Bangalore District Court
Hal Ps vs A1 Saddam Mandal on 30 January, 2024
KABC010032202021
THE COURT OF THE XXXIII ADDL.CITY CIVIL & SESSIONS
JUDGE & SPL. JUDGE (NDPS),
BANGpALORE. CCH.33.
PRESENT:
Smt.B.S.JAYASHREE, LL.M.,
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BENGALURU.
DATED: THIS THE 30th DAY OF JANUARY 2024
SPL.C.C. NO.101/2021
COMPLAINANT : State by HAL P S
(By Public Prosecutor)
V/S.
ACCUSED : A1: Saddam Mondal - Split split up in
Spl.C.C.1583/2022
A2: Humesh Shah, S/o.Bapusha, 37
years, R/at.C/o.Srinivasa Reddy
Building, Keerthi Gardenia
Apartment, Munnekollala,
Karathahalli, Bengaluru.
2
A3: Bilal - Split up in
Spl.C.C.1583/2022
(Rep.by Sri BSG., Adv.)
1. Date of Commission of offence: 10.1.2017
2. Date of report of offence: 10.1.2017
3. Arrest of the accused : 11.1.2017
4. Date of release of accused on A2: 25.1.2017
bail:
5. Period undergone in custody: 14 days
6. Date of commencing of 19.8.2022
recording Evidence :
7. Date of closing of Evidence : 21.9.2023
8. Name of the complainant: Sri Guruprasad, PI
9. Offence complained of : U/s.21of NDPS Act
10. Opinion of the Judge : Offence not proved
11. Order of sentence : As per final order
JUDGMENT
This is a charge sheet submitted by the Police Inspector, HAL Police Station, Bangalore against the accused on the allegation that he has committed the offence punishable U/Sec.21 of NDPS Act.
CCH33 3 Spl.C.C.101/2021
2. The brief facts of the prosecution case are as follows: CW.1 PI., of HAL PS., is the complainant and raiding officer in the case. He has received credible information 10.1.2017 at about 3.00 pm., that near park situated at Karthiknagar, Doddanekkundi some three persons are selling brown sugar to the public. On receipt of the information he has made a note in the station house diary, informed the matter to the ACP, Airport, obtained permission to conduct raid. He along with panchas and staff left the station at 3.30 pm., and reached the spot at 3.45pm., and mounted surveillance in the spot. The informant had shown the three suspects who were standing nearby the park. He has immediately sent a police constable a decoy towards the said suspects. Decoy had moved towards the said suspects and signaled. Immediately he and the staff surrounded the said suspects. On enquiry they have revealed their names as Saddam Mandal, S/o.Baburali Mandal native of Nadya district, West Bengal, another person revealed his name as Umesh 4 shah, s/o.Bashu Shah native of Bihar and the third suspect has revealed his name as Bilal, S/o.Abdul Habipur, Damdam Nagar, Calcutta, West Bengal. They were informed about their right to have personal search through a gazetted officer. ACP was called to the spot to conduct the personal search of the accused. ACP came to the spot and informed about their right to have personal search through a gazetted officer and on taking their consent, he has proceeded to conduct personal search. On enquiry accused No.1 has stated that he has procured brown sugar from his native place with an intention to sell it to the public. During search of accused No.1, a packet containing brown sugar was found. When the packet containing brown sugar was weighed it was weighing 20 grams, 10 grams was taken as sample, bulk and the sample were packed and sealed. RA seal affixed on it. When accused No.2 was enquired he has stated that he is accompanying accused Nos.1 and 3 to sell the contraband article. When the plastic cover which was in the possession of A2 was checked and weighed it was containing 20 grams of brown sugar. 10 CCH33 5 Spl.C.C.101/2021 grams was taken as sample and bulk and sample were packed and sealed. During search of accused No.3 he was found in possession of small plastic packets which was kept by him to pack the brown sugar to sell the same to the public. After seizure of the contraband article a detail mahazar is drawn. Accused were arrested. CW.1 along with accused persons and seized articles and filed a complaint before the SHO which is the basis to registered a case against the accused in Cr.No.10/2017 for the offence punishable U/s.21 of NDPS Act.
