Bangalore District Court
State By Banaswadi Police vs Unknown on 18 March, 2016
IN 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 18th DAY OF MARCH, 2016
SPL.C.C. NO.36/2011
COMPLAINANT : State by Banaswadi Police
(By Public Prosecutor)
V/S.
ACCUSED :
Fredrick @ Freddi @ Arum @
Fredrick Otteno, S/o.Joseph Arum,
30 years,
Self Address: No.277, Oyujiss,
Kenya.
Present Address: o.220,
3rd Cross, BDS Nagar, K
Narayanapura, Kothanooru Post,
Bangalore.
(By Sri GM., Advocate)
1. Date of Commission of offence: 5.12.2010
2
2. Date of report of offence: 5.12.2010
3. Arrest of the accused : 5.12.2010
4. Date of release of accused on 5.5.2012
bail:
5. Period undergone in custody: 1 year 5 months
6. Date of commencing of 4.2.2014
recording Evidence :
7. Date of closing of Evidence : 28.1.2016
8. Name of the complainant: Sri Siddaraj, PI
9. Offence complained of : U/s.22(C) of NDPS Act &
14 of Foreigners Act.
10. Opinion of the Judge : Offence not proved
11. Order of sentence : As per final order
---
JUDGMENT
The Police Inspector, Banaswadi Police Station, Bangalore filed charge sheet against accused in Cr. No.671/10 for the offence punishable U/Sec.22(C) of N.D.P.S. Act and 14 of Foreigners Act.
2. Brief facts of the case are as under:
CCH-33
3 SPl.C.C36/2011.
On 5/12/2010 at 10-30 a.m. when ACP, CCB, W & N was in the office he received telephonic message that a Nigro black in colour, aged 30 years, 6 feet height, wearing military green pant, dark blue T-shirt by standing at Banaswadi HRBR Layout, 2nd Block, 3rd 'A' Main Road, 4th Cross was selling narcotic drug and thereby ACP called his staff members and secured panchas at 11-40 a.m. and informed this fact to the DCP and at 12-50 p.m. came near the spot and after alighting the vehicle, when they were seeing they found the said person matching with the description was selling drug and thereby they went and apprehended at 1-00 p.m. His name and address was asked. The accused was appraised that he was possessed with narcotic drug, therefore his personal search has to be conducted whether it is to be conducted before Magistrate or before Gazetted Officer and ACP also told that he is also Gazetted Officer, the accused told that he can conduct his personal search and in this regard Sec.50 of N.D.P.S. Act notice was served on him. On the instructions of the ACP, accused personal search was 4 conducted by panch and found from his pant right pocket Rs.300/- and it was packed and sealed and he was also found with four plastic packets containing white powder and the accused told that it was cocaine and from his pant left pocket he was found with plastic packet with white powder- cocaine, these two powders were put on a paper and it weighed totally 107 grams. From that, 5 grams of cocaine was taken as sample and packed separately. When the hip pocket of the accused was checked he found two Nokia mobiles and they were also seized and from his another hip pocket photocopy of Kenya passport was found. In this regard panchanama was prepared. Complainant filed the complaint before Banaswadi police station.
3. After taking cognizance registered the case. Accused secured and later he is enlarged on bail. Copies of the prosecution papers were supplied to accused U/Sec.207 of Cr.P.C. After hearing, charge framed U/Sec.22(C) of N.D.P.S. CCH-33 5 SPl.C.C36/2011.
Act and 14 of Foreigners Act, read over and explained to him. Accused pleaded not guilty and claimed to be tried.
4. In support of the case, prosecution has examined P.Ws.1 to 5 and got marked Exs.P1 to P18. and M.Os.1 to 05. 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 5.12.2010 at about 1.10 pm., near junction of 3rd A Main road and 4th cross at HRBR 2nd block, within the limits of Banaswadi P.S., accused was found in illegal possession of 107 grams of cocaine, which is a narcotic substance without license or permit for the purpose of selling, there by accused committed the offence u/S.22(C) of NDPS Act?6
2. Whether the prosecution proves that on the said date, time and place accused was residing in India even after expiry of the permit given to him in VISA to stay in India which exceeded the period for which VISA was issued and thereby accused has committed the offence U/s.14 of Foreigners Act?
