Bangalore District Court
State By Avalahalli P.S vs A1: Allauddin S/O Kasim Sab on 25 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 25th DAY OF FEBRUARY 2020
SPL.C.C. NO.601/2017
COMPLAINANT : State by Avalahalli P.S.
(By Public Prosecutor)
V/S.
ACCUSED : A1: Allauddin S/o Kasim Sab,
Bidarahalli Village/Hobli,
Begnaluru East, Bengaluru
District, Karnataka.
A2: Syed Akbar S/o Syed Aslam,
Bidarahalli Village/Hobli,
Begnaluru East, Bengaluru
District, Karnataka.
(By Sri AMJ., Adv.)
1. Date of Commission of offence: 26.7.2016
2. Date of report of offence: 26.7.2016
3. Arrest of the accused : 26.7.2016
4. Date of release of accused on A1: 24.8.2016
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bail: A2: 15.9.2016
5. Period undergone in custody: A1: 28 days
A2: 1 month 19 days
6. Date of commencing of
24.9.2019
recording Evidence :
7. Date of closing of Evidence : 2.1.2020
8. Name of the complainant: Shiva Kumar T.C., PI
9. Offence complained of : U/s.20(B)(ii)(b) of NDPS
Act
10. Opinion of the Judge : Offence not proved
11. Order of sentence : As per final order
JUDGMENT
The Police Inspector, Avalahalli Police Station, Bangalore filed charge sheet against accused in Cr.No.231/16 for the offence punishable U/Sec.20(B)(ii)(b) of N.D.P.S. Act.
2. Brief facts of the case are as under:
The case of the prosecution is that, on 26.7.2016 at about 1.30 pm., when the complainant was in the station received credible information that on Bidarahalli - Kittaganoor road, near the turning of Narayana Reddy's land, two persons CCH33
3 SPl.C.C.601/2017 are induced in selling ganja. He informed the said information to his superior officer. He requested Tahsildar to accompany him. Further he secured panchas and staff members and all of them conducted personal search for themselves and confirmed that they are not having any contraband and by 3.00 pm., they went to the spot and saw two persons standing at the curve holding plastic covers. They apprehended both the accused and enquired. They confessed that they possess ganja and they bought it from a person at Hoskote bus stand. On weighing the ganja in possession of accused No.1 it was 1 Kg., 500 grams. From accused No.2 it was weighing 1 Kg., 620 grams. They took 100 grams each for sample and packed separately. On personal search by Tahsildar they did not find any thing from both the accused except ganja in the cover. They drew panchanama, arrested the accused and produced before Magistrate and remanded to judicial custody. Later both the accused are enlarged on bail. But since accused No.2 remained absent, hence, NBW was issued. Accused No.2 appeared before the court on 4.1.2019, his bail bond was cancelled and he was remanded to JC.
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3. After taking cognizance registered the case. Copies of the prosecution papers were supplied to accused persons U/Sec.207 of Cr.P.C. After hearing, charge framed U/Sec.20(B) of N.D.P.S. Act, read over and explained to them. Accused pleaded not guilty and claimed to be tried.
4. In support of the case, prosecution has examined P.Ws.1 to P.W.7 and got marked Exs.P1 to P.14 and M.Os.1 &
2. Prayer of PP for reissue NBW to C.W.5 is refused as sufficient time was given. After closure, accused are examined U/Sec.313 of Cr.P.C., they denied the incriminating circumstances appeared against them and not chosen to adduce evidence for their defence.
5. Heard the arguments on both sides.
6. The points for consideration are as under:
CCH33 5 SPl.C.C.601/2017
1. Whether the prosecution proves that on 26.7.2016 at about 1.30 pm., on Bidar Halli to Kithaganur road, near Narayanareddy land, Bidarahalli Hobli, accused Nos.1 and 2 were in illegal possession of 3 Kgs., 120 grams of ganja, which is a narcotic drug without license or permit, there by accused Nos.1 & 2 have committed the offence u/S.20(B) of NDPS Act?
