Bangalore District Court
Intelligence Officer, Directorate Of ... vs Mukarushema Saida on 1 August, 2025
KABC010048642022
THE COURT OF THE XXXIII ADDL. CITY CIVIL &
SESSIONS JUDGE & SPL. JUDGE (NDPS),
BANGALORE. CCH.33.
: P R E S E N T:
SMT.LATHA,
XXXIII ACC & SJ & SPL. JUDGE (NDPS)
BENGALURU.
DATED: THIS THE 1st DAY OF AUGUST 2025
SPL.C.C. NO.204/2022
COMPLAINANT : The Intelligence Officer,
Directorate of Revenue Intelligence,
Bengaluru Zonal Unit,
No.8(1)P, Opp. BDA Complex,
HBR Layout, Kalyanagar Post,
Banaswadi, Bengaluru 560 043.
(By Spl. Public Prosecutor)
V/S.
ACCUSED : Ms. Mukarushema Saida,
Aged about 39 Years,
Kampala, Uganda.
Passport No.B0975223.
(Rep. by Sri TAB., Adv.)
1. Date of Commission of offence: 28.9.2021
2. Date of report of offence: 28.9.2021
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3. Arrest of the accused : 29.9.2021
4. Date of release of accused on In judicial custody
bail:
5. Period undergone in custody: In judicial custody
6. Date of commencing of 20.3.2023
recording Evidence :
7. Date of closing of Evidence : 23.1.2025
8. Name of the complainant: Sri K. Phanikumar, IO
9. Offence complained of : U/s.8(c) R/w.Sec.21(C),
23(C), 28 & 29 of NDPS
Act
10. Opinion of the Judge :
Charges not proved
11. Order of sentence : Acquitted
::JUDGMENT::
The Intelligence Officer, DRI., Bengaluru filed complaint filed complaint against the accused in DRI/BZU/S-IV/ENQ-37/(INT-NIL)/2021 for the offences punishable U/Sec.8(c) R/w. Sec.21(C), 23(C), 28 & 29 of NDPS Act.
2. The case of the prosecution in nutshell is as under:-
CCH-33
3 Spl.C.C.204/2022 2a. The Investigation officer, DRI received credible information that on 27.9.2021 at about 6.30 hours that one Ugandan National Ms.Mukarushema Saida, bearing Passport No.B0975223 is scheduled to arrive in Bangalore from Doha in Qatar Airways flight No.QR 572 on 28.9.2021 at 02.00 hours would be attempting to smuggle a large quantity of narcotic substance into India. The officers of DRI formed a team proceeded to KIA, Devanahalli, Bangalore. At around 4.00 hours the officers intercepted the suspected female passenger and requested her to produce her passport for examination. The passport produced by her is an international passport issued by Republic of Uganda. On enquiry with her about her visit to India, she has stated that she came to India for medical treatment.
2b. The officers of DRI informed her that they have credible information that certain narcotic substances are being smuggled into India by her and that in pursuance of the said intelligence they intended to search her hand 4 baggage and check in luggage in the presence of two independent witnesses to which she readily allowed. Before that officers offered themselves for personal search which was declined by her. Thereafter, the officers of DRI proceeded to systematically opened the luggage belonging to the accused. In the hand bag no incriminatory article was found. On open examination of red pink trolley bag bearing tag No.0157499719 revealed that the said pink trolley bag consists of several pairs of cloths and documents. After removing the aforesaid items from the luggage bag, the weight of the check in luggage bag still appear to be considerably heavy beyond its normal empty weight. The officers scanned the red pink trolley bag in the x-ray scanner available in the customs arrival section of Bangalore International airport. The image from the x-ray scanner of the said baggage has indicated the presence of some concealed substances in the sides of the said bag. Then the officers asked the accused to open the said concealed layer in the side of the pink trolley bag. Accused CCH-33 5 Spl.C.C.204/2022 has informed that she is not aware what was present in the said bag. The officers suspected concealment of some contraband which was stitched to one side of the pink trolley bag. The officers of DRI decided to cut open the inside flap of the pink trolley bag to ascertain the secreted layer. They cut open the inside layer of pink trolley and found two yellow envelopes.
