Bangalore District Court
I.O., Ncb, Bzu vs A1 Shahid Ibrahim on 5 April, 2024
KABC010121662017
THE COURT OF THE XXXIII ADDL.CITY CIVIL & SESSIONS
JUDGE & SPL. JUDGE (NDPS),
BANGALORE. CCH.33.
PRESENT:
Smt.B.S.JAYASHREE, LL.M.,
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BENGALURU.
DATED: THIS THE 5th DAY OF APRIL 2024
SPL.C.C. NO.212/2017
COMPLAINANT : State by NCB., Bangalore.
(By Spl. Public Prosecutor)
V/S.
ACCUSED : A1: Shahid Ibrahim, S/o.Mohammed
Hussain, 29 years, R/at.ST29,
Shriram Samakruthi, Sy.No.57,
Kundalahalli village, KR Puram
Hobli, Bangalore East Taluk.
Permanent resident of S
Hithadhoo, Maldives.
A2: Anil Ahmed - split up in
Spl.C.C.2039/2021
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2. Date of report of offence: 10.11.2016
3. Arrest of the accused : 10.11.2016
4. Date of release of accused on A1: 25.10.2017
bail:
5. Period undergone in custody: 11 months 15 days
6. Date of commencing of 13.5.2022
recording Evidence :
7. Date of closing of Evidence : 15.9.2023
8. Name of the complainant: Sri Rathan K, IO
9. Offence complained of : U/s.8(c) R/w.Sec.21, 23,
28 & 29 of NDPS Act
10. Opinion of the Judge :
Offence not proved
11. Order of sentence : As per final order
JUDGMENT
The Intelligence Officer, Narcotics Control Bureau, Bengaluru filed complaint against accused Nos.1 and 2 in NCB.F.No.48/1/11/2016/BZU for the offences punishable under Sec.8(c) R/w.Sec.21, 23, 28 & 29 of NDPS Act.
2. The allegations leveled in the complaint against the accused herein reads as here under: CCH33 3 Spl.C.C.212/2017 2a. The accused No.1 herein is prosecuted for booking the parcel containing hashish oil to a foreign country to one person by name Mueen Mohammad of Maldives.
2b. The IO., NCB., by name Sri Rathan had received an information on 10.11.2016 at 12.15 hours that a call was received over phone from Sri Michael Martin Security Manager, DHL Express pvt., Ltd., that the parcel containing 10 tea packages which is being sent to Maldives with way bill No.6059127643 suspected to have some contraband substance which is received at DHL office, Yeshwanthpur Bangalore with a request for checking the same. Basing on the said information IO., NCB., obtained necessary orders from Superintendent, NCB, he had proceeded to DHL office, Yeshwanthpur around 2.30 hours equipped with DD kits and other necessary equipment. On reaching the said office he got introduced himself to the security manager and another Xray scanner of DHL and requested them to be witnesses for the entire proceedings, they have consented. A cartoon box bearing airway bill No. 6059127643 along with documents 4 submitted by the consignor was placed before the IO., NCB and his team. On verifying the said parcel it was booked by 3rd party whole sale vendor BRV Logistics India Pvt., Ltd. The consignor details is Md. Siddiq Shariff of Bengaluru and it was destined to Mueen Mohammad of Maldives. It was declared as branded tea leaves by the consignor. On opening the parcel there were 10 Nos., of Lipton Darjeeling tea packet and labeled as 500 grams on each packet. Each packet was weighed, the weight came more than 500 grams. Based on the said observation it was opened one by one and in that contraband was found concealed. On opening each of the tea packet a packet wrapped with aluminum foil was found inside every tea packet. On opening each of the aluminum foil wrapped packets a black coloured greasy substance was found. When it was tested with DD kit it gave positive result for the presence of Hashish oil. The entire parcel was seized. The weight of the hashish came around 1.900 Kgs. Sample was taken out of the bulk. A test memo was prepared. A detail panchanama is drawn.
CCH33 5 Spl.C.C.212/2017 2c. During follow up action the consignor Md., Siddiq Shariff of Bangalore was enquired, he has stated that the said parcel was belonging to Maldivian national who is using mobile No.7028426106 and the said person has asked Mohammad Siddiq to book the parcel in his name as he did not possess any document pertaining to his permanent address in India. The said Mohammad Siddiq used his documentary ID proof and send the parcel in his name. He had shown some conversations between himself and the said Maldivian national.
2d. Further during follow up action on 15.11.2016 IO., NCB received information from Mohammad Siddiq Shariff that a driver of said Maldivian national who had booked the parcel will be arriving at his courier in the afternoon to check about the parcel bearing airway bill No.6059127643 the NCB team reached the courier officer near Bangalore Bunde and mounted surveillance near the courier office of Md. Siddiq Shariff. A person arrived said to be the driver of Maldivian national came to enquire about the parcel. The NCB team intercepted the 6 said person and upon enquiry he had replied that his name is Shahid Ibrahim residing at Kundalahalli, KR Pura, Bangalore and he is is a Maldivian. He works as a driver in his associates office. His associate name is Anil Ahmed and the phone number of Anil Ahmed is 7028426106 he had booked the parcel bearing airway bill No.6059127643 along with Anil Ahmed to smuggle Hashish oil by concealing in the tea leaves. He has stated that he has shown the house of Anil Ahmed where he is residing with the family of Anil Ahmed. The NCB team proceeded to the house of Anil Ahmed. On entering the said house, the said Anil Ahmed was not in the house. The house search of Anil was conduced by the gazetted officer. No incriminatory articles were found. Statement of Shahid Ibrahim was recorded. In the statement he has stated that he had the knowledge of drug trafficking and he is doing business with his boss Anil Ahmed to earn easy money. IO., NCB had issued summons thrice to Anil Ahmed but he did not appear before the IO., for enquiry.
