Bangalore District Court
State By Ncb vs Nagaraja on 29 October, 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 29th DAY OF OCTOBER 2020
SPL.C.C. NO.859/2018
COMPLAINANT : State by NCB, BZU, Bangalore.
(By Spl. Public Prosecutor)
V/S.
ACCUSED : Nagaraja, S/o.Ramaya, 60 years,
R/at.Karapalli village, chintamani,
Kolar, Karnataka.
(By Sri DDM/RS., Adv.)
1. Date of Commission of offence: 23.5.2018
2. Date of report of offence: 23.5.2018
3. Arrest of the accused : 24.5.2018
4. Date of release of accused on In JC
bail:
5. Period undergone in custody: Still in JC
6. Date of commencing of
23.1.2020
recording Evidence :
2
7. Date of closing of Evidence : 05.03.2020
8. Name of the complainant: Sri Sabir Ali, I.O
9. Offence complained of : U/s.8(c) r/w.Sec.20(b),
28 & 29 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 & 29 of NDPS Act.
2. Brief facts of the case are as under:
The case of the prosecution is that, on 23.5.2018 at about 12.00 noon, he received information that a Kannada speaking person is possessing huge ganja. He reduced the same in writing and sent the same to CW.2 through email.
Cw.2 gave permission to form team and conduct raid through email. They went to the railway station along with staff at 4.30 pm., along with DD kit. He secured panchas Cws.6 and 7 at CCH33
3 Spl.C.C.859/2018 spot informed the information. The informant showed the accused at parking area. The accused had in all 5 bags. They apprehended him and explained the legal right of the accused to be searched before gazetted officer or Magistrate. The accused told them that he had come from Vishakapatnam to Bangalore and intended to go to Chintamani. On enquiring about the bags he told that it was ganja. On seeing the same it contained leaves, flowers, seeds etc. on weighing the same in all it was 62 Kgs. They took 20 grams of 10 packets and packed separately for sample. They prepared test memos and drew mahazar. They arrested the accused and produced before the magistrate 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 Cr.P.C. After hearing, charge framed U/Sec.8(c) R/w.Sec.20(C) of N.D.P.S. Act, read over and explained to them. Accused pleaded not guilty and claimed to be tried. 4
4. In support of the case, prosecution has examined P.Ws.1 to P.W.5 and got marked Exs.P1 to P.24 and M.Os.1 to
10. Prayer of SPP for appearance of CW.6 & 7 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 23.5.2018 at about 16.30 hours., at parking area of Yelahanka railway station accused was in illegal possession of 62 Kgs., of ganja, which is a narcotic drug without license or permit, there by accused has committed the offences U/S.8(c) R/w.Sec.20(c) of NDPS Act?
2. What order?
7. My findings on the above points are as under:
CCH33 5 Spl.C.C.859/2018 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.5 and Exs.P.1 to P.24 and M.Os.1 to 10, 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, 3 to 5.
P.W.3 has stated that on 23.5.2018 at about 12.00 noon, he received information that a Kannada speaking person is possessing huge ganja. He reduced the same in writing as per Ex.P1 and sent the same to CW.2 through email as per Ex.P2 and 3. Cw.2 gave permission to form team and conduct raid through email as per Ex.P4. they went to the railway station 6 along with staff at 4.30 pm., along with DD kit. He secured panchas Cws.6 and 7 at spot informed the information. The informant showed the accused at parking area. The accused had in all 5 bags. They apprehended him and explained the legal right of the accused to be searched before gazetted officer or Magistrate. The accused told them that he had come from Vishakapatnam to Bangalore and intended to go to Chintamani. On enquiring about the bags he told that it was ganja. On seeing the same it contained leaves, flowers, seeds etc. on weighing the same in all it was 62 Kgs. They took 20 grams of 10 packets and packed separately for sample. They prepared test memos Ex.P6 and drew mahazar Ex.P15. Ex.P3 had translated to Kannada as per Ex.P15(d). the notice issued to accused and panchas are at Ex.P17 to P19. He sent forwarding memo as per Ex.P6. Godown receipt is at Ex.P6. he recorded the voluntary statement of the accused as per Ex.P20. Recorded the statements of Cws.6 and 7 as per Ex.P21 and P22. Arrest memo is at Ex.P23. On 26.5.2018 he sent the sample for CFSL. He sent seizure report and arrest CCH33 7 Spl.C.C.859/2018 reports as per Ex.P9 and P10. He obtained house search authorisation as per Ex.P11. House search report is at Ex.P12. It was found that the address of the accused is fake and gave report Ex.P24. He handed over the record to CW.5 for further investigation.
