Bangalore District Court
State By Ncb vs Iro Agwu Anya @ Jerry @ Hero on 17 January, 2022
KABC010232292017
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 17 th DAY OF JANUARY 2022
SPL.C.C. NO.471/2017
COMPLAINANT : State by NCB., Bengaluru
(By Spl. Public Prosecutor)
V/S.
ACCUSED : Iro Agwu Anya @ Jerry @ Hero,
32 years, S/o.Agu,. 13, situated at
Ground floor, Yarappanahalli
village, Bidarahalli Hobli,
Bengaluru East Taluk,
Bengaluru 77.
(Rep.by Sri HSI., Adv.)
1. Date of Commission of offence: 19.12.2016
2. Date of report of offence: 19.12.2016
2
3. Arrest of the accused : 20.12.2016
4. Date of release of accused on 28.4.2017
bail:
5. Period undergone in custody: 4 months 8 days
6. Date of commencing of 19.8.2019
recording Evidence :
7. Date of closing of Evidence : 13.9.2021
8. Name of the complainant: Sri Sabeeran Paul, IO
9. Offence complained of : U/s.21, 29 & 32B
R/w.Sec.8(c) of NDPS
Act
10. Opinion of the Judge : Offence proved U/s.21(a)
of NDPS Act & Sec.201
of IPC
Offence not proved
U/s.21(c) of NDPS Act
11. Order of sentence : As per final order
JUDGMENT
The Intelligence Officer, NCB, Bengaluru filed complaint against accused in NCB F No.48/01/13/2016/BZU for the offences punishable U/Sec.8(c) r/w.Sec.21, 29 32B(d) of NDPS Act.
CCH-33 3 Spl.C.C.471/2017
2. The allegations leveled in the complaint against the accused herein reads as here under: On 19.12.2016 at about 12.45 pm., complainant received information that accused is indulged in drug trafficking and has kept cocaine with him in his residence No.13, situated at ground floor, Paraphernalia village, Halliard's Hobli, Kanpur, Bengaluru East Taluk, Bengaluru. He has informed the same to his superior officer and after obtaining necessary direction he has secured staff members and went to the spot and reached the spot at 3.00 pm. There he secured two panchas and went to the house of the accused. They introduced themselves to the accused and asked whether he has kept cocaine with him. The accused took the team to the kitchen informing them that he will show the cocaine, suddenly he has opened the cap of a plastic bottle near the sink and threw it into the sink. Immediately one of the staff members took the bottle. On observing it was found some liquid remaining in the bottle. The accused disclosed that it is liquid cocaine. On weighing with the bottle it was 143 grams. The net cocaine 4 liquid came out to be 117 grams. A detail panchanama was drawn. The accused was arrested, produced before the court along with a detailed report, he was remanded to JC.
The accused moved bail petition in Crl.Misc.2950/2017 seeking grant of bail. This court has allowed the bail plea of accused vide order dated 25.4.2017. The seized samples were sent to forensic examination. After receipt of report, and on recording the statement of witnesses, on conclusion of investigation, a complaint is filed before this court alleging commission of offences punishable U/s.8(c) r/w.Sec.21, 29 32B(d) of NDPS Act.
3. This court on perusing the complaint averments and the annexed documents taken cognizance of the offences punishable U/s.8(c) R/w.Sec.21, 29 32B(d) of NDPS Act. The copy of the complaint filed by IO., NCB and the Annexures were furnished to the accused as provided U/Sec.207 of Cr.P.C. After hearing the accused, Charge framed against accused for the offences punishable U/Sec.8(c) R/w.Sec.21, 29 CCH-33 5 Spl.C.C.471/2017 32B(d) of NDPS Act by my Predecessor in office on 13.8.2018. The contents of accusation read over and explained to him. Accused pleaded not guilty and claimed to be tried.
4. To prove the allegation leveled against the accused, prosecution has examined P.Ws.1 to 5 and got marked Exs.P1 to P.24 and properties were marked as M.Os.1 to 4. 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.