2c. They took out each of the said two packages and weighed in a weighing machine. The said two packages marked as A & B. A small portion of article was taken out from each of the suspected packages A & B and conduced a field test in Narcotic Drugs Detection kit, they found that the article tested positive for heroin which is a narcotic substance covered under the NDPS Act. When the said contraband article weighed along with the packet, the weight came around 3700 grams. The entire contraband article, packets, the bags of accused were seized. A detail mahazar was drawn at the spot. On further probing, she 6 revealed that, pink trolley bag from which contraband was seized was handed over to her by a lady named Yaya who had contacted her at Nairobi Airport who offered her some handful of money on delivery of the said pink trolley bag at Bangalore to her friends. The tickets were booked by the said lady Yaya and handed over to her outside the Nairobi Airport along with pink trolley bag. Her statement came to be recorded. On the reasonable belief that the accused herein is doing drug trafficking she was put under arrest, produced before the court, remanded to judicial custody. The seized sample was sent to CFSL and report from CFSL was received. On conclusion of investigation, complaint is filed against the accused for the offences punishable U/s.8(c) R/w. Sec.21(c), 23(c), 28 & 29 of NDPS Act. She is in Judicial Custody since the date of arrest.
3. On presentation of complaint, accused was secured from judicial custody. The learned Predecessor-in-office of this Court, on perusing the contents of the complaint and the CCH-33 7 Spl.C.C.204/2022 annexed documents, took cognizance of the offences punishable under sections 8(c) R/w. Sec.21(c), 23(c), 28 & 29 of NDPS Act, 1985. The copy of the complaint and annexed documents were furnished to the learned counsel appearing for the accused as provided under Sec. 207 of the Criminal Procedure Code, 1973. Since the offences levelled against the accused are cognizable in nature, the predecessor-in-office of this Court heard the learned counsel for the accused and Special Prosecutor before charge and framed Charges against the accused for the offences punishable under sections 22(c) & 23(c) of the NDPS Act, 1985 on 3.1.2023, read-over and explained to the accused in the language known to her. She pleaded not guilty and claimed to be tried. Therefore, posted the case for recording the evidence for the prosecution.
4. The prosecution to prove the Charges levelled against the accused examined six witnesses as P.W.1 to P.W.6 and got 15 documents marked as Exs.P1 to P.15 and 8 got two material objects marked as M.Os.1 & 2. After conclusion of prosecution evidence, the accused was examined U/Sec.313 of Cr.P.C. However, she denied the incriminating statements made against her and did not offer defence evidence. But got one document marked as Ex.D1 by confronting to PW.1.
5. Heard the arguments of Spl.P.P., and learned counsel for the accused. Perused the synopsis submitted by the learned counsel for accused and the written arguments submitted by learned Spl.Public Prosecutor and also the Citations referred to by the learned counsel for the accused.
6. The learned counsel for the accused has relied on a number of decisions:-
1. 2022 Livelaw (SC) 267 in the case of Sanjeev and anr Vs., State of Himachal Pradesh
2. 2014 (5) SCC 345 in the case of State of Rajastjan Vs., Parmanad and anr.
3. CRA.90/2020 between Ali Hossain Sk @ Ali Hussain Seikh Vs., NCB of Hon'ble High Court of Calcutta
4. 2011 (1) SCC 609 in the case of Vijaysinh Chandubha Jadeja Vs., State of Gujrat CCH-33 9 Spl.C.C.204/2022
5. (1996) 6 SCC 172 in the case of State of Punjab Vs., Baldev Singh
6. 2018 0 Supreme (Del) 3214 in the case of Dharambir Vs., State
7. 2018 (18) SCC 380 in the case of Arif Khan @ Agha Khan Vs., State of Uttarakhand
8. Crl.Appeal No.2239-2240/2022 (SC) in the case of Ranjan Kumar Chadha Vs., State of Himachal Pradesh
9. 1994(3) SCC 299 in the case of State of Punjab Vs., Balbir Singh
10. Crl. Appeal No.3191/2023 in the case of Yusuf @ Asif Vs., State
11. Crl. Appeal No.149/2020 in the case of Gurmail Chand Vs., State of Punjab
12. CRM NDPS No.492/493/2022 in the case of Kalu SH & Kabir SK Vs., State
13. Crl. Appeal No.1610/2023 in the case of Mohammed Khalid and anr., Vs., The state of Telangana
14. HIV Act
15. HIV medical certificates from Prison authorities
7. Having heard the learned Special Public Prosecutor, the learned Counsel for the accused and on perusal of the above rulings, the following points that arise for consideration is as follows :-
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Point No. 1 : Whether the prosecution proves beyond reasonable doubt that on 28.9.2021 at about 4.00 hours at Kempegowda International Airport, Devanahalli, Bangalore accused herein who is an Uganda National traveled in Qatar Airways from Doha to Bangalore and when the officers of DRI intercepted her she was found in illegal possession of 3700 grams of Heroin without holding any licence or permission and thereby accused has committed the offence punishable U/s.22(c) of NDPS Act?
