Bangalore District Court
State By Mico Layout P.S vs A1:Okonkwo Basil Ndubisi S/O on 31 January, 2018
THE COURT OF THE XXXIII ADDL.CITY CIVIL & SESSIONS
JUDGE & SPL. JUDGE (NDPS),
BANGALORE. CCH.33.
PRESENT:
Sri. D.Y. BASAPUR, B.Com., LL.B. (Spl.)
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BENGALURU.
DATED: THIS THE 31st DAY OF JANUARY 2018
SPL.C.C. NO.539/2015
COMPLAINANT : State by Mico Layout P.S
(By Public Prosecutor)
V/S.
ACCUSED : A1:Okonkwo Basil Ndubisi S/o
Okonkwo, Age 33 years, No.39,
4th Cross, D.GS Layout,
Maragondanahalli, T.C.Palya
Main Road, Bangalore.
A2:Vaishak .K.r. S/o Radha
Krishna,
Age.26, No.9, 1st Cross, 3rd Main,
Brundavan Nagar, Tavarekere ,
Bengaluru.
A3: Ahmmed LuhuluS/o
Mohammed .V.K
Age 24 years, No. 208, Aditya
Apartment, Amruth Halli Road,
Hebbal, Bengaluru city,
Karnataka.
2
A4: Sajeer.N.R, Prashant Nilaya,
BTM Layout, Bengaluru City,
Karnataka.
(By A1, 3 & 4 - Sri SIZ., A2 - KSV,
Adv.)
1. Date of Commission of offence: 5.9.2015
2. Date of report of offence: 5.9.2015
3. Arrest of the accused : 6.9.2015
4. Date of release of accused on A1 & A3 - 4.12.2015
bail: A2 - 16.11.2015
A4 - 17.10.2015
5. Period undergone in custody: A1 & A3 - 2 mths 28 days
A2: 2 months 10 days
A4 - 1 month 11 days
6. Date of commencing of 6.4.2017
recording Evidence :
7. Date of closing of Evidence : 16.1.2018
8. Name of the complainant: Sri Manjunath, PI
9. Offence complained of : U/s.20(ii)(c)(b), 21(C) of
NDPS Act
10. Opinion of the Judge : Offence not proved
11. Order of sentence : As per final order
---
CCH-33
3 SPl.C.C539/2015.
JUDGMENT
The Police Inspector, MICO Layout Police Station, Bangalore filed charge sheet against accused in Cr.No.845/2015 for the offence punishable U/Sec.20(b) & 21(C) of N.D.P.S. Act.
2. Brief facts of the case are as under:
that on 5.9.2015n at 11.30 am., P.I of MICO layout police station got information about drug trafficking by some persons in Public Park near govt., School, Tavarekere bus stand, Bangalore. Therefore, he along with his staff went to the said place at 12.o5 pm., secured two panchas and on observation they found 4 persons standing in the park and after confirmation they were surrounded and apprehended the said persons on the spot and found that accused No.1 was possessing 100 grams of ganja and 100 grams of cocaine.
They seized the said articles under mahazar. Accused No.1 along with three other accused was arrested and produced 4 before Magistrate and he was remanded to judicial custody.
Later on accused is enlarged on bail.
3. After taking cognizance registered the case. Copies of the prosecution papers were supplied to accused persons U/Sec.207 of Cr.P.C. After hearing, charge framed U/Sec.20(B) & 21(C) 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 9 and got marked Exs.P1 to P.28 and M.Os.1 to 16. Prayer of PP for reissue NBW to C.W.2 & 3 is refused as sufficient time is given. PP has given up C.W.6. 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.
CCH-33 5 SPl.C.C539/2015.
6. The points for consideration are as under:
1. Whether the prosecution proves that on 5.9.2015 at about 12.05 pm., at Tavarekere, near Arlimara Tree, in the park of govt., school, accused Nos.1 to 4 were in illegal possession of 200 grams of ganja, 100 grams cocaine, 96 grams Charas, 20 grams of MDMA which are narcotic drugs without license or permit, there by accused Nos.1 to 4 have committed the offence u/S.20(B) & 21(C) of NDPS Act?
