Bangalore District Court
Bengaluru City Railway P.S vs Mohamad Phir Alias Mohamad Phir on 2 August, 2025
Spl.C. No.951/2023
1
KABC010139792023
IN THE COURT OF THE XXXIV ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE & SPECIAL JUDGE, (NDPS),
BENGALURU.
Present: Sri. Syed Baleegur Rahaman, B.A.L., LL.B.,
XXXIV Addl.City Civil and Sessions Judge &
Special Judge, (NDPS), Bengaluru.
Dated this the 02nd day of August 2025
Spl.C.No.951/2023
Complainant : The State of Karnataka,
By Bengaluru City Railway Police
Station.
(By the Ld Public Prosecutor)
-V/s-
Accused : Mohamad Phir @ Mohamad Phir,
S/o.Mohamad Ali,
Aged about 34 years,
R/a.No.219, 6th Cross,
Velur Shed, Bhadravathi,
Shivmogga,
Karnataka.
(By Smt.V.G.K.B.,Advocate)
Spl.C. No.951/2023
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1.Date of the offence : 24-01-2023
2.Date of report of
the offence : 24-01-2023
3.Arrest of the accused : 24-01-2023
4.Date of release : 06-03-2024
Period of custody: Year/s Month/s Day/s
01 01 13
4.Name of the complainant: Sri.D.Narayanaswamy
(Police Officer)
5.Date of commencement of recording
the evidence: 01-12-2023
6.Date of closing the evidence: 10-07-2025
7.Offences complained of: U/s.20(b) of NDPS Act.
8.Opinion of the Judge: Accused not found guilty.
XXXIV Addl. City Civil & Sessions Judge &
Special Judge, (NDPS), Bengaluru.
Spl.C. No.951/2023
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JUDGMENT
The Bengaluru City Railway Police have filed this charge sheet against the accused for the offence punishable U/s.20(b) of NDPS Act.
2. It is the case of prosecution that on 24.01.2023 at about 2.30 p.m, when CW-1, 4 to 6 were on patrol duty at Bengaluru Railway Station, the accused arrived at the said Railway Station from Bhuvaneshwar Railway Station and he was going out of Railway Station. The above said officials secured the accused and on verification it was found that the accused was in possession of ganja weighing 4 kg 50 gms. The said ganja was seized from the possession of accused in presence of CW-2 and 3. As per the report submitted by the first informant, this case has been registered against the accused for the commission of offences referred above and after investigation charge sheet has been filed against the accused.
3. This court being designated as a special court to try the offences under NDPS Act, cognizance of the offences taken and S.207 of Cr.P.C. has been complied with.
Spl.C. No.951/2023 4
4. The accused is on bail and represented by his counsel.
5. On hearing the prosecution and defence, my learned predecessor in office has framed charge against the accused for offences punishable U/s.20(b)(ii)(B) of NDPS Act, read over and explained to the accused, for which, he pleaded not guilty and claimed to be tried.
6. The prosecution in support of its case has examined witnesses as P.W.1 to 4 and got marked documents as Ex.P.1 to Ex.P.8 and M.O.1 to 4. After closing of prosecution side evidence, accused was examined under S.313 of Cr.P.C., and he has denied the incriminating circumstances appearing against him in the evidence of the prosecution witnesses. The case of the accused is one of the total denial that he has been falsely implicated in this case. The accused did not choose to lead any defence evidence.
7. Heard the learned Public Prosecutor and learned counsel for the accused.
8. Perused oral and documentary evidence on record.
9. Based on the materials, the following points are framed.
Spl.C. No.951/2023 5 POINTS
1.Whether the prosecution proves beyond all reasonable doubt that on 24.01.2023 at about 2-30 p.m, the accused was found in possession of ganja weighing 4 kg 50 gms near Bengaluru City Railway Station without holding any valid license and thereby the accused has committed the offence punishable U/s.20(b)(ii)B of NDPS Act?