6
5. Heard the arguments of Spl.P.P., and learned counsel for the accused. Memo with citations filed by learned Spl.P.P.
6. While dictating the judgment it is noticed that the charges against the accused in regard to Sec.201 of IPC., is not framed. On 31.12.2021 the Addl. Charge is framed and read over to the accused. He pleads not guilty and claims to be tried. Learned counsel for Accused and learned Prosecutor submits they would not lead any further evidence on the Addl. Charge and submits the evidence already on record may be considered. The argument already advanced may be considered. On considering the submission of learned counsel for Accused and learned prosecutor the matter is posted for judgment.
7. The points that arise for my consideration are as here under:
1. Whether the prosecution proves beyond reasonable doubt that on 19.12.2016 at about 3.33 pm., when the IO., NCB intercepted the accused herein at No.13, situated at ground floor, Yarappanahallili village, Bidarahalli Hobli, Bengaluru East Taluk, Bengaluru 77 he was CCH-33 7 Spl.C.C.471/2017 found in conscious possession of 117 grams of cocaine narcotics which is a commercial quantity illegally and he is doing the business of selling the contraband without holding any licence which is punishable U/s.21(c) of NDPS Act?
2. Whether the prosecution proves that the accused herein who was in possession of cocaine on seeing the investigation officer, NCB has poured the bottle containing the cocaine in a water sink and thereby he with an intention to screen the offence has done it which is an offence punishable U/s.201 of IPC?
3. What order?
8. My findings on the above points are as under:
Point No.1: Partly in the affirmative The prosecution has proved that accused is in possession of small quantity of cocaine which would attract Sec.21(a) of NDPS Act.
Point No.2: In the Affirmative Point No.3: As per the final order for the following:
REASONS
9. POINT NO.1 : 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 8 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 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 CCH-33 9 Spl.C.C.471/2017 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.
10. PW.1 (CW.1)Sri Sabeeran Paul K, the Intelligence Officer, NCB., Bengaluru is the complainant, seized the contraband, apprehended the accused, testified before this court that he stated to have received a credible information on 19.12.2016 when he was in his office that a person by name Iro Agwu Anya who is possessing a contraband, supplying to the students, youngsters and is residing at No.13, situated at ground floor, Yarappanahalli village, Bidarahalli Hobli, Kannur, Bengaluru East Taluk, Bengaluru. He has noted the information in a sheet which is at Ex.P1. He has send the information to his superintendent through mail who in turn had granted permission to constitute a team and to take action as per law. He has been to the spot at 3.00 pm., along with his team, met two localities requested them to be panchas at 10 the time of raid, who have consented to be panchas. He has shown his ID card to them. He along with his team and panchas came to the house of accused, knocked at his door, he got introduced himself to him and told him that they are going to conduct search. He has issued notice as per Sec.50 of NDPS Act which is at Ex.P3. He has apprised the right of accused to have personal search through a gazetted officer or Magistrate for which he replied stating that he will get his personal search through a gazetted officer which he has given in writing. They have decided to have the personal search of the accused through a gazetted officer. During personal search no incriminating article is found. When the kitchen of the house of the accused is inspected the accused has poured the bottle containing cocaine to the sink. When that bottle was taken there was little bit of cocaine in liquid form. When he was questioned about the act he has stated that the liquid found in the bottle is a cocaine. The said bottle is tested with DD kit and it is found to be cocaine. Thereafter, the bottle containing cocaine was weighed it was found to be 143 grams CCH-33 11 Spl.C.C.471/2017 an empty bottle was weighed it was 26 grams. When the contents of cocaine is separated from the bottle and weighed it was weighing 117 grams. Out of the bulk 5 grams is taken for chemical analysis. The sample and the bulk seized by affixing NCB seal No.2 and it is given No., as S1 and S2. The weighing machine is also seized. The rental agreement and passport of accused was also seized. Three test memos were prepared in the spot. A detail panchanama was drawn. All these proceedings were conducted in the presence of DIG., BSF., who is a gazetted officer.
