC:37322 CRL.P No. 11994 of 2023 deliberately and wantonly filed the charge sheet against these petitioners, the careers of the petitioners are put to jeopardy.
They have suffered ignominy for 5 years in a case concerning narcotics. It is averred in the petition that they have lost several job opportunities on the score that these proceedings are pending for the last 5 years.
12. The learned Additional State Public Prosecutor makes a feeble attempt to justify the action on the ground that 15 grams of ganja was found when the body of the petitioners was searched and it was seized by drawing panchanama. If 15 grams of ganja was found in possession of these petitioners, nothing stopped the search party i.e., the 2nd respondent to mark the seizure in terms of Section 50 of the Act. Section 50 of the Act reads as follows:
"50. Conditions under which search of persons shall be conducted.--(1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest gazetted officer of any of the departments mentioned in Section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he can bring him before the
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NC: 2024:KHC:37322 CRL.P No. 11994 of 2023 gazetted officer or the Magistrate referred to in sub- section (1).
(3) The gazetted officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a female.
(5) When an officer duly authorised under Section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under Section 100 of the Code of Criminal Procedure, 1973 (2 of 1974).
(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior."
(Emphasis supplied) Section 50 of the Act deals with conduct of search of persons.
When any officer duly authorized under Section 42 is about to search any person invoking his power under Section 41 or 42 or 43, he shall take such person without unnecessary delay to the nearest Gazetted Officer of any of the Department mentioned in Section 42 or to the nearest Magistrate. The purport and interpretation of Section 50 need not detain this court for long or delve deep into the matter.
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NC: 2024:KHC:37322 CRL.P No. 11994 of 2023
13. A five Judge Bench of the Apex Court in VIJAYSINH CHANDUBHA JADEJA v. STATE OF GUJARAT1 has held as follows:
".... ..... ....
23. In the above background, we shall now advert to the controversy at hand. For this purpose, it would be necessary to recapitulate the conclusions, arrived at by the Constitution Bench in Baldev Singh case [(1999) 6 SCC 172: 1999 SCC (Cri) 1080]. We are concerned with the following conclusions: (SCC pp. 208-10, para 57) "(1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under sub-section (1) of Section 50 of being taken to the nearest gazetted officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing.
(2) That failure to inform the person concerned about the existence of his right to be searched before a gazetted officer or a Magistrate would cause prejudice to an accused.
(3) That a search made by an empowered officer, on prior information, without informing the person of his right that if he so requires, he shall be taken before a gazetted officer or a Magistrate for search and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act.
*** 1 (2011) 1 SCC 609
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NC: 2024:KHC:37322 CRL.P No. 11994 of 2023 (5) That whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the court on the basis of the evidence led at the trial. Finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of Section 50 and, particularly, the safeguards provided therein were duly complied with, it would not be permissible to cut short a criminal trial.
(6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but hold that failure to inform the person concerned of his right as emanating from sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law.
(7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search."
(emphasis in original)
24. Although the Constitution Bench in Baldev Singh case [(1999) 6 SCC 172: 1999 SCC (Cri) 1080] did not decide in absolute terms the question whether or not Section 50 of the NDPS Act was directory or mandatory yet it was held that provisions of sub-section (1) of Section 50 make it imperative for the empowered officer to "inform" the person concerned (suspect) about the existence of his right that if he so requires, he shall be searched before a gazetted officer or a Magistrate; failure to "inform" the suspect about the existence of his said right would cause prejudice to him, and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate, may not
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NC: 2024:KHC:37322 CRL.P No. 11994 of 2023 vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from the person during a search conducted in violation of the provisions of Section 50 of the NDPS Act. The Court also noted that it was not necessary that the information required to be given under Section 50 should be in a prescribed form or in writing but it was mandatory that the suspect was made aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him. We respectfully concur with these conclusions. Any other interpretation of the provision would make the valuable right conferred on the suspect illusory and a farce."
(Emphasis supplied) Following the aforesaid five Judge Bench judgment, the Apex Court in the case of ARIF KHAN v. STATE OF UTTARAKHAND2 has held as follows:
".... .... ....
16. The short question which arises for consideration in the appeal is whether the search/recovery made by the police officials from the appellant-accused of the alleged contraband (charas) can be held to be in accordance with the procedure prescribed under Section 50 of the NDPS Act.
17. In other words, the question that arises for consideration in this appeal is whether the prosecution was able to prove that the procedure prescribed under Section 50 of the NDPS Act was followed by the police officials in letter and spirit while making the search and 2 (2018) 18 SCC 380
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NC: 2024:KHC:37322 CRL.P No. 11994 of 2023 recovery of the contraband "charas" from the appellant- accused.