Point No. 2 : Whether the prosecution proves that the accused on the above said date, time and place being a National of Uganda traveled from Doha to Bangalore in Qatar Airways has imported 3700 grams of Heroin without holding any licence or permission and thereby accused has committed the offence punishable U/s.23(c) of NDPS Act?
Point No.3: What Order ?
8. My findings on the above points are as under:
Point No.1: In the Negative Point No.2: In the Negative CCH-33 11 Spl.C.C.204/2022 Point No.3: As per the final order for the following:
::REASONS::
9. POINT No.1 :- The prosecution in order to substantiate his case got the CW.1/complainant examined as PW.2. PW.2 Sri K. Phanikumar was the then Intelligence Officer, DRI., Bengaluru Zonal Unit. According to him on 27.9.2021 at about 6.30 pm., he had received an information that one Uganda National would be attempting to smuggle NDPS substance to India through Kempegowda International Airport, Bengaluru, that she is traveling in flight No.QR572 Qatar Airways. Soon after receipt of the said information, he recorded the said information and submitted to CW.2 and Cw.2 had formed a team of four officers namely CWs.5 to 7 including her.
10. At about 1.00 am., on 28.9.2021 they reached the Airport secured two independent witnesses that the information of the said case had been given to them and 12 requested them to be part of the search and seizure procedure, that on the same day at about 2.55 am., to 3.00 am., the flight No.QR572 had been landed and after the passengers landed from the said flight, that CW.4 intercepted the suspect in Customs Arrival Area, that they had also verified the Passport and boarding details of the said passengers, in order to identify her, that the passenger had two baggage that one is check in luggage and the other one is the hand bag, check in bag was a trolley bag and they identified the said bag on the basis of baggage tag, that they informed the passenger about the intelligence received regarding suspected import of narcotic substance, that they offered the personal search to the accused and she had refused it.
11. PW.2 further deposed that when they checked the hand bag they could not find any incriminating article in the said hand bag. However, the check in luggage was abnormally heavy and they had doubt of containing some CCH-33 13 Spl.C.C.204/2022 thing in the said bag, that they emptied the said bag and subjected the said bag for x-ray scanning, that on x-ray scanning they found a shadow type image on both side flaps of the bag and on questioning the accused, she said that she do not know about it. PW.2 further contended that they cut opened the false side flaps of bag and found two yellow coloured envelops, on opening the said envelops there was half white coloured powder and on weighing the said packets separately, one packet containing 1848 grams and the other packet contained 1852 grams of heroin. They seized those articles and had drawn mahazar as per Ex.P7.
12. The learned counsel for accused in order to falsify the prosecution case, cross examined this witness in length.
13. CW.4 Smt.Sabitha Naik, the Superintendent of Customs has been examined as PW.3. CW.5 Sri Viju John, SIO., DRI., Bengaluru has been examined as PW.4. both these witnesses have deposed in conformity with the evidence of PW.2.
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14. CW.2 Smt.Deepti Perumal, the then Dy. Director has been examined as PW.1. She deposed that on 21.9.2021 she had received information from CW.1 about the specific intelligence with respect of attempting to smuggle large quantity of narcotic substance, that the said information received by her is got marked as Ex.P1. She further deposed that after receipt of the said information she formed a team and directed them intercept and proceed with the investigation. She deposed that she had also issued intimation of arrest of the accused to the Embassy of Republic of Uganda at New Delhi. The said intimation letters issued to Embassy and Ministry of External Affairs are at Ex.P2 and P3. She further deposed that since there was mistake in the said letter she had sent rectified letter to the Joint Secretary, CPB division, Ministry of External Affairs and Joint Secretary Foreigners Division which are at Ex.P4 and P5.
CCH-33 15 Spl.C.C.204/2022
15. CW.9 Sri Dinesh Kumar S, Superintendent of directorate Vigilance, South Zonal Unit, Chennai has been examined as PW.5. He deposed that he had recorded the statement of accused Ms. Mukarushema Saida on 29.9.2021 and also the statements of Nisha Kumari, Dr.Zulesh Patle, Manesh Sravan Modkar, that he had forwarded Form No.F to NCB, Delhi and intimation to Embassy of Republic of Uganda and Ministry of Home Affairs. The statement of accused and witnesses are at Ex.P11 to P15.