10. PW.3 in his cross examination has deposed that his office timings is from 9.00 am., to 6.30 pm. The attendance register of his office is biometric. He do not remember during 2018 whether there was attendance register or biometric. On 23.5.2018 for the entire day he was in his office. He received the information from his superior officer through phone. The time was 12.00 noon. He denied that in his report he has not stated that he received information through phone. It is true that if any person comes and get down at Railway station he will be checked. He has not seized any train ticket from the accused nor he has secured the list of the passengers who traveled from Vishakapatnam to Bangalore. It is true that in railway station there are CCTV and the railway police will be 8 patrolling. There was no hindrance to secure the footage of the CCTV. The distance of Yelahanka railway station from his office is about 67 Kms., and he can reach the railway station within 15 minutes. It is not true that in every parking place there will be parking staff. He has not mentioned the Laptop and Printer IP Nos. it is true that from which time to which time the mahazar was drawn is not written. Boundaries of the spot is not mentioned in the mahazar. He denied that accused except Telugu he do not know any other language. He denied that accused is an aged person and he is not in a position to listen to any thing as he cannot hear properly. He denied that they have not informed the accused in his language and that they have not conducted any personal search of the accused. He denied that on the date of incident, accused was not at all present at the spot, they have not seized any thing from him and that filed a false case against the accused and deposing falsely. He denied that they have created all the documents for the sake of this case. He denied that he has not sent the samples to CFSL and received the report. He denied that the CCH33 9 Spl.C.C.859/2018 address of the accused is fake and they have given it for the sake of this case. They have not taken any steps to arrest Tatababu. He denied that accused had no contact with the said Tata babu.
11. PW.1 on 23.5.2018 when he was at NCB office, Hyderabad, he received an email from CW.1 at about 12.30 noon. At that time he was in charge superintendent of Bangalore office. He received email regarding a person by name Nagaraj was transporting huge ganja from Yelahanka Railway station to Chintamani. 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 are at Ex.P3 and 4. he came to Bangalore. On 24.5.2018 at about 10.30 pm., CW.1 produced the seized articles through forwarding memo Ex.P6 and he issued godown receipt as per Ex.P7 and entered the same in the register. On 26.5.2018 he sent samples to CFSL, Hyderabad. On 28.5.2018 he received acknowledgement 10 from CFSL as per Ex.P8. On 24.5.2018 CW.1 sent seizure report and arrest report as per Ex.P9 and P10. He issued house search authorisation to CW.1 as per Ex.P11. On 31.5.2018 CW.1 submitted the report of house raid as per Ex.P12 stating that the address of the house has not been traced.
12. PW.1 in his cross examination has stated that they will not be given exact time to work. There is no necessity for him to produce any document to show that he was at Hyderabad on that day. It is true that in Ex.P2 and P3 there is no mention of IP No. witness volunteers and states that it does not come in printout. He denied that Ex.P2 and 3 are created by him and that CW.1 has not sent Ex.P1 to him. He has stated that CW.1 had first called him and then sent email. He denied that Ex.P6 forwarding memo is not produced before him by CW.1 and produced the MOs., and that he has not issued godown receipt. He denied that he has not sent any items for CFSL and receipt acknowledgement. He denied that CCH33 11 Spl.C.C.859/2018 as per Ex.P9 CW.1 has not submitted any report before him and that as per Ex.P11 CW.1 has not searched the house of accused and issued report Ex.P12. He denied that all the documents are created for the purpose of this case.
13. P.W.4 has stated that on 23.5.2018 CW.1 left Yelahanka Railway station office at 4.00 pm., and at 4.20 pm., he secured him. A person by name Nagaraj was near Railway police station possessing 5 polythene covers. CW.1 told him to enquire the said person as he did not know Kannada. He translated English to Kannada to the accused. He explained the mahazar drawn in English to accused in Kannada. What ever the accused stated in Kannada was translated to English by him to CW.1. in his cross examination PW.4 has stated that he has not acquired any training to translate English to Kannada and from Kannada to English. It is true that Cw.1 has not given in writing to translate. He denied that it takes about 30 minutes to go to Yelahanka Railway station from his office. It took 45 hours to explain to the accused in his 12 language but he cannot say how many pages he translated. He denied that on 23.5.2018 he was in his office and not gone to Yelahanka railway station and translated to accused as stated by CW.1. he denied that they have not drawn mahazar as per Ex.P15, they have not seized Mos., and that they have created Ex.P15 and MO in their office.
14. PW.5 has stated that on 27.6.2018 CW.1 he received the records for further investigation. On the voluntary statement of accused he tried to secure one Tatababu, but he was not secured. On 2.8.2018 he received FSL report Ex.p13 and after completion of investigation he submitted complaint on 31.10.2018 before court. In his cross examination PW.5 has stated that he has not received any record for further investigation. He denied that they have created the name of Tatababu and that they have not tried to secure him. He denied that he has not received CFSL report and that he has no information about this case.
