Bangalore District Court
Vijayanagar Ps vs Ani Ochiabuto Hycient on 17 September, 2025
KABC010124902024
THE COURT OF THE XXXIII ADDL. CITY CIVIL &
SESSIONS JUDGE & SPL. JUDGE (NDPS),
BANGALORE. CCH.33.
: P R E S E N T:
SMT.LATHA,
XXXIII ACC & SJ & SPL. JUDGE (NDPS)
BENGALURU.
DATED: THIS THE 17th DAY OF SEPTEMBER 2025
SPL.C.C. No.855/2024
COMPLAINANT : State by Vijayanagar Police
Station
(By Public Prosecutor)
V/S.
ACCUSED : Sri. Ani Ochiabuto Hycient,
S/o.Jacob Ani,
Aged about 41 years,
R/at. Meddahalli Seegehalli,
T.C.Palya, Bangalore 560 049.
Permanent resident of Asaba,
Anambra, Nigeria 320 001.
(By Sri PCM., Adv.)
1. Date of Commission of offence: 13.11.2023
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2. Date of report of offence: 13.11.2023
3. Arrest of the accused : 13.11.2023
4. Date of release of accused on bail: In judicial custody
5. Period undergone in custody: Still in judicial
custody
6. Date of commencing of
6.1.2025
recording Evidence :
7. Date of closing of Evidence : 17.1.2025
8. Name of the complainant: Police Sub
Inspector Sri
Mounesh Badagi
9. Offence complained of : U/s.8(c) R/w.
Sec.22(C) of NDPS
Act & Sec. 14 of
Foreigners Act
10. Opinion of the Judge : Charges proved
11. Order of sentence : Accused is
convicted
::JUDGMENT::
The accused is prosecuted by the Vijayanagar Police, Bangalore on the allegation that he is found in possession of CCH-33 3 Spl.C.C.855/2024 contraband opium which is an offence punishable U/Sec.8(c) R/w.Sec.22(C) of N.D.P.S. Act and Sec.14 of Foreigners Act.
2. The case of the prosecution in nutshell is as under:-
On 13/11/2023 at about 8.30 pm., the complainant, PSI., Vijayanagar police station had received a credible information through an informant that at West of Chord Service Road, near Umiya Bhavan, Bengaluru a person is selling drugs to the public. On receipt of the information, he had noted down the said information in the Station House Diary and informed the matter to his higher officer/ACP., obtained permission from him to conduct raid.
Subsequently, he along with mahazar witnesses and his staff had been to the spot at 10.05 am., and the informant showed the suspected person. He apprehended him and on enquiry he had revealed his name and address. On questioning further he had admitted that he is possessing MDMA. On personal search of the accused they found 62 Grams of MDMA, he seized it and a seizure mahazar was 4 drawn in the presence of mahazar witnesses, took the accused and seized article to the police station. He prepared a reported and submitted before the Station House officer.
On the basis of the report submitted by the PSI a case came to be registered against the accused in Cr.No.197/2023 for the offences punishable U/Sec.8(c) & 22(c) of NDPS Act and Sec.14 of Foreigners Act. Consequently, the accused was produced before jurisdictional Magistrate.
3. The learned Predecessor-in-office of this Court, took cognizance of the offences punishable under Sec.8(c) R/w.Sec.22(c) of NDPS Act,1985 and Sec.14 of Foreigners Act. The copy of the charge sheet and annexed documents were furnished to the learned counsel appearing for the accused as provided under Sec.207 of the Criminal Procedure Code, 1973. After completion of investigation the Investigating officer submitted charge sheet before the Court. Since the offence alleged against the accused are cognizable in nature, the predecessor-in-office of this Court heard the learned counsel for the accused and Public CCH-33 5 Spl.C.C.855/2024 Prosecutor before charge and framed the Charges against the accused for the offence punishable under section 22(c) of NDPS Act, 1985 on 13.11.2024, read-over and explained to the accused in the language known to him. He pleaded not guilty and claimed to be tried. Therefore, the case is posted for recording the evidence on behalf of the prosecution.
While going through the records for preparing judgment, from the FSL report it is noticed that the contraband seized is not MDMA and it responded positive for Methamphetamine along with Ammonium Sulphate. Moreover, though there are allegations regarding violations of conditions of Passport and VISA against the accused the Charge for the offence punishable U/s.14 of Foreigners Act has not been framed. In view of that the Charge already framed has been altered and Addl. Charge for the offence punishable U/s.14 of Foreigners Act is framed.
4. The prosecution in order to prove the Charges levelled against the accused examined four witnesses as 6 P.W.1 to P.W.6 and got 30 documents marked as Exs.P1 to P.30 and got two material object marked as M.O.1 & 2. After conclusion of prosecution evidence, the accused was examined U/Sec.313 of Cr.P.C. However, he denied the incriminating statements made against him and did not offer defence evidence.
5. Heard the arguments of P.P., and learned counsel for the accused. Perused the Citations referred to by the learned counsel for the accused.
6. The learned counsel for the accused has relied on a number of decisions:-
1. 2008 SCC Online P&H 793 in the case of Kashmir Singh Vs., State of Punjab
2. (2011) 1 SCC 609 in the case of Vijaysinh Chandubha Jadeja Vs., State of Gujarat
3. Gazette Notification
4. Crl.Petition No.8302/2025 dated 10.7.2025 in the case of Issa toure Vs., State
5. 2023 LiveLaw (SC) 724 in the case of Minu Pun Vs., State of Uttar Pradesh CCH-33
7 Spl.C.C.855/2024
7. Having heard the learned Public Prosecutor, the learned Counsel for the accused and on perusal of the above rulings, the following points that arise for consideration is as follows :-
Point No.1 : Whether the prosecution proves beyond reasonable doubt that on 13/11/2023 at about 8.30 pm., on West of Chord Service Road, near Umiya Bhavan, Bengaluru accused was found in illegal possession of 62 grams of Methamphetamine along with Ammonium Sulphate without having any licence or permission to sell the same and thereby accused has committed the offence punishable U/s.22(c) of NDPS Act?
Point No.2: Whether the prosecution proves that the accused herein has over stayed in India even after expiry of VISA which is an offence punishable U/s.14 of Foreigners Act, 1946?
What Order ?