16. CW.12 Sri Nikil S.K., has been examined as PW.6. He is the security supervisor Global management, Airport, he is said to be the independent witness in this matter and he deposed that as the customs officer informed him about the smuggling of cocaine by foreign national, that said officers requested him to be mahazar witness, that therefore, he assisted the Customs officers at the time of apprehending the accused and also seizing the suspected 16 contraband from the said accused. He has also identified his signature on Ex.P7 mahazar. His signature is at Ex.P7(d). He identified the accused in Ex.P8 photo.
17. The prosecution in order to substantiate its case got the CW2 Smt.Deepti Perumal examined as PW1. Smt. Deepti Perumal is the Joint Commissioner, CGST and Customs Salem,Tamil Nadu. According to her evidence, she was working as Deputy Director, DRI, Bangalore Zonal Unit from 2019 to June.2020. She deposed that, on 27.09.2021, she had received information from CW1 about the specific intelligence with respect to attempt to smuggle large quantity of narcotic substance, that said information was in writing and she Identified the said information Before the court, which is at Exhibit P1, that after she received the information, she formed a team and directed them to intercept and proceed with the investigation, that she had also issued intimation of arrest of the accused to the Embassy of Republic of Uganda at New Delhi.
CCH-33 17 Spl.C.C.204/2022
18. The prosecution apart from examining 6 witnesses has also got 15 documents marked on its behalf to substantiate its case. Ex.P.1 is the information given by PW.2 K.Phanikumar the Intelligence Officer to PW.1 Smt.Deepti Perumal the Dy. Director of DRI, BZU, Bengaluru regarding the information received by him about narcotic substances smuggling through Uganda National. As seen from Ex.P.1, the PW.1 after receiving the information approved the intelligence and directed the intelligence officer for intelligence by forming a team of four officers.
19. Ex.P.2 is the intimation of arrest of a foreign national forwarded to the Embassy of the Republic of Uganda along with the arrest memo. Ex.P.3 and P5 are also the intimation forwarded to the Joint Secretary, CPV Division, Ministry of External Affairs, New Delhi regarding the intelligence received by PW.2 with arrest memo. Ex.P.4 and P 6 are also the intimation issued to the Joint 18 Secretary, CPV Division, Ministry of External Affairs, New Delhi regarding the arrest of the accused herein. Ex.P.5 is also the intimation forwarded to the very same Ministry of Home Affairs.
20. Ex.P.7 is the mahazar drew by the Intelligence Offices in Kempegowda International Airport after the arrival of accused from Doha by Qatar Airways on 28.9.2021. Ex.P.8 is the copy of Passport of accused. Ex.P.9 is the FSL report. Ex.P.10 is the sample seal of FSL. Ex.P.11 is the voluntary statement of the accused. Ex.P.12 to P14 are the statements of witnesses. Ex.P.15 is the complaint.
21. Before touching the merits of the case, this Court shall verify whether the prosecution complied the statutory provisions as mandated under the NDPS Act which are to be followed during the course of investigation. According to the evidence of PW.2, he had received the information on 27.9.2021 at 6.30 pm., that an Uganda National is attempting to smuggle NDPS a substance through CCH-33 19 Spl.C.C.204/2022 Kempegowda International Airport, Bengaluru and she is traveling in Flight No.QR572 Qatar Airways. He also specifically deposed that he had recorded the said information under Sec.42(2) of NDPS Act. Ex.P.1 is the said information recorded by PW.1. However, Sec. 42(2) of NDPS Act reads as under:-
(2) Where an officers takes down any information in writing under (1) or records grounds for his belief under the proviso thereto he shall within 72 hours send a copy there to his immediate officer superior.
In view of the provisions Sec.42(1) as soon as the information has received it has to be reduced into writing and though the PW.2 produced the information sent to the PW.1, her Higher Officer, has not produced the document which is taken down by her in writing in her office. Ex.P.1, evidently is the intimation given to PW.1 as contemplated u/Sec. 42(2) of NDPS Act. However, as seen from the documents produced on behalf of the prosecution, the raiding officer namely PW.2 did not produce the document 20 which is reduced into writing by her soon after the information received from the intelligence.
22. The learned counsel for accused argued much on this point and he has also relied on the decision reported in 1994 (3) SCC 299 in the case of State of Punjab v/s Balbev Singh it is specifically held as under:-
U/sec. 42(1), the empowered officer is has a prior information given by any person, that should necessarily being taken down in writing, but if he has reason to be from personal knowledge that offences under chapter (V) have been committed or materials which may furnish evidence of commission of such offences or concealed in any building etc., he may carry out arrest or search without a warrant between sun raise and sunset and this provision does not mandate that he should referred his reasons of belief.