CCH33 13 Spl.C.C.859/2018
15. P.W.2 C.F.S.L officer stated that on 28.5.2018 he received 5 sealed cover for scientific examination. He conducted various tests on the sample article and issued report Ex.P13 and opined that the sample articles responded positive for ganja. In his cross examination he has stated that he has not separated the steam, leaves, seeds, flowers and then tested. 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.2, the sample article may respond positive for ganja, but the said sample article is seized from the possession of the accused is not proved as none of the panch witnesses examined by the prosecution.
16. CWs.6 and 7 independent panch witnesses are not examined in spite of sufficient opportunity was given. In the absence of corroborated evidence of independent witnesses, the testimony of official witnesses is not reliable and credit worthy.
14
17. 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 sent to superior officer, Ex.P6 forwarding memo, Ex.P7 godown receipt, Ex.P8 acknowledgement issued by CFSL. Ex.P9 report submitted to DCP 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. Compliance with provisions of Sec.57 does not dispense compliance with requirement of Ss.42 and 50. Ex.P10 arrest report, Ex.P11 authorisation to search the house of accused. Ex.P12 search report stating that the address given by accused is fake. Ex.P13 CFSL report, Ex.P14 CFSL letter, Ex.p15 mahazar is not proved as none of the panch witnesses have been examined by the complainant. Ex.P16 test report, Ex.P17 notice issued to accused, Ex.P18 and P19 summons issued to panch witnesses, Ex.P20 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 CCH33 15 Spl.C.C.859/2018 contraband seized on the basis of his statement. Ex.P21 and 22 statements of Cws.6 and 7 are not proved by examining them. Ex.P23 arrest memo and Ex.P24 intimation of arrest.
18. The learned Spl.P.P. has relied on a number of decisions reported in : 2017 SAR (Crl.) 258 Dilbagh Singh Vs., State of Punjab wherein it is held that "the application of Sec.50 of the accused is comprehended and called for only in the case of search of a person as distinguished from search of any premises etc. the requirements of Sec.57 of the accused had been duly complied with as well. The fact that the contraband was recovered from the car while the same was being driven by one of the accused persons in the company of the other also authenticate the charge of their conscious possession thereof courts below have appreciated the materials on record in the correct legal and factual perspectives and the findings recorded do not merit any interference.
16The facts and circumstances of the above decision is applicable to the case on hand as the personal search of the accused is not done.
(2009) 8 SCC 539 in Karnail Singh Vs., State of Haryana wherein it is held that: non compliance with Sec.42 may not vitiate the trial if it does not cause any prejudice to the accused - therefore, matter remanded to be decided on facts in the light of observations made.
The facts and circumstances of the above decision is not applicable to the case on hand as the complainant has produced Ex.P1 for having complied the mandatory provision U/s.42 which is not believable.
2015 SAR (Criminal) 597 in the case of Kulwinder Singh and another Vs., State of Punjab wherein it is held that once possession is found, the accused is presumed to be conscious possession.
CCH33 17 Spl.C.C.859/2018 The facts and circumstances of the said decisions are not similar to the case on hand as complainant has failed to prove the conscious possession by adducing the evidence of panch witnesses.
1990 Crl.L.J. 463 in Lallan Vs., State of UP wherein it is held that: (D): Evidence Act : Appreciation of evidence - discrepancies - when they do not go to root of the matter and do not shake the basic version of the witnesses, court should not attach undue importance to them.
The facts and circumstances of the above decision helpful to the SPP as the possession of contraband is not proved.
19. The learned counsel for the accused relied on the decisions reported in: (2009) 12 SCC 161 Union of India Vs., Bal Mukund wherein it is held that: 18 B. S.67 Confession - evidentiary value of Holistic approach, requirement of Held court while weighing evidentiary value of confessional statement to see ground realities - authorities under NDPS Act can always show that accused not arrested before such statements were recorded circumstances attendant to making of such statements should be taken into consideration hence could has to take a holistic approach - on facts, conduct of raid early in the morning - presence of large number of police officers including high ranking officers presence of large number of police officers including high ranking officers exhibits indicating accused were interrogated - doubtful whether accused made statements on the road - in the circumstances held accused had not made voluntary statement - Evidence Act, 1872 Ss.26 and 30.
AIR 1995 SC 244 in Ali Mustaffa Vs., State of Kerala, wherein it is held that: "(B) NDPS Act S.20, 50 - unlawful possession of contraband - proof - search and seizure made in contravention of S.50 - contraband seized as result CCH33 19 Spl.C.C.859/2018 of such illegal search - cannot be used as evidence of unlawful possession of contraband."