11. Thereafter, summons was issued to the accused as provided U/s.67 of NDPS Act. His voluntary statement is recorded. Arrest memo was issued and accused was arrested. He has identified the seized articles before the court. The seized articles were thereafter forwarded to the superintendent with a forwarding memo, arrest report was submitted. The sample was sent to chemical analysis on 22.12.2016. He has identified the accused before the court.
12
12. In the cross examination he was questioned whether he has obtained search warrant from the Magistrate to conduct search, for that he has replied that search warrant is not required. It is brought out that the informant has not given the physical features of accused. He has not issued written notice to panchas. The place of incident is a residential area. It is suggested that he has not apprised the accused to have his personal search and his signature is forcibly taken on Ex.P3, the said suggestion is denied. It is brought out that the liquid found in the bottle is colourless. It is suggested that MO.3 content is not weighing 107 ml., the said suggestion is denied. It is suggested that he has not received any information and has not conducted the raid, the said suggestion is denied.
13. PW.2 is the Superintendent, NCB, testifies that he has received information through PW.1 on 19.12.2016 about the possession of contraband by a Nigerian citizen who is residing at Bidarhalli Hobli, Bengaluru. After receipt of the information he has granted permission to constitute a team CCH-33 13 Spl.C.C.471/2017 and to take action, through mail. On 20.2.20216 he has received the forwarding memo, seizure report, arrest report. After collecting the same he has issued godown receipt. On 22.2.2016 the sample was sent to chemical analysis to Hyderabad CFSL. In the cross examination it is suggested that he has not received any information and has not granted any permission to conduct raid, the said suggestion is denied.
14. PW.3 is the owner of the house where the accused resides states that on 19.12.2016 at 3.00 pm., NCB officers came to his house and informed him that they want to search the house of a Negro who is his tenant. He took them to the house where the accused was residing. The NCB officers knocked at his door and informed the accused that they are going to conduct search. They have conducted the search, accused has poured the contraband to a sink and in the bottle there was 140 grams of contraband which was examined through DD kit and it was seized. They have also seized the passport of accused, a detail mahazar was drawn. He has handed over the rent agreement to the IO. The mahazar which 14 was drawn in English was translated to him in Tamil language and he has affixed his signature on knowing its contents. He has stated that he has given statement in Kannada which is translated to English. He has identified the accused and articles before the court. In the cross examination it is suggested that NCB officers have not issued any notice and no search was conducted in the house of accused and no contraband is seized, the said suggestions are denied. When it is suggested that during the house search of accused contraband is not recovered, the said suggestion is denied. He has categorically stated accused has brought the contraband from the kitchen. The said contraband is tested by the NCB officers with a testing kit.
15. PW.4 is the scientific officer who has examined the sample which was sent for chemical analysis. He has conducted colour tests, UV visible spectrometry and gas chromatography mass spectrometry (GC - MS) methods and the result was positive for the presence of cocaine in the sample. After analysis and preparing a report he has sealed CCH-33 15 Spl.C.C.471/2017 the remnants and has affixed the CFSL seal and send it back to the superintendent NCB. He has identified the article before the court. In the cross examination it is brought that the sample which was sent for chemical analysis is 0.7855 grams. He has not conducted quantitative test. It is suggested that he has issued a false report without any analysis the said suggestion is denied.
16. PW.4 was recalled and further examined in chief. It is brought out that after examining the contents he has sent the empty bottle and has not sent back the remnant. He has further stated that if cocaine liquid is kept in a plastic bottle like M O 3 there is every possibility of evaporation. In the cross examination it is suggested that if cocaine liquid is stored in a bottle any possibility of evaporation. He states he cannot comment on the sample kept in the custody of IO. It is brought out that he has not mentioned the percentage of cocaine in the sample.