18. What is the true scope and object of Section 50 of the NDPS Act, what are the duties, obligation and the powers conferred on the authorities under Section 50 and whether the compliance of requirements of Section 50 are mandatory or directory, remain no more res integra and are now settled by the two decisions of the Constitution Bench of this Court in State of Punjab v. Baldev Singh [State of Punjab v. Baldev Singh, (1999) 6 SCC 172: 1999 SCC (Cri) 1080] and Vijaysinh Chandubha Jadeja [Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609 : (2011) 1 SCC (Cri) 497] .
19. Indeed, the latter Constitution Bench decision rendered in Vijaysinh Chandubha Jadeja [Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609 : (2011) 1 SCC (Cri) 497] has settled the aforementioned questions after taking into considerations all previous case law on the subject.
20. Their Lordships have held in Vijaysinh Chandubha Jadeja [Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609 :
(2011) 1 SCC (Cri) 497] that the requirements of Section 50 of the NDPS Act are mandatory and, therefore, the provisions of Section 50 must be strictly complied with. It is held that it is imperative on the part of the police officer to apprise the person intended to be searched of his right under Section 50 to be searched only before a gazetted officer or a Magistrate. It is held that it is equally mandatory on the part of the authorised officer to make the suspect aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him and this requires a strict compliance. It is ruled that the suspect person may or may not choose to exercise the right provided to him under Section 50 of the NDPS Act but so far as the officer is concerned, an obligation is cast upon him under Section 50 of the NDPS Act to apprise the suspect of his right to be searched before a gazetted officer or a Magistrate.
(See also Ashok Kumar Sharma v. State of
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NC: 2024:KHC:37322 CRL.P No. 11994 of 2023 Rajasthan [Ashok Kumar Sharma v. State of Rajasthan, (2013) 2 SCC 67 : (2013) 1 SCC (Cri) 829] and Narcotics Control Bureau v. Sukh Dev Raj Sodhi [Narcotics Control Bureau v. Sukh Dev Raj Sodhi, (2011) 6 SCC 392 : (2011) 2 SCC (Cri) 981].)"
(Emphasis supplied) Reiterating the aforesaid view, the Apex Court in the case of RANJAN KUMAR CHADHA v. STATE OF HIMACHAL PRADESH3, has held as follows:
".... .... ....
66. From the aforesaid discussion, the
requirements envisaged by Section 50 can be
summarised as follows:--
(i) Section 50 provides both a right as well as an
obligation. The person about to be searched has the right to have his search conducted in the presence of a Gazetted Officer or Magistrate if he so desires, and it is the obligation of the police officer to inform such person of this right before proceeding to search the person of the suspect.
(ii) Where, the person to be searched declines to exercise this right, the police officer shall be free to proceed with the search. However, if the suspect declines to exercise his right of being searched before a Gazetted Officer or Magistrate, the empowered officer should take it in writing from the suspect that he would not like to exercise his right of being searched before a Gazetted Officer or Magistrate and he may be searched by the empowered officer.3
2023 SCC OnLine SC 1262
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NC: 2024:KHC:37322 CRL.P No. 11994 of 2023
(iii) Before conducting a search, it must be communicated in clear terms though it need not be in writing and is permissible to convey orally, that the suspect has a right of being searched by a Gazetted Officer or Magistrate.
(iv) While informing the right, only two options of either being searched in presence of a Gazetted Officer or Magistrate must be given, who also must be independent and in no way connected to the raiding party.
(v) In case of multiple persons to be searched, each of them has to be individually communicated of their right, and each must exercise or waive the same in their own capacity. Any joint or common communication of this right would be in violation of Section
50.
(vi) Where the right under Section 50 has been exercised, it is the choice of the police officer to decide whether to take the suspect before a Gazetted Officer or Magistrate but an endeavour should be made to take him before the nearest Magistrate.
(vii) Section 50 is applicable only in case of search of person of the suspect under the provisions of the NDPS Act, and would have no application where a search was conducted under any other statute in respect of any offence.
(viii) Where during a search under any statute other than the NDPS Act, a contraband under the NDPS Act also happens to be recovered, the provisions relating to the NDPS Act shall forthwith start applying, although in such a situation Section 50 may not be required to be complied for the reason that search had already been conducted.
(ix) The burden is on the prosecution to establish that the obligation imposed by Section 50 was
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NC: 2024:KHC:37322 CRL.P No. 11994 of 2023 duly complied with before the search was conducted.