2. What order?
7. My findings on the above points are as under:
Point No.1: In the negative.
Point No.2: 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 9 and Exs.P.1 to P.28 and M.Os.1 to 16, 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.
6
9. On careful perusal of the materials placed on record, the prosecution mainly relied on the testimonies of P.Ws.2, 1 &
4. P.W.2 has stated that on 5.9.2015 at 11.30 AM. He received information that near Govt., school, Tavarekere, in the park, 4 persons are induced in selling drugs. He reduced the information to SHD as per Ex.P14 and informed the information to DCP as per Ex.P15 and obtained permission to conduct raid. He secured staff members and went to the spot and secured CWs.2 and 3 panchas and informed the information to panchas and staff members and issued notice Ex.P16 to pancha. They conducted raid and apprehended 4 persons and informed the existing legal right of the accused for their persons search to be conducted before Gazetted officer or Magistrate. They agreed to be searched by Gazetted Officer. He requested to ACP/PW1 to come to the spot as per Ex.P1 notice who came to the spot and issued questionnaires to accused Ex.P2 to P5. On personal search of accused No.1 they seized 100 grams ganja and 100 grams cocaine. From accused CCH-33 7 SPl.C.C539/2015.
No.2 96 grams of Charas, from accused No.3 20 grams MDMA and from accused No.4, 100 grams ganja. In the cross examination of P.W.2 has stated that in Ex.P14 information received by him is not mentioned at 11.30. In chief examination has stated that he has received information at 11.30 am., he voluntarily stated that he mentioned as 11.45 am., as he was busy in registering work. On perusal of Ex.P14 at 11.30 am., P.W.2 received one complaint from other crime. At 11.22 onwards all the time mentioned are over written. At 11.45 it is written as he received information regarding 4 persons including one African induced in selling drugs and he informed the information to ACP and DCP and went to the spot along with staff members after obtaining permission. Even P.W.2 has not reduced the information received by him either at 11.30 or 11.45 am., in SHD. He returned after receipt of the information, he went to the spot after obtaining permission. Again at 3.30 pm., mentioned in SHD that he received information at 11.30 am., and went to the spot and seized the vehicle and contraband from accused persons. Again the time 8 11.30 is also over written. So Ex.14 information reduced in writing is not in accordance with the mandatory provisions U/s.41 and 42 of NDPS Act. Even copy of SHD is not sent along with letter submitted to superior officer.
10. P.W.2 in his chief examination stated that in Ex.P15 letter submitted to DCP, date is over written. But in his cross examination stated that he do not know whether date is over written or not. Thus, on perusal of Ex.P15 it is clear that date is subsequently over written. Further P.W.2 admitted that 4 persons induced in selling ganja at park is not mentioned in the document. P.W.2 stated that in Ex.P6 and P16 Mahazar, names and address of panch witnesses is not typed, subsequently it is written. He has stated that due to technical error names and addresses is not typed. As per police Manual names and address of panchas shall be mentioned on the top of panchanama. Whereas Ex.P6 and P16 entire matter is typed except panchanama. So it cannot be over ruled that CCH-33 9 SPl.C.C539/2015.
panch witnesses were not present at spot, therefore, names are written subsequently in the office and taken signature.
Further P.W.2 admits that he has not explained the legal right of the accused persons for their personal search to be conducted before Gazetted officer or Magistrate. He has stated that he voluntarily secured P.W.1 AEE to the spot to act as Gazetted Officer and issued notice Ex.P1 to P.W.1 at spot. Further he denied that Ex.P1 is typed at spot. But in the xerox copy of Ex.P1 signature of P.W.1 is not found. He voluntarily stated that Ex.P1 handed over to I.O. he do not know regarding signature of P.W.1 not found in the xerox copy. At the time of cross examination specifically shown the xerox copy of Ex.p1 supplied to accused and prosecutor, but he denied and voluntarily stated that he handed over Ex.p1. thus, the contention of learned counsel for the accused that Ex.p1 is also created subsequent to panchanama cannot be ignored. Ex.p2 to P5 notices issued to accused persons by P.W.1 has taken answer as 'Gazetted Officer for personal search' and again question No.3 put by P.W.1 that he is a 10 Gazetted Officer he may conduct personal search, answer taken as 'yes he can'. In all 4 notices, Gazetted Officer and yes he can is written in green ink by same person, subsequently answer taken for question No.2 as 'he has right to chose any body'. So Ex.P2 to P5 are not in accordance with provisions U/s.50. Even P.W.1 is not a competent or empowered officer to act as Gazetted Officer U/s.50 of NDPS Act. More over, personal search can be conducted before Gazetted Officer by I.O. in the case on hand, P.W.2 without informing the existing legal right of the accused and without consent by the accused secured P.W.1 who informed the legal right of the accused and issued notice. So P.W.1 is not a competent officer to issue notice and also act as Gazetted Officer.