CCH33 7 Spl.C.C.212/2017 2e. The investigating officer, NCB had received information about accused No.2 Anil Ahmed that he is going to deliver variety of drugs to Yakubu Usman @ Ahmed Azumee Mohammed @ Chidiabere @ Senator an African national residing at Bangalore on 27.3.2017 at 10.30 hours. On the said date around 10.30 hours a blue colour Hyundai car bearing No.KA 02 MG 8628 reached outside the building of the address of Anil Ahmed. An African national came out of the building and sat inside the car at that time NCB team surrounded the vehicle and the inmates of the car revealed their names as Anil Ahmed and Yakubu Usman. They were further enquired. During search of Anil Ahmed a black colour viscous liquid is found in his hand which is hashish. During the search of Yakubu Usman white crystals stated to be methamphetamine. On search of the car ganja in the form of dried flowering and fruiting tops of plant was found in a plastic pouch and also some blot papers stated to be LSD was found. The weight of the ganja is 430 grams, the weight of hashish is 61 grams. The weight of LSD is 0.04 grams. The said articles 8 were packed and sealed. On enquiry the said Anil Ahmed stated that he had collected the said substance from Goa and used to supply to Ahmed Azumee Mohammed and the said Ahmed Azumee has stated that he has collected the said articles from Anil Ahmed.
2f. The statements of Anil Ahmed and Yakubu Usman was recorded, a separate case is registered against them. The IO., NCB in the present case had issued summons to Anil Ahmed on 27.3.2017 in connection with trafficking of hashish oil seized in this case. He in his statement has stated that he has booked the parcel to a Maldivian National containing hashish oil he used to receive money through foreign exchange western union. He has also stated that he used to supply hashish oil to Indian students and his African friends. He used to purchase drugs like LSD and methamphetamine from Goa and sell them to his African friends and also to local friends. Basing on the statement he was arrested and prosecuted in this case.
CCH33 9 Spl.C.C.212/2017 2g. The IO., NCB on collecting the incriminatory material in the case on receipt of FSL report, recording the statement of witnesses had filed complaint on 8.5.2017 before this court against accused Nos.1 and 2 for the offences punishable under Sec.8(c) R/w.Sec.21, 23, 28 & 29 of NDPS Act. The accused who were produced before the court under remand application and were remanded to judicial custody.
3. On presentation of complaint, accused were secured from judicial custody. After filing complaint accused were enlarged on bail. Copies of prosecution papers were furnished to them. Accused were heard regarding framing charge. Learned counsel for accused submitted that Charge may be framed. Hence, substance of accusation read over to accused by my learned Predecessor in office, accused have pleaded not guilty and claims to be tried. During the pendency of the accused No.2 absconded. In spite of taking coercive steps he is not secured, therefore, case against him came to be split up and registered as Spl.C.C.2039/2021. The matter proceeded against accused No.1.
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4. The prosecution to prove the charges, got examined P.Ws.1 to 7 and got marked Exs.P1 to P.38 and properties were marked as M.Os.1 & 8. After closure of prosecution evidence, accused was examined U/Sec.313 of Cr.P.C., by putting the incriminating circumstances available against him. The case of the accused is that of a total denial. On perusal of the evidence available on record and the statement of the accused, this court is of the considered view that the accused is not entitled for an order of acquittal U/s.232 of Cr.P.C. Therefore, the accused was called upon to lead evidence if any. The accused has submitted that he has no evidence to lead on his side. At the time of arguments it is noticed that there is an error in the Charge framed by my Predecessor in office on 28.12.2017, the Charge is altered, altered Charge read over to the accused No.1. he has pleaded not guilty. Learned counsel for accused No.1 and the prosecution submitted that they have no further evidence on altered charge.
CCH33 11 Spl.C.C.212/2017
5. Heard the arguments of Spl.P.P., and learned counsel for the accused. learned counsel for accused filed Memo of authorities. Perused the same.
6. The points that arise for my consideration are as here under:
1. Whether the prosecution proves beyond reasonable doubt that the accused No.1 herein along with accused No.2 booked the parcel to smuggle hashish oil which is prohibited contraband by concealing it with tea leaves, IO., NCB., when intercepted the parcel which is being sent to Maldives vide Way bill No.6069127643 at DHL Office, basing on a credible information that it contains contraband substance, on opening the same 10 packets of black colour greasy substance was found weighing 1.900 Kgs., which is Hashish oil as per field test report and FSL report and it was destined to Mueen Mohammad of Maldives and thereby accused No.1 along with absconding accused No.2 has committed the offence punishable U/s.21(C) 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: As per the final order for the following:12
REASONS
8. POINT Nos.1 & 2 : Testimony of prosecution witnesses who have conducted search, seizure, the official witnesses, FSL expert.