3. The investigating agency on conclusion of investigation filed charge sheet against the accused Nos.1 to 3. This court on perusing the contents of police final report and the annexed documents taken cognizance of the offence punishable U/s.20(b) of NDPS Act, 1985. As accused No.1 & 3 are absconding, case against them is split up and registered in Spl.C.C.1583/2022. The case proceeded against A2. The copy of the charge sheet filed by PI., HAL PS., and the Annexures were furnished to the accused as provided U/Sec.207 of 6 Cr.P.C. After hearing the accused, Charge framed against the accused for the offence punishable U/Sec.22(b) of NDPS Act, 1985, on 30.6.2022. 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 4 and got marked Exs.P1 to P.9 and M.Os., to 3. After closure of prosecution evidence, accused is examined U/Sec.313 of Cr.P.C., by putting the incriminating circumstances available against him. The case of the accused is that of 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 have no evidence to lead on his side.
CCH33 7 Spl.C.C.101/2021
5. Heard the arguments of P.P., and learned counsel for the accused.
6. The points that arise for my consideration are as here under:
1. Whether the prosecution proves that on 10.1.2017 at about 3.00 pm., that near park situated at Karthiknagar, Doddanekkundi accused No.2 along with absconding accused Nos.1 & 3 was found in illegal possession of 40 grams of heroin without having any licence or permission to sell the same and thereby accused No.2 has committed the offence punishable U/s.22(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: As per the final order for the following:
REASONS
8. POINT NO.1 : The prosecution has examined PWs.1 to 4, the complainant raiding officer, gazetted officer who has conducted the personal search, FSL expert and the Police 8 Officer who has filed the charge sheet. The initial burden is on the prosecution to prove that the accused herein is found in possession of contraband article at the time of his apprehension. To discharge the burden, witnesses were examined.
9. P.W.1 has deposed that on 10.1.2017 at about 3.00 pm., he has received credible information that near park situated at Karthiknagar, Doddanekkundi some three persons are selling brown sugar to the public. On receipt of the information he has made a note in the station house diary, informed the matter to the ACP, Marthahalli, obtained permission to conduct raid. He along with panchas and staff left the station at 3.30 pm., and reached the spot at 3.45pm., and mounted surveillance in the spot. The informant had shown the three suspects who were standing nearby the park. He has immediately sent a police constable as a decoy towards the said suspects. Decoy had moved towards the said suspects and signaled. Immediately he and the staff surrounded the CCH33 9 Spl.C.C.101/2021 said suspects. On enquiry they have revealed their names as Saddam Mandal, S/o.Baburali Mandal native of Nadya district, West Bengal, another person revealed his name as Umesh shah, s/o.Bashu Shah native of Bihar and the third suspect has revealed his name as Bilal, S/o.Abdul Habipur, Damdam Nagar, Calcutta, West Bengal. They were informed about their right to have personal search through a gazetted officer. ACP was called to the spot to conduct the personal search of the accused. ACP came to the spot and informed about their right to have personal search through a gazetted officer and on taking their consent, he has proceeded to conduct personal search. On enquiry, accused No.1 has stated that he has procured brown sugar from his native place with an intention to sell it to the public. During personal search of accused Nos.1 & 2, 20 grams of brown sugar each is found. During personal search of accused No.3 plastic covers were found. 10 grams was taken as sample, bulk and the sample were packed and sealed. RA seal affixed on it. When accused No.2 was enquired he has stated that he is accompanying accused Nos.1 10 and 3 to sell the contraband article. When the plastic cover which was in the possession of A2 was checked and weighed it was containing 20 grams of brown sugar. 10 grams was taken as sample. Bulk and sample were packed and sealed. During search of accused No.3 he was found in possession of small plastic packets which was kept by him to pack the brown sugar to sell the same to the public. The contraband articles is seized. After seizure of the contraband article a detail mahazar is drawn. Accused were arrested. CW.1 along with accused persons and seized articles came to Police Station prepared a complaint and registered a case in Cr.No.10/2017 against the accused persons. Thereafter, seized articles were noted in the PF No.5/2017. He has recorded the statements of accused persons, staff and panchas. He has identified the accused and seized contraband sample before the court.