3. What order?
7. My findings on the above points are as under:
Point No.1: In the negative.
Point No.2: In the negative Point No.3: 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 5 and Exs.P.1 to P.18 and M.Os.1 to 5, 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.
CCH-33 7 SPl.C.C36/2011.
9. On careful perusal of the materials placed on record, the prosecution mainly relied on the testimonies of P.Ws.1 to
5. P.W.4 has stated that on 5.12.2010 at 10.30 am., he received message through phone that NRBR Layout, Banaswadi 3rd A Main road, 4th cross, a Negro person induced in selling drugs. He reduced the information in diary Ex.P13. He secured C.Ws.3 and 4 panchas and informed the information and issued notice Ex.P14 and P15. He secured C.W.1, 5 to 10 staff members and informed the same. They conducted personal search of themselves and confirmed that they are not having any drugs. They went to the spot and apprehended the accused and explained the legal right of the accused that his personal search to be conduced before gazetted officer or Magistrate. He agreed to be searched by him as he being a gazetted officer. he issued questioners in English Ex.P16 and obtained signature of accused. On personal search they seized 107 grams of cocaine, cash of 8 Rs.300/-, 2 mobiles, Passport. They prepared panchanama and handed over the accused and property to P.W.3 to take action. In the cross examination of P.W.4, admitted that he has not written the information received by him in the Mahazar and complaint and also Ex.P13 xerox copy of SHD is not attested and also copy of Ex.P13 is not sent to superior officer. According to P.W.4 he reduced the information received by him as per Ex.P13-diary. It is xerox copy. P.W.4 further stated that he has not obtained permission in writing to raid and he denied that he forcibly took the signature of panchas on blank paper notices Ex.P14 and P15. Ex.P14 and P15 notices issued to panchas reveal that no description of the person who induced in selling drugs is mentioned. In the chief examination of P.W.3 and 4, specifically stated that information received regarding one negro person induced in selling drugs. But the same is not mentioned in notice. Even issuance of notice to panchas is also not proved as C.Ws.3 and 4 panchas are not examined in spite of sufficient opportunity was given. Merely, marking of notice and CCH-33 9 SPl.C.C36/2011.
obtaining signature is not sufficient to believe that notice duly served prior to search. So in the absence of original or attested copy, xerox copy cannot be relied. So the mandatory provisions regarding information reduced in writing and sending a copy to the superior officer is not complied U/s.42 of NDPS Act.
10. P.W.4 further admits that legal right of the accused prior to personal search is not mentioned in mahazar and also notice issued to accused. Ex.P16 issued to accused reveal that option was given to him that whether he is required to be searched by a Gazetted officer or Magistrate, answer written is by gazetted officer. Again questioned him that P.W.4 himself is a gazetted officer whether he required to be searched by him or by another gazetted officer, answer given as yes, he can search him. Ex.P16 is not in accordance with the mandatory provisions U/s.50 of NDPS Act. Accused was not produced before independent gazetted officer or 10 Magistrate or his existing legal right is not specifically explained. So the prosecution has also failed to comply the mandatory provisions U/s.50 of NDPS Act.
11. P.Ws.2 and 3 raiding members have also supported the testimony of P.W.4. In the cross examination, P.W.2 stated that accused was standing on the vacant site and there is a house situated on the adjacent to the spot. He admits that the weight of M.Os.1 and 2 are excluding packed materials. Sl.Nos., of the currency notes is not mentioned in the panchanama. In the cross examination of P.W.3 he has stated that he do not know the message received by P.W.4 and copy of the information reduced in writing is not shown to him. He issued notice to panchas as P.W.4 handed over to him. But P.W.4 stated that he himself issued notice to the panchas. He admits that he has not mentioned in complaint regarding notice issued to the accused, questioners prepared and securing of panchas etc. Further, he has stated that they CCH-33 11 SPl.C.C36/2011.
have not explained who are Gazetted officers or Magistrates. He denied that he has not recorded the statement of witnesses and sent the sample articles to F.S.L and obtained report and also created all the documents in the office.
12. P.W.5 has stated regarding complaint received by P.W.3 and registering the case and again handed over the investigation to him. In his cross examination admitted that P.W.3 has not produced the articles and documents seized at the spot.