As per Sec.54 of NDPS Act which lays down a rule of statutory presumption and rule of evidence which empowers the court to raise a presumption against the accused that until and unless contrary is proved that the accused has committed an offence under Chapter IV of the said Act in respect of possession of any Narcotic Drugs and Psychotropic Substances, possession of which he fails to account satisfactorily. The object of Section 54 is to lighten the burden which rests on the prosecution to prove every ingredient of the offence under Chapter IV by calling in aid the presumption under Section 54 of the said Act. The object behind this provision is to subordinate the interest of an ordinary citizen to the wider social and economic interest of the community and the needs of the law enforcement agencies. The stage for raising the presumption arises when the prosecution proves CCH33 13 Spl.C.C.212/2017 that the accused had dealt with or had physical possession of the contraband drug. Presumption under this section - if an accused is found to be in possession of a narcotic drug, it is for him to account for such possession satisfactorily otherwise, the presumption under Section 54 comes into play. The initial burden of proof that the accused is in conscious possession of contraband drug is on the prosecution. Once, the burden of proof is discharged by the prosecution then the accused has to account for such possession satisfactorily otherwise, presumption prevails. With this back ground I would like to go through the evidence of prosecution.
9. PW.1 Sri Rathan the Intelligence Officer in the case who had seized the contraband article, apprehended the accused herein his testimony before this court is that on 10.11.2016 at around 12.30 p.m. he had received information from one Michale Martin who is the Security Manager of DHL Express Pvt Ltd., stating that, they have found one parcel bearing Airway Bill No. 6069127643 at DHL Office, Yeshwanthpur and they suspected that there is contraband in 14 the parcel and requested him to come and check the parcel. The same information was reduced to writing and submitted to CW.2 for further necessary direction. As per direction of CW.2, a team was formed and necessary DD kit, Laptop, Printer, Seal and sealing materials were taken and he along with the team departed at 1.45 p.m. from NCB Office to DHL office, Yeshwanthpur and reached there around 2.30 p.m. 9a. He further testifies that on reaching the spot, he and his team got introduced themselves as NCB officers by showing their ID cards and informed them that they have received information that there is about one suspected parcel lying at DHL Office. Then, they approached CW.7 and CW.8 and requested them to be present as independent witnesses to search and seizure, for which, they agreed. There after, the DHL team produced the parcel before NCB team on the request of CW.1. they have also informed that this was booked by a 3 rd party wholesale vendor by name BRV Logistics and upon checking the consignor details, it was mentioned as that one person by name Mohammad Siddiq Shariff of Bengaluru and CCH33 15 Spl.C.C.212/2017 the destined to one Mohammad Mueen Aazaad of Maldives. The description of the parcel was given as branded tea leaves. The parcel was opened and it was found to contain 10 packets of Lipton Darjeeling Tea Packets of 500 grams each. One by one packets were opened and it was weighed, it was found to be more than 500 grams. Then the packet was cut opened and inside aluminum foil packets found. The aluminum foil packets was cut opened and it was found to contain black greasy substance. The said article was tested with DD kit and it answered positive for Hashish oil. The same procedure was done for remaining nine packets. Similar substance was found in all the packets and all the substance was tested and all gave positive result for Hashish oil. The total substance recovered from all 10 packets were put into one transparent polythene pouch and weighed, it was found to be 1.9 KG.
9b. He has further testified that the said Hashish oil was transferred to four plastic containers numbered as P1 to P4 and sample were taken to the tune of 24 grams marked as S1 to S8. The samples were put in a plastic container, wrapped 16 with cello tapes and put inside an envelope. Further, all the tea leaves were put into transparent pouch, packed and sealed, packing materials were also packed and sealed. He had taken the signature of panchas on the seized article and he had affixed his signature. A detail panchanama is drawn, he has submitted seizure report to CW,2 U/s.57 of NDPS Act, the seized articles were deposited before CW.2 who is the godown in charge and it is noted in Malkhana register.
9c. During follow up action he has enquired CW.6, he has stated that he is owning a small Courier Company at Hennur Bande, Bengaluru and two Maldivians had booked the said parcel by saying that it is an urgent parcel and they did not have documents in their name to send the parcel and requested CW.6 to send the parcel in his name, for which, he had given his ID proof document for sending the parcel. He had shown Whatsapp chats made between himself and A1 & A2, he was instructed to inform CW.1 if the said persons approaches him for enquiry of the said parcel.
CCH33 17 Spl.C.C.212/2017 9d. He had further testified that CW.6 informed the NCB that, the said Maldivians would be coming to his Courier Shop in the afternoon for enquiry related to the said parcel. Immediately, the NCB team comprising CW.1 and his associates left the office and mounted surveillance around the said Courier Shop belonging to CW.6. In the afternoon, A1 approached CW.6 and enquired about the parcel which was seized by the NCB, then, immediately, the NCB team intercepted A1 and the team introduced themselves by showing their ID cards and explained the purpose of visit, for which, A1 introduced himself as Shahid Ibrahim and he is Maldivian National and he came to enquire about a parcel which he had booked along with A2 having parcel No. 6069127643 and upon asking, he said that, they had concealed Hashish oil inside the packets and they were sending it to Maldives and they have send three parcels containing Hashish oil earlier also. A1 was asked to show the address of A2 Anil Ahmed.
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9e. He has further testified that thereafter NCB team obtained search authorization from the Superintendent and proceeded to conduct the house search of A2. CW.6 was requested to be the witness for the house search. Then, the NCB team reached the said house of A2 along with Superintendent, V.V Singh. In the house search no incriminatory article was found.