2. What order ?
10. My findings on the above points are as under:
Point No.1 : In the Negative Point No.2 : As per final order for the following:
REASONS
11. POINT NO.1 :- PW-1 Sri.Narayanaswamy has deposed that on 21.04.2021, when he was on duty in Bengaluru City Railway Station and when he was on patrol duty in view of Republic Day at about 2.30 p.m, one unknown person was proceeding suspiciously. On verification, it was found that the said person was having two bundles of ganja in his bag. Thereafter, he secured CW-2 and 3 as panchas and thereafter Spl.C. No.951/2023 6 submitted a requisition to the DYSP seeking permission to seize the ganja and got his permission. Thereafter, he seized the ganja in presence of CW-2 and 3 under Ex.P-4. The accused was brought to the City Railway Station and he submitted a report before CW-12 and handed over the accused, seized articles and the photographs taken at the time of panchnama.
12. PW-2 Sri.Manu.P.G has deposed that on 24.01.2023 at 2.30 p.m, Railway police had secured the accused who was behaving suspiciously and on verification it was found that he was having ganja in his bag. The said ganja was seized under Ex.P-4. He came to know that the accused was traveling from Bhuvaneshwar Railway Station to KSR Bengaluru Railway Station. The above said articles were seized in his presence.
13. PW-3 Dr.Srinath has deposed that on 21.02.2023 he has received two sealed articles in Cr.No.7/2023 of Bengaluru City Railway Police Station. The articles were sealed with seal impression SBC. Seals were intact and tallied with the specimen seal. On opening the articles they had dried broken stalks bearing greenish brown colour small to Spl.C. No.951/2023 7 elongated leaves with fruiting and flowering tops, seeds having characteristics smell, each warped inside news paper separately. He conducted 5 different tests and submitted his opinion as per Ex.P-7 stating that the articles have responded positive for cannabis.
14. PW-4 Sri.M.D.Purushothama has deposed that on 24.01.2023 at 4.30 p.m, when he was present in the police station, PW-1 came along with one person and seized ganja and submitted a report on the basis of which he registered Cr.No.7/2023 and submitted FIR to the court and Higher Officer. The accused was produced before the court. He recorded the statements of CW-2 to 9. The seized articles were produced before the Magistrate and the inventory got certified and on 21.02.2023 he received a FSL report as per Ex.P-7. As the investigation was complete he submit final report before the court.
15. The accused is facing charge for commission of offence U/s.20(b)(ii)(B) of NDPS act. It is alleged that on 24.01.2023 at about 2.30 p.m, the accused was found in possession of the ganja weighing 4 kg 50 gms near Bengaluru City Railway Station. In view of the said allegation, it is the responsibility Spl.C. No.951/2023 8 of the prosecution to established beyond all reasonable doubt that the accused was found in illegal possession of the ganja as alleged by the prosecution and that the concerned officer who has conducted search and the Investigating Officer as the case may be have followed the mandatory provisions of NDPS Act.