P.W.2 further stated that in photos Ex.P8 to P11 single article is shown to each of the accused and taken 4 photos separately. P.W.2 admits that after search and seizure they have not taken photos for entire articles. Ex.p8 to 11 reveal that one of the raiding members kept a single article before each of the accused and taken photo. P.W.2 further stated CCH-33 11 SPl.C.C539/2015.
that crime No., and PF No., is written on chits. He admits that at the time of search and seizure no FIR and PF was registered. He voluntarily stated that he put FIR No., and PF No., at spot on chit after enquiring in the office regarding next No., of the FIR and PF. He denied that before lodging of complaint and registering the case, mentioning of FIR and PF No., on the chit is illegal. P.W.2 further denied that on 30.8.2015 at 7.00 pm., he secured accused persons separately and detained illegally for 6 days then registered false case.
11. P.W.4 raiding member has also supported the testimony of P.W.2. he has stated that on 5.9.2015 at 11.30 am., P.W.2 secured staff members and informed the information received by him. they went to the spot and secured panchas and P.W.1 Gazetted Officer. They apprehended the accused persons and seized M.Os.1 to 16 and drew mahazar. In his cross examination denied that he has not personally went to the spot and seized M.Os.1 to 16 and drew mahazar.
12
12. P.W.5 stated that on 30.9.2015 he produced 8 sample articles to FSL and obtained acknowledgement Ex.p21. in his cross examination denied that he has not obtained any sample articles to FSL.
13. P.W.6 stated that she is the owner of house No.39. about 2 ½ years back she leased the said house to accused No.1 for Rs.11,000/- rent pm., and received Rs.60,000/- advance. In the said house other three persons were residing along with accused No.1. she produced the copy of the lease deed to police. Xerox copy of the release deed reveal that it does not bear the signature of accused No.1. the same is not marked. Further P.W.6 stated that after 4-5 months police secured to police station and shown the accused stating that they seized ganja from him. in her cross examination stated that she has not received any complaints from neighbouring persons regarding accused induced in selling ganja. She came to know the same from police.
CCH-33 13 SPl.C.C539/2015.
14. P.W.7 stated that he had leased house No.64 to accused No.2 for Rs.6,000/- and received advance of Rs.10,000/-. As accused did not pay the advance amount, he vacated the room. After one month police called him and stated that accused No.2 is induced in selling ganja and shown him in the station. He has also stated that no complaints received by neighbouring persons.
15. P.W.8 stated that in the month of September 2015, he parked his vehicle near a building at Tavarekere and the same was missing. He lodged complaint to MICO layout Police. He has no receipt regarding lodging of complaint. Further stated that police informed him that they have seized drugs from the said vehicle. Subsequently, he has taken the interim custody of the vehicle through court. prosecution treated this witness as hostile and cross examined, but nothing is elicited in the cross examination. So, evidence of P.Ws.6 to 8 are not helpful to the case of the prosecution. 14
16. P.W.1 AEE stated that on 5.9.2015 at 12.30 pm., P.W.2 informed him to come to the spot through phone. He went to the spot and Ex.P1 letter handed over to him. he informed the right of the accused and issued notice Ex.P2 to P5. they agreed to be searched by him. they seized M.Os.1 to 16 and drew mahazar. In his cross examination stated that he received phone message from P.W.2 when he was out side the office, no written letter submitted by P.W.2 to his office. He has not obtained permission from his superior officer before going to the spot. He admits that his signature is not found on the copy supplied to accused, except Ex.P1. further admits that he has not obtained special orders from his superior officer to act as Gazetted Officer. He has stated that he took his seal to the spot but no seal put on Ex.P6 mahazar. As per Sec.42 of NDPS Act officer and empowered officer mentioned in particular department are only competent persons to act as Gazetted Officer except special order. But P.W.1 has not obtained special order to act as Gazetted Officer. So, personal search conducted by P.W.1 is not in accordance with CCH-33 15 SPl.C.C539/2015.