9f. Thereafter, he has recorded the statements of A1 and CW.6 , in the statement of A1, A1 admitted his role in Hashish Oil trafficking and also submitted documents related to seized parcel and said that he got involved in drug trafficking along with A2. Voluntary statement of CW.6 was recorded, in which, he has identified A1 and A2 who had come to book the seized parcel. Based on voluntary statement of A1 and other materials, A1 was arrested by him on 16.11.2016 and produced before the Court.
9g. He has further testified that the samples drawn were forwarded to CFSL, Hyderabad through Zonal Director, NCB, Bengaluru for Chemical Analysis, arrest report was submitted CCH33 19 Spl.C.C.212/2017 to Superintendent on 17.11.2016. He has identified the accused No.1 and the remnant sample before the court.
10. The learned counsel for accused with an assertion that the IO has not followed the mandatory provisions of search and seizure had tested PW.1 in length. In the very first lines of cross examination PW.1 was questioned whether any diary is maintained by him in regard to the official work done by him, for which he has stated that no diary is maintained in their office to show the communication between himself and senior officer. In the further cross examination it is brought out that he has he has received information about the present case to his office phone, receptionist received the call and thereafter it has been connected to him, but that has not been mentioned in the report. Further it is elicited that he has not handed over the information in cover to the superior officer along with Ex.P1 he states that he has handed over only Ex.P1. Further he has not called Michael Martin to come to his office and to give information in writing. In the information name of consignor and consignee is not referred. He has 20 submitted the information within 15 minutes of its receipt to CW.2 who was incharge of office on that day. Further in Ex.P1 CW.2 has not written that he has received the copy of information and timing of receipt of information.
10a. It is further brought out that the parcel was produced before him at 3.15 pm., in the parcel name of consignee and consignor does not finds place, but the phone No., of consignee was there in the parcel. It was booked by 3 rd party vendor, he had not called the 3 rd party to the DHL office. It is further elicited that the weight of each bag was not mentioned in the mahazar. The weight of the tea leaves and the concealed hashish oil is not weighed separately.
10b. NCB seal No.3 is used in several cases, test memo was prepared at the time of mahazar and at the time of drawing the mahazar case was registered but case no., is not mentioned in the mahazar. It is further elicited that when forwarding memo was submitted to superintendent on 10.11.2016 at 21.00 hours accused herein were not the accused and their names were not known., but in Ex.P9 name CCH33 21 Spl.C.C.212/2017 of Shahid Ibrahim and Anil Ahmed is mentioned in Column No.2. In the test memo NCB Cr.No., is mentioned, MOs., also contain the crime No. Further it is elicited that in Ex.P11 his name is mentioned stating that he has received the information.
10c. In the further cross examination it is brought out that on 11.11.2016 he had not issued any summons to Mohammed Siddiq Shariff and had not recorded his statement. When Mohammed Siddiq was enquired he has stated that two Maldivians have booked the parcel but he has not named the said Maldivians. Only their phone Nos., is shared. It is suggested that two numbers shared by Mohammed Siddiq Shariff does not belong to Shahid Ibrahim, the present accused he states that the said numbers were used by both the accused. Further he admits that when accused No.1 was apprehended on 15.11.2016 the mobile and two SIMs were not seized. Further when Mohammed Siddiq Shariff PW.6 had shown the Whatsapp chats in his mobile with the said two SIM numbers, he has not taken the printout of the said chat 22 immediately and the phone of Mohammed Siddiq Shariff is not seized. Further it is brought out that he has not noted in any of the investigation papers that he had received information from CW6 that the person who has booked the parcel is arriving to his office. The said fact he had reduced to writing and had not informed the higher officer. Immediately after apprehension of accused No.1 in the office of CW.6 no document is written. In the Ex.P12 mahazar which is drawn in the house of accused No.2 there is no signature or endorsement of the occupier of the house. When it is suggested that since search is conducted in the night he ought to have prepared record of reasons, for that he states since he had already obtained search authorization he had not prepared record of reasons. Further it is brought out that in Ex.P13 panchanama it is no where written that search operation is carried and it was shown to the occupants. Immediately on apprehension of accused No.1 his statement is recorded, the time of interrogation and recording of statement is not mentioned in the statement.
CCH33 23 Spl.C.C.212/2017 10d. When he was questioned that in Ex.P19 arrest memo the phone No., of accused No.1 is not mentioned and there is no reference made about the summons copy issued to him. He has stated that accused No.1 is not possessing any phone number.
11. PW.2 is the in charge superintendent of NCB at the time of registration of the case. He has testified that on 10.11.2016, he has received the first information U/Sec. 42 of NDPS Act, he had issued NCB seal No.03 to CW.1 and directed him to constitute a team and take action as per law. He has retained the copy of information with me. Further, after seizure he has received a forwarding note along with seized properties through CW.1.
12. In the cross examination it is brought out that he has not mentioned the time of receipt of Ex.P.1 and the receipt of copy. Further it is elicited that he has not affixed his official seal on NCB Form No.1 information. On that particular point of time one V.V Singh was the Superintendent. He was in charge. In regard to the in charge act he has not produced any 24 document. Further he states that in Ex.P.1 the name of the suspect does not finds place and that of consignor. In Ex.P.22 he has not made any endorsement. It is suggested that on 10.11.2016 he was not in Bengaluru and his signature has been taken subsequently by CW.1, said suggestion is denied.
13. PW.3 is the IO., NCB who has filed the complaint. He has testified to that effect. In the cross examination it is suggested that he has filed a false complaint, said suggestion is denied.