17. PW.5 is the then intelligence officer, NCB, Bangalore testifies that on 3.1.2017 she has informed Sampigehalli police 16 about the arrest of accused. She has received the records on 24.12.2016 for further investigation. On 23.1.2017 collected the CFSL report. She has issued notice to CW.3 and 4 on 10.1.2017 and has recorded their statements on 20.1.2017. On 21.7.2017 she has received a letter from FSL expert about the variation in the weight of sample sent for analysis. On 1.8.2017 she got clarification from CW.5 about the variation in the weight. On conclusion of investigation she has filed the complaint before this court on 18.9.2017. She has sent a clarification letter to CFSL, which is at Ex.P24. In the cross examination it is brought out that as per Ex.P19 article No.1 is 0.7855. She states during transit the sample is filled. In that regard a clarification letter was issued to the CFSL. It is brought out that MO.1 is the bulk seized from the possession of the accused. It is suggested that MO.2 is not 107 grams but it is 1 gram, the said suggestion is denied. It is suggested that Mos.2 to 4 are not seized from the spot. It is suggested that she has not sent any samples for CFSL for examination. She states seizing officer has sent the samples. She has not CCH-33 17 Spl.C.C.471/2017 recorded the statements of PWs.2 and 4 and other witnesses, nothing is seized from the possession of the Accused and he has been falsely implanted in the case.
18. It is vehemently argued by the learned counsel for the accused that mandatory requirements not followed at the time of conducting seizure. No independent witnesses were examined to prove the seizure. The alleged seizure of cocaine is not proved as the sample which alleged to have been sent to CFSL is spilled while transit. The quantum of contraband as alleged in the prosecution papers is without any material. The charges against accused does not stands proved.
19. On the other hand, prosecution contends that accused has shown the bottle consisting cocaine while the IO., NCB., intercepted. The seizure is proved by examining the official witnesses and the owner of the house who is an independent witness. The cogent evidence of prosecution witnesses which is not seriously tested by the defence indicates the case of prosecution. The evidence and scientific 18 expert further corroborates the say of seizing officer. The charges for which the accused is held stands proved. He has referred to Catena of case laws to substantiate his contention. He has referred to the judgment of Hon'ble Apex Court reported in 2020 SAR (Cri) 1113 in Jeet Ram Vs., NCB., Chandigarh for a proposition that non examination of independent witness is not fatal to the case of the prosecution.
20. It is further observed that plea of non examination of independent witnesses would not in any benefit the accused as the servants of the Daba where they were working under the accused court cannot expect such a person to be a witness against his own master. The non examination of independent witnesses is not fatal to the case of prosecution. Further, in the said case law, the Hon'ble Apex Court pleased to make an observation that examination of accused and the answers given by the accused can be used against him.
21. Here in the present case, the accused has stated that he was called to the police station and his passport was CCH-33 19 Spl.C.C.471/2017 seized and thereafter he has been falsely implanted in the case. That the said contention of accused is untenable for the reason that the owner of the house who has stated in unequivocal terms that the accused is his tenant and in his presence the incriminatory article is seized and the accused has thrown the contents of cocaine into the sink. The Hon'ble Apex Court in the said dictum of Jeet Ram Vs., NCB pleased to observe that in the Mohanlal's case Hon'ble Apex Court held that the functional and flexible approach in defining and understanding possession as a concept has to be adopted and the word has to be understood keeping in mind the purpose and object of the enactment.
22. In the judgment of Vijaysinh Chandubha Jadeja Vs., State of Gujarat reported in (2011) 1 SCC 609 referred to by the prosecution it is held that it is imperative on the part of empowered officer to apprise the person intended to be searched of his right U/s.50 of NDPS act to be searched before a gazetted officer or a magistrate. Here in the instant case, the 20 IO., has followed the mandatory requirement and has apprised the accused and his right to be searched by a gazetted officer or Magistrate.