However, in the present matter, the officer namely PW.2 had received information when he was in office. Therefore, it is mandatory to him comply Sec.42(1) of NDPS Act and the information received by him ought to have immediately CCH-33 21 Spl.C.C.204/2022 recorded in the Station House Diary maintained by them.
The DRI always claim that since their office is not Police Station, they are not maintaining any Station House Diary. However, in Tofan Singh's case it is specifically held that the DRI officers are also considered as police officers for the purpose of recording statement u/Sec. 67 of NDPS Act. Since the officers are investigating the matter under the provision of NDPS Act and on the basis of the investigation conducted by the intelligence officers, the court is trying the matter and considering the material placed by the officers, they cannot contend that they are not the police officers. When the Act mandates a provision to be followed during the course of investigation for the offences punishable under the provision of NDPS Act, then, it is the duty of investigating officers to follow the procedure as contemplated under the Act. However, in the present matter, though the PW.2 forwarded the information to PW.1 as per Ex.P.1, as contemplated u/Sec. 42(2) of NDPS Act, there is no evidence before the court to show that the officer 22 reduced the said information immediately after receiving it in the diary maintained in their office. Absolutely there are no material to show the compliance of Sec. 42(1) of NDPS Act.
23. The learned counsel for accused argued much on non-compliance of Sec. 50 of NDPS Act.
Sec. 50. Conditions under which search of persons shall be conducted.
(1) When any officer duly authorized under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazette Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in subsection (1). (3) The Gazette Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female.
CCH-33 23 Spl.C.C.204/2022 (5) When an officer duly authorized under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazette Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974). (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.
24. It is a specific contention of the learned counsel for accused that the accused has not been apprised with her right to have personal search before the gazetted officer or before the Magistrate. The learned counsel for the accused, during the course of cross examination of PW.3 questioned the officer specifically about the compliance of Sec. 50 of the Act. In para No.2 of cross examination it is elicited PW.3 that accused is a lady, that she conducted her personal 24 search, however, no notice u/Sec. 50 NDPS Act was given to the accused by apprising her right to have personal search before the Gazetted Officer or before the Magistrate, that the search and seizing officers have also not issued any notice to the accused apprising her right to have personal search before the Gazetted Officer of before the Magistrate. From the evidence of PW.3 who is superintendent of Customs, she being a woman officer during the course of personal search of the accused, she did not apprise the right of accused stating that she has to be searched before the Gazetted Officer of before the Magistrate.
25. During the course of arguments, the learned counsel relied on the decision reported in 2022 live Law (SC
269). In the case of Sanjeev & another v/s State of Himachal Pradesh the three bench of Apex Court has observed that:-
we have checked the original record to satisfy ourselves. That Ex.P.8/b, 8/c, 8/d and 8/e which are arrest memos, do not reflect that any option or choice was given to the accused before their personal search was undertaken.
CCH-33 25 Spl.C.C.204/2022 Further, it is observed that it is true that the personal search did not result in recovery of any contraband material but the non compliance of the requirement of affording an option, was one of the reasons which were with the trial court in this believing the case of the prosecution.
26. The learned counsel relied on the decision reported in (2014) 5SCC 345, in the case of State of Rajasthan v/s Paramanand & another wherein held as under:-
"thus if merely a bag carried by a person is searched, without there being any search officer person, Sec. 50 of NDPS Act will have no application. But, if the bag carried by him is searched an his person is also searched Sec. 50 of NDPS Act will have application"
In the present case also the PW.3 has conducted personal search of the accused Mukarushema Saida as deposed by PW.3. As deposed by PW.3, she herself conducted the personal search of the accused, when personal search of the accused is conducted, that whether they recovered any contraband from her or not during the course of personal 26 search, but it is mandatory on the part of officers to comply Sec. 50(1) of NDPS Act and the Hon'ble Apex Court has held that the search conducted by PW.10 SI,. Kureshi is vitiated and the Hon'ble Apex Court specifically held that it has no hesitation to conclude that there was breach of Sec. 50(1) of NDPS act and it has vitiated the search. Thereby, the conviction of respondent was held illegally.
27. On this point, the learned counsel has relied on number of decisions, but those decision as cited herein above are on the same point of law this court is not discussing all those decisions as this court has already come to the conclusion that as the PW.3 conducted personal search of the accused without affording an option of being searched person of the accused through the Gazetted Officer or before the Magistrate by apprising her right is bad under law.