14. PW.4 is the XRays scanner working in Yeshwanthpur DHL Express India Pvt., ltd., he had scanned the suspicious article in the xray machine on 9.11.2016. He has testified to that effect. He further had stated that NCB officers came to their office and checked the packed and opened it and when the packet was opened it was containing tea leaves, thereafter, there was greasy article which is found concealed which was weighed. The total weight came around 1.9 Kgs., and in his presence the entire procedure took place. He has affixed his signature. He has also stated that sample is CCH33 25 Spl.C.C.212/2017 taken and a detail mahazar is drawn by CW.1 and his superior is given airway bill, invoice copy, KYC documents to the NCB officers.
15. In the cross examination it is brought out that NCB officers have not given any summons to him to act as pancha at the time of procedure. Michael Martin is his security Manager. On that day NCB officials have not brought public witnesses. Further he has not informed NCB officers that on 9.11.2016 he has found the suspected article while scanning. He has not given in writing about the details of the parcel to the IO., NCB and they have not given any acknowledgement for giving the parcel to them. He is not aware what was the test conducted by NCB officials on the said seized greasy substance. He had not dictated the mahazar to the officers of NCB. The parcel was book by BRV Logistics India Pvt., Ltd. On the parcel the detail address and mobile No., was mentioned. They have not called the phone numbers of the persons found on the parcel. He was not given the copy of the mahazar by the IO., NCB. The CCTV footages of the search 26 and seizure are not handed over to IO. His statement is recorded by Vivek Pandey, but the said officer has not affixed his seal and signature on the statement recorded.
16. PW.5 is the scientific officer he has received 4 sealed articles along with a forwarding letter from NCB Bengaluru, dated 17.11.2016. The seal was intact. The said articles were marked S1 , S3, S5, S7. After opening the articles he has found in each articles black colour semi solid sticky substance. He has weighed the articles and noted the weight. He has conducted colour tests and Gas Chromatography Mass Spectrometry (GCMS) method. Based on above method. He has issued the report stating that ExhibitsS1,S3,S5, and S7 gave positive tests for the presence of charas. After the examination the envelopes containing the remnants/exhibits having weight 50.0912 grams in ExhibitS1, 49,5540 grams in ExhibitS3, 501780 grams in ExhibitS5 and 44.0104 grams in ExhibitS7 respectively with plastic containers have been sealed with the seal impression as per the specimen of the CFSL SRN HYD. After the completion of the examination the CCH33 27 Spl.C.C.212/2017 zonal director NCB Bengaluru was intimated to collect report and remnants.
17. In the cross examination of PW.5 it is brought out that mentioned the percentage of THC in the report and he has not on the samples sent for analysis. Further he has not mentioned the details of colour test, date of test and the result achieved in Ex.P26. The observation of the test is not mentioned in the report, It is suggested that without percentage of THC he cannot form any opinion and there should be THC percentage more than 20 to ascertain that the product as hashish or charas, said suggestion is denied.
18. PW.6 is the IO., who has proceeded with the further investigation in the case he had testified that On 18.11.2016 he has received the record from CW.1, recorded the statement of Madhusudhan owner of the house belonging to A1 and A2. He had recorded the statements of CW.7 and 8, issued notice u/Sec. 67 to A2 on 17.11.2016, 22.11.2016 and 1.12.2016 to appear before him, but he did not appear. He has sent requisitions to service providers of Airtel of CDR and CAF of 28 the mobile number to A2. CDR was collected. Further, 27.3.2017, he came to know that A2 has been intercepted in Cr.48/1/4/2017 in another case. A2 was present in response to the summons issued pertaining to that case. As A2 was required in this case he has issued notice to him U/Sec. 67 of NDPS Act, recorded his statement. He has accepted in his statement that he is involved in drug trafficking, selling drugs to college students and exporting drugs to his country Maldives. Based on the voluntary statement and recovery in two separate cases, he has arrested him on 27.3.2017 and submitted the arrest report to his superior. He has also identified the accused before the court.
19. In the cross examination it is brought out that in the statement of owner of the house Madhusudhan he has not stated hat A1 was staying along with A2 in the said house. It is suggested that Ex.P28 to P38 are created for the purpose of the case, said suggestion is denied.
20. PW.7 is the Regional Security Manager of DHL who has testified that on 9.11.2016 at 10.30 p.m., he had received CCH33 29 Spl.C.C.212/2017 Whatsapp message from PW.4 that there is suspicious shipment during Xray screening. He has instructed CW.8 to hold the shipment and told him that he will come on the next day morning for further checking and action. He reached the office on next day at 9.00 a.m., had seen the Xray scanner image, in the Xray scanner image, the article was looking suspicious. He has called the Zonal Director of NCB, Mr. Sinha he had requested him to send his team to verify the consignment. He has send his team, around 10.3011.00 am., the team came, they checked the Xray image, something was concealed inside the Tea packets, they said they want to open the shipment and to verify. He asked them to open and check. On open examination when the silver foil was opened they found one plastic pouch containing grease like substance. They have tested the sample with a DD kit and stated that it is Hashish oil. The said tea packets and hashish oil packed separately. The weight of Hashish is 1.9 kgs. They have drawn a detail mahazar, sample is also taken. His statement is recorded by the IO.
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21. In the cross examination it is brought out that he has informed the matter to Zonal Director at 10.11.2016 at 9.00 am., when he has reached the DHL office. He has informed the NCB Zonal Director about the Whatsapp message received pertaining to suspicious parcels received from his colleague on 9.11.2016 at 10.30 pm. He has requested Zonal Director to verify the consignment, he has send a team. After a week the said seizure his statement came to be recorded. It is suggested that no contraband article is opened and seized in his presence, he has signed the documents only to support the request of the NCB, said suggestion is denied.