2. What order?
7. My findings on the above points are as under:
Point No.1: In the Negative.
Point No.2: See the final order for the following:
REASONS
8. POINT NO.1 : The learned P.P. vehemently argued that as per evidence of PWs.1 to P.W.7 and Exs.P.1 to P.14 and M.Os.1 & 2, 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.
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9. On careful perusal of the materials placed on record, the prosecution mainly relied on the testimonies of P.Ws.3 to
6. P.W.3 has stated that on 26.7.2016 at about 1.30 pm., at Bidarahalli to Kithaganur road, near Narayana Reddy Land, Bidarahalli Hobli, Bengaluru East he received information through phone that two persons were selling ganja. He requested the Tahsildar of KR Puram to act as Gazetted Officer and issued letter as per Ex.p5. He agreed to come along with him. He secured the Tahsildar and came to the station and secured CWs.3 and 4 panchas and issued notice to them to act as panch witnesses. C.W.2 gave notice to C.W.5 to bring weighing machine. They conducted personal search of themselves and confirmed that they have no drugs. Then they all went to the spot and saw two persons carrying plastic covers. On seeing them they tried to run away. They surrounded and apprehended both the accused persons. On searching the cover they found ganja. C.W.2 explained the legal right of the accused persons to be searched before Gazetted officer or Magistrate. Accused agreed to be searched CCH33 7 SPl.C.C.601/2017 by C.W.2. On personal search of the accused No.1 they seized 1 Kg., 500 grams and from accused No.2 seized 1 Kg., 620 grams in all they seized 3 Kgs., 120 grams of ganja. Out of which they 100 grams and packed separately. They prepared sample seal and gave to panch to produce the same before court. They drew mahazar Ex.P2. He bought the accused persons and articles and gave complaint as per Ex.P6 and registered the case. The FIR is at Ex.P7. He arrested the accused persons and recorded the voluntary statements of them as per Ex.P8 and P9. He recorded the statements of witnesses. On 8.9.2016 he sent the samples to FSL through PC.1149. On 22.3.2017 he received FSL report. On 2.8.2017 he handed over the record to C.W.13 for further investigation.
10. In the cross examination of P.W.3 he has stated that when he issued notice to C.W.2 the staff were not present. He denied that to go to the spot from station there are 34 ways. He volunteers and states that there are two ways and that they went in Bidarahalli route. He do not remember the colour of the plastic cover. He denied that accused have not given their 8 voluntary statement as per Ex.P8 and P9. He denied that he has not complied the mandatory provisions of NDPS Act.
11. P.W.4 on 26.7.2016 at about 1.30 pm., C.W.1 came and informed the information regarding selling by ganja by two persons at Bidarahalli, Bengaluru and requested to act a Gazetted Officer. He gave the request letter as per Ex.P5. He along with the police staff went in the govt., vehicles to the spot and saw two persons having ganja. They issued notice Ex.P1 to the panchas and Ex.P10 to weighing person to come to the spot. When they explained the legal right of the accused to be searched before Gazetted Officer or Magistrate the accused agreed to be searched by him. The notice issued to accused is at Ex.P11 and P12. On personal search of the accused No.1 they seized 1 Kg., 500 grams and from accused No.2 seized 1 Kg., 620 grams in all they seized 3 Kgs., 120 grams of ganja. Out of which they 100 grams and packed separately. They prepared sample seal and gave to panch to produce the same before court. They drew mahazar Ex.P2.
CCH33 9 SPl.C.C.601/2017
12. In the cross examination of P.W.4 has stated that C.W.1 came to his office and gave request letter to act as Gazetted Officer. He went directly to the spot from his office. They issued notice to panchas on the spot. He denied that he had conducted RRT cases in his office. He denied that he is deposing falsely only to help the prosecution. It is true that on M.Os.1 and 2 the time is not mentioned.