28. The learned counsel for accused has also vehemently argued about the non-compliance of Sec. 52A of CCH-33 27 Spl.C.C.204/2022 NDPS Act. Learned counsel submitted that the officers of DRI after the seizure of so called contraband did not get inventory report from the Magistrate as contemplated u/Sec. 52A of NDPS Act and the proceedings against the accused is bad under law. In support of his arguments, he has also made on the decisions Crl. Appeal No.3191/2023 in the case of Usuf @ Asif v/s State in the decision rendered on 13.10.2023 by Hon'ble Apex Court.
29. The Hon'ble Apex Court while discussion the objects of Sec. 52A to be followed during the course of investigation has reproduced the provision of Sec. 52A of NDPS Act in the decision and observed as under:-
11. For the sake of convenience, relevant subsections of Section 52A of the NDPS Act are reproduced herein below:
"52A. Disposal of seized narcotic drugs and psychotropic substances. (1) (2) Where any [narcotic drugs, psychotropic substances, controlled substances or conveyances] has been seized and forwarded to the officerincharge of the nearest police station or to the 28 officer empowered under section 53, the officer referred to in subsection (1) shall prepare an inventory of such [narcotic drugs, psychotropic substances, controlled substances or conveyances] containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the [narcotic drugs, psychotropic substances, controlled substances or conveyances] or the packing in which they are packed, country of origin and other particulars as the officer referred to in subsection (1) may consider relevant to the identity of the [narcotic drugs, psychotropic substances, controlled substances or conveyances] in any proceedings under this Act and make an application, to any Magistrate for the purpose of
(a) certifying the correctness of the inventory so prepared; or
(b) taking, in the presence of such Magistrate, photographs of [such drugs or substances or conveyances] and certifying such photographs as true; or
(c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.
CCH-33 29 Spl.C.C.204/2022 (3) Where an application is made under sub section (2), the Magistrate shall, as soon as may be, allow the application.
(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of [narcotic drugs, psychotropic substances, controlled substances or conveyances] and any list of samples drawn under subsection (2) and certified by the Magistrate, as primary evidence in respect of such offence."
12. A simple reading of the aforesaid provisions, as also stated earlier, reveals that when any contraband/narcotic substance is seized and forwarded to the police or to the officer so mentioned under Section 53, the officer so referred to in sub section (1) shall prepare its inventory with details and the description of the seized substance like quality, quantity, mode of packing, numbering and identifying marks and then make an application to any Magistrate for the purposes of certifying its correctness and for allowing to draw representative samples of such substances in the presence of the Magistrate and to certify the correctness of the list of samples so drawn.
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13. Notwithstanding the defence set up from the side of the respondent in the instant case, no evidence has been brought on record to the effect that the procedure prescribed under subsections (2), (3) and (4) of Section 52A of the NDPS Act was followed while making the seizure and drawing sample such as preparing the inventory and getting it certified by the Magistrate. No evidence has also been brought on record that the samples were drawn in the presence of the Magistrate and the list of the samples so drawn were certified by the Magistrate. The mere fact that the samples were drawn in the presence of a gazetted officer is not sufficient compliance of the mandate of subsection (2) of Section 52A of the NDPS Act.
14. It is an admitted position on record that the samples from the seized substance were drawn by the police in the presence of the gazetted officer and not in the presence of the Magistrate. There is no material on record to prove that the Magistrate had certified the inventory of the substance seized or of the list of samples so drawn.
15. In Mohanlal's3 case, the apex court while dealing with Section 52A of the NDPS Act clearly laid down that it is manifest from the said provision that upon seizure of the contraband, it has to be forwarded either to the officerin- charge of the nearest police station or to the officer empowered under Section 53 who is obliged to prepare an inventory of the seized contraband and then to make an application to the Magistrate for the purposes of getting its CCH-33 31 Spl.C.C.204/2022 correctness certified. It has been further laid down that the samples drawn in the presence of the Magistrate and the list thereof on being certified alone 3 Union of India vs Mohanlal and Anr (2016) 3 SCC 379 would constitute primary evidence for the purposes of the trial.
16. In the absence of any material on record to establish that the samples of the seized contraband were drawn in the presence of the Magistrate and that the inventory of the seized contraband was duly certified by the Magistrate, it is apparent that the said seized contraband and the samples drawn therefrom would not be a valid piece of primary evidence in the trial. Once there is no primary evidence available, the trial as a whole stands vitiated.