(2007) 1 Supreme Court Cases 450 in Dilip and another Vs., State of MP wherein it is held that:
"NDPS Act - Sec.50, 42 and 57 search, seizure and arrest - court below recording a judgment of acquittal, holding that the search and seizure was vitiated in law as mandatory statutory requirements contained in Ss.50 and 42 were not complied with - Also, that the seizure witness did not support the prosecution case and the informant also not complying with the requirement of S.57 of NDPS Act. Further, that the sealing of contraband materials were not carried out in accordance with law.
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 20 compliance - So is requirement of S.50 - Compliance with provisions of S.57 does not dispense compliance with requirements of Ss.42 and 50.
1999 Supreme court 2378 in State of Punjab Vs., Baldev Singh wherein it is held that: NDPS Act - search - accused informed of his right to be searched before Gazetted Officer or Magistrate and exercising his option - empowered officer however failed to conduct his search before Gazetted officer or Magistrate - may not vitiate trial - but render his conviction unsustainable because of inherent prejudice caused.
AIR 1994 Supreme Court 1872 State of Punjab Vs., Balbir Singh wherein it is held that: (A) Cr.P.C., Ss.4, 100, 165 Search and seizure - carried out by police officer in normal course of investigation into offence or suspected offence as provided under Cr.P.C. if there is chance of recovery of narcotic drug or psychotropic stage onwards carry out investigation as per provisions of NDPS Act S.50 of NDPS Act not applicable to such search.
CCH33 21 Spl.C.C.859/2018 AIR 2018 Supreme Court 3853 in Mohan Lal V/s State of Punjab Constitution of India, Art.21Fair trailFair investigation is foundation of fair trailAnd requires informant and Investigating officer not to be same persons especially in laws carrying reverse burden of proofWhen informant and Investigating Officer is same person, investigation is said to be vitiated. Delay of nine day in sending sample for chemical analysisInformant and investigating officer being same person, investigation is said to be vitiated for want of fair trailConviction, liable to be set aside. Constitution of India,Aer.21 On careful reading of above decisions, facts, circumstances and ratio is applicable to case on hand, as prosecution has not followed mandatory provisions.
20. Further, 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 22 HP Vs., Jailal and others and in 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 informationRequirement to reduce information in writing and sent it forthwith to superior officer Is mandatoryNeeds strict complianceSome 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 informationno effort was made by I.O to reduce information in writing and inform his higher authorities instantaneously or even after or reasonable delayNo 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.
CCH33 23 Spl.C.C.859/2018 2009 Crl.L.J. 2407 in the case of UOI Vs., Bal Mukund and others wherein it is held that: (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 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. 2014(2) Crimes 234 (Kar) in Ravi and others Vs., State by MannaEKhelli Police, Bidar district wherein it is held that: 24 "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 writingNor 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 imposedthis was because NDPS Act provides for a 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." On careful reading of above decisions, facts, circumstances and ratio is applicable to case on hand, as complainant has not followed mandatory provisions.
21. For the above, in the absence of corroborated evidence the testimony of prosecution witnesses cannot be CCH33 25 Spl.C.C.859/2018 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 have committed the offence. So accused is 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'.
22. 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(C) of N.D.P.S. Act.
Accused is set at liberty if he is not required in any other case.
M.Os.1 to 10 samples are ordered to be returned to the complainant to produce before 26 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 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 29th day of October 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 pankaj Kumar Drivedi
P.W.2 : Sri K M Varshney
P.W.3 : Sabir ali
P.W.4 : Ganesh Shetty
P.W.5 : Sunil Pavera
CCH33
27 Spl.C.C.859/2018
(b) Defence :
NIL
2. List of documents exhibited for the:
(a) Prosecution:
Ex.P.1 : Information to superior
Ex.P.2 : Email
Ex.P.3 : Email
Ex.P.4 : Form No.1 intimation
Ex.P.5 : Not marked
Ex.P.6 : Forwarding memo
Ex.P.7 : Godown receipt
Ex.P.8 : Acknowledgement of CFSL
Ex.P.9 : Seizure report
Ex.P.10 : Arrest report
Ex.P.11 : Authorisation to search
Ex.P.12 : Search report
Ex.P.13 : FSL report
Ex.P.14 : Letter
Ex.P.15 : Mahazar
Ex.P.16 : Test memo
Ex.P.17 : Summons to accused
Ex.P.18 : Summons to panch witness
Ex.P.19 : Summons to panch witness
Ex.P.20 : Voluntary statement
Ex.P.21 : Statement of CW.6
Ex.P.22 : Statement of CW.7
Ex.P.23 : Arrest memo
Ex.P.24 : Intimation of arrest
(b) Defence:
NIL
28
3.List of Material Objects admitted in evidence:
M.O.1 to 10 : Samples (G.M.SHEENAPPA) XXXIII ACC & SJ & SPL.JUDGE (NDPS) BANGALORE.
CN/*