13. P.W.5 has stated that on 26.7.2016 at about 1.30 pm., C.W.1 secured him and informed the information that at Bidarahalli to Kithaganur road, near Narayana Reddy Land, Bidarahalli Hobli, Bengaluru East. C.W.1 secured Tahsildar of KR Puram to act as Gazetted Officer and secured CWs.3 and 4 panchas. They went to the spot at 3.00 pm., on seeing them the accused who were holding cover tried to run away. They apprehended and on search of the cover it was ganja. C.W.2 explained the legal right of the accused to be searched before Gazetted officer or Magistrate. The accused agreed to be 10 searched before Tahsildar. They issued notice to the accused. On personal search of the accused No.1 they seized 1 Kg., 500 grams and from accused No.2 seized 1 Kg., 620 grams in all they seized 3 Kgs., 120 grams of ganja. Out of which they 100 grams and packed separately. They drew mahazar Ex.P2.
14. In the cross examination of P.W.5 he has stated that when C.W.1 informed about the information he was in the station. The Tahsildar came to the spot at 2.15 to 2.30 pm. He do not remember the name of the police who gave the requisition to the Tahsildar to act as Gazetted Officer. Tahsildar came to the station. He further stated that he along with Tahsildar went in a single jeep. Whereas in the evidence of P.W.4 Tahsildar he has stated that he directly went to the spot. He denied that he has not gone to the spot, accused were not present there, they did not seize ganja from the accused and drew mahazar.
15. P.W.6 has stated that on 2.8.2017 on the instructions of his superior he took further investigation from CCH33 11 SPl.C.C.601/2017 CW.1 and after completion of investigation filed charge sheet. In his cross examination he has denied that he filed false charge sheet against the accused persons.
16. P.W.1 and 2 both independent panch witnesses have not supported the case of the prosecution. Nothing is elicited in their cross examination by learned PP except denial. In the absence of corroborated independent witnesses, the testimony of official witnesses are not reliable and credit worthy.
17. P.W.7 F.S.L officer stated that she conducted in all 5 tests on the sample articles and issued report Ex.P13 and opined that the sample articles responded positive for ganja. In her cross examination denied the suggestion that she has not personally conducted tests on the sample articles and issued false report. Of course as per the evidence of P.W.7, the sample article may respond positive for ganja, but the said sample articles are seized from the possession of the accused 12 is not proved as none of the panch witnesses have supported the case of the prosecution.
18. Ex.P1 notice to panchas. Single notice is issued both the panchas. Moreover, P.W.1 and 2 panch witnesses have denied the issuance of notice to them. Ex.P2 mahazar is not proved as none of the independent panch witnesses have supported the same. Ex.P3 & P4 statements of P.W.1 and 2 which are contrary to their evidence. Ex.P5 is request letter given to Tahsildar to act as Gazetted Officer. Ex.P6 complaint lodged by P.W.4 wherein existing legal right of the accused is not mentioned. Ex.P7 FIR, Ex.P8 & P9 voluntary statements 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.p10 notice issued to Babu Fakruddin to bring the weighing machine, Ex.p11 & 12 body search notice issued to accused wherein P.W.5 has put questions and put tick mark to the answers on behalf of accused persons. Further 3 rd option is given to the accused persons. Sec.50 Part 1 of the NDPS Act CCH33 13 SPl.C.C.601/2017 does not provide for it and when such option is given it would frustrate the provisions. Ex.p13 FSL report, Ex.P14 sample seal.
19. It is pertinent to note that the prosecution has not produced the SHD copy to show that immediately after receipt of the information he has reduced the same. Further, C.W.1 has not intimated the same to his superior and accorded permission to conduct raid along with copy of SHD. He has not produced the report for success of raid. Thus the mandatory provisions U/s.41, 42, 50 and 57 of NDPS Act is not complied by the prosecution.