Appreciation of Evidence and conclusion:
22. The prosecution by placing the aforesaid material evidence, vehemently argues that the accused No.1 herein along with accused No.2 had booked the contraband parcel to a foreign country. They had an intention to smuggle hashish oil to the tune of 1.900 Kgs., the said hashish oil was concealed in tea bags. The testimony of PW.1 who is the search and seizing officer amplifies the case of the prosecution that CCH33 31 Spl.C.C.212/2017 accused No.1 had booked the contraband parcel seized in the case along with accused No.2. PW.2 the Superintendent had received the information note, granted permission to conduct raid. PW.3 had filed the complaint. PW.4 is the xray scanner who had initially seen the suspected article and informed to his supervisor. His testimony corroborates with the say of PW.7 who had given information to PW.1 about the suspected drug parcel. They have also witnessed the incident. PW.6 has conducted part investigation in the case. Here in the case on hand, the officer has conducted the search and seizure by following the mandatory requirements and therefore, the seizure is in accordance with law. The charges made against the accused stands proved.
23. It is vehemently argued by the learned counsel for the accused that mandatory requirements not followed at the time of conducting seizure. After receipt of information the IO., NCB., PW.1 has noted the information submitted by PW2 in NCB form1, obtained permission to conduct raid. As per the guidelines, information has to be forwarded along with NCB1 32 form, Original information is not recorded properly. PW.1 received information through PW.7 Michael Martin. PW.1 is not the earliest informant. PW.7 Michael Martin in his testimony has stated that he has not coordinated with CW.1. On 9.11.2016 PW.7 has coordinated with the Zonal Director but the information was given to PW.1 on 10.11.2016. In the information note the time of receiving the information is not mentioned and PW.2 has not made any endorsement in the information note. Ex.P1 information note is prepared at 12.15 hours, whereas, CW.1 had received information around 12.30 pm. According to the say of PW.1 he had left to the DHL office at 1.30 pm. according to the say of PW.7 NCB team had been to the office of DHL in between 10.30 am., to 11.00 am. In regard to that there is no mahazar and no proceedings. The name of consignor and consignee is not stated in the Ex.P1 information note. PW.2 who was addl. Charge of Superintendent on that date and the Superintendent was not there in the office he had received the information. Seal was given to PW.1 by PW.2. No document is placed to show that CCH33 33 Spl.C.C.212/2017 PW.2 was in charge Superintendent on that date. During that relevant point of time Sri V V Singh was the superintendent, but in regard to incharge arrangement no document is placed. The Security Manager Ramswroop had intimated about the suspected concealment to PW.7 who in turn had coordinated with Zonal Director and PW.1. Parcel is booked in the name of Mohammad Siddiq Shariff, it was not in the name of accused nos.1 and 2. The Mobile seized in the case is also not belonging to the accused herein. There is no investigation as to who has presented the parcel. CW.6 Mohammad Siddiq Shariff whose Aadhaar card is used to book the parcel is not examined. In Ex.P3 to P5 phone No., of Siddiq is mentioned. Ex.P2 mahazar is drawn in between 3.00 to 6.00 pm. There is no call details collected in regard to the coordination of accused nos.1 and 2 pertaining to the present case drug parcel. There is no call call details pertaining to the present accused and Mohammad Siddiq. A1 had never been to the office of CW.6 to book the parcel. The screen shot produced before the court not pertaining to the conversation or message 34 of accused No.1. Mohammad Siddiq was questioned on 16.11.2016. at that time he has given a phone No., but in the said phone there is no conversation details between Mohammad Siddiq and accused nos.1 and 2. No proceedings were drawn in the office of Mohammad Siddiq. During house search of accused No.2 no incriminatory article is seized. On 10.11.2016 accused Nos.1 and 2 were not apprehended, but in the forwarding memo for deposit of seized contraband names of accused nos.1 and 2 is mentioned. Ex.P13 mahazar is fabricated as the signature of wife of accused No.2 is not taken to the said mahazar. Accused has not admitted booking of parcel in view of the latest judgment of Hon'ble Apex Court in Toofan Singh's case the statement of accused cannot form a base to convict the accused. Prosecution has to prove the search and seizure by placing corroborative and cogent evidence. When the search and seizure is not proved the prosecution cannot take the assistance of statement of accused to convict the accused. There are inherent improbabilities in the case of prosecution which creates doubt CCH33 35 Spl.C.C.212/2017 about the seizure of contraband as depicted in the prosecution papers. Therefore, accused is entitled for an order of acquittal. In support of his contention he has referred to a catena of decisions of Hon'ble Apex Court.
24. With the back drop of material placed on record by the prosecution, the contentions put forth by the defence and the prosecution, let me scrutinize the evidence available on record. It is the case of prosecution that accused No.1 along with accused No.2 had booked the contraband parcel to the tune of 1.900 Kgs., of hashish oil which is destined to Mueen Mohammad of Maldives. PW.1 IO., NCB., has been informed by the PW.7 that a suspicious shipment is found during xray screening. But, PW.7 who is the DHL, Regional Security manager has stated that he had informed the matter to the Zonal Director of NCB about the suspicious consignment who has sent his team at 10.30 am., to 11.00 am., to his office and in the DHL office the said consignment was opened and inside the tea packets contraband substance is found weighing 1.900 Kgs. According to PW.1 he is the first informant and received 36 the information through PW.7. According to PW.7 he has communicated the matter to Zonal Director and the team comprising IO., NCB visited the office at 10.00 to 11.00 am. The information report produced before the court which is at Ex.P1 contains that the information is received at 12.15 hours. When the IO., NCB had made a note of information at 12.15 hours and he had been to the office of DHL at 1.30 pm., the statement of PW.7 about visit of team comprising of IO., NCB seems to be doubtful.