23. The prosecution has referred to Gulam Nurmamad Theim vs., State of Gujarat reported in 2003 Crl.L.J 356 wherein it is held that search and seizure drawing of sample, procedure laid down in govt., notification dated 14.11.1985 not mandatory. Fact that sample was not drawn in manner prescribed in notification, not fatal. Here in the case on hand there is no dispute about drawing of sample by the IO in accordance with the procedure contemplated. Therefore, the said case law may not be made applicable to the present facts. He has also referred to the judgment of Kulvender singh Vs., State 2015 SAR Crl 597 wherein the Hon'ble Apex Court held that case of the prosecution cannot be rejected solely on the ground that independent witnesses have not been examined, when on the perusal of the evidence on record the court finds that the case put forth by the prosecution is trust worthy, CCH-33 21 Spl.C.C.471/2017 when the evidence of the official witnesses are trustworthy and credible, there is no reason not to rest the conviction on the basis of their evidence. The principle enunciated in the said dictum can be made applicable to the present facts as the testimony of official witnesses in regard to raid and seizure is trust worthy, but the quantum of contraband seized is not in accordance with the seizure report.
24. Learned Prosecutor has also referred to the judgment of Apex court reported in AIR 2018 SC 4255 S K Raju Vs., State of West Bengal for a proposition that when the place of incident is a public place, sec.42 is not applicable. Here in the instant case the IO., has entered the house of Accused and conducted raid. The contraband seized is not from the person but from the house, therefore, the mandatory requirement as described in Sec.42 and 50 need not be complied.
25. It is necessary for me to refer to the judgment of Hon'ble Apex Court where it is held that when the opponent 22 declining to avail him self an opportunity to put his case in cross examination, evidence tendered on that issue ought to be accepted. In the case of Sarwan Singh Vs., State of Punjab reported in AIR 2002 SCC 3652 the Hon'ble Apex Court is pleased to observe at para8 it is a rule of essential justice that whenever the opponent is declining to avail himself of opportunity to put his case in cross examination, evidence tendered on that issue ought to be accepted. Here in the present case on looking to the cross examination made by the defence there is no suggestion made to intelligence officer and the raiding team about non compliance of seizure procedure and personal search procedures. When there is no denial about the assertion of prosecution in conducting search and seizure as per the prevailing procedure, the assertion of prosecution about they following the procedure in seizing the contraband has to be accepted.
26. That apart in 313 Cr.P.C. statement accused did not give plausible explanation to the incriminating circumstances CCH-33 23 Spl.C.C.471/2017 proved against him. The Hon'ble Apex Court in Ganesh lal Vs., State of Rajasthan reported in 2002 (1) SCC 731 had convincingly clarified the proposition. If an accused fails to offer any explanation for his possession of the stolen property in a case built solely on circumstantial evidence that would held the trial court to draw an inference against the accused in the case, the fact omitted by him to answer being one within his exclusive knowledge. Therefore, a dual purpose is contemplated by the examination of the accused U/s.313 (1)(b) of Cr.P.C., rather than offering an opportunity to the accused to explain incriminatory circumstances against him, it would also help the court in the matter of appreciation of the entire evidence adduced during trial, on the basis of the answer furnished.
Here in the present case, during the course of recording 313 statement, accused herein have failed to give plausible explanation as to how he is in possession of the contraband. Except denial of incriminatory statement made against him and stating that police have called him to the station, collected his passport and prosecuted in the case, there is no explanation by him in regard to his false implication and to the 24 each incriminating circumstances posed to him in the statement.