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8. My findings on the above points are as under:
Point No.1: In the Affirmative Point No.2: In the Affirmative Point No.3: As per the final order for the following:
::REASONS::
9. POINT No.1 & 2:- The prosecution, in order to bring home the guilt of the accused, has examined CW1 Sri.Mounesh Badagi, PSI of Vijayanagar police station as PW1. PW1 in his evidence deposed that on 13/11/2023 at about 8.30 am., the complainant has received a credible information through an informant that at West of Chord Service Road, near Umiya Bhavan, Bengaluru a person is selling drugs to the public, that on receipt of the information, he reduced the information in the Station House Diary in writing, he has informed the matter to the higher officer, obtained permission to conduct raid, that he secured CWs.2 and 3 through his staff as panch witnesses, that he along with panchas and staff had been to the spot at 10.05 am., and the informant showed the suspected person, CCH-33 9 Spl.C.C.855/2024 that he prepared the record of reasons at the spot in the presence of panchas and conducted personal search themselves and confirmed that they are not possessing any contraband, he went to the spot in govt., vehicle bearing No.KA 02 G 4695 and reached the spot at 10.05 am., along with investigation tools and mounted surveillance, that at about 10.15 am., one person came on a two wheeler TVS N Torq, that they apprehended him and on enquiry he has revealed his name and address, that on questioning further he has admitted that he is possessing MDMA, that he requested CW.4 gazetted officer to come to the spot to conduct personal search of the accused, that CW.4 came to the spot and apprised the legal right of the accused and issued questionnaires to the accused, that on personal search of the accused they found 62 Grams of methamphetamine, cash of Rs.3,000/-, that they seized the same along with the two wheeler bearing No.KA 03 JY 8111 and drew a seizure panchanama, that he along with the accused, seized articles and documents came to the police 10 station and produced before the SHO along with report, that the accused further reveals that his passport and Visa have been lapsed and that based on the said report a case in Cr.No.197/2023 is registered against the accused for the offences punishable U/Sec.8(c) & 22(c) of NDPS Act and Sec.14 of Foreigners Act.
10. The prosecution has also examined CW.2 Dr.Raghavendra, Lecturer as PW.2. PW.2 in his evidence has deposed that on 13/11/2023, his Principal called him and instructed him to go to Vijayanagar police station and assist them, he went to Vijayanagar police station, that when he reached the station PW.1 informed him about the information received by him, that PW.1 prepared record of reasons in the presence of panchas and conducted personal search themselves and confirmed that they are not possessing any contraband, that PW.1 took him along with police staff in a govt., vehicle bearing No.KA 02 G 4695 and reached the spot at 10.00 am., that they mounted surveillance at the spot, that at that time a foreign national CCH-33 11 Spl.C.C.855/2024 came on a TVS vehicle, that the police apprehended him and on enquiry he has revealed his name and address, that on questioning further he has admitted that he is possessing MDMA., that PW.1 apprised the right of the accused to be searched before a gazetted officer of Magistrate, that he consented to be searched by any gazetted officer, that PW.1 requested CW.4 gazetted officer to come to the spot to conduct personal search of the accused, that CW.4 came to the spot at 11.00 am., and apprised the legal right of the accused and issued questionnaires to the accused, that on personal search of the accused they found 62 Grams of methamphetamine, cash of Rs.3,000/-, that they seized the same along with the two wheeler bearing No.KA 03 JY 8111 and drew a seizure panchanama, that he along with the accused, seized articles and documents came to the police station and produced before the SHO along with report and that the accused further reveals that his passport and Visa have been lapsed. 12
11. CW.4 Sri Venkateshappa, Principal, Govt., I Grade College, Bangalore has been examined as PW.3. PW.3 has deposed that on 13/11/2023 at about 9.00 am., police came to his college and informed him about apprehension of a person who was selling contraband and requested him to come to West of Chord Service Road, near Umiya Bhavan, Bengaluru and gave notice to him, that he went to the place of incident at 11.00 am., there he saw his college staff as panchas and accused, that he enquired the name of the accused, he has stated as Ani, that he apprised the legal right of the accused and issued questionnaires to the accused, that on personal search of the accused they found 62 Grams of methamphetamine, cash of Rs.3,000/- and that they seized the same along with the two wheeler bearing No.KA 03 JY 8111 and drew a seizure panchanama.
12. CW.12 Sri Basavanagowda, PSI has been examined as PW.4. He has deposed that on 13.11.2020 C.W.1 handed over you seizure mahazar, articles and other CCH-33 13 Spl.C.C.855/2024 documents around 1.10 pm., on 13.11.2023, that he issued notice to accused and the accused gave a xerox copy of his passport, they arrested the accused, subjected the property to Property form, he recorded the voluntary statement of accused, he subjected the accused for medical examination, produced the accused before Court and recorded the statements of CWs.7 to 12, that on 14.11.2023 he issued raid success report to ACP, on 16.11.2023 he sent letter to FRRO and State Intelligence of Karnataka and informed about the arrest of the accused and requested them to give Passport and VISA particulars of the accused, on 21.11.2023 he received mail from FRRO, on 24.11.2023 submitted requisition for inventory before ACMM, on 2.12.2023 he sent the sample to FSL for chemical analysis through CW.6, that on 4.1.2024 he received FSL report and that on 12.2.2024 since he was transferred he handed over the records to CW.14 for further investigation. 14
13. CW.14 Sri Bhimashankar Yaroor has been examined as PW.5. PW.5 has deposed that on 3.2.2024 he received two letters from Addl. Dy. Director and ACP. On 20.3.2024 he issued requisition to DCP to give information regarding the passport and Visa of the accused, that on 6.5.2024 he received the information of the vehicle which the accused was using and that after completion of investigation he filed charge sheet.
14. The prosecution has also examined CW5 Smt.Suma S. the Senior Scientific Officer, FSL, Bangalore as PW6. PW6 in her evidence has specifically deposed that on 02.12.2023 their office had received one sealed Article in Crime No.197/2023 of Vijayanagar Police Station through HC No.9874, that she received the said Article and subjected the said Article for chemical analysis. After chemical analysis she found that the sample responded positive for Methamphetamine along with ammonium Sulphate.
CCH-33 15 Spl.C.C.855/2024
15. the prosecution apart from examining the witnesses has also got 30 documents marked as Ex.P1 to P.30. Ex. P1 is the Station House Diary, Ex.P2 is the request letter to ACP, Ex.P3 is the panch notice, Ex.P4 is the record of reasons, Ex.P5 is the request letter to ACP to conduct raid, Ex.P6 body search memo, Ex.P7 Seizure mahazar dated 13.11.2023, Ex.P8 is the complaint, Ex.P9 is the FIR, Ex.P10 sample seal, Ex.P11 are the photos, Ex.P12 is the notice issued to accused, Ex.P13 is the copy of the passport, Ex.P14 is the raid success report, Ex.P15 & P16 are the letters issued to FRRO and State intelligence, Ex.P17 letter to FRRO, Ex.P18 reply from FRRO, Ex.P19 inventory, certificate U/s.52A and photos, Ex.P20 FSL acknowledgment, Ex.P21 statement, Ex.P22 FSL report, Ex.P23 sample seal, Ex.P24 certificate U/s.65B of Indian Evidence Act, Ex.P25 is forwarding letter of FSL, Ex.P26 is the passport information received, Ex.P27 reply from ACP, Ex.P28 letter to DCP regarding the information of Passport 16 and VISA of accused, Ex.P29 reply received and Ex.P30 is the information of the vehicle used by the accused.