16. In this case PW-1 Sri.Narayanaswamy is the first informant of the present case. During the course of his examination in chief, PW-1 has deposed about securing the accused on 24.01.2023 at Bengaluru City Railway Station at about 2.30 p.m, and thereafter securing the panchas to the spot and thereafter getting permission from the DYSP to seize the ganja and seizure of ganja from the possession of the accused under Ex.P-4. Before considering the facts that whether the prosecution has established the illegal possession of ganja or not, let me appreciate how far PW-1 has complied the mandatory provisions of Sec.41 and 42 of the NDPS Act. As per Sec.41 of the NDPS Act, a Metropolitan Magistrate or a Magistrate of 1st class or any Magistrate of the 2nd class specially empowered by the State Government to issue a warrant for the arrest of any person from whom there is a reason to believe that such a person has committed Spl.C. No.951/2023 9 any offence under the said act. In the present case, it is alleged that the accused was secured when PW-1 and staff were on patrol duty on the eve of Republic Day. Therefore, the question of getting warrant U/s.41 of NDPS Act would not arise. However, as per Sec.42 of the NDPS Act, any officer who is empowered by the Act to conduct search in case of any offence committed under the act or has reason to believe from personal knowledge or information given by any person has to take down the said information in writing in respect of commission of offence under the act and thereafter proceed to conduct search and seize the drug or contraband as the case may be. However, the proviso appended to Sec.42 of the NDPS Act would show that if an officer conducting search or seizure as the case may be has reason to believe that search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may conduct search at any time between sunset and sunrise after recording the grounds of his belief. Sub Sec.2 of Sec.42 of the NDPS Act mandates that an officer who takes down any information in writing under sub sec.1 or records grounds for his belief under the proviso thereto, he shall within 72 hours send a copy thereof to his immediate official superior. On plain Spl.C. No.951/2023 10 reading of Sec.42(1) R/w the proviso to Sec.42 of the NDPS Act, one can easily find that law mandates that if the officer who has personal knowledge has reason to believe that an offence has been committed under this act, he has to take down such information in writing and thereafter he has to send the said information to immediate superior within 72 hours. On plain reading of examination in chief of PW-1, it is found that PW-1 has not strictly complied the provisions of Sec.41 and 42(1) and 42(2) of the NDPS Act. At this juncture, it is relevant to refer to the judgment of Hon'ble Apex Court in State of Punjab V/s Baldev Singh reported in (1994) SCC page 299 wherein the Hon'ble Apex court while considering the mandates of Sec.41 and 42 of the NDPS Act as observed as under :-
" Para-25 (2-C) Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or Spl.C. No.951/2023 11 search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief.
To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial."
17. The Hon'ble Apex court in Karnail Singh V/s State of Haryana reported in (2009) 8 SCC page-539 has clearly laid down that the position of law that the statutory requirement of writing down and conveying information to the superior officer prior to entry search and seizure as per Sec.42(1) and 2 of NDPS Act requires a literal and substantial compliance. Thus, as already discussed the examination in chief of PW-1 itself does not disclose that he has not complied the mandatory provisions of Sec.41 and 42 of the NDPS Act, which has vitiated the trial.
18. Apart from the above said fact on plain reading of the Spl.C. No.951/2023 12 examination in chief of PW-1, it is forthcoming that after apprehending the accused, PW-1 seems to have not followed the mandatory requirement of Sec.50 of the NDPS Act. As per Sec.50 of the NDPS Act, it is the duty of the person conducting search to take the person without delay to nearest Gazetted Officer of any department or to a nearest Magistrate, if the person so requires. It is the duty of the person conducting search to give information to the suspect regarding his right of being searched in presence of the Gazetted Officer or the Magistrate. The compliance of Sec.50 of the NDPS act is mandatory. The non compliance of the said mandate of law makes the search illegal and when the search has become illegal, the court cannot rely on any evidence under which the illegal search or seizure has been made to base the conviction. At this juncture, it is relevant to refer to the judgment of Hon'ble Apex Court in case of Baladev Singh supra has held that the judgment in Ali Mustaffa Abdul Rahaman Mooha V/s State of Kerala reported in 1994(6) SCC 569 has laid down correct law regarding the compliance of Sec.50 of the NDPS Act. It is relevant to refer to the observation of Hon'ble Apex Court in case referred to supra which is as under :-
Spl.C. No.951/2023 13 " Para-8 :- The last submission of the learned counsel for the respondents is that even if the search and seizure of the contraband are held to be illegal and contrary to the provisions of Section 50 of the NDPS Act, it would still not affect the conviction because the seized articles could be used as 'evidence' of unlawful possession of a contraband. Reliance for this submission is placed on the judgment of this Court in Pooran Mal v.
Director Of Inspection2. We are afraid the submission is misconceived and the reliance placed on the said judgment is misplaced. The judgment in Pooran Mal case2 only lays down that the evidence collected as a result of illegal search or seizure, could be used as evidence in proceedings against the party under the Income Tax Act. The judgment cannot be interpreted to lay down that a contraband seized as a result of illegal search or seizure, can be used to fasten that liability of unlawful possession of the contraband on the person from whom the contraband had allegedly been seized in an illegal manner.