27. Here in the present case, sec.50 of the NDPS Act is not applicable as the recovery of cocaine is not during the personal search of accused. The accused has kept the contraband in his kitchen and when the NCB questioned about the contents of the bottle he has poured into the kitchen sink. The non compliance of sec.50 of NDPS Act would not be made applicable. On going through the testimony of prosecution witnesses PW.1 who is the raiding officer has stated in unequivocal terms on receipt of credible information he has obtained the permission of IO., Superintendent, NCB., to whom he has sent the information he has received through mail. The superintendent NCB has granted permission to take action in accordance with law. On obtaining the permission of Superintendent, NCB., he has been to the spot along with his team and he has also requested the localities to be panchas and in their presence he has knocked the door of the house where the accused is residing. The owner of the house under CCH-33 25 Spl.C.C.471/2017 whom the accused was a tenant has opened the door and took him to the house of the accused. When the NCB officials informed the accused about possessing the cocaine he has took them to the kitchen. He has taken a bottle and when they questioned he was suppose to hand over the bottle to the NCB officials. When they have questioned the contents he has immediately spilled into the kitchen sink. The said bottle was seized and the contents were measured. It was found to be 117 grams, sample was taken and a detail mahazar was drawn. During the course of cross examination of PW.1 though certain suggestions are made disputing the search made in the house of accused, nothing worthwhile has been elicited to disbelieve the say of PW.1. PW.1 was questioned whether he has obtained search warrant to conduct the house search of the accused as provided under Sec.42 of the NDPS Act, any such authorised officer empowered in this behalf by general or special order of the State Govt., or any other department of Central govt., department of Narcotics, Customs, Revenue Intelligence, if he has reason to believe from 26 persons knowledge or information given by any person and taken down in writing that any narcotic drug or psychotropic substance or controlled substance in respect of which an offence punishable under this Act has been committed, authorised to enter into and search any such building, seize such drug, detail and search such person. The provision of NDPS Act empowers the authorised officer to conduct the raid. Here in the case on hand, though the personal search of accused is conducted, but nothing is recovered during the personal search, but the incriminatory article is recovered from the house of the accused. The contention of learned counsel for accused, that the gazetted officer was not examined and he is a material witness to the case and in the absence of gazetted officer the search and seizure is conducted is untenable for the reason, that the search is conducted in the house of the accused, the presence of gazetted officer is not required. Sec.50 is applicable in the case of the personal search. In this case, though the personal search was conducted, but nothing incriminatory is recovered during the personal search of the CCH-33 27 Spl.C.C.471/2017 accused. Therefore, the argument advanced by the learned counsel for the accused that the non examination of the gazetted officer who alleged to have been present at the time of seizure is untenable as the incriminatory article is recovered from the house of accused.
28. Here at another essential aspect to be considered is the article which was seized is a cocaine. As per specification of small and commercial quantity of narcotic drug or psychotropic substance issued by Ministry of Finance Department of Revenue Notification S.O.1055(E) dated 19.10.2001 at at Sl.No.27 the narcotic drug - cocaine, 2 grams is small quantity and 100 grams is commercial quantity. Here in this case the investigating agency contends that they have seized 117 grams of cocaine from the house of and accused and they have sent 5 grams of sample for chemical analysis. When the FSL expert is examined before the court he has stated that he has received only 0.7855 grams of colourless liquid for chemical analysis. As admitted by PW.5 Smt.Kumudavalli who is the IO., NCB who has sent the sample 28 cocaine for chemical examination has stated in unequivocal terms during the transit the contents of the sample was spilled. It is essential to note that no doubt the quantum which is sent for chemical analysis is a very small quantity. This court has to appreciate the aspect that the FSL expert on examining the cocaine has opined that the contents which was sent for his examination is cocaine. During the course of cross examination nothing has been brought out by the defence that quantum of cocaine which was sent for chemical analysis is insufficient to arrive at a conclusion in regard to the contents of cocaine in the liquid which was sent for chemical analysis.
29. Yet another aspect to be appreciated is the quantum of cocaine seized as per the prosecution papers is 117 grams but the quantum which is before this court after chemical analysis is small quantity as on opening the bottle the cocaine liquid is not found in the bottle. It is argued by the learned counsel for the accused that no contraband is seized and it is not sent for chemical analysis. The said contention of defence CCH-33 29 Spl.C.C.471/2017 is untenable for the reason that the quantum of contraband which is seized by the investigating agency as stated by the FSL expert is subject to evaporation if it is not properly kept. The quantum as per the prosecution papers is commercial quantity of cocaine, but when it was sent for chemical analysis is less than 5 grams. In regard to the seizure of bulk i.e., 117 grams the material available on record is insufficient to hold that the investigating agency has seized 117 grams of cocaine from the house of the accused. On the other hand the material placed by the investigating agency it could be held that the cocaine was seized but it is small quantity.