16. Learned Public Prosecutor during the course of argument submitted that the prosecution by examining 6 witnesses and also by getting 30 documents marked has established beyond all reasonable doubt that the accused has committed the offences alleged against him under the NDPS Act and that the prosecution has also complied the mandatory provisions of NDPS Act.
17. During the course of arguments, learned counsel for accused argued much on compliance of Sec.42 of NDPS Act. During the course of cross examination of PW.1, the learned counsel cross examined on the said aspect. PW.1 in his cross examination has stated that soon after receipt of credible information he had noted down the said information in his personal diary and thereafter he noted the said information in Station House Diary by his handwriting. He has also admitted that he has not produced CCH-33 17 Spl.C.C.855/2024 his personal diary before the Court and the entries in the Station House Diary are in computerized form. He has also admitted that he has not produced the copy of the Station House Diary which was written in his handwriting. As could be seen from sec.42(1) if the officer has reason to believe from personal 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 NDPS Act has been committed or any document or any article which may furnish evidence of the commission of such offence or illegally acquiring property or any document or any article which may furnish evidence of holding any illegally acquiring property which is liable for seizure or freezing or forfeiture under Chapter VA of the Act. On plain reading of Sec.42(1) it is specifically mentioned that any information received must be taken down in writing but it is not mentioned that the said information should be taken down in the handwriting of the officer.
18
18. Ex.P1 is the copy of Station House Diary dated 13.11.2023. As seen from this document there are many entries in this document, that shows that the entire day's information and the action taken on the information received are taken down in Ex.P1. Since the entries are made from 12.00 am., on 13.11.2023 the entries are in sequence and there is no additions or corrections in the entries. When Ex.P1 has no additions and corrections and it clearly shows entire day's activities of the police station, only for the reason that it is not in the handwriting it cannot be brushed aside. In the examination in chief of PW.1 he specifically stated that he received the information at 8.30 pm., in respect of this case is concerned. The very same entry is made in entry No.1, before that 1 to 10 entries had already been made and after entry No.11 in Ex.P1 there are other entries till entry No.24. When such being the case, definitely there are no reasons to doubt the Station House Diary noted down by the concerned officer. In the opinion of this Court, this provision is envisaged only to avoid creation CCH-33 19 Spl.C.C.855/2024 of things in the later stage and to prove the genuineness of the information. Since there are also other entries in Ex.P1 prior to information noted down in respect of this case and also there are entries after the said information, the Court could not find any valid reason to doubt on the genuineness of the Ex.P1 entry.
19. It is also the contention of counsel for the accused that the prosecution has also not complied the statutory provision U/s.42(2) of NDPS Act. In that connection, the learned counsel for accused cross examined PW.1. The PW.1 in his cross examination has specifically stated that from the Vijayanagar police station the office of the ACP is situated at about 2-3 Kms., away and he himself went to the office of ACP and gave information regarding the secret information received by him and Ex.P2 is the requisition given by him seeking permission to conduct raid. As seen from Ex.P2 the information received by PW.1 has been informed to the Superior in office of PW.1 namely ACP and 20 ACP has permitted to conduct raid by making an endorsement on Ex.P2. Therefore, this Court could not find any irregularity in compliance of Sec.42(2) of NDPS Act. If at all there was variation in the information received and in the information intimated to ACP then the Court has to look into further to find out whether there is any illegality or irregularity in sending the information to the concerned ACP. When no such variation is pointed out only because the Ex.P2 is not the replica of Ex.P1, it cannot be said that there is no proper compliance of Sec.42(2) of NDPS Act.
20. During the course of arguments the learned counsel for accused argued much on improper compliance of Sec.50 of NDPS Act. As seen from the cross examination of PW.1 in Para-9, soon after taking the suspect into his custody he had enquired about his name an address and also confirmed that he has prohibited narcotic drug and apprised him about the body search that has to be conducted in the presence of Gazetted Officer and he had CCH-33 21 Spl.C.C.855/2024 also called the Principal of Govt., First Grade College, Bangalore. The Principal of the college is the Gazetted Officer and he was asked to conduct body search of the suspect. PW.3 in his examination in chief has in detail deposed about the procedure followed before searching the body of the accused and PW.3 specifically deposed that the police had already ascertained from the suspected person that his body can be searched in the presence of Gazetted Officer. In view of that he issued Ex.P6 the Body search memo with questions and the suspected person answered to the said questioned and signed the said body search memo. From the evidence of PW.3 it is clear that the raiding officer has followed the procedure contemplated U/s.50 of NDPS Act.
21. The learned counsel for the accused cross examined PW.3 and in the cross examination it has been elicited from him that he had served the questions to the suspected person in English language which is known to 22 him and he orally answered to the question in English language and certain suggestions have also been suggested to PW.3 and he denied those suggestions specifically. Moreover, PW.3 is an independent witness who is the Principal of a college, unless and until some suggestions are suggested to him regarding the prior acquiescence with the suspected person and without suggesting certain enmity between them only for the reason that he is not belonging to police department, his evidence cannot be discarded.
22. During the course of arguments the learned counsel for the accused relied on the decision reported in (2011) 1 SCC 609 in the case of Vijaysinh Chandubha Jadeja Vs., State of Gujarat wherein it is observed as under:-
29. In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz., to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false CCH-33
23 Spl.C.C.855/2024 cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision.
30. As observed in Re Presidential Poll, In re14: (SCC p.49, para 13) "13......it is the duty of the courts to get at the real intention of the Legislature by carefully attending to the whole scope of the provision to be construed. "The key to the opening of every law is the reason and spirit of the law, it is the animus imponentis, the intention of the law maker expressed in the law itself, taken as a whole."
31. We are of the opinion that the concept of "substantial compliance" with the requirement of Section 50 of the 24 NDPS Act introduced and read into the mandate of the said Section in Joseph Fernandez (supra) and Prabha Shankar Dubey (supra) is neither borne out from the language of sub-section (1) of Section 50 nor it is in consonance with the dictum laid down in Baldev Singh's case (supra). Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf. Further the learned counsel has also relied on the decision of Hon'ble Apex Court reported in 2023 LiveLaw (SC) 724 in the case of Mina Pun Vs., State of Uttar Pradesh. In the said decision also the Hon'ble Apex Court relied on the decision relied herein above Vijaysinh Chandubha Jadeja Vs., State of Gujarat wherein it is observed as under:-
29. In view of the foregoing discussion, we are of the firm opinion that the object with which the right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise CCH-33 25 Spl.C.C.855/2024 the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that insofar as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision."
However, in the present case, the PW.1 who is the raiding officer has followed the procedure as contemplated U/s.50(1) of NDPS Act and this could not find any misuse of power or harm that caused to the accused in following the procedure of Sec.50 of NDPS Act. Infact, the Gazetted Officer who is a responsible Principal of Govt., first Grade College. He followed the procedure by issuing Ex.P6 body search memo.