(x) Any incriminating contraband, possession of which is punishable under the NDPS Act and recovered in violation of Section 50 would be inadmissible and cannot be relied upon in the trial by the prosecution, however, it will not vitiate the trial in respect of the same. Any other article that has been recovered may be relied upon in any other independent proceedings."
(Emphasis supplied) The undisputed fact in the case at hand is that, the alleged 15 grams of ganja found in possession of the petitioners was not sent to FSL and the seizure is not recorded before a Gazetted Officer or the Magistrate as is necessary in law, which bears interpretation by the Apex Court in the afore-quoted judgments.
14. After the search what should be done is mandated under Section 52A of the Act. Section 52A of the Act reads as follows:
"52-A. Disposal of seized narcotic drugs and psychotropic substances.--(1) The Central Government may, having regard to the hazardous nature, vulnerability to theft, substitution, constraint of proper storage space or any other relevant consideration, in respect of any narcotic drugs, psychotropic substances, controlled substances or conveyances, by notification in the Official Gazette, specify such narcotic drugs,
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NC: 2024:KHC:37322 CRL.P No. 11994 of 2023 psychotropic substances, controlled substances or conveyance or class of narcotic drugs, class of psychotropic substances, class of controlled substances or conveyances, which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified.
(2) Where any narcotic drugs, psychotropic substances, controlled substances or conveyances] has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under Section 53, the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs, psychotropic substances, controlled substances or conveyances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs, psychotropic substances, controlled substances or conveyances] or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs, psychotropic substances, controlled substances or conveyances in any proceedings under this Act and make an application, to any Magistrate for the purpose of--
(a) certifying the correctness of the inventory so prepared; or
(b) taking, in the presence of such Magistrate, photographs of such drugs, substances or conveyances and certifying such photographs as true; or
(c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.
(3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application.
(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs, psychotropic substances,
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NC: 2024:KHC:37322 CRL.P No. 11994 of 2023 controlled substances or conveyances and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence."
(Emphasis supplied) This section mandates certain procedural seizure of contraband substance. The procedural mandate stipulated bears consideration at the hands of the Apex Court in the case of YUSUF v. STATE4, wherein the Apex Court holds as follows:
".... .... ....
8. We have heard learned Senior counsel for the appellant. The main plank of his argument is that the entire action of seizure and sampling is wholly illegal. It was done in violation of the mandatory provisions of Section 52A (2) of the NDPS Act as the procedure prescribed therein was not followed in drawing the samples and seizing the alleged narcotic substance. Further, there is a serious doubt about the correctness of samples sent for analysis as to whether they were actually the samples of the seized contraband.
9. Learned counsel for the respondent on behalf of the State submitted that the search and seizure was based upon the prior information received by the Intelligence Officer of NCB who has been examined as PW1. The accused persons were disclosed the identity of the officers and after obtaining their consent in writing, the search was carried out in the presence of Superintendent of Police, NCB (PW8) who was a gazetted officer. After seizure, two samples from each packet were drawn and packed separately and were sealed. The NCB seal No. 12 was affixed to it and the correct seal number was mentioned in the Mahazar and all other documents except in the godown receipt whereby inadvertently seal 4 2023 SCC OnLine SC 1328
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NC: 2024:KHC:37322 CRL.P No. 11994 of 2023 No. 11 was mentioned. The Officers involved in the search, seizure and arrest operation had duly submitted their report as referred to under Section 57 of the NDPS Act.
10. In order to test the above submissions, it would be relevant to refer to the provisions of Section 52A (2), (3) and (4) of the NDPS Act. The aforesaid provisions provide for the procedure and manner of seizing, preparing the inventory of the seized material, forwarding the seized material and getting inventory certified by the Magistrate concerned. It is further provided that the inventory or the photographs of the seized substance and any list of the samples in connection thereof on being certified by the Magistrate shall be recognized as the primary evidence in connection with the offences alleged under the NDPS Act.
11. For the sake of convenience, relevant sub- sections of Section 52A of the NDPS Act are reproduced hereinbelow:
"52A. Disposal of seized narcotic drugs and psychotropic substances.-
(1) --
(2) Where any [narcotic drugs, psychotropic substances, controlled substances or conveyances] has been seized and forwarded to the officer-in-
charge of the nearest police station or to the officer empowered under section 53, the officer referred to in sub-section (1) shall prepare an inventory of such [narcotic drugs, psychotropic substances, controlled substances or conveyances] containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the [narcotic drugs, psychotropic substances, controlled substances or conveyances] or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the [narcotic drugs, psychotropic substances, controlled substances or conveyances] in any proceedings under this Act and make an application, to any Magistrate for the purpose of-
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NC: 2024:KHC:37322 CRL.P No. 11994 of 2023
(a) certifying the correctness of the inventory so prepared; or
(b) taking, in the presence of such Magistrate, photographs of [such drugs or substances or conveyances] and certifying such photographs as true; or
(c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.