10. The learned counsel for defence contends that accused has been falsely implanted in the case. There is no recovery of any contraband from the accused. IO., has not CCH33 11 Spl.C.C.101/2021 followed the mandatory provisions at the time of search and seizure of contraband. With these specific assertion PW.1 was tested. In the cross examination it is brought out that the place of incident is a public place and there is public movement. On seeing the police accused did not make any attempts to run away from the spot. the panchas are not from the place where the seizure is effected. He has not taken the signature of the inmates of the house who are residing nearby the place of incident to the panchanama. The public who are there in the spot are not witnesses to panchanama. He has not taken the CCTV footage of the place of incident.
11. PW.2 is the gazetted officer, ACP of Marathahalli his testimony of on 10.1.2017 at 3.00 pm., he had received a requisition through Cw.1 that at Karthiknagar park, Doddanekkundi some three persons are selling brown sugar illegally. He has granted permission to CW.2 to conduct raid. After apprehension of the suspects he was informed by CW.1 to come to the spot to conduct personal search. He had been 12 to the spot at 4.30 pm., introduced himself to the accused persons, enquired them about their name and address, apprised them about their statutory rights of personal search, taken their consent proceeded for search. During search, A1 & A2 have produced a plastic cover in that there is 20 grams each brown sugar, out of 20 grams, 10 grams is taken as sample. During personal search of accused No.3 small plastic covers was found. A detail panchanama has been drawn in the spot. he has instructed CW.1 to take necessary action against the accused as provided under law. He has identified accused No.2 before the court and the remnant sample and other seized articles before the court.
12. In the cross examination of PW.2 ACP it is brought out that in Ex.P3 letter it is not stated that CW.1 has send the initial information along with the requisition letter. He has not seen the pubic purchasing contraband from the accused. He had not conducted preliminary test to assess the contraband is brown sugar. The place of incident is a public place. The CCH33 13 Spl.C.C.101/2021 localities were not called to be present as panchas and their signature is also not taken to the panchanama. He had not given information to accused in writing about their right to have search before a gazetted officer. He has stated that he has informed orally.
13. PW.3 is the FSL expert who has examined the sample which is sent to analysis and had issued a report stating that the sample which is sent for analysis is heroin. At the time of receipt of the sample the seal was intact. After examination she has issued a report. In the cross examination it is suggested that the sample sent for analysis is not pertaining to the present case and a false report is submitted, the said suggestion is denied.
14. PW.4 is the then PI of HAL Police Station on conclusion of investigation has filed a charge sheet. In the cross examination it is elicited that he has not conducted any investigation in this case. It is suggested that though the 14 charges against the accused is not proved, he has filed the charge sheet, the said suggestion is denied.
15. The contention of defence is IO has not followed the procedures contemplated U/s.42 and 50 of NDPS Act. There is total non compliance of Sec.42(2) of NDPS Act. Exact copy of the report has not been forwarded to higher officer. There is delay in submission of contraband for forensic examination. The remnant sample returned from FSL is not produced to the court. The decoy is not examined before the court. Panch witnesses not examined. The property is not submitted to inventory, no filed test conducted, information not reduced to writing. There is serious lacuna in the case of prosecution. The place where the raid is conducted there is heavy movement of public. The local persons were not witnesses to the panchanama.
16. The prosecution vehemently argues that heroin seized from the public place from the conscious possession of accused to the tune of 40 grams of Heroin accused failed to CCH33 15 Spl.C.C.101/2021 give explanation satisfactorily as to how he came into possession of the contraband. The prosecution witnesses particularly PW.1 & 2, have spoken in unequivocal terms about the seizure of contraband from the accused. IO on complying the statutory provisions of NDPS Act has seized the articles. The charges against the accused stands proved.
17. On looking to the investigation papers, PW.1 who being the search and seizing officer on receipt of the information has not reduced the information into writing. The said information exact copy has to be forwarded to the higher officer, but in this case it has not been done. There is non compliance of sec.42(2) of NDPS Act. 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: what section 42(2) require is that where an officer takes down an information in writing under subsection (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 16 coming to the conclusion that there was breach of Section 42(2).
With the back drop of the enunciation of law, let me now appreciate whether the investigation agency has followed the mandatory requirements of Sec.42 of the Act. PW.1 is the complainant. He has received credible information about sale of contraband at HAL station limits at Karthiknagar park, Doddanekkundi by some three persons. When they went to the spot and sent decoy to confirm about the sale of contraband by the said persons, the said persons were apprehended from the spot and they have revealed their names and addresses. During search of A1 and A2, 20 grams each Heroin is recovered, from A3 plastic covers is recovered.