26
23. The learned counsel for the accused has also taken the contention that there is delay in sending the representative of sample to the FSL and getting the report from the FSL and it is fatal to the case of prosecution. In connection with that the learned counsel has relied on the decision 2008 SCC online P&H 793 in the case of Kashmir Singh Vs., State of Punjab wherein it is observed as under:-
10. It was next submitted by the Counsel for the appellant, that though the alleged recovery, in this case, was effected on 11.7.992, yet the sample parcel was deposited in the office of Chemical Examiner, on 23.7.1992, and, thus, there was a delay of 12 days. He further submitted that the delay of 12 days, in sending the sample, to the office of the Chemical Examiner, was not explained, by the prosecution witnesses, as a result whereof, it could not be safely held, that the sample remained untempered with, until it reached the office of the Chemical Examiner, especially, in view of the fact that the seal after use, and the sample parcel, remained with the Investigating Officer throughout. The submission of the Counsel for the appellant, in this regard, appears to be correct. It is, no doubt, true that if CCH-33 27 Spl.C.C.855/2024 the other evidence is cogent and convincing, to prove that none tampered with the sample parcel, until it reached the office of the Chemical Examiner, then mere delay in sending the same, in itself, is not sufficient to doubt the prosecution story. However, if the other evidence is neither cogent, nor reliable, then certainly a doubt is cast on the prosecution story, that the sample might have been tampered with, until it reached the office of the Chemical Examiner. In the instant case, the other evidence produced by the prosecution, besides being deficient, is not reliable. In State of Punjab v.
Jaswant Singh 2002(3) R.C.R. (Criminal) 54, there was a delay of 21 days, in sending the sample to the office of the Chemical Examiner. The other evidence led by the prosecution was also not reliable. Under these circumstances, it was held by a Division Bench of this Court, that the delay in sending the sample to the office of the Chemical Examiner, would prove fatal to the case of the prosecution, especially when admittedly, no independent witness was joined in the recovery proceedings, and the seal used for sealing the samples, remained with the police officials, during the period. In State of Rajasthan v. Gurmail Singh 2005(2) R.C.R. (Criminal) 58 (S.C.), the contraband remained in the Malkhana for 15 days. The malkhana register was not produced, to prove that it was so kept in the malkhana, till the sample was handed over to the Constable. In 28 these circumstances, in the aforesaid case, the appellant was acquitted. In Cian Singh v. State of Punjab 2005(2) R.C.R. (Criminal) 611, there was a delay of 14 days, in sending the sample to the office of the Chemical Examiner. Under these circumstances, it was held that the possibility of tampering with the sample, could not be ruled out, and the link evidence was incomplete. Ultimately, the appellant was acquitted, in that case. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the present case. In the instant case, the delay in sending the sample, proved fatal to the case of the prosecution, but the trial Court, did not take into consideration, this aspect of the matter, as a result whereof, miscarriage of justice occasioned. The submission of the Counsel for the appellant, in this regard, carries substance, and is accepted.
11. The next limb of the argument of the Counsel for the appellant, that the link evidence was incomplete, was to the effect, that the prosecution failed to produce all the witnesses, who handled the case property, and the sample parcel, until the same (sample parcel) reached the office of the Chemical Examiner. He further submitted that, on account of this reason, the case of the prosecution, was bound to fail. The submission of the counsel for the appellant, in this regard, appears to be correct. Shiv Shambhu Nath, SI (PW-2), during the CCH-33 29 Spl.C.C.855/2024 course of his cross-examination, stated that the ASI, alongwith the case property, the sample parcel, and the accused, was sent to the Illaqa Magistrate. He further stated, that ASI produced the case property, and the sample parcel, before the Illaqa Magistrate. There is nothing, in the statement of this witness, that the ASI, deposited back the case property, with him, after production thereof, before the Illaqa Magistrate. Even, he stated during the course of his cross-examination, that he did not remember the name of that ASI, who was deputed to produce, the case property, and the sample parcel, before the Illaqa Magistrate. From the statement of Shiv Shambhu Nath, SI (PW-2), it was proved, that the case property, and the sample parcel, were handled by an ASI, whose name, he did not remember. That ASI was not examined, in the Court, as a witness. Under these circumstances, it could not be safely held that the sample parcel, remained untempered with, till it remained in the custody of that ASI. Why that ASI, was not examined, by the prosecution, is not known? It was held in State of Rajasthan v. Daulat Ram , that it is the duty of the prosecution, to prove that the sample was not tampered with, at any stage. It was further held that if the sample parcel, changes many hands, before reaching the office of the Chemical Examiner, then the prosecution, should prove through cogent and 30 convincing evidence, that none of them tampered with the sample parcel, until it reached the office of the Chemical Examiner. The principle of law, laid down, in the aforesaid authorities, is fully applicable, to the facts of the present case. As stated above, since the ASI, who handled the sample parcel, before it reached the office of the Chemical Examiner, was not examined, the possibility of tampering with the sample, could not be ruled out. The submission of the Counsel for the appellant, in this regard, carries weight, and is accepted.
This Court has gone through the principles laid down in the aforesaid decision. From the said decisions, it can be gathered that by causing delay in sending the sample to FSL there will be possibility of tampering the sample and if it is sent in time there will not be room to doubt that it was tampered. It is true that during investigation at every stage the investigating officer must be more conscious. In the present case the prosecution in order to establish that there was no tampering of sample sent to FSL has also examined the scientific officer as PW.6. she specifically deposed that when she received the sample the packing and seal was CCH-33 31 Spl.C.C.855/2024 intact and seal tallied with the sample seal. Moreover, the sample was taken before learned Magistrate and according to PW.6 the seal affixed was intact then it has to be assumed that the representative sample reached the office of scientific officer and there was no tampering. The scientific officer after subjecting the said sample for scientific analysis has come to the conclusion that it has responded positive for methamphetamine and Ex.P22 is the report submitted by PW.6.
24. During the course of arguments, the learned Public Prosecutor has relied on the order of Hon'ble Supreme Court in Crl.Appeal No.250/2025 in the case of Bharat Aanbake Vs., State of Chhattisgarh wherein it is observed as under:-
28.In Khet Singh v. Union of India reported in (2002) 4 SCC 380 this Court held that the Standing Order(s) issued by the NCB and the procedure envisaged therein is only intended to guide the officers and to see that a fair procedure is adopted by the officer-in-charge of the investigation. It further observed that there may, however, be circumstances in 32 which it would not be possible to follow these guidelines to the letter, particularly in cases of chance recovery or lack of proper facility being available at the spot. In such circumstances of procedural illegality, the evidence collected thereby will not become inadmissible and rather the courts would only be required to consider all the circumstances and find out whether any serious prejudice had been caused to the accused or not. Further it directed, that in such cases of procedural lapses or delays, the officer would be duty bound to indicate and explain the reason behind such delay or deficiency whilst preparing the memo. The relevant observations read as under: -
"5. It is true that the search and seizure of contraband article is a serious aspect in the matter of investigation related to offences under the NDPS Act. The NDPS Act and the Rules framed thereunder have laid down a detailed procedure and guidelines as to the manner in which search and seizure are to be effected. If there is any violation of these guidelines, the courts would take a serious view and the benefit would be extended to the accused. The offences under the NDPS Act are grave in nature and minimum punishment prescribed under the statute is incarceration for a long period. As the possession of any narcotic drug or psychotropic substance by itself is made punishable under the Act, the seizure of the article from the appellant is of vital importance.