"52A. Disposal of seized narcotic drugs and psychotropic substances. (1) (2) Where any [narcotic drugs, psychotropic substances, controlled substances or conveyances] has been seized and forwarded to the officerincharge of the nearest police station or to the officer empowered under section 53, the officer referred to in subsection (1) shall prepare an inventory of such [narcotic drugs, psychotropic substances, controlled substances or conveyances] containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the [narcotic drugs, psychotropic substances, controlled substances or conveyances] or the packing in which they are packed, country of origin and other particulars as the officer referred to in subsection (1) may 32 consider relevant to the identity of the [narcotic drugs, psychotropic substances, controlled substances or conveyances] in any proceedings under this Act and make an application, to any Magistrate for the purpose of
(a) certifying the correctness of the inventory so prepared; or
(b) taking, in the presence of such Magistrate, photographs of [such drugs or substances or conveyances] and certifying such photographs as true; or
(c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.
(3) Where an application is made under sub section (2), the Magistrate shall, as soon as may be, allow the application. (4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of [narcotic drugs, psychotropic substances, controlled substances or conveyances] and any list of samples drawn under subsection (2) and certified by the Magistrate, as primary evidence in respect of such offence."
12. A simple reading of the aforesaid provisions, as also stated earlier, reveals that when any contraband/narcotic substance is seized and forwarded to the police or to the officer so mentioned under Section 53, the officer so referred CCH-33 33 Spl.C.C.204/2022 to in sub section (1) shall prepare its inventory with details and the description of the seized substance like quality, quantity, mode of packing, numbering and identifying marks and then make an application to any Magistrate for the purposes of certifying its correctness and for allowing to draw representative samples of such substances in the presence of the Magistrate and to certify the correctness of the list of samples so drawn.
13. Notwithstanding the defence set up from the side of the respondent in the instant case, no evidence has been brought on record to the effect that the procedure prescribed under subsections (2), (3) and (4) of Section 52A of the NDPS Act was followed while making the seizure and drawing sample such as preparing the inventory and getting it certified by the Magistrate. No evidence has also been brought on record that the samples were drawn in the presence of the Magistrate and the list of the samples so drawn were certified by the Magistrate. The mere fact that the samples were drawn in the presence of a gazetted officer is not sufficient compliance of the mandate of subsection (2) of Section 52A of the NDPS Act.
14. It is an admitted position on record that the samples from the seized substance were drawn by the police in the presence of the gazetted officer and not in the presence of the Magistrate. There is no material on record to prove that the Magistrate had certified the inventory of the substance seized or of the list of samples so drawn.
34
15. In Mohanlal's3 case, the apex court while dealing with Section 52A of the NDPS Act clearly laid down that it is manifest from the said provision that upon seizure of the contraband, it has to be forwarded either to the officerin- charge of the nearest police station or to the officer empowered under Section 53 who is obliged to prepare an inventory of the seized contraband and then to make an application to the Magistrate for the purposes of getting its correctness certified. It has been further laid down that the samples drawn in the presence of the Magistrate and the list thereof on being certified alone 3 Union of India vs Mohanlal and Anr (2016) 3 SCC 379 would constitute primary evidence for the purposes of the trial.
16. In the absence of any material on record to establish that the samples of the seized contraband were drawn in the presence of the Magistrate and that the inventory of the seized contraband was duly certified by the Magistrate, it is apparent that the said seized contraband and the samples drawn therefrom would not be a valid piece of primary evidence in the trial. Once there is no primary evidence available, the trial as a whole stands vitiated. Similarly, in the present case also there is no material on record to show that the alleged seized contraband had been taken to the Magistrate for inventory and the sample of the CCH-33 35 Spl.C.C.204/2022 seized contraband was drawn in the present of the Magistrate and that the inventory of the seized contraband was duly certified by the Magistrate. In the absence of such a procedure followed by the Investigating Agency, the seized contraband and the sample drawn there from would not be a valid piece of primary evidence in the trial. Once there is no primary evidence available, as held by the Hon'ble Supreme Court, in the present case also the trial as a whole stands vitiated.
30. Further, the learned counsel for accused has also submitted that, it is mandate u/Sec. 57 of NDPS Act that, as soon as the seizure of material object under NDPS Act, same shall be reported to the superior officer immediately. The learned counsel in support of said arguments has also relied on the said decision rendered in the case of Gurmail Chand Vs., State of Punjab by Hon'ble Supreme Court of India in Crl.Appeal No.149/2020 on 23.1.2020. On going through the said decision, in the said decision the Hon'ble 36 Supreme Court relied on its decision rendered by three judge bench in the case of Sajan Abraham v/s State of Kerala, wherein it is held as under:-
"The last submission for the appellant is, there is non- compliance with Section 57 of the Act. He submits under it, an obligation is cast on the prosecution while making an arrest or seizure, the officer should make full report of all particulars of such arrest or seizure and send it to his immediate superior officer within 48 hours of such arrest of seizure. The submission is, this has not been done. Hence the entire case vitiates. It is true that the communication to the immediate superior has not been made in the form of a report, but we find, which is also recorded by the High Court, that PW5 has sent copies of FIR and other documents to his superior officer, which is not in dispute. Ext.P-9 shows that the copies of the FIR along with other records regarding the arrest of the appellant and seizure of the contraband articles were sent by PW5 to his superior officer immediately after registering the said case. So, all the necessary information to be submitted in a report was sent. This constitutes substantial compliance and mere absence of any such report cannot be said to have prejudiced the accused. This section is not mandatory in nature. When substantial compliance has been made, as in the present case, it CCH-33 37 Spl.C.C.204/2022 would not vitiate the prosecution case. In the present case, we find PW5 has sent all the relevant material to his superior officer immediately. Thus we do not find any violation of Section 57 of the Act."