18. As per the Drug law enforcement field officers hand book if a complainant receives information from a person he should get it recorded in writing in the first person, preferably in the handwriting of the informer duly signed by him or by putting his left thumb impression. The officer would then seal the recorded information after endorsing "recording by me" and CCH33 17 Spl.C.C.101/2021 sign it mentioning his name, designation and the time and date of recording. The next step involves filling in other entries including the gist of information in proper format and sending the same along with sealed envelop to his superior officer, if possible, immediately, or within 72 hours of such recording.
19. The compliance of Sec.42(2) is mandatory. Here in the case on hand, PW.1 as per his testimony before this court has not made a note in the SHD or any other register. It is mandatory requirement of Sec.42(2) that any information received by the empowered officer in regard to sale of contraband or trade of contraband has to be reduced into writing and prior to conducting raid, permission of higher ups has to be taken. Here in the case on hand CW.1 had not reduced the information into writing. Further, the exact copy of the information is not submitted to ACP along with the requisition. The said requisition letter is endorsed by the ACP and on the said requisition he has written that he has granted permission to conduct raid. The said requisition is not 18 annexed with the first information which was reduced into writing by CW.1. As per the aforesaid dictum of Hon'ble Apex Court when there is non compliance of Sec.42, the evidence collected is inadmissible. The entire seizure stands vitiated.
20. The complainant raiding officer PW.1 has informed the matter to the ACP and obtained permission to conduct raid. He being the empowered officer has not issued separate body search notice to accused Nos.1 to 3 apprising them about their right to have personal search before a gazetted officer or magistrate. Whether he has taken the consent of accused prior to conduct their search through a gazetted officer there is no document except mahazar recitals. Though he has stated that decoy is sent to confirm about the accused possessing contraband article, the decoy is not examined before the court. Whether the said decoy had purchased any contraband article from the accused there is no document.
21. Prior to conducting search of the accused it is the duty of empowered officer to inform the accused about their CCH33 19 Spl.C.C.101/2021 right to have their search through a gazetted officer, but except recitals of mahazar there is no document to show that CW.1 had apprised the right of the accused and taken their consent to conduct the personal search.
22. As per the dictum of Hon'ble Apex Court reported in AIR 2011 SC 2699 State of Delhi Vs., Ram Avatar while discharging the onus of Sec.50, prosecution has to establish that the information regarding existence of such a right had been given to a suspect. If such information is incomplete and ambiguity, then it cannot be construed to satisfy the requirements of Sec,.50. Non compliance of provision of Sec.50 would cause prejudice to the accused and therefore, amount to the denial of a fair trial. To secure a conviction under S.21 of the Act, the possession of the illicit article is a sine qua non. Such contraband article should be recovered in accordance with the provisions of S.50 of the Act, otherwise, the recovery itself shall stand vitiated in law. Here in this case the investigating agency has failed to comply sec.50 of the 20 NDPS Act. PW.1 in his testimony before this court has failed to state about the apprising the accused their right to have personal search before a gazetted officer. No body search memos issued to them, in regard to taking consent of accused for personal search there is no document.
23. The independent witnesses to the panchanama are not secured and examined before the court. The respectable localities were not witnesses to the panchanama. In the judgment of Hon'ble Apex Court reported in in (2006) 12 SCC 321 the Hon'ble Apex Court it was held that: "when no independent witnesses were examined, when no person who had witnesses the occurrence was made as a witness, considering the grave nature of offence, held there is always a danger that conjectures and suspicion may take the place of legal truth. In the absence of strict degree of proof and higher degree of assurance accused is entitled for benefit of doubt.
Here in this case, as per the observation of the Hon'ble Apex Court when no independent witnesses were examined, when no person who had witnesses the occurrence was made as a witness, considering the grave nature of offence, held there is CCH33 21 Spl.C.C.101/2021 always a danger that conjectures and suspicion may take the place of legal truth. The independent panch witnesses were not examined. When there is no independent corroboration and when independent and respectable person of the locality is not secured, in the said circumstance, the court cannot act upon the evidence of the official witnesses, without corroboration. That apart the contraband seized from the public place that too in a heavy crowded and traffic area creates doubt as to the seizure.