xxx xxx xxx
10. The instructions issued by the Narcotics Control Bureau, New Delhi are to be followed by the officer-in-
CCH-33 33 Spl.C.C.855/2024 charge of the investigation of the crimes coming within the purview of the NDPS Act, even though these instructions do not have the force of law. They are intended to guide the officers and to see that a fair procedure is adopted by the officer-in-charge of the investigation. It is true that when a contraband article is seized during investigation or search, a seizure mahazar should be prepared at the spot in accordance with law. There may, however, be circumstances in which it would not have been possible for the officer to prepare the mahazar at the spot, as it may be a chance recovery and the officer may not have the facility to prepare a seizure mahazar at the spot itself. If the seizure is effected at the place where there are no witnesses and there is no facility for weighing the contraband article or other requisite facilities are lacking, the officer can prepare the seizure mahazar at a later stage as and when the facilities are available, provided there are justifiable and reasonable grounds to do so. In that event, where the seizure mahazar is prepared at a later stage, the officer should indicate his reasons as to why he had not prepared the mahazar at the spot of recovery. If there is any inordinate delay in preparing the seizure mahazar, that may give an opportunity to tamper with the contraband article allegedly seized from the accused. There may also be allegations that the article seized was by itself substituted and some other items were planted to falsely implicate the accused. To avoid these suspicious circumstances and to have a fair procedure in respect of search and seizure, it is always desirable to prepare the seizure mahazar at the spot itself from where the contraband articles were taken into custody.
xxx xxx xxx 34
16. Law on the point is very clear that even if there is any sort of procedural illegality in conducting the search and seizure, the evidence collected thereby will not become inadmissible and the court would consider all the circumstances and find out whether any serious prejudice had been caused to the accused. If the search and seizure was in complete defiance of the law and procedure and there was any possibility of the evidence collected likely to have been tampered with or interpolated during the course of such search or seizure, then, it could be said that the evidence is not liable to be admissible in evidence." (Emphasis supplied)
29.A similar view as above was reiterated in the decision of State of Punjab v. Makhan Chand reported in (2004) 3 SCC 453 wherein this Court after examining the purport of Section 52A of the NDPS Act and the Standing Order(s) issued thereunder, held that the procedure prescribed under the said order is merely intended to guide the officers to see that a fair procedure is adopted by the officer in charge of the investigation and they were not inexorable rules. The relevant observations read as under: - "10. This contention too has no substance for two reasons. Firstly, Section 52-A, as the marginal note indicates, deals with "disposal of seized narcotic drugs and psychotropic substances". Under sub-section (1), the Central Government, by a notification in the Official Gazette, is empowered to specify certain narcotic drugs or psychotropic substances, having regard to the hazardous nature, vulnerability to theft, substitution, constraints of proper storage space and such other relevant considerations, so that even if they are material objects seized in a criminal case, they could be disposed of after following the procedure prescribed in sub-sections (2) and (3). If the procedure prescribed in sub-sections (2) and (3) of Section 52-A is complied with and upon an application, the Magistrate issues CCH-33 35 Spl.C.C.855/2024 the certificate contemplated by sub-section (2), then sub-section (4) provides that, notwithstanding anything to the contrary contained in the Indian Evidence Act, 1872 or the Code of Criminal Procedure, 1973, such inventory, photographs of narcotic drugs or substances and any list of samples drawn under sub-section (2) of Section 52-A as certified by the Magistrate, would be treated as primary evidence in respect of the offence. Therefore, Section 52-A(1) does not empower the Central Government to lay down the procedure for search of an accused, but only deals with the disposal of seized narcotic drugs and psychotropic substances.
11. Secondly, when the very same Standing Orders came up for consideration in Khet Singh v. Union of India this Court took the view that they are merely intended to guide the officers to see that a fair procedure is adopted by the officer in charge of the investigation. It was also held that they were not inexorable rules as there could be circumstances in which it may not be possible for the seizing officer to prepare the mahazar at the spot, if it is a chance recovery, where the officer may not have the facility to prepare the seizure mahazar at the spot itself. Hence, we do not find any substance in this contention."
(Emphasis supplied)
30.Thus, from above it is clear that the procedure prescribed by the Standing Order(s) / Rules in terms of Section 52A of the NDPS Act is only intended to guide the officers and to ensure that a fair procedure is adopted by the officer-in- charge of the investigation, and as such what is required is substantial compliance of the procedure laid therein. We say so because, due to varying circumstances, there may be 36 situations wherein it may not always be possible to forward the seized contraband immediately for the purpose of sampling. This could be due to various factors, such as the sheer volume of the contraband, the peculiar nature of the place of seizure, or owing to the volatility of the substance so seized that may warrant slow and safe handling. There could be situations where such contraband after being sampled cannot be preserved due to its hazardous nature and must be destroyed forthwith or vice-verse where the nature of the case demands that they are preserved and remain untouched. Due to such multitude of possibilities or situations, neither can the police be realistically expected to rigidly adhere to the procedure laid down in Section 52A or its allied Rules/Orders, nor can a strait-jacket formula be applied for insisting compliance of each procedure in a specified timeline to the letter, due to varying situations or requirements of each case. Thus, what is actually required is only a substantial compliance of the procedure laid down under Section 52A of the NDPS Act and the Standing Order(s)/Rules framed thereunder, and any discrepancy or deviation in the same may lead the court to draw an adverse inference against the police as per the facts of each and every case. When it comes to the outcome of trial, it is only after taking a cumulative view of the entire material on record including such discrepancies, that the court should proceed either to convict or acquit the accused. Non-compliance of the procedure envisaged under Section 52A may be fatal only in CCH-33 37 Spl.C.C.855/2024 cases where such non-compliance goes to the heart or root of the matter. In other words, the discrepancy should be such that it renders the entire case of the prosecution doubtful, such as instances where there are significant discrepancies in the colour or description of the substance seized from that indicated in the FSL report as was the case in Noor Aga (supra), or where the contraband was mixed in and stored with some other commodity like vegetables and there is no credible indication of whether the narcotic substance was separated and then weighed as required under the Standing Order(s) or Rules, thereby raising doubts over the actual quantity seized as was the case in Mohammed Khalid (supra), or where the recovery itself is suspicious and uncorroborated by any witnesses such as in Mangilal (supra), or where the bulk material seized in contravention of Section 52A was not produced before the court despite being directed to be preserved etc. These illustrations are only for the purposes of bringing clarity on what may constitute as a significant discrepancy in a given case, and by no means is either exhaustive in nature or supposed to be applied mechanically in any proceeding under the NDPS Act. It is for the courts to see what constitutes as a significant discrepancy, keeping in mind the peculiar facts, the materials on record and the evidence adduced. At the same time, we may caution the courts, not to be hyper-technical whilst looking into the discrepancies that may exist, like slight differences in the weight, colour or numbering of the sample 38 etc. The Court may not discard the entire prosecution case looking into such discrepancies as more often than not an ordinarily an officer in a public place would not be carrying a good scale with him, as held in Noor Aga (supra). It is only those discrepancies which particularly have the propensity to create a doubt or false impression of illegal possession or recovery, or to overstate or inflate the potency, quality or weight of the substance seized that may be pertinent and not mere clerical mistakes, provided they are explained properly. Whether, a particular discrepancy is critical to the prosecution's case would depend on the facts of each case, the nature of substance seized, the quality of evidence on record etc."