Spl.C. No.951/2023 14 "Unlawful possession" of the contraband is the sine qua non for conviction under the NDPS Act and that factor has to be established by the prosecution beyond a reasonable doubt. Indeed the seized contraband is evidence but in the absence of proof of possession of the same, an accused cannot be held guilty under the NDPS Act."
19. Thus the observation of the Hon'ble Apex Court makes it abundantly clear that the non compliance of Sec.50 of the NDPS Act makes the search illegal and the evidence collected cannot be relied to base the conviction.
20. The Investigating Officer or the first informant has seized the ganja from the possession of the accused under Ex.P-4. PW-2 Sri.Manu.P.G is one of the panch witness to Ex.P-4. During the course of his examination in chief, PW-2 has deposed that on 24.01.2023, the police had secured the accused who was behaving suspiciously and ganja was found in his possession and same was seized under Ex.P-4. The evidence of PW-2 is ambitious in nature. He has not deposed about the quantum of ganja that was seized from the Spl.C. No.951/2023 15 possession of the accused. During the course of cross examination, PW-2 has admitted that no notice was issued to him and no body search was made prior to conducting search and seizure. Apart from it, PW-2 has categorically admitted that he is selling tea in the Railway Station and therefore he is well acquainted with the Railway police and for the past 15 years he was being called by the police to the police station in cases of this nature and they use to take his signature to the documents. The relevant portion of the deposition of PW-2 is as under :-
"ನಾನು ರೈಲ್ವೆ ೕ ನಿಲ್ದಾ ಣದಲ್ಲಿ ಟೀ ಕಾಫಿ ಮಾರಾಟ ಮಾಡುತ್ತಿ ದ್ದೆ ೕನೆ. ಆ ಕಾರಣದಿಂದ ರೈಲ್ವೆ ೕ ಪೊಲೀಸ್ಠಾಣೆಯ ಅಧಿಕಾರಿಗಳು ನನಗೆ ಚೆನ್ನಾ ಗಿ ಪರಿಚಯ ಇರುತ್ತಾ ರೆ ಎಂದರೆ ಸರಿ. ಆಗಾಗ ಇಂತಹ ಪ್ರ ಕರಣಗಳಲ್ಲಿ ಸುಮಾರು 15 ವರ್ಷಗಳಿಂದ ಪೊಲೀಸರು ನಮ್ಮ ನ್ನು ಠಾಣೆಗೆ ಕರೆಯುತ್ತಾ ರೆ ಎಂದರೆ ಸರಿ. ಆಗಾಗ ಪೊಲೀಸರು ದಾಖಲೆಗಳಿಗೆ ನನ್ನ ಸಹಿಗಳನ್ನು ಪಡೆಯುತ್ತಾ ರೆ ಎಂದರೆ ಸರಿ. ಈ ಪ್ರ ಕರಣದಲ್ಲೂ ಸಹಾ ಪೊಲೀಸರು ತಮ್ಮ ಠಾಣೆಯಲ್ಲಿ ನಿಪಿ-4 ಕ್ಕೆ ಸಹಿ ಪಡೆದಿದ್ದಾ ರೆ ಎಂದರೆ ಸರಿ."
21. The above said admission of PW-2 makes it abundantly clear that PW-2 is a stock witness and therefore his evidence cannot be relied by the court to prove illegal possession of the ganja. Apart from all the above said fact, as already discussed in the earlier part of the judgment, when it is seen that the Spl.C. No.951/2023 16 search and seizure has become illegal due to violation of mandatory of Sec.41, 42 and Sec.50 of the NDPS Act, the evidence of panch witness cannot be relied on.
22. PW-3 Dr.Srinath the Senior Scientific Officer, Narcotic Drugs and Psychotropic Substances, FSL, Bengaluru has deposed about the receipt of the samples with respect to Cr.No.7/2023 of Bengaluru City Railway Station, conducting 5 tests and submitting his report as per Ex.P-7 stating that the samples responded positive for cannabis. As already discussed when it is held that the prosecution has miserably failed to establish the illegal possession of contraband, then the evidence of PW-3 will not help the prosecution to establish the charges levelled against the accused.