24. The sample seal is not taken in the spot and not handed over to panchas.
25. Articles seized must reach FSL safely. As per the say of PW.1 contraband seized in the case is on 10.1.2017. It is submitted to FSL on 5.9.2017. Here in this case there is inordinate delay of 8 months in sending the articles for FSL. The sample should be sent to 72 hours of seizure. In this case, that has not been complied. Further the FSL report is received on 13.8.2020. This rule is salutary because any 22 attempt at tampering with the sample recovered from the accused can have fatal consequences to the case of the prosecution. Strict compliance has to be insisted upon in such an event. But in this case there is belated submission of sample to FSL. Impression of seal should not be retained with the IO, it has to be handed over to panchas. In this case there is no report about handing over the sample seal to panchas. Further sample seal is not taken in the spot and it is not produced to the court.
26. The complainant seizing officer has not conducted field test to ascertain that the article seized is heroin. The place of incident is a public place. The localities were not secured at the time of search and seizure. The article seized were not submitted to inventory to collect the sample. The investigating officer who are examined before the court have not spoken about submitting the articles to inventory for collecting the sample. The sample sent to FSL is not subjected to inventory.
CCH33 23 Spl.C.C.101/2021 As per the judgment of Hon'ble Apex Court reported in 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 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 24 of IO in non complying with sec.52A creates serious doubt about the prosecution case. Here in the case on hand the IO 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. he has not spoken about submitting the articles to inventory.
27. 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 NDPS Act. Herein this case Io has not complied the mandatory provision for subjecting the seized article for inventory. On careful scrutiny of evidence there are serious lacuna in the case of prosecution which creates doubt about the case projected. Therefore, the benefit of doubt has to be extended to the accused. The evidence collected during search is in clear violation of procedure contemplated under the Act. Thus, to tie the strings together, there has been delayed submission CCH33 25 Spl.C.C.101/2021 of contraband to FSL. The respectable localities were not witnesses to the panchanama. No field test is conducted at the time of recovery. The contraband seized is not subjected to inventory. About apprising the accused his right to have search as provided U/s.50 there is no plausible evidence. The initial information received by the search and seizing officer is not reduced into writing and it is not forwarded to higher officer. The independent witnesses to panchanama were not examined. Thus, there are serious lacuna in the case of prosecution which creates doubt about the actual seizure of contraband effected by the accused No.2 herein along with other accused. Based on the above detailed discussions, I proceed to hold that prosecution has failed to prove beyond reasonable doubt that the accused has committed an offence 22(b) of NDPS Act Hence, I answer the point for consideration in the Negative.
28. Point No.2: In the result, following:
26
ORDER Acting under Section 235(1) of Cr.P.C. accused No.2 Humesh Shah is acquitted for the offence punishable under Section 22(b) of NDPS Act.
M.O.1 & 2 contraband is ordered to be returned to complainant PI., HAL PS., for producing before the Drug Disposal committee for disposal. M.O.3 empty plastic cover is ordered to be destroyed.
[Dictated to the Stenographer, directly on the computer, typed by her, corrected, signed and then pronounced by me in Open Court on this the 30th day of January 2024) (B.S.JAYASHREE) XXXIII ACC & SJ & SPL.JUDGE (NDPS) BANGALORE.
ANNEXURE
1. List of witnesses examined for the:
(a) Prosecution:
P.W.1 : Sri Guruprasad
P.W.2 : Sri P Nageh kumar
P.W.3 : Dr. Vani N
P.W.4 : Sri Mohan S Y
CCH33
27 Spl.C.C.101/2021
(b) Defence :
NIL
2. List of documents exhibited for the:
(a) Prosecution:
Ex.P.1 : Panch notice
Ex.P.2 : Panch notice
Ex.P.3 : Request letter
Ex.P.4 : panchanama
Ex.P.5 : Complaint
Ex.P.6 : Fir
Ex.P.7 : Requisition
Ex.P.8 : FSL report
Ex.P.9 : Sample seal
(b) Defence:
NIL
3.List of Material Objects admitted in evidence:
M.O.1 & 2 : Sample contraband
M.O.3 : Plastic covers
(B.S.JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BANGALORE.
CN/*
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