This Court carefully gone through the afore mentioned decision. As held in the aforesaid decision, the standing orders intending to guide the investigating agency to see that a fair procedure is adopted by the officers of investigation. It is also held that they were not inexorable rules, as there could be circumstances in which it may not be possible to seizing officer to draw mahazar at the spot. It is also made clear in the said decision as under:-
30.Thus, from above it is clear that the procedure prescribed by the Standing Order(s) / Rules in terms of Section 52A of CCH-33 39 Spl.C.C.855/2024 the NDPS Act is only intended to guide the officers and to ensure that a fair procedure is adopted by the officer-in-
charge of the investigation, and as such what is required is substantial compliance of the procedure laid therein. We say so because, due to varying circumstances, there may be situations wherein it may not always be possible to forward the seized contraband immediately for the purpose of sampling. This could be due to various factors, such as the sheer volume of the contraband, the peculiar nature of the place of seizure, or owing to the volatility of the substance so seized that may warrant slow and safe handling. There could be situations where such contraband after being sampled cannot be preserved due to its hazardous nature and must be destroyed forthwith or vice-verse where the nature of the case demands that they are preserved and remain untouched. Due to such multitude of possibilities or situations, neither can the police be realistically expected to rigidly adhere to the procedure laid down in Section 52A or its allied Rules/Orders, nor can a strait-jacket formula be applied for insisting compliance of each procedure in a specified timeline to the letter, due to varying situations or requirements of each case. Thus, what is actually required is only a substantial compliance of the procedure laid down under Section 52A of the NDPS Act and the Standing Order(s)/Rules framed thereunder, and any discrepancy or deviation in the same may lead the court to draw an adverse inference against the police as per the facts of each and every case. When it comes to the outcome of trial, it is only after taking a cumulative view of the entire material on record including such discrepancies, that the court should proceed either to convict or acquit the accused. Non-compliance of the procedure envisaged under Section 52A may be fatal only in cases where such non-compliance goes to the heart or root of the matter. In other words, the discrepancy should be such that it renders the entire case of the prosecution doubtful, 40 such as instances where there are significant discrepancies in the colour or description of the substance seized from that indicated in the FSL report as was the case in Noor Aga (supra), or where the contraband was mixed in and stored with some other commodity like vegetables and there is no credible indication of whether the narcotic substance was separated and then weighed as required under the Standing Order(s) or Rules, thereby raising doubts over the actual quantity seized as was the case in Mohammed Khalid (supra), or where the recovery itself is suspicious and uncorroborated by any witnesses such as in Mangilal (supra), or where the bulk material seized in contravention of Section 52A was not produced before the court despite being directed to be preserved etc. These illustrations are only for the purposes of bringing clarity on what may constitute as a significant discrepancy in a given case, and by no means is either exhaustive in nature or supposed to be applied mechanically in any proceeding under the NDPS Act. From the above observation the could has to look into the factor cumulatively considering the facts and circumstances of each case. If the Court has otherwise reason to doubt the case of prosecution, then look into the procedure followed by the investigating agency carefully to find out whether there is any infirmity in the investigation. When there is no reason to doubt the process of investigation, the flaw pointed out by the learned counsel for accused in CCH-33 41 Spl.C.C.855/2024 compliance of Sec.52A of the Act does not go to the root of the case.
25. Now, when the court has come to the conclusion that the prosecution has properly complied the statutory provisions of NDPS Act, it is for the court to see that whether the prosecution could establish its case beyond all reasonable doubt on merits. The prosecution has examined the raiding officer PW.1, Sri Mounesh Badagi, the PSI of Vijayanagara Police Station. The PW.1 in his examination- in-chief has specifically deposed about the information received by him and the steps taken by him after receiving the information till the seizure of the methamphetamine from the custody of accused. The learned counsel for accused, during the course of cross examination attempted to elicit from PW.1 about non compliance of the mandatory provisions of NDPS Act and suggested certain suggestions denying the case of prosecution. In this matter, except denial of the case of the prosecution, no other specific 42 defence was taken by the counsel for accused to safeguard the interest of the accused.
26. As already narrated hereinafter, PW.2 Dr.Raghavendra is the Mahazar witness. He is the lecturer of the Government First Grade College and a responsible person and he completely supported the case of prosecution. This witness has also been cross examined by learned counsel for the accused, but nothing could be elicited contrary to the case of the prosecution.
27. PW.3 is the Principal of Government First Grade College who has acted as a gazetted officer and who was present at the time of conducting body search of the accused. He has also deposed in conformity with the evidence of PW.1 regarding the procedure followed by PW.1 during the course of seizure of the methamphetamine by the accused. As usual, during the course of cross examination except certain suggestions nothing could be elicited from PW.3 to discredit his evidence in examination in chief.
CCH-33 43 Spl.C.C.855/2024
28. PW.4 Sri Basavana Gowda is the PSI of Vijayanagara Police Station, he is the Investigating Officer in this case. He specifically deposed that after receiving the complaint, he registered Crime No.197/2023 and filed FIR before the court. This witness has also deposed about the procedure followed after the accused and the seized property was produced before him. In Para No. 9 of his examination-in-chief, he specifically deposed that after the Inventory carried out in the presence of the learned Magistrate, he sent the representative sample to the FSL for scientific examination and the concerned staff after handing over the said representative sample to the FSL, submitted report along with the acknowledgment issued by FSL. He further deposed that he received the official report and he has also filed a certificate under Section 65B of Indian Evidence Act. And after completion of investigation he filed charge sheet before the court against the accused person. No doubt this witness has also been subjected for cross examination by learned counsel for accused. However, 44 nothing more is elicited from him except on denying the procedure followed by him during the course of investigation, to discredit his evidence in examination in chief. When PW.4 specifically deposed about the procedure followed by him during the course of investigation, except suggesting certain suggestions, nothing could be elicited to discard his evidence. PW.4 no doubt, is a police officer, only because he is a police officer his evidence cannot be discarded unless and until strong evidence is brought out to doubt about the procedure followed by him during the course of investigation.