mandatory provisions. So evidence of P.W.1 is also not helpful to the case of prosecution.
17. P.W.3 FSL officer stated that she has conducted various tests of sample articles and issued report Ex.P19 and opined that in article Nos.1, 2, 6, 7 and 8 found presence of ganja, in article No.4 Charas (Hashish) in article No.3 found cocaine and paracetomol and in article No.5 found methamphetamine. In the cross examination denied that she has not separated the seeds, flowers, steam from ganja. She has not mentioned the percentage of actual ganja in the sample. Further she admits that cocaine and methamphetamine are not compared with sample seal but in the report mentioned regarding comparing with the sample seal. The opinion of P.W.3 may be believable that the sample articles responded positive for drugs as mentioned above, but the said sample articles are seized from the possession of the accused is not proved as none of the panch witnesses examined by the prosecution.
16
18. Ex.p12 and P13 photos of vehicle are not disputed as P.W.8 is the owner of the vehicle bearing No.KL 08 T 1864 and the same was parked in front of a building at Tavarekere and it was missing.
19. Ex.P17 complaint lodged by P.W.2 wherein existing legal right is also not mentioned. Ex.P23 FIR submitted to magistrate but the delay in submitting the same is not properly explained. Ex.P22 PF wherein in column No.7 signature of panch witnesses are not obtained. Ex.P25 to 28 voluntary statements of accused persons 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.
20. Ex.P18 report submitted to ACP for success of raid. In the absence of complying mandatory provisions U/s.42 and 50 of NDPS Act, compliance U/s.57 is not a valid compliance.
CCH-33 17 SPl.C.C539/2015.
Compliance with provisions of Sec.57 does not dispense compliance with requirement of Ss.42 and 50.
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 officer-Demands 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:- 18
(c) Narcotic Drug and Psychotropic Substances Act (61 of 1985), S 50 - Search and seizure - Option to be searched before Gazetted officer or Magistrate -third option given to accused persons viz., to be searched before Superintendent who was part of raiding party-
Would 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 seizure-
procedure-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 party-It 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.
CCH-33 19 SPl.C.C539/2015.
AIR 2013 Supreme court 953 in the case of Sukhdev Singh Vs., State of Haryana wherein it is held that:-
(B) Narcotic Drug and Psychotropic Substances Act (61 of 1985), S 42 - Search an seizure - On receipt of secret information-Requirement to reduce information in writing and sent it forthwith to superior officer- Is mandatory-Needs strict compliance-Some delay in compliance is permissible only for special reasons but compliance should be prior to recovery.
(c) Narcotic Drug and Psychotropic Substances Act (61 of 1985), S 42, 15 - Search conducted hours after receipt of information-no effort was made by I.O to reduce information in writing and inform his higher authorities instantaneously or even after or reasonable delay-No evidence produced to show as to what prevented I.O from recording information and sending it to superior total non compliance with provisions of S.42 - Such defect is incurable -
Accused liable to be acquitted.
2009 Crl.L.J. 2407 in the case of UOI Vs., Bal Mukund and others wherein it is held that:-
20
(B) Narcotic Drug and Psychotropic Substances Act (61 of 1985), Ss.8, 18, 67 - Recovery of narcotics-
confessional statements by accused-Admissibility purported raid conducted early in morning-Large number of police officers including high ranking officers were present-accused were found to be in possession of 10 Kgs., of narcotics-Documents 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 arrest-court 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(4) Crimes 304 (P&H) - Ram Lubhaya vs. State of Punjab, 2011 (3) Crimes 210 (SC) - Rajendra Singh vs. State of Haryana, 2013 (1) Crimes 51 (SC) - Suresh and others vs. State of Madhya Pradesh, 2011 (4) Crimes 26 (SC) - State of Delhi vs. Ram Avtar @ Rama, 2011(1) CCH-33 21 SPl.C.C539/2015.