30. At another essential aspect to be appreciated in the case is the accused when he was intercepted by the investigating agency, he under the guise of showing the cocaine bottle has poured the contents to the sink. As provided U/s.201 of IPC., the act of accused in avoiding the investigating agency to seize the contraband would attract the ingredients of Sec.201 of IPC. The quantum of contraband 30 seized is a small quantity. The accused herein tried to screen the commission of offence by pouring the contents to the sink. Therefore, it could be held that the accused was in possession of small quantity of cocaine and he tried to screen the offence by pouring the contents in the kitchen sink. On careful analysis of the materials placed on record by the prosecution, I proceed to hold that prosecution has proved that Accused was in conscious possession of cocaine which is a small quantity and he has tried to screen the offence by pouring the contents of cocaine in the bottle and at that time he was apprehended by the investigating agency. The material placed on record by the prosecution is insufficient to hold that accused was in possession of commercial quantity of cocaine. In the result, Accused herein has to be convicted for possessing small quantity of contraband and for screening the commission of offence by pouring the cocaine to the sink. In the result, I answer Point No.1 partly in the affirmative and Point No.2 in the affirmative.
CCH-33 31 Spl.C.C.471/2017
31. Point No.3: In the result, following:
ORDER Acting under Section 235(1) of Cr.P.C. accused - Iro Agwu Anya is acquitted for the offence punishable under Section 21(c) of NDPS Act.
Acting under Section 235(2) of Cr.P.C., accused - Iro Agwu Anya is convicted for the offences punishable U/s.21(a) of NDPS Act and Sec.201 of IPC.
To hear regarding sentence.
[Dictated to the Stenographer, directly on the computer, typed by her, corrected, signed and then pronounced by me in Open Court on this the 17th day of January 2022) (B.S.JAYASHREE) XXXIII ACC & SJ & SPL.JUDGE (NDPS) BANGALORE.
ORDER ON SENTENCE Heard the accused and learned prosecutor regarding sentence.
It is submitted by learned counsel for accused that accused is aged 32 years and he is a Nigerian citizen. He came to India on business tour. On looking to the conduct of the 32 accused through out the trial, lenient view may be taken in the matter.
On the other hand, it is submitted by the prosecution that the accused have committed the offence punishable under NDPS act, which affects the younger generation and interest of the society. Therefore, the accused being guilty are liable for maximum punishment prescribed under the act.
Punishment must defeat the crime. The duty of the court to impose proper punishment depending upon the degree of criminality and desirability to impose such punishment. As a measure of social necessity and also as a means of deterring other potential offenders, the sentence should be appropriate defeating the crime.
Punishment is the coercion use to enforce law of the land, which is one of the pillars of modern civilization providing a peaceful society and life is the duty of the state. Lack of punishment causes the law to lose its force and eventually creates a society unable to maintain law and order and government tunable to protect its people. To administer the justice punishment is needed. Thus, philosophy behind the concept of punishment is not only to prove justice to the aggrieved, but besides this to maintain a security and safety in the society. To punish a criminal is not only to give torture to him or to humiliate but there is a higher objective to be achieved and that is to establish a peaceful society. The object CCH-33 33 Spl.C.C.471/2017 of punishment should be to bring about the moral reform of the offender. While awarding the punishment judge should study the character, age of the offender, his early breeding, his education and environment, the circumstances under which he committed the offence; the object with which committed the offence and other factors. The object of doing so to acquaint the court with the exact nature of the circumstances so that he may give punishment which suits the circumstances. The purpose of punishment is to reform the offender as a person so that he may become a normal law abiding member of the community once again.