29. PW5 is also the then PSI of Vijayanagar Police Station. He has also conducted part of the investigation in this matter. This witness has also been subjected for cross examination by learned counsel for accused and nothing could be elicited to discard his evidence.
30. When the prosecution initially established its case and could prove that the investigating officer seized the CCH-33 45 Spl.C.C.855/2024 prohibited narcotic drug from the custody of accused, the alleged possession of prohibited narcotic drug found in the possession of the accused ought to have explained by the accused. The accused has also been subjected for examination under Section 313 of Code of Criminal Procedure. During the course of his examination under Section 313 of Code of Criminal Procedure also the accused except denying the incriminating statements made against him, has not put forth any explanation regarding the possession of the said prohibited narcotic drug in his possession. When the witnesses examined on behalf of the prosecution including independent witness namely PW.2, supported the case of the prosecution and as the counsel for the accused could not take a specific defence, there is no reason to doubt the case of the prosecution.
31. Further, as contemplated under Section 35 of NDPS Act. In any prosecution for an offence under NDPS Act, which requires a culpable mental state of the accused, 46 the court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. For the purpose of Section 35 of NDPS Act, a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probabilities. However, in the present case, it is the specific case of the prosecution that PW.1 the raiding officer caught hold the accused with the contraband, which was in his custody and if at all the accused is able to explain under which circumstances he was in custody of the said contraband, then only the court can doubt the case of the prosecution and by accepting the defence taken by the accused. However, in the present case, there is no such explanation by the accused regarding the possession of the said contraband when he was caught hold by PW,1.
CCH-33 47 Spl.C.C.855/2024
32. Further, it is true that Section 54 of NDPS Act raises a presumption and the burden shifts on the accused to explain as to how he came into possession of the contraband. But to raise the presumption under Section 54 of the Act, it must first be established that a recovery was made from the accused. In the present case, undoubtedly, the prosecution successfully established that the contraband, namely 62 grams of MDMA had been seized from the custody of the accused. However, as seen from the evidence of the Scientific Officer, after subjecting the representative of sample for scientific analysis, she came to know that she could not find the ingredients of MDMA and she opined that the ingredients of the representative sample responded positive for Methamphetamine. Ex.P22 is the FSL report submitted by the Scientific Officer. As seen from the report, she opined that the presence of methamphetamine along with the aluminum Sulphate was detected in the above stated article. No doubt, the learned counsel for the accused cross examined this witness and PW.6 the 48 Scientific Office specifically deposed that the method of examination of MDMA and Methamphetamine are not different and they will be examined with the same method. When the learned Public Prosecutor reexamined the PW.6 regarding the ambiguity found in the cross examination, PW.6 specifically stated that there was 20% Aluminum Sulphate and 80% methamphetamine.
33. It is the specific case of the prosecution that the contraband seized from the custody of accused is 62 grams of Methamphetamine. As contemplated in the schedule, 50 grams of Methamphetamine will be the commercial quantity. In the present case, it is the specific argument of learned counsel for accused that the contraband was seized and it was weighed with the plastic covers. As could be seen from the inventory report there are photographs and from the photographs it could be seen that all the packets were kept in the weighing machine and weighed with the plastic covers. The learned counsel for accused submitted that if CCH-33 49 Spl.C.C.855/2024 the plastic covers were separated from the alleged contraband, it would have weighed less than commercial quantity and therefore, even if it is considered that the contraband was seized from the custody of accused it cannot be said that it is commercial quantity and definitely it is intermediate quantity. At this stage it is relevant to rely on the decision of Hon'ble High Court of Punjab & Haryana in CRM.M.37684/2021 dated 14.2.2022. In the said case 255 grams of heroin was seized. Actual weight of the polythene bag was not separately recorded, in the said circumstances the Hon'ble High Court has granted bail to the petitioner. In another order of Hon'ble High Court Punjab & Haryana in CRM.M.19324/2021 dated 6.12.2021 in the case of Manish Kumar Vs., State of Punjab the petitioner has been enlarged on bail wherein the contraband recovered was weighed along with the polythene.
50
34. As could be seen from the aforesaid decisions, when the contraband was weighed along with the plastic cover, then it cannot be determined the accurate weight of the contraband and that there will be doubt about the weight of the contraband. It is also held that if there is doubt about the weight of the contraband, the benefit of the said doubt shall be extended to the accused. Similarly, in this matter also, the total weight of the contraband was 62 grams and as submitted by learned counsel for accused, the contraband was weighed along with the plastic covers and there were 37 plastic covers and the total weight was 62 grams. If at all those 37 plastic covers were separated from the contraband, then there would have been variation in the weight. Therefore, this Court is of the considered view that since the 37 plastic covers had not been separated from the contraband while weighing it, the court is not in a position to determine the accurate weight of the contraband. When the court cannot determine the accurate weight of the contraband, the benefit of difference in the weight of CCH-33 51 Spl.C.C.855/2024 contraband shall be extended to the accused. In view of that, this Court is of the considered view that since there is no specific weight of the actual contraband seized by the accused, it cannot be considered that the commercial quantity was seized from the custody of the accused and it may be less than commercial quantity and this court holds that the quantity of contraband seized from the custody of the accused is intermediate quantity and the offence punishable under Section 22(c) of NDPS Act is not established. On the other hand, the offence punishable under Section 22(b) of NDPS Act is established by the prosecution.
35. It is also the case of the prosecution that the accused is staying in India on the basis of expired Passport and Visa. To establish the said fact, the IO., has also produced documents at Ex.P.15 and P.16. Ex.P.15 is the letter written to the Foreigner's Regional Registration Office, Bangalore. Ex.P.16 is the letter forwarded to the Director of 52 State Intelligence, Bangalore. Ex.P.28 is the letter addressed to the Deputy Commissioner of Police, Intelligence Office, Office of the Commissioner of Police Bangalore. Ex.P.29 is the particulars of Passport of the accused in passport No.A01788282, who is an Nigerian National. Ex.P.13 is the copy of the Passport of accused Ani Ochiabuto Hycient, who is an Nigerian National and same is expired on 10.09.2023. therefore, the overstay of the accused in India is established and he is staying in India without valid Passport and Visa. Therefore, it is the considered view of this court that he has also committed the offence punishable under Section 14 of the Foreigners Act.
36. In view of the discussion made in the foregoing paragraphs, it is the considered view of this Court that the prosecution has proved beyond all reasonable doubt that the accused has committed the offences punishable U/s.22(b) of NDPS Act and Sec.14 of Foreigners Act. Therefore, the accused is liable to be convicted for the said CCH-33 53 Spl.C.C.855/2024 offences. In view of that, the points for consideration are answered in the Affirmative.
37. Point No.2: In the result, following:
::ORDER::
Acting under Section 235(2) of Cr.P.C., accused Ani Ochiabuto Hycient is convicted for the offences punishable under Section 8(c) R/w.Sec.22(b) of NDPS Act and Sec.14 of Foreigners Act.