20. In view of the decisions reported in 2009 Crl.L.J. 4299 in Karnal Singh Vs., State of Haryana, (2007) 1 Supreme Court Cases (Cri) 744 in Ritesh Chakarvarti Vs., State of MP, (1999) 7 SCC 280 in State of HP Vs., Jailal and others and in AIR 2013 Supreme Court 357 in the 14 case of Krishan Chand Vs., State of Haryana wherein it is held that: (A) Narcotic Drugs and Psychotropic Substances Act (61 of 1985), Ss 42, 50, 57 - Search - Pre search requirement of recording information received and sending it to superior officerDemands exact and definite compliance as opposed to substantial compliance - So is requirement of S.50 - Compliance with provisions of S.57 does not dispense compliance with requirements of Ss.42 and 50.
2014 Crl.L.J. 1756 in the case of State of Rajasthan Vs., Parmanan and another wherein it is held that:
(c) Narcotic Drug and Psychotropic Substances Act (61 of 1985), S 50 - Search and seizure - Option to be searched before Gazetted officer or Magistrate -third option given to accused persons viz., to be searched before Superintendent who was part of raiding partyWould frustrate provisions of S.50 (1) Search conducted therefore, is vitiated."
CCH33 15 SPl.C.C.601/2017 2002 Crl.L.J. 4502 in the case of Koyappakalathil Ahamed Koya Vs., A.S.Menon and another, wherein it is held that:
(c) Narcotic Drug and Psychotropic Substances Act (61 of 1985), S 50 - Search an seizureprocedure Right given to accused to get searched in presence of Gazetted officer or Magistrate -fact that members of raiding party informed accused that Gazetted Officer is present in raiding partyIt is allurement given to accused prompting him for expressing no objection for being searched in presence of said Gazetted officer - An not for asking to be searched in presence pf any other Gazetted officer or Magistrate
-Sai procedure is against safeguard provided by S.50 to accused.
AIR 2013 Supreme court 953 in the case of Sukhdev Singh Vs., State of Haryana wherein it is held that: (B) Narcotic Drug and Psychotropic Substances Act (61 of 1985), S 42 - Search an seizure - On receipt of secret informationRequirement to reduce information in writing and sent it forthwith to superior officer Is mandatoryNeeds strict 16 complianceSome delay in compliance is permissible only for special reasons but compliance should be prior to recovery.
(c) Narcotic Drug and Psychotropic Substances Act (61 of 1985), S 42, 15 - Search conducted hours after receipt of informationno effort was made by I.O to reduce information in writing and inform his higher authorities instantaneously or even after or reasonable delayNo evidence produced to show as to what prevented I.O from recording information and sending it to superior total non compliance with provisions of S.42 - Such defect is incurable - Accused liable to be acquitted.
2009 Crl.L.J. 2407 in the case of UOI Vs., Bal Mukund and others wherein it is held that: (B) Narcotic Drug and Psychotropic Substances Act (61 of 1985), Ss.8, 18, 67 - Recovery of narcotics confessional statements by accusedAdmissibility purported raid conducted early in morningLarge number of police officers including high ranking officers were presentaccused were found to be in possession of 10 Kgs., of narcoticsDocuments categorically show that accused were interrogated CCH33 17 SPl.C.C.601/2017 Therefore, confessional statements cannot be said, in the back drop of aforementioned events, to be made by them although they had not been put under arrestcourt while weighing evidentiary value of such statements cannot lose sight of ground realities circumstances attendant to making of such statements should be taken into consideration. On careful reading of the above said decisions, the fact, circumstances and ratio is similar with case on hand.
2014(4) Crimes 304 (P&H) - Ram Lubhaya vs. State of Punjab, 2011 (3) Crimes 210 (SC) - Rajendra Singh vs. State of Haryana, 2013 (1) Crimes 51 (SC) Suresh and others vs. State of Madhya Pradesh, 2011 (4) Crimes 26 (SC) - State of Delhi vs. Ram Avtar @ Rama, 2011(1) Crimes 508 (Karnataka) - K.K. Rejji and others vs. State by Murdeshwar Police Station, Karwar.