25. It is also necessary for me to note that in the parcel the name of the consignor is stated as Mohammad Siddiq. He was enquired by PW.1. He has stated that two persons came to his office stated to be Maldivians and they have asked him to book the parcel in his name to one Mueen Mohammad of Maldives by using his Aadhaar card. CW.6 is not examined before this court. According to PW.1, CW.6 has shown his Whatsapp chats made between him and accused Nos.1 and 2, but the said details are not submitted before the court during the course of evidence. At the time of apprehension of accused CCH33 37 Spl.C.C.212/2017 No.1 on 15.11.2016 in the courier office, one mobile phone with two SIMs were not seized. CW.6 has shown Whatsapp chats in his mobile with accused nos.1 and 2, but the said print outs were not taken. The mobile phone of CW.6 is also not seized. PW.1 states on 15.11.2016 accused No.1 was apprehended and was enquired by him. He further states on 16.11.2016, accused No.1 had come to his office. The statement of accused No.1 is not recorded on 15.11.2016. On 16.11.2016 his statement is recorded. The material witness in the case is CW.6 who had given information about the incident is not examined before this court.
26. It is also pertinent to note that in Ex.P3, P4 & P5 the phone No., of CW.6 is mentioned. In Ex.P9 seizure report the name of accused nos.1 and 2 does finds place, but as on 10.11.2016 they were not apprehended by the IO., NCB. The name of accused does not finds place in the consignment. No CDR details collected in regard to the communication, conversation of accused nos.1 and 2 with CW.6. The Whatsapp chat details is also not before the court. In Ex.P14 summons 38 issued U/s.67 to accused his signature is not taken. PW.1 has admitted that he has not taken the signature of accused No.1 to Ex.P14. Accused No.2 is arrested in another NCB case by PW.6 on 27.3.2017. As he was required in his case he has been issued with notice, his statement is recorded pertaining to this case and he is arrested. After 4 months of arrest of accused No.1, accused No.2 is arrested.
27. The contraband article seized in the case is not subjected to inventory. As per the dictum of Hon'ble Apex Court 2023 SCC online SC 906 in the case of Simaranjit Singh Vs., State of Punjab. In the said case the Hon'ble Apex Court made the following observation: the question of drawing of samples at the time of seizure which, more often than not, takes place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Section 52A(4) of the Act, samples drawn and certified by the Magistrate in compliance with subsections (2) and (3) of Section 52A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act that mandates taking of samples at the time of seizure. That CCH33 39 Spl.C.C.212/2017 is perhaps why none of the States claim to be taking samples at the time of seizure." Hence, the act of PW7 of drawing samples from all the packets at the time seizure is not in conformity with the law laid down by this Court in the case of Mohanlal. This creates a serious doubt about the prosecution's case that substance recovered was a contraband.
The Hon'ble Apex Court with the aforesaid discussion pleased to set aside the judgment of conviction and opined that the act of IO in non complying with sec.52A creates serious doubt about the prosecution case.
Here in the case on hand the IO, NCB has not produced the inventory report to the court to show that he has submitted the articles before the Magistrate as per Sec.52A of NDPS Act. As per the aforesaid dictum the question of drawing of sample is not in accordance with law.
28. Further as per the judgment of Hon'ble Apex Court in 2016 (3) SCC 379 in Union of India Vs., Mohanlal and anr., also clearly highlights on the aspect that the article seized by IO., shall be subjected to inventory as per Sec.52A of 40 NDPS Act. Herein this case Io has not complied the mandatory provision for subjecting the seized article for inventory.
29. At this stage, it is necessary for me to refer the dictum of Hon'ble Apex Court referred to by the defence counsel particularly on the aspect of procedure contemplated under NDPS Act to effect seizure of contraband. In the case of State of Rajasthan Vs., Jag Raj Singh reported in 2016 Crl.L.J 3336 the Hon'ble Apex Court made a categorical observation that:
13. what section 42(2) require is that where an officer takes down an information in writing under sub section (1) he shall sent a copy thereof to his immediate officer senior. The communication Ex.P15 which was sent to Circle Officer, Nohar was not as per the information recorded in Ex.P14 and Ex.P24. Thus, no error was committed by the High court in coming to the conclusion that there was breach of Section 42(2).
Herein the present case PW.1 had received the information through PW.7, but PW.7 has stated that he has informed the matter to Zonal Director and investigation team visited the spot in between 10.30 to 11.00 am. Thus, doubt arises as to CCH33 41 Spl.C.C.212/2017 the actual search conducted at 10.30 to 11.00 am., or 1.30 pm. there is discrepancy in the say of PW.7 about the first information, further about the very receipt of information received on that particular point of time.
30. PW.3 is the officer filed the complaint before the court. Much discussion on his testimony is not warranted. When there is discrepancy about the very receipt of information on the particular point of time, much discussion on the say of PW.3 about filing the complaint is not warranted.