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 September 2025) (LATHA) XXXIII ACC & SJ & SPL.JUDGE (NDPS) BANGALORE.54
ORDER ON SENTENCE Heard the accused, learned counsel for accused and learned Public Prosecutor regarding sentence.
2. It is submitted by learned counsel for accused that he is in judicial custody since the date of his arrest and his conduct during trial has to be taken into consideration. If he is convicted and sentenced to undergo imprisonment his reputation would be tarnished in the society. He has no bad antecedents. On looking to the conduct of the accused through out the trial, lenient view may be taken into consideration.
3. On the other hand, it is submitted by the prosecution that the accused has committed the offence punishable under NDPS act, which affects the younger generation and interest of the society. Therefore, the accused being guilty is liable for maximum punishment prescribed under the Act.
4. 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 as under:-
"undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public CCH-33 55 Spl.C.C.855/2024 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 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.
The Hon'ble Supreme Court reported in AIR 2015 SUPREME COURT 398 in the case of State of Madhya Pradesh Vs., Surendra Singh wherein it is held that: -56
(A) Penal Code (45 of 1860) S.53 - Sentence - Proportionality
-Imposition of sentence must commensurate with gravity of offence.
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 every Court to award proper sentence having regard to the nature of the 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 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 conscience of the society while considering the determinative factor of sentence with gravity of crime. The punishment should not be so lenient that it shocks the conscience of the society. It is, therefore, CCH-33 57 Spl.C.C.855/2024 solemn duty of the court to strike a proper balance while awarding the sentence as awarding lesser sentence encourages any criminal and, as a result of the same, the society suffers.
With the backdrop of guidelines of Hon'ble Apex Court in the above referred decisions if the case on hand is scrutinized, in the instant case the accused herein was found in possession of 62 grams of methamphetamine including 35 plastic covers which is punishable U/Sec.22(b) of NDPS Act and over stayed in India after the expiry of Passport and Visa which is punishable under Sec.14 of Foreigners Act.
The punishment for the offence U/s.22(b) of NDPS Act
- rigorous imprisonment for a term which may extend to ten years, and with fine.
The punishment for the offence under Sec.14 of Foreigners Act - imprisonment for a term that may extend to five years, a fine, and forfeiture of any bond they may have entered into.
5. At this juncture it is relevant to refer the judgment of Hon'ble High Court reported in ILR 2016 Kar 1232 Christian Chidieere Chukwu Vs., State - KR Puram PS., Bangalore and another. In the said case while considering 58 the bail plea of the accused the Hon'ble High Court made an observation that the court shall take up the case on priority and shall pronounce verdict on priority basis. When convicted and he is sentenced to undergo imprisonment, steps must be necessarily taken to deport him by the concerned. Further it is observed that court expects that there should not be any flea-bite sentence and the courts can use discretion in exceptional cases to impose lesser punishment and there must be exceptional grounds to adopt such a course.
6. On meticulous examination of available evidence on record, it is evident that the accused to earn money easily, went upto the extent of the spoiling the future of younger generation by selling the illegal drugs to them. When the individual right of the accused is compared in the light of the interest of the Society as a whole, which is to be protected by unscrupulous drug peddlers, the balance will tilt in favour of the society as a whole, rather in favour of the accused. This court has taken aggravating and mitigating circumstances put forth before the court, so also the nature and gravity of the offences. Therefore, in the considered opinion of this court, the accused has to be sentenced to rigorous imprisonment for a period of 02 years and a fine of Rs.30,000/- for the offence punishable under CCH-33 59 Spl.C.C.855/2024 Sec.22(b) of NDPS Act and SI for 3 months and fine of Rs.5,000/- for the offence punishable U/s.14 of Foreigners Act. In the result, this court proceeds to pass the following :-
::ORDER::
Accused shall undergo rigorous imprisonment for a period of 02 years and shall pay fine of Rs.30,000/- in default, he shall undergo SI for a period of 6 months for the offence punishable U/s.22(b) of NDPS Act.
Accused shall undergo 3 months SI., and shall pay a fine of Rs.5,000/- in default, he shall undergo 1 month SI., for the offence punishable under Sec.14 of Foreigners Act 1946.
The substantive sentence shall run
concurrently.
The period of detention already undergone by the accused shall be given set off in terms of Sec.428 of Cr.P.C.
After the completion of period of incarceration and after the expiry of Appeal period the convict shall be deported from India.60
M.O.1 & 2 contraband shall be destroyed through the Drug Disposal Committee in accordance with law.
Further, office is hereby directed to send a copy of findings and sentence imposed in this case to learned jurisdictional District Magistrate as required U/s.365 of Cr.P.C.
It is apprised to the accused that he may prefer Appeal against this order before the Hon'ble High Court of Karnataka.
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 19th day of September 2025) (LATHA) XXXIII ACC & SJ & SPL.JUDGE (NDPS) BANGALORE.
ANNEXURE
1. List of witnesses examined for the:
(a) Prosecution:
P.W.1 : Sri Mounesh Badagi
P.W.2 : Dr. Raghavendra
P.W.3 : Sri Venkateshappa
P.W.4 : Sri Basavanagowda
CCH-33
61 Spl.C.C.855/2024
P.W.5 : Sri Bheema Shankar Yarur
P.W.6 : Dr. Suma
(b) Defence :
- NIL -
2. List of documents exhibited for the:
(a) Prosecution:
Ex.P.1 : Station House Diary
Ex.P.2 : Request letter to ACP
Ex.P.3 : Panch notice
Ex.P.4 : Record of reasons
Ex.P.5 : Request letter to ACP to conduct raid
Ex.P.6 : Body search memo
Ex.P.7 : Seizure mahazar dt.13.11.2023
Ex.P.8 : complaint
Ex.P.9 : FIR
Ex.P.10 : Sample seal
Ex.P.11 : Photos
Ex.P.12 : Notice issued to accused
Ex.P.13 : Copy of the Passport
Ex.P.14 : Raid success report
Ex.P.15 : Letters issued to FRRO
Ex.P.16 : Letter issued to State Intelligence
Ex.P.17 : Letter to FRRO
Ex.P.18 : Reply from FRRO
Ex.P.19 : Inventory, certificate U/s.52A, photos
Ex.P.20 : FSL acknowledgment
Ex.P.21 : Statement
Ex.P.22 : FSL report
Ex.P.23 : Sample seal
Ex.P.24 : Certificate U/s.65B of I.E.Act
Ex.P.25 : Forwarding letter of FSL
62
Ex.P.26 : Passport information received
Ex.P.27 : Reply from ACP
Ex.P.28 : Letter to DCP regarding information of
passport and Visa of accused
Ex.P.29 : Reply received
Ex.P.30 : Information of the vehicle used by the
accused
(b) Defence:
-Nil-
3.List of Material Objects admitted in evidence:
M.O.1 : Sample contraband
M.O.2 : Sample contraband
(LATHA)
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BANGALORE.
CN/*