13. P.W.1 has stated that he opened the sample articles and conducted various tests and he issued report Ex.P1 and opined that sample articles responded positive for cocaine. In his cross examination denied that he has not personally conducted any tests and falsely issued the report as per the request of I.O. Of course the testimony of P.W.1 and Ex.P1 12 may be believed regarding sample articles responded positive for cocaine, but the said articles were seized from the possession of the accused is not proved as the independent panch witnesses are not examined. So the testimony of P.Ws.1 to 5 is inconsistent to each other. So many considerable contradictions and discrepancies found in the evidence.
14. Ex.P4 panchanama and Ex.P5 complaint reveal that legal right of the accused is not explained to the accused. Ex.P8 arrest memo issued after arrest of accused. Ex.P9 report submitted after search and seizure to DCP. Without complying the mandatory provisions U/s.42 and 50, the compliance of Sec.57 is not of much importance.
15. In view of the decisions reported in AIR 2013 Supreme Court 357 in the case of Krishan Chand Vs., State of Haryana wherein it is held that:-
CCH-33 13 SPl.C.C36/2011.
(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:-
(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." 14 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.
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-
CCH-33 15 SPl.C.C36/2011.
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:-
(B) Narcotic Drug and Psychotropic Substances Act (61 of 1985), Ss.8, 18, 67 -
Recovery of narcotics-confessional statements 16 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 17 SPl.C.C36/2011.
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 18 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 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 CCH-33 19 SPl.C.C36/2011.
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.
16. 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 prosecution has utterly failed to prove the guilt beyond reasonable doubt. Accordingly, I answer point No.1 in the 'Negative'.
20
17. Point No.2: So far as violation of provisions of Sec.14 of Foreginers Act is concerned, accused has surrendered his Passport before court which is available on record as per condition in the Bail order passed by this court. P.W.3 stated in his chief examination that he obtained Ex.P7 acknowledgement regarding Passport sent for renewal. Ex.P3 copy of Passport is marked through P.W.3 himself. Even the original Passport is available on record. So, the prosecuition has failed to prove that accused violated the provisions U/s.14 of Foreigners Act. Accordingly, I answer Point No.2 in the Negative.
18. Point No.3: In the result, following:
ORDER Acting under Section 235(1) of Cr.P.C. accused is acquitted for the offence punishable under Section 22(C) of N.D.P.S. Act and 14 of Foreigners Act.
M.Os.1 to 3 sample, bulk and cover are ordered to be returned to P.I, Banaswadi CCH-33 21 SPl.C.C36/2011.
police station with direction to destroy as per law and M.Os.4 and 5 - 2 mobiles and cash of Rs.300/- is ordered to be confiscated to State, after appeal period. Original Passport is ordered to be returned to accused.
Bail bond of the accused shall stands cancelled.
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 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 18th day of March 2016) (D.Y. BASAPUR) XXXIII ACC & SJ & SPL.JUDGE (NDPS) BANGALORE.
22ANNEXURE
1. List of witnesses examined for the:
(a) Prosecution:
P.W.1 : P R Jayaram
P.W.2 : V L Laxminarayana
P.W.3 : C Siddaraju
P.W.4 : R Lakshman
P.W.5 : Byrappa
(b) Defence :
NIL
2. List of documents exhibited for the:
(a) Prosecution:
Ex.P.1 : F.S.L report
Ex.P.2 : Specimen seal
Ex.P.3 : Passport
Ex.P.4 : Mahazar
Ex.P.5 : Complaint
Ex.P.6 : PF
Ex.P.7 : Postal ack. for renewal of passport
Ex.P.8 : Arrest memo
Ex.P.9 : Report to DCP
Ex.P.10 : Acknowledgement of F.S.L
Ex.P.11 : Report
Ex.P.12 : Passport
Ex.P.13 : SHD
Ex.P.14 : Notice to panch
Ex.P.15 : Notice to panch
Ex.P16 : Body search memo
Ex.P17 : Sample seal
Ex.P18 : F.I.R
CCH-33
23 SPl.C.C36/2011.
(b) Defence:
NIL
3.List of Material Objects admitted in evidence:
M.O.1 : Sample
M.O.2 : Bulk
M.O.3 : Empty cover
M.O.4 : 2 mobiles
M.O.5 : Cash of Rs.300/-
(D.Y. BASAPUR)
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BANGALORE.
CN/*