23. PW-4 Sri.M.D.Purushotham who is the Investigating Officer of this case has deposed about registration of this case in Cr.No.7/2023 as per the report of PW-1, conducting investigation and filing of the charge sheet before the court. During the course of his examination in chief, PW-4 has deposed that he produced the contraband before the Magistrate and got certification of inventory. As already discussed in the earlier part of this judgment, when this court has held that the process of seizure and search has Spl.C. No.951/2023 17 become illegal, then the accused cannot be convicted on the evidence of PW-4 that the inventory has been certified by the learned Magistrate. Apart from it, the inventory certificate issued by the Magistrate is not available on record. Only the photographs taken at the time of certifying inventory has been produced. Anyway even if the certificate of the inventory is produced before the court that would to insufficient for convicting the accused for being in illegal possession of ganja as the prosecution has failed to prove the same in accordance with law beyond all reasonable doubt.
24. On overall verification of the evidence adduced by the prosecution, it can be said that the prosecution has not been able to establish the charges leveled against the accused beyond all reasonable doubt. Hence, I am of the view that the accused deserves to get the benefit of doubt. Therefore, I answer the Point No.1 in the Negative.
25. POINT NO.2 :- In view of my finding to Point No.1, I proceed to pass the following:
ORDER Acting under S.235(1) of Cr.P.C., the accused is acquitted of the charge brought against him.
Spl.C. No.951/2023 18 The body warrant issued against the accused is hereby recalled. The accused is set at liberty.
The bail bond of the accused and that of his surety shall continue for a period of six months in terms of S.437(a) of Cr.P.C., to ensure his appearance before the higher court in case of any appeal or revision.
Office to intimate to the concerned jail authorities regarding recall of the body warrant.
M.O.1 to 4 being worthless articles shall be destroyed after expiry of the appeal period, if an appeal is preferred, then after its disposal, as per law.
(Dictated to the Stenographer Grade-I, transcribed and typed by her, script corrected and signed by me, then pronounced in the open court on this the 02nd day of August 2025.) (Syed Baleegur Rahaman) XXXIV Addl. City Civil & Sessions Judge & Special Judge, (NDPS), Bengaluru.
Spl.C. No.951/2023 19 ANNEXURE List of the witnesses examined for the prosecution:
PW-1 : Sri.Narayanaswamy PW-2 : Sri.Manu.P.G PW-3 : Dr.Srinath PW-4 : Sri.M.D.Purushothama
List of the documents marked for the prosecution:
Ex.P-1&2 : Panchas Notice
Ex.P1(a)&2(a) : Signature of PW-1
Ex.P.3 : Permission Letter
Ex.P.3(a) : Signature of PW-1
Ex.P.4 : Seizure Mahazar
Ex.P.4(a) : Signature of PW-1
Ex.P.4(b) : Signature of PW-2
Ex.P.5 : Complaint
Ex.P.5(a) : Signature of PW-1
Ex.P.5(b) : Signature of PW-4
Ex.P.6 : Railway Ticket
Ex.P.7 : F.S.L Report
Ex.P.7(a)&(b) : Signature of PW-3
Ex.P.8 : F.I.R
Ex.P.8(a) : Signature of PW-4
List of material objects:-
M.O.1 : Black Colour Bag
M.O.2 : Khaki Tape
M.O.3 : Ganja
M.O.3(a) : Signature of PW-3
M.O.4 : Aadhar Card
Spl.C. No.951/2023
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List of documents got marked for the defence:-
-Nil-Digitally signed by
SYED SYED BALEEGUR
BALEEGUR RAHAMAN
Date: 2025.08.04
RAHAMAN 17:06:10 +0530
(Syed Baleegur Rahaman)
XXXIV Addl. City Civil & Sessions Judge & Special Judge, (NDPS), Bengaluru.