31. It is the vehement contention of prosecution that accused has admitted the booking of contraband parcel. In view of the dictum of Hon'ble Apex Court in Tofan Singh Vs., state of Tamil Nadu reported in AIR 2020 SC 5592 (Crl.Appeal No.152/2013 dt.29.10.2020) wherein the Hon'ble Apex Court held in categorical terms that:
(i) 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 42 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.
(ii) 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.
The categorical observation of Hon'ble Apex Court in the aforesaid dictum clearly highlights on the aspect that the statement of accused cannot be taken into account in order to convict an accused under the NDPS Act. 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. Thus, I proceed to hold that the prosecution cannot take the assistance of statement of accused in substantiating its case CCH33 43 Spl.C.C.212/2017 that accused has admitted the booking of the parcel containing contraband.
32. In the instant case the parcel is seized on 10.11.2016, accused No.1 is apprehended on 15.11.2016, accused No.2 is apprehended on 27.3.2017. the parcel does not contain the names of accused herein. The CW.6 who is the material witness to the case who had stated that accused Nos.1 and 2 had come to his office to book the parcel is not examined before the court. The alleged Whatsapp chat between CW.6 and accused Nos.1 and 2 is not before the court. Further, telephonic conversation between accused nos.1 and 2 and that of CW.6 is also not before the court. Basing on the statement of CW.6 accused No.1 and 2 were apprehended and prosecuted in the case. But, in the absence of testimony of CW.6 and in the absence of material about the communication between CW.6 and the accused herein the material collected by the investigating agency does not substantiate the allegation of prosecution that accused No.1 along with 44 accused No.2 had booked the parcel containing contraband article.
33. The prosecution had referred to the decision of Hon'ble Apex Court in the case of Balwinder Singh (Binda) Vs., NCB, Satnam Singh Vs., NCB in Crl.Appeal No.1136/2014 dated 22.9.2023. In the said case the Hon'ble Apex Court after detail reappreciation of the material opined the conviction and sentence awarded to the accused in the said case is correct. The Hon'ble Apex Court in length had discussed about the search and seizure procedures adopted in the said case, the scope of statement of accused in the back drop of Tofan Singh's case and had upheld the judgment of conviction. The facts and circumstances in the said case is different from the present case and hence, with due respect it may not be made applicable to the case on hand.
34. On collective analysis of the entire material available on record, I am of the confirmed opinion that prosecution has failed in proving the case that the accused No.1 herein along CCH33 45 Spl.C.C.212/2017 with absconding accused No.2 in contravention of provisions of NDPS Act had booked the contraband hashish oil to a foreign country to the tune of 1.900 Kgs. Consequently, the points for consideration are answered in the negative.
35. Point No.3: In the result, following:
ORDER Acting under Section 235(1) of Cr.P.C. accused No.1 Shahid Ibrahim is acquitted for the offence punishable under Section 21(C) of NDPS Act.
Entire records and property shall be kept in Spl.C.C.2039/2021 for trial of accused No.2.
[Dictated to the Stenographer, directly on the computer, typed by her, corrected, signed and then pronounced by me in Open Court on this the 5th day of April 2024) (B.S.JAYASHREE) XXXIII ACC & SJ & SPL.JUDGE (NDPS) BANGALORE.46
ANNEXURE
1. List of witnesses examined for the:
(a) Prosecution:
P.W.1 : Sri Rathan K
P.W.2 : Sri Pankaj Kumar Dwivedi
P.W.3 : Sri Amit Kumar Tomar
P.W.4 : Sri Ramswaroop
P.W.5 : Sri Sathish Rajaram Nailakar
P.W.6 : Sri Vivek Kumar Pandey
P.W.7 : Sri Michael Martin
(b) Defence :
NIL
2. List of documents exhiBited for the:
(a) Prosecution:
Ex.P.1 : Information
Ex.P.2 : Panchanama
Ex.P.3 : Airway bill
Ex.P.4 : Airway bill
Ex.P.57 : Invoice
Ex.P.8 : Test memo
Ex.P.9 : Forwarding memo
Ex.P.10 : Godown receipt
Ex.P.11 : Seizure report
Ex.P.12 : Search authorization
Ex.P.13 : Panchanama
Ex.P.14 : Summons to A1
Ex.P.15 : Summons to CW.6
Ex.P.16 : Summons to A2
Ex.P.17 : Statement of Mohammed Siddiq Sheriff
Ex.P.18 : Statement of A1
CCH33
47 Spl.C.C.212/2017
Ex.P.19 : Arrest memo
Ex.P.20 : Arrest memo
Ex.P.21 : Forwarding of exhibits of chemical
examination
Ex.P.22 : Forwarding note
Ex.P.23 : Complaint
Ex.P.24 : Summons
Ex.P.25 Statement of Ramswaroop
Ex.P.26 Test report
Ex.P.27 Forwarding memo
Ex.P.28 Statement of Madusudhan
Ex.P.29 Summons
Ex.P.30 Statement of Michel martin
Ex.P.31 Statement of Anil Ahmed
Ex.P.32 Summons
Ex.P.33 Arrest memo
Ex.P.34 Arrest report
Ex.P.35 Letter of Nodal office Airtel
Ex.P.36 65 B certificates
Ex.P.37 Enrollment for Airtel
Ex.P.38 Call details
(b) Defence:
NIL
3.List of Material Objects admitted in evidence:
M.O.1 to 8 : Samples
(B.S.JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BANGALORE.
CN/*