and it is also held in the said decision that, for want of a report forwarded to the Higher Officer within prescribed period, the entire proceedings will be vitiated. Though the Hon'ble Supreme Court dismissed the appeal by holding that there was compliance of Sec. 57, in the present matter, absolutely there are no material to show the compliance of Sec. 57 of NDPS Act. Therefore, the non-compliance of Sec.57 of NDPS Act is also fatal to the case of the prosecution.
31. It is also submitted by learned counsel for accused that, videography of crimes in during investigation is of immense value in improving the administration of criminal justice and no there was an opportunity to take videography of the crime scene, the concerned officers did not take the videography of the crime scene. In the decision 38 of Shafhi Mohammed vs State of Himachal Pradesh reported in (2018)5 SCC 311, the Hon'ble Supreme Court has lied guidelines after holding as under:-
In Shafhi Mohammad Vs. State of Himachal Pradesh, the Apex Court noted the aforesaid report and observed as follows;
"9. We are in agreement with the Report of the Committee of Experts that videography of crime scene during investigation is of immense value in improving administration of criminal justice. A Constitution Bench of this Court in Karnail Singh v. State of Haryana3, SCC para 34 noted that technology is an important part in the system of police administration. It has also been noted in the decisions quoted in the earlier part of this order that new techniques and devices have evidentiary advantages, subject to the safeguards to be adopted. Such techniques and devices are the order of the day. Technology is a great tool in investigation. By the videography, crucial evidence can be captured and presented in a credible manner."
The Court further held time was ripe to introduce videography in investigation particularly for crime scene as a desirable and acceptable "best practice" as suggested by the Committee to strengthen the rule of law. It approved the CCH-33 39 Spl.C.C.204/2022 Centrally Driven Plan of Action prepared by the Committee and the timelines mentioned therein.
The observations made in Shafhi Mohammad (supra) as well as the guidelines in the Field Officers' Handbook issued by the Narcotics Control Bureau reinforce our view regarding mandatory videography of recovery proceedings under NDPS Act. Technology has advanced considerably and equipments like smartphones and other electronic devices enabling videography are ordinarily available with seizing officers. Hence, lack of availability of technology or awareness is a non-issue.
Accordingly, we direct as follows:-
(i) In all cases involving recovery of narcotic substance particularly recovery of narcotic above commercial quantity, seizing officers shall make a video recording of the entire procedure unless for reasons beyond the control of seizing officers, they are unable to do so;
(ii) Reasons for failing to videograph the recovery proceeding must be specifically recorded in the investigation records particularly contemporaneous documents including seizure/inventory list;
(iii) Superior Police Officer not lower than the rank of Additional Superintendent of Police shall monitor recovery of narcotic substance above commercial quantity within their territorial jurisdiction and ensure due compliance of 40 statutory provisions regarding search and seizure including compliance of the directives (i) and (ii) relating to videography of recovery and/or recording of adequate reasons for departure from such procedure;
(iv) Non-compliance of the directives (i) and (ii) relating to videography of recovery and/or failure to record just reasons in contemporaneous documents for its non-
compliance would attract departmental proceeding so far as the seizing officer is concerned;
(v) Director General of Police shall issue necessary directions for due compliance with the aforesaid directives;
(vi) Superintendent of Police/Commissioner of Police in each district/commissionerate shall undertake training programmes to spread awareness and capacity building of officers regarding compliance of statutory requirements in the matter of search and seizure of narcotic substance under NDPS Act and compliance of the aforesaid directives relating to videograph of recovery including collection, preservation and production of such electronic evidence in Court.
As seen from the guidelines issued by the Apex Court, in all cases involving recovery of narcotic substance particularly recovery of narcotic above commercial quantity, seizing CCH-33 41 Spl.C.C.204/2022 