2014(2) Crimes 234 (Kar) in Ravi and others Vs., State by MannaEKhelli Police, Bidar district wherein it is held that: 18 "Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 20(b)(ii)(c) and 42 - Recovery of 5 bags of ganja weighing 45 kilograms from possession of appellants - Conviction by Trial Court - Appeal against conviction - Failure to comply with procedure under section 42 of Act - absence to record in writing the information received in first instance - No emergent situation which warranted postponement of said Act of recording the information received in writingNor any such record in writing at a later point of time - Held entire proceedings Vitiated by virtue of failure to record circumstances in writing - Quantity of ganja indicated as having been in possession of appellants was also inaccurate as the weighment was of stalks, leaves seeds and possibly the flowering and fruiting tops - inaccurate weighment would have a telling effect on the degree of punishment that could be imposedthis was because NDPS Act provides for a schedule which prescribes the degree of punishment dependent on the weight of substance involved -m hence, held that there was a failure in the charges being framed accurately against accused - impugned judgment of court below set aside - Appeal allowed."
CCH33 19 SPl.C.C.601/2017 2014 (1) Crime 324 (SC) State of Rajasthan Vs., Parmanand and another wherein it is held thus:
(a) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 50 - Provision is mandatory - but it applies to search of the person of the accused only -
does not apply to search of a bag carried by him - However, if the bag carried by him is searched and his person is also searched, Section 50 applies.
"(b) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 50 - Two accused persons - not informed of their rights individually - Joint notice communicated - one of the accused signing for both -
conviction vitiated."
On careful reading of above decisions, facts, circumstances and ratio is applicable to case on hand, as prosecution has not followed mandatory provisions.
21. For the above, in the absence of corroborated evidence the testimony of prosecution witnesses cannot be reliable to prove the guilt of the accused Nos.1 & 2. So many considerable contradictions and discrepancies found in the 20 prosecution witnesses. There is no link of chain found in the circumstantial evidence. Serious doubt arise in the mind of the Court to believe that accused have committed the offence. So accused are 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'.
22. Point No.2: In the result, following:
ORDER Acting under Section 235(1) of Cr.P.C. accused Nos.1 & 2 are acquitted for the offence punishable under Section 20(B) of N.D.P.S. Act.
Bail bond of the accused No.1 shall stands cancelled.
Accused No.2 is set at liberty if he is not required in any other case.
M.Os.1 & 2 samples are ordered to be returned to the complainant to produce before CCH33 21 SPl.C.C.601/2017 Drug Disposal Committee for disposal in accordance with law.
Accused Nos.1 & 2 are released U/Sec.437(A) of Cr.P.C., on execution of bond for Rs.50,000/ each 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 25th day of February 2020) (G.M.SHEENAPPA) XXXIII ACC & SJ & SPL.JUDGE (NDPS) BANGALORE.
ANNEXURE
1. List of witnesses examined for the:
(a) Prosecution:
P.W.1 : Sri Yallappa
P.W.2 : Ravi
P.W.3 : Shivakumar T N
P.W.4 : Harish Nayak
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P.W.5 : Syed Afroj
P.W.6 : H H Rangaswamy
P.W.7 : Smt.Suma
(b) Defence :
NIL
2. List of documents exhibited for the:
(a) Prosecution:
Ex.P.1 : Panch notice
Ex.P.2 : Panchanama
Ex.P.3 : Statement
Ex.P.4 : Statement
Ex.P.5 : Request letter
Ex.P.6 : Complaint
Ex.P.7 : FIR
Ex.P.8 : Voluntary statement
Ex.P.9 : Voluntary statement
Ex.P.10 : Notice
Ex.P.11 : Body search notice
Ex.P.12 : Body search notice
Ex.P.13 : FSL report
Ex.P.14 : Sample seal
(b) Defence:
NIL
3.List of Material Objects admitted in evidence:
M.O.1 : Sample
M.O.2 : Sample
CCH33
23 SPl.C.C.601/2017
(G.M.SHEENAPPA)
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BANGALORE.
CN/*