The Hon'ble Apex court in State of M.P V/s Surendra Singh AIR 2015 SC 3980 based on the theory of proportionality it is laid down that "undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of the every court to award proper sentence having regard to the nature of offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. The court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of 34 appropriate punishment. Meager sentence imposed solely on account of lapse of time without considering the degree of the offence will be counter productive in the long run and against the interest of the society. One of the prime objectives of criminal law is the imposition of adequate, just, proportionate punishment which commensurate with gravity , nature of crime and the manner in which the offence is committed. One should keep in mind the social interest and conscious of the society while considering the determinative factor of the sentence with the gravity of crime.
With the backdrop of guidelines of Hon'ble Apex court in the above referred decision if the case on hand is scrutinized, in the instant case the charges U/s.21(C) of NDPS Act is not established by the prosecution. On the other hand, the allegations under Sec.21(a) of NDPS Act and Sec.201 of IPC., is established. The accused herein is having no previous criminal antecedents. At this stage, on looking to the nature of offence proved against the Accused and the quantum of contraband seized, I feel he is entitled for leniency. On considering the material available on record, I proceed to pass the following :
ORDER Accused is sentenced to undergo simple imprisonment for 4 months and to pay fine of Rs.5,000/ in default, he CCH-33 35 Spl.C.C.471/2017 shall undergo SI for 1 month for the offence punishable U/s.21(a) of NDPS Act.
Accused is sentenced to undergo simple imprisonment for 4 months and to pay fine of Rs.2,000/. In default, he shall undergo SI for 1 month for the offence punishable U/s.201 of IPC.
Sentences shall run concurrently and the fine amount shall be paid separately.
The period of detention already undergone by the accused shall be given set off in terms of Sec.428 of Cr.P.C.
M.O.1 to 3 samples & bulk are ordered to be returned to the complainant to produce before Drug Disposal Committee for disposal in accordance with law., after the appeal period.
M.O.4 weighing machine is ordered to destroyed after appeal period.
Further office is directed to send a copy of findings and sentence imposed in this case to District Magistrate as required U/s.365 of Cr.P.C.
Office is directed to supply free copy of judgment to accused forthwith.
[Dictated to the Stenographer, directly on the computer, typed by her, corrected, signed and then pronounced by me in Open Court on this the 17th day of January 2022) 36 (B.S.JAYASHREE) XXXIII ACC & SJ & SPL.JUDGE (NDPS) BANGALORE.
CCH-33 37 Spl.C.C.471/2017 ANNEXURE
1. List of witnesses examined for the:
(a) Prosecution:
P.W.1 : Sri Sabeeran Paul
P.W.2 : Sri Pankaj Kumar Dwivedi
P.W.3 : Sri Denial A
P.W.4 : Sri P Sudhakar
P.W.5 : Smt.Kumadavalli
(b) Defence :
NIL
2. List of documents exhibited for the:
(a) Prosecution:
Ex.P.1 : Information as per NCB form 1
Ex.P.2 : Information copy
Ex.P.3 : Notice
Ex.P.4 : Passport
Ex.P.5 : Test memo
Ex.P.6 : Panchanama
Ex.P.7 : Summons
Ex.P.8 : Voluntary statement
Ex.P.9 : Arrest memo
Ex.P.10 : Jamatalashi
Ex.P.11 : Forwarding memo
Ex.P.12 : Success report
Ex.P.13 : Arrest memo
Ex.p.14 : Godown receipt
Ex.P.15 : Letter of FSL
Ex.P.16 : Summons
Ex.P17 : Voluntary statement
Ex.P18 : Letter
Ex.P19 : FSL report
38
Ex.P20 : Letter
Ex.P21 : Summons
Ex.P22 : Statement
Ex.P23 : Letter
Ex.P24 : Letter
(b) Defence:
NIL
3.List of Material Objects admitted in evidence:
M.O.1 : Sample
M.O.2 : Sample
M.O.3 : bulk
M.O.4 : Weighing machine
(B.S.JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BANGALORE.
CN/*