Bangalore District Court
State By Ncb vs Ramesh S/O.Late Sanjeevappa on 23 November, 2020
THE COURT OF THE XXXIII ADDL.CITY CIVIL & SESSIONS
JUDGE & SPL. JUDGE (NDPS),
BANGALORE. CCH.33.
PRESENT:
Sri. G.M.SHEENAPPA, B.A., LL.B.,
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BENGALURU.
DATED: THIS THE 23rd DAY OF NOVEMBER 2020
SPL.C.C. NO.777/2018
COMPLAINANT : State by NCB, BZU, Bangalore.
(By Spl. Public Prosecutor)
V/S.
ACCUSED : Ramesh S/o.Late Sanjeevappa,
r/at.Malakalacheruvar (M),
Madanapalle (T), chittoor district,
Andhra Pradesh.
(By Sri BSC., Adv.)
1. Date of Commission of offence: 6.5.2018
2. Date of report of offence: 6.5.2018
3. Arrest of the accused : 7.5.2018
4. Date of release of accused on In JC
bail:
5. Period undergone in custody: Still in JC
6. Date of commencing of
recording Evidence : 21.10.2019
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7. Date of closing of Evidence : 28.2.2020
8. Name of the complainant: Sri Rathan, I.O
9. Offence complained of : U/s.8(c) r/w.Sec.20(b) &
28 of NDPS Act
10. Opinion of the Judge : Offence not proved
11. Order of sentence : As per final order
JUDGMENT
The Intelligence Office, Bangalore Zonal Unit, Bangalore has lodged the above complaint before Court against the accused U/s. 8(c) r/w.Sec.20(b) & 28 of NDPS Act.
2. Brief facts of the case are as under:
The case of the prosecution is that, on 6.5.2018 at about
3.00 pm., he received information through phone that one Ramesh Telugu speaking person would come at 5.00 pm., in a private bus with bulk ganja and alight at Doddajala Bus stand, Ballery road. He reduced the same in writing and sent the same to CW.3 through email. Cw.3 gave permission to form team and conduct raid through email CW.3 came to Bangalore.
CCH33 3 Spl.C.C.777/18 He formed a team along with DD kit and went to the spot at 4.30 pm. He secured CWs.4 and 5 at spot and informed the information to them and requested to act as panchas. They accepted the same. He issued notice to the panchas. They were watching at the bus stand. At 5.00 pm., a private bus from Andhra side came and stopped at bus stand. A person got down from the bus and from the unloaded 6 bags from the top of the bus. Then CW.6 from his team who knew Telugu went and enquired the accused. The accused did not agree to be searched by them. They apprehended him and on search of all the bags it contained ganja. They tested the same with DD kit. The ganja contained leaves, flowers, seeds etc. They took 24 grams of 2 packets from each bag and packed separately for sample. They prepared test memo and drew mahazar. He produced the accused before court and remanded to judicial custody.
3. After taking cognizance registered the case. Copies of the prosecution papers were supplied to accused U/Sec.207 of 4 Cr.P.C. After hearing, charge framed U/Sec.8(c) R/w.Sec.20(b) and 28 of N.D.P.S. Act, read over and explained to them. Accused pleaded not guilty and claimed to be tried.
4. In support of the case, prosecution has examined P.Ws.1 to P.W.6 and got marked Exs.P1 to P.31 and M.Os.1 to
12. Prayer of SPP for reissue CW.4 is refused as sufficient time was given. After closure, accused is examined U/Sec.313 of Cr.P.C., he denied the incriminating circumstances appeared against him and not chosen to adduce evidence for his defence.
5. Heard the arguments on both sides.
6. The points for consideration are as under:
1. Whether the prosecution proves that on 6.5.2018 at about 17.15 hours., at Doddajala Bus stop, Bellary road, Bengaluru accused was in illegal possession of 89.6 Kgs., of ganja, which is a narcotic drug without license or permit, there by accused has committed the CCH33 5 Spl.C.C.777/18 offences U/S.8(c) R/w.Sec.20(b) & 28 of NDPS Act?
2. What order?
7. My findings on the above points are as under:
Point No.1: In the Negative.
Point No.2: See the final order for the following:
REASONS
8. POINT NO.1 : The learned P.P. vehemently argued that as per evidence of PWs.1 to P.W.6 and Exs.P.1 to P.31 and M.Os.1 to 12, the prosecution proved the guilt. Learned counsel for accused argued that no mandatory provision complied and so many contradictions and discrepancies found in the prosecution witnesses.
9. On careful perusal of the materials placed on record, the prosecution mainly relied on the testimonies of P.Ws.1, 2, 4 to 6.
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P.W.1 has stated that on 6.5.2018 at about 3.00 pm., he received information through phone that one Ramesh Telugu speaking person would come at 5.00 pm., in a private bus with bulk ganja and alight at Doddajala Bus stand, Bellary road. He reduced the same in writing as per Ex.P1 and sent the same to CW.3 through email as per Ex.P2. Cw.3 gave permission to form team and conduct raid through email as per Ex.P3. CW.3 came to Bangalore. He formed a team along with DD kit and went to the spot at 4.30 pm. He secured CWs.4 and 5 at spot and informed the information to them and requested to act as panchas. They accepted the same. He issued notice Ex.p5 and P6 to the panchas. They were watching at the bus stand. At 5.00 pm., a private bus from Andhra side came and stopped at bus stand. A person got down from the bus and from the unloaded 6 bags from the top of the bus. Then CW.6 from his team who knew Telugu went and enquired the accused. The accused did not agree to be searched by them. They apprehended him and on search of all the bags it contained ganja. They tested the same with DD kit.
CCH33 7 Spl.C.C.777/18 The ganja contained leaves, flowers, seeds etc. They took 24 grams of 2 packets from each bag and packed separately for sample. They prepared test memo Ex.P8 and drew mahazar Ex.P7. CW6 translated Ex.P7 in Telugu to accused. They issued summons to accused and witnesses as per Ex.P9 to 11. he produced the accused and seized items before the Director and recorded the statements of CWs.4 and 5 on the same day as per Ex.P12 and P13. On 7.5.2018 he recorded the voluntary statement of accused as per Ex.P14 and the same was explained to the accused in Telugu language. on the same day he arrested the accused and prepared arrest memo Ex.P15 and intimated to his house and then produced before court. He returned to the office and sent forwarding memo Ex.P16 and sent to Superintendent. He received godown receipt ex.P17. Then he issued seizure report and arrest report as per Ex.P18 and P19 and sent the samples to CFSL. He handed over the record to CW.2 for further investigation. [ 8
10. In the cross examination of PW.1 has stated that when he got the information he was in his office. He got the information to his office phone. He has not mentioned that he got information to office phone in Ex.P1. He sent the information to CW.3 at 3.30 pm., and got permission at 4.00pm. They left the office at 4.15 pm., and they were in all 5 members in the team. He do not know the registration No., of the vehicle in which they went to raid. CW6 is staff of NCB and that there was no hindrance to mention the same in mahazar. He denied that though the traffic at International Airport road is heavy he is deposing falsely. He has not written in the mahazar that he had taken NCB seal No.3. His staff introduced panchas to him, but he do not remember the name of the staff. The accused came in a private bus, he cannot say the No., of name of the said bus. He also do not remember the colour of the bus. The accused got down from the back door of the bus. The MOs., were packed in white luggage bag but it did not contain any name or brand. They apprehended the CCH33 9 Spl.C.C.777/18 accused but they have not taken the accused before gazetted officer or Magistrate. The 6 bags were opened by his staff but he do not remember their names. They took 24 grams from each bag and weighed but they did not separate the flowers, fruits, stem and leaves. He do not know the boundaries of the spot. He denied that he did not receive any information, he had not gone to the spot and apprehended the accused and seized MOs. He denied that they have forcibly taken the LTM of accused on mahazar and other documents. Immediately, after receipt of the information they did not register the case. He has not mentioned the information in his diary. The case was not registered when test memo was prepared. They have not taken the bus ticket from the accused. It is true that till 7.5.2018 the MOs., were in his custody. He produced the same before CW.3 at about 8.30 pm., on 7.5.2018. He denied that he has not sent report for success of raid and that he has not issued any notice to panchas. He denied that he has not recorded the statements of panchas. He denied that all the statements and voluntary statement are created afterwards for 10 the sake of this case. He has drawn panchanama. He has not examined the driver and the bus in which the accused got down. He denied that he has not sent any samples to CFSL for examination. He denied that he has prepared mahazar in his office. He denied that the panch witnesses are stock witnesses of their office. He denied that even though accused is not involved in any offence they have failed this false case.
11. PW.2 has stated that during June 2016 he was transferred to NCB, Hyderabad. But he was in charge of the Bangalore zonal unit also. On 6.9.2018 at about 3.00 pm., he received an email from CW.1 that a person by name Ramesh is transporting bulk ganja in a private bus. he gave permission through email and telephone and discussed the matter with the Zonal Director. The information reduced in writing is at Ex.P1. Email copy is at Ex.P2. Email sent by him is at Ex.P3 & P4. CW.1 produced the seized articles through forwarding memo Ex.P16 and he issued godown receipt as per Ex.P17 and entered the same in the register. CW.1 sent seizure report CCH33 11 Spl.C.C.777/18 and arrest report as per Ex.P18 and P19. He sent the samples to CFSL., Hyderabad and received acknowledge Ex.P22. He issued house search authorisation to CW.1 as per Ex.P23. CW.1 submitted the report of house raid as per Ex.P24 stating that the address of the house has not been traced.
12. PW.2 in his cross examination has stated that after receiving mail from CW.1 at 4.30 pm., he sent mail. From 3.30 to 4.30 pm., he had instructed CW.1 to form a team. He has not mentioned the time when he gave the orders. He denied that CW.1 had not sent any mail to him and he inturn has not sent any mail. He denied that for the purpose of this case they have created the same. He came to Bangalore NCB office on 7.5.2018 but he do not remember the time. It may be around 12.00 noon. When he reached the office, CW.1 was not there. He received the MOs., at 8.30 pm. There was no difficult for him to mention the timings when he signed. CW.1 gave Cws.18 and 19 at about 8.30 pm. It is true that he has not signed on Ex.P24. He denied that as per Ex.P23 he had 12 not instructed CW.2. he denied that he has not sent any articles for CFSL, Hyderabad and received any acknowledgement. Cw.1 has not produced any information and MOs., before him and he is deposing falsely.
13. P.W.4 has stated that on 6.5.2018 at about 4.15 pm., a team was formed from NCB office and went to Doddaja bus stand and he was also one of the team members. CW.1 informed about the information received by him. And deputed them to watch near the bus stand. At about 5.00 pm., a private bus came and stopped and from the said bus a person got down along with 6 plastic bags. CW.1 apprehended the said person and enquiry. The accused said that he do not know reading and writing and he knows only Telugu language. CW.1 secured him as he knew Telugu and also secured two panchas. Cw.1 told him to enquire the accused. On enquring the accused, he said that he was coming from Chittoor and the bags contain ganja. On opening the bags it contained ganja. They tested the same in DD kit CCH33 13 Spl.C.C.777/18 and confirmed. On weighing the same it was 89.6 Kgs. They took 22 grams of ganja of two packets from each bags for sample. Then he explained the mahazar Ex.P7 which was typed in English to accused in Telugu. Later accused was served with summons Ex.P9 he explained the same to accused in Telugu. on the next day Cw.1 recorded the voluntary statement Ex.P14 of accused which was typed in English. He explained the same in Telugu to accused. Cw.1 issued arrest memo Ex.P15 to accused he translated the same to Telugu.
14. PW.4 in his cross examination has deposed that in his team 67 members were there. When they went to the spot, Cw.1 had not shown the information but informed the same after 5 minutes. He denied that since the Airport road is a busy road it takes 1 hour to travel to 78 Kms. Along with him Cw.2 and one Sepoy were also there. Panchas were with CW.1. he do not know the registration No., of the bus but the colour of the bus is black, yellow and green mixed colour. When the accused got down from the back door of the bus they 14 did not see him but while unloading the bags he saw him. Sepoy opened the bags as instructed by CW.1. they did not separate ganja before weighing. Cw.1 typed mahazar at spot. He has not given any statement before IO. He denied that he had not gone to the spot, not issued summons, not recorded voluntary statement of accused and not seized any articles. He denied that he has not translated the mahazar in Telugu. He denied that since he was not at all present at the spot, he has not given any statement. He denied that the matter written in translated copy Ex.P15(b) is not same as Ex.P15. He denied that MOs.1 to 12 and Mos., as per Ex.P21 are not seized before him. He denied that he has signed on MOs., in the office.
15. PW.5 has stated that on 28.5.2018 he received the records from Cw.1 for further investigation. On 29.5.2018 CW.3 issued search authorization as per Ex.P23 to search the house of accused. On 31.5.2018 he searched the house of the accused and gave report that the said address is fake as per Ex.P24. Again he received another search authorisation as CCH33 15 Spl.C.C.777/18 per Ex.P28. On search of the said house nothing incriminating was found. He prepared search report as per Ex.P29 and panchanama as per Ex.P30. Arrested the accused and gave intimation to his wife as per Ex.P31 and submitted complaint before court on 31.10.2018. In his cross examination PW.5 has stated that Ex.P24 does not bear the signature of CW.3. he has only written Ex.P30 mahazar. He denied that he has not searched any house but he is falsely deposing. He denied that only on the report given by CW.1 he is deposing falsely.
16. PW.6 has stated that on 6.5.2018 he was standing at Doddajala bus stand after finishing his work. At that time 56 persons came and told him that a person is bringing ganja in a bus and that he should be a witnesses for the same. At 5.00 pm., a private bus came and from that bus a person with 6 luggage bags got down. The officials apprehended that person. On searching all the bags it contained sticks, leaves, seeds of ganja. NCB officials tested the same with the equipment and 16 confirmed. They took some ganja from each bag and packed separately for sample. The weight of entire ganja would be about 8085 Kgs. They sealed all the bags and took his signature on Ex.P7. Then they took him to the office and recorded his statement as per Ex.P13. The summons received by him is at Ex.p11.
17. In the cross examination of PW.6 has stated that he has studied till SSLC. , but he do not know reading English. He is doing coolie work. On the date of incident he had finished his work in a new apartment and was waiting at the bus stop. The distance where he work to the bus stop is about 1.5 Kms. 5 NCB officials introduced themselves but I do not know their names. On the date of incident the bus came at 4.305.00 pm. He do not know the registration No., of the bus. The luggage bags were unloaded from the staircase which was by the side of the bus. The said bags were white in colour and it was plastic. NCB officials did not show the information and that they have not issued any notice to him. They have not CCH33 17 Spl.C.C.777/18 given the description of the accused. The accused was wearing shirt and pant. NCB officials had not told him about the articles which were to be seized. Bus was coming towards Bangalore. The accused got down from the front door of the bus. Whereas the complainant's case is that accused got down from the back door. It is true that when NCB officials told him that he is the accused he came to know. He do not know whether the NCB officials conducted personal search of the accused. In each bag it was 1213 Kgs., of ganja. He do not know whether chemical was used to test the ganja. He do not know the boundaries of spot. Mahazar was drawn and completed by 6.30 pm. He do not know who prepared mahazar. He has admitted that he has signed in the NCB office. He do not know whether 6.5.2018 is a Sunday. He denied that he had not gone to work and waited in the bus stop and that the accused did not come to the spot along with ganja and they seized the same. He denied that he has not given any statement at NCB office. He denied that only to help the complainant he is deposing falsely.
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18. P.W.3 C.F.S.L officer stated that on 8.5.2018 he received 6 sealed covers for scientific examination. He conducted various tests on the sample article and issued report Ex.P26 and opined that the sample articles responded positive for cannabis/ganja. In his cross examination he has stated that he has not separated the steam, leaves, seeds, flowers and then tested. He has stated that on 4.7.2018 the CFSL report was ready but the messenger from NCB came on 13.7.2018 and took the same. He denied the suggestion that the sample did not contain ganja at all and that without examining it he has issued a false report. Of course as per the evidence of P.W.3, the sample article may respond positive for ganja, but the said sample article is seized from the possession of the accused is not proved.
19. Ex.P1 information in writing U/s.42 of NDPS Act. But it is difficult to believe that whether it is reduced in writing immediately or created later. Ex.P2 & P3 emails, Ex.P4 copy of information sent to CW.2. Ex.P5 and P6 notices issued to CCH33 19 Spl.C.C.777/18 panchas but PW.6 has clearly deposed that no notice was served on him at spot. Ex.P7 panchanama, Ex.P8 test memo, Ex.P9 & 11 summons, Ex.P12 is the statement of independent panch witness but he is not examined before the court to corroborate the same. Ex.P13 statement of PW.6 which is contrary to his own evidence. Ex.P14 voluntary statement of accused has no presumptive value and it is not admissible in evidence as it is recorded after search, seizure and arrest. No further contraband seized on the basis of his statement. Ex.P15 arrest memo, Ex.P16 forwarding memo, Ex.P17 godown receipt, Ex.P18 seizure report U/s.57 of NDPS Act. In the absence of complying mandatory provisions U/s.42 and 50 of NDPS Act, compliance U/s.57 is not a valid compliance. Compliance with provisions of Sec.57 does not dispense compliance with requirement of Ss.42 and 50. Ex.P19 arrest report, Ex.P20 certificate of Magistrate U/s.52A of NDPS Act for production of the property before Magistrate and Ex.P21 are the photos taken before the Magistrate at the time of compliance U/s.52A of NDPS Act. But the said bulk ganja is 20 seized from the possession of the accused is not proved. Ex.P22 CFSL letter, Ex.P23 search warrant, Ex.P24 mahazar which discloses that no such person is residing in the said address. Ex.P25 letter, Ex.P26 report, Ex.P27 letter of CSFL, Ex.P28 search warrant, Ex.P29 house search report wherein it is clearly mentioned that nothing incriminating in nature is recovered. Ex.P30 mahazar, Ex.P31 intimation of arrest. Thus the mandatory provisions U/s.42 and 50 of NDPS Act is not complied by the prosecution.
20. The learned counsel for the accused relied on the decisions reported in Arif Khan 2 Agha Khan Vs., State of Uttarkhand Cril. Appeal No.207/2007 and Janif Khan @ Annu Khan Vs., Central Bureau of Narcotics, Crl.Appeal No.1206/2013.
The facts and circumstances of the above decisions are applicable to the case on hand.
CCH33 21 Spl.C.C.777/18
21. In view of the decisions reported in 2009 Crl.L.J. 4299 in Karnal Singh Vs., State of Haryana, (2007) 1 Supreme Court Cases (Cri) 744 in Ritesh Chakarvarti Vs., State of MP, (1999) 7 SCC 280 in State of HP Vs., Jailal and others and in AIR 2013 Supreme Court 357 in the case of Krishan Chand Vs., State of Haryana wherein it is held that: (A) Narcotic Drugs and Psychotropic Substances Act (61 of 1985), Ss 42, 50, 57 - Search - Pre search requirement of recording information received and sending it to superior officerDemands exact and definite compliance as opposed to substantial compliance - So is requirement of S.50 - Compliance with provisions of S.57 does not dispense compliance with requirements of Ss.42 and 50.
2014 Crl.L.J. 1756 in the case of State of Rajasthan Vs., Parmanan and another wherein it is held that:
(c) Narcotic Drug and Psychotropic Substances Act (61 of 1985), S 50 - Search and seizure - Option to be 22 searched before Gazetted officer or Magistrate -third option given to accused persons viz., to be searched before Superintendent who was part of raiding partyWould frustrate provisions of S.50 (1) Search conducted therefore, is vitiated."
2002 Crl.L.J. 4502 in the case of Koyappakalathil Ahamed Koya Vs., A.S.Menon and another, wherein it is held that:
(c) Narcotic Drug and Psychotropic Substances Act (61 of 1985), S 50 - Search an seizureprocedure Right given to accused to get searched in presence of Gazetted officer or Magistrate -fact that members of raiding party informed accused that Gazetted Officer is present in raiding partyIt is allurement given to accused prompting him for expressing no objection for being searched in presence of said Gazetted officer - An not for asking to be searched in presence pf any other Gazetted officer or Magistrate
-Sai procedure is against safeguard provided by S.50 to accused.
2009 Crl.L.J. 2407 in the case of UOI Vs., Bal Mukund and others wherein it is held that: CCH33 23 Spl.C.C.777/18 (B) Narcotic Drug and Psychotropic Substances Act (61 of 1985), Ss.8, 18, 67 - Recovery of narcotics confessional statements by accusedAdmissibility purported raid conducted early in morningLarge number of police officers including high ranking officers were presentaccused were found to be in possession of 10 Kgs., of narcoticsDocuments categorically show that accused were interrogated Therefore, confessional statements cannot be said, in the back drop of aforementioned events, to be made by them although they had not been put under arrestcourt while weighing evidentiary value of such statements cannot lose sight of ground realities circumstances attendant to making of such statements should be taken into consideration. On careful reading of the above said decisions, the fact, circumstances and ratio is similar with case on hand.
2014 (1) Crime 324 (SC) State of Rajasthan Vs., Parmanand and another wherein it is held thus:
(a) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 50 - Provision is mandatory - but it applies to search of the person of the accused only -24
does not apply to search of a bag carried by him - However, if the bag carried by him is searched and his person is also searched, Section 50 applies.
"(b) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 50 - Two accused persons - not informed of their rights individually - Joint notice communicated - one of the accused signing for both -
conviction vitiated."
On careful reading of above decisions, facts, circumstances and ratio is applicable to case on hand, as prosecution has not followed mandatory provisions.
22. For the above, in the absence of corroborated evidence the testimony of prosecution witnesses cannot be reliable to prove the guilt of the accused. So many considerable contradictions and discrepancies found in the prosecution witnesses. There is no link of chain found in the circumstantial evidence. Serious doubt arise in the mind of the Court to believe that accused has committed the offence. So accused is entitled for the benefit of doubt. Hence CCH33 25 Spl.C.C.777/18 prosecution has utterly failed to prove the guilt beyond reasonable doubt. Accordingly, I answer point No.1 in the 'Negative'.
23. Point No.2: In the result, following:
ORDER Acting under Section 235(1) of Cr.P.C. accused is acquitted for the offence punishable under Section 8(c) R/w.Sec.20(b) & 28 of N.D.P.S. Act.
Accused is set at liberty if he is not required in any other case.
M.Os.1 to 12 samples are ordered to be returned to the complainant to produce before Drug Disposal Committee for disposal in accordance with law.
Accused is released U/Sec.437(A) of Cr.P.C., on execution of bond for Rs.50,000/ with a surety for likesum, for the purpose of 26 his/their appearance before Appellate Court, in the event of filing of any appeal by the State.
[Dictated to the Stenographer directly on the computer, typed by her, corrected, signed and then pronounced by me in Open Court on this the 23rd day of November 2020) (G.M.SHEENAPPA) XXXIII ACC & SJ & SPL.JUDGE (NDPS) BANGALORE.
ANNEXURE
1. List of witnesses examined for the:
(a) Prosecution:
P.W.1 : Sri Rathan K
P.W.2 : Sri Pankaj Kumar Dwivedi
P.W.3 : Sri Rasool
P.W.4 : Sri Sabi
P.W.5 : Sri Sabeer Ali
P.W.6 : Sri Raju
(b) Defence :
NIL
CCH33
27 Spl.C.C.777/18
2. List of documents exhibited for the:
(a) Prosecution:
Ex.P.1 : Information
Ex.P.2 : Email
Ex.P.3 : Email
Ex.P.4 : Copy of information report
Ex.P.5 : Request letter
Ex.P.6 : Request letter
Ex.P.7 : Panchanama
Ex.P.8 : Test memo
Ex.P.9 : Summons
Ex.P.10 : Summons
Ex.P.11 : Summons
Ex.P.12 : statement
Ex.P.13 : Statement
Ex.P.14 : Voluntary statement
Ex.P.15 : Arrest memo
Ex.P.16 : Forwarding memo
Ex.P.17 : Godown receipt
Ex.P.18 : Seizure report
Ex.P.19 : Arrest report
Ex.P.20 : Certificate U/s.52(A)
Ex.P.21 : Photos
Ex.P.22 : Letter
Ex.P.23 : Search warrant
Ex.P.24 : House seizure report
Ex.P.25 : Letter
Ex.P.26 : CFSL report
Ex.P.27 : Letter
Ex.P.28 : Search warrant
Ex.P.29 : House search report
Ex.P.30 : Panchanama
Ex.P.31 : Intimation of arrest
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(b) Defence:
NIL
3.List of Material Objects admitted in evidence:
M.O.1 to 12 : Sample (G.M.SHEENAPPA) XXXIII ACC & SJ & SPL.JUDGE (NDPS) BANGALORE.
CN/*