(3) Where an application is made under subsection (2), the Magistrate shall, as soon as may be, allow the application.
(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Criminal Procedure Code, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of [narcotic drugs, psychotropic substances, controlled substances or conveyances] and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence."
12. A simple reading of the aforesaid provisions, as also stated earlier, reveals that when any contraband/narcotic substance is seized and forwarded to the police or to the officer so mentioned under Section 53, the officer so referred to in sub-section (1) shall prepare its inventory with details and the description of the seized substance like quality, quantity, mode of packing, numbering and identifying marks and then make an application to any Magistrate for the purposes of certifying its correctness and for allowing to draw representative samples of such substances in the presence of the Magistrate and to certify the correctness of the list of samples so drawn.
13. Notwithstanding the defence set up from the side of the respondent in the instant case, no evidence has been brought on record to the effect that the procedure prescribed under sub-sections (2), (3) and (4) of Section 52A of the NDPS Act was followed while making the seizure and drawing
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NC: 2024:KHC:37322 CRL.P No. 11994 of 2023 sample such as preparing the inventory and getting it certified by the Magistrate. No evidence has also been brought on record that the samples were drawn in the presence of the Magistrate and the list of the samples so drawn were certified by the Magistrate. The mere fact that the samples were drawn in the presence of a gazetted officer is not sufficient compliance of the mandate of sub-section (2) of Section 52A of the NDPS Act.
14. It is an admitted position on record that the samples from the seized substance were drawn by the police in the presence of the gazetted officer and not in the presence of the Magistrate. There is no material on record to prove that the Magistrate had certified the inventory of the substance seized or of the list of samples so drawn.
15. In Mohanlal's case, the apex court while dealing with Section 52A of the NDPS Act clearly laid down that it is manifest from the said provision that upon seizure of the contraband, it has to be forwarded either to the officer-in-charge of the nearest police station or to the officer empowered under Section 53 who is obliged to prepare an inventory of the seized contraband and then to make an application to the Magistrate for the purposes of getting its correctness certified. It has been further laid down that the samples drawn in the presence of the Magistrate and the list thereof on being certified alone would constitute primary evidence for the purposes of the trial.
16. In the absence of any material on record to establish that the samples of the seized contraband were drawn in the presence of the Magistrate and that the inventory of the seized contraband was duly certified by the Magistrate, it is apparent that the said seized contraband and the samples drawn therefrom would not be a valid piece of primary evidence in the trial. Once there is no primary evidence available, the trial as a whole stands vitiated."
(Emphasis supplied)
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NC: 2024:KHC:37322 CRL.P No. 11994 of 2023 The Apex Court was considering the importance of Section 52A which deals with disposal of narcotic drugs and psychotropic substances. It deals with the manner of seizing, preparing of inventory of the seized material and forwarding of the seized material and getting the inventory certified by the Magistrate concerned. It is further observed by the Apex Court that the inventory or the photographs or the seized substance in connection with the samples shall be recognized as primary evidence in connection with the offence under the Act.
15. In the case at hand, as observed, the learned Additional State Public Prosecutor projects a bleak contention of 15 grams of ganja being seized from the body of the petitioners. Where is the sample is a mystery. What happened to 15 grams of ganja is nowhere indicated. After the seizure, it is neither reported nor an inventory is drawn nor the sample is sent to FSL. 15 grams of ganja is not that of a high quantity for it not to be sent to FSL. Therefore, the presence of 15 grams of ganja as drawn in the panchanama is a canard and shrouded with improbability and to be disbelieved. It is, therefore a clear case where there is blatant violation of
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NC: 2024:KHC:37322 CRL.P No. 11994 of 2023 Sections 50 and 52A of the Act, which are mandatory to be followed, if there is an allegation of the offence punishable under the Act. The submission of the learned Additional State Public Prosecutor that it was a case of Section 20 of the Act is again unsustainable, as the provisions of law i.e., Section 50 and 52A of the Act are given a go-by while drawing these petitioners into the web of the crime. It is not the allegation, it cannot become the allegation. Thus, all the submissions of the learned Additional State Public Prosecutor are repelled.