Crimes 508 (Karnataka) - K.K. Rejji and others vs. State by Murdeshwar Police Station, Karwar.
2014(2) Crimes 234 (Kar) in Ravi and others Vs., State by Manna-E-Khelli Police, Bidar district wherein it is held that:-
"Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 20(b)(ii)(c) and 42 - Recovery of 5 bags of ganja weighing 45 kilograms from possession of appellants - Conviction by Trial Court - Appeal against conviction - Failure to comply with procedure under section 42 of Act - absence to record in writing the information received in first instance - No emergent situation which warranted postponement of said Act of recording the information received in writing-Nor any such record in writing at a later point of time - Held entire proceedings Vitiated by virtue of failure to record circumstances in writing - Quantity of ganja indicated as having been in possession of appellants was also inaccurate as the weighment was of stalks, leaves seeds and possibly the flowering and fruiting tops - inaccurate weighment would have a telling effect on the degree of punishment that could be imposed-this was because NDPS Act provides for a 22 schedule which prescribes the degree of punishment dependent on the weight of substance involved -m hence, held that there was a failure in the charges being framed accurately against accused - impugned judgment of court below set aside - Appeal allowed."
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 -
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.
CCH-33 23 SPl.C.C539/2015.
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 Nos.1 to 4. 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 have committed the offence. So accused are entitled for the benefit of doubt. Hence 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 Nos.1 to 4 are acquitted for the offence punishable under Section 20(B) & 21(C) of N.D.P.S. Act.
Bail bond of the accused shall stands cancelled.24
M.O.10 to 16 mobiles are ordered to be confiscated to State after appeal period is over.
M.Os.1 to 8 sample and bulk are ordered to be returned to the I.O/complainant with a direction to produce before Drug Disposal Committee for disposal in accordance with law.
M.O.9 plastic cover is ordered to be destroyed.
Accused are released U/Sec.437(A) of Cr.P.C., on execution of bond for Rs.50,000/- each with a surety for likesum, for the purpose of their appearance before Appellate Court, in the event of filing of any appeal by the State.
[Dictated to the Stenographer, transcribed and computerised by her, corrected, signed and then pronounced by me in Open Court on this the 31st day of January 2018) (D.Y. BASAPUR) XXXIII ACC & SJ & SPL.JUDGE (NDPS) BANGALORE.
CCH-33 25 SPl.C.C539/2015.
ANNEXURE
1. List of witnesses examined for the:
(a) Prosecution:
P.W.1 : Ashok Gowda
P.W.2 : Manjuanth
P.W.3 : Dr. Vani
P.W.4 : Neelakanta
P.W.5 : Ashokkumar
P.W.6 : Radhamma
P.W.7 : Suresh
P.W.8 : Srijith
P.W.9 : Nanjegowda
(b) Defence :
NIL
2. List of documents exhibited for the:
(a) Prosecution:
Ex.P.1 : Notice
Ex.P.2 to 5 : Search Notice
Ex.P.6 : Panchanama
Ex.P.7 : Sample Seal
Ex.P.8 to 13 : Photos
Ex.P.14 : SHD
Ex.P.15 : Letter of ACP
Ex.P.16 : Pancha Notice
Ex.P.17 : Complaint
Ex.P.18 : Report to DCP
Ex.P.19 : FSL Report
Ex.P.20 & 21 : Acknowledgements
Ex.P.22 : Voluntary statement
Ex.p23 : FIR
Ex.P24 : PF
26
Ex.P25 to 28 : voluntary statements of accused
(b) Defence:
NIL
3.List of Material Objects admitted in evidence:
M.O.1 to 8 : FSL Sample
M.O.9 : 20 Empty Plastic Covers
M.O.10 : Mobile
M.O.11 to 13 : Mobiles
M.O.14 & 15 : Mobile
M.O.16 : Mobile
(D.Y. BASAPUR)
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BANGALORE.
CN/*