16. There is yet another glaring illegality in the case at hand. The 2nd respondent is the complainant. The Police have filed the charge sheet. A perusal at the charge sheet would depict about 10 witnesses. It is shocking that the complainant is not listed as a witness. If the complainant who has allegedly seized 15 grams of ganja or found the petitioners consuming ganja, he should have been prosecution witness No.1. He is not even a witness who is examined by the Investigating Officer for a trial to be conducted and shown as charge sheet witness. What kind of investigation and the charge sheet that is filed in the case at hand is highly ununderstandable. There are
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NC: 2024:KHC:37322 CRL.P No. 11994 of 2023 illegalities whole hog that have pervaded in the proceedings.
The petitioners at the relevant point in time were students.
Due to the act of three officers, one the complainant, two the officer in-charge of the police station and three, the officer who conducted mahazar, the petitioners are suffering even today.
The matter was moved, on an application filed by the 2nd petitioner that, he is losing his employment opportunities overseas, due to the sword of a narcotics case hanging on his head. The result of these officers indulging in blatant illegality is that, the career of the petitioners is put to jeopardy.
17. Sections 50 and 52A apart, as observed hereinabove, it is the deliberate act on the part of both the Investigating Officer and the Empowered Officer who have filed the charge sheet before the concerned Court to face the wrath of criminal justice system for maliciously prosecuting these petitioners.
The maliciousness is apparent on the face of the record. The report of FSL in unequivocal terms indicates that blood samples did not contain any contraband substance or even its derivatives, but the Police filed the charge sheet recording that FSL report has confirmed presence of contraband substance.
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NC: 2024:KHC:37322 CRL.P No. 11994 of 2023 The Station House Officer/Empowered Officer or the Investigating Officer/2nd respondent-complainant and the officer who drew mahazar cannot be left off the hook for having played with the lives of these young students. Therefore, I deem it appropriate to direct the Disciplinary Authority of these petitioners to initiate departmental enquiry for having filed false charge sheet, against these petitioners. The departmental inquiry shall be conducted in complete consonance with the principles of natural justice by affording all reasonable opportunities to the complainant and the Station House Officer.
18. This Court is coming across plethora of cases where there is complete violation of Sections 50 and 52A of the Act, despite the law being very clear that it should be mandatorily followed. Therefore, the competent authority - DG & IG or the Secretary of the Home Department shall forthwith issue a circular notifying all the Empowered Officers who are empowered to conduct search and seize contraband substances to mandatorily follow Sections 50 and 52A of the Act and their interpretation by the Apex Court in RANJAN KUMAR CHADHA supra in letter and spirit, failing which, it should be indicated
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NC: 2024:KHC:37322 CRL.P No. 11994 of 2023 that those officers would become open to disciplinary proceedings against them. While it is important that menace of either narcotic drugs or psychotropic substances be curbed by dealing them with iron hand, it is equally important that curbing shall be in accordance with law, by following the procedure established by law, as any violation of procedure would lead to obliteration of proceedings that would be initiated against the accused who would get away of loopholes left in law by the Empowered Officers. In view of the preceding analysis, I deem it appropriate to exercise my jurisdiction under Section 482 of the Cr.P.C. and obliterate the criminal case against the petitioners, failing which, it would become an abuse of the process of the law and result in patent injustice.
19. For the aforesaid reasons, the following:
ORDER
(i) Criminal petition is allowed.
(ii) Proceedings in C.C.No.8250 of 2021 pending before II Additional Chief Judicial Magistrate, Bengaluru Rural District arising out of crime in Crime No.227
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NC: 2024:KHC:37322 CRL.P No. 11994 of 2023 of 2019 registered by Varthur Police Station stand quashed.
(iii) In the light of quashment of proceedings, any kind of embargo hanging on the head of the petitioners for travel beyond the shores of the nation is also obliterated, except otherwise disentitled.
(iv) Disciplinary proceedings/departmental inquiry shall be initiated against the Station House Officer/ Empowered Officer and the Investigating Officer/2nd respondent, as observed in the course of the order.
(v) The action taken report as per direction No.(iv) supra shall be placed before this Court within 12 weeks from the date of a copy of this order.
(vi) A copy of this order shall be transmitted to the Secretary, Home Department, Government of Karnataka and the DG and IG, for its compliance.
Consequently, I.A.No.2 of 2024 also stands disposed.
Sd/-
(M.NAGAPRASANNA) JUDGE BKP List No.: 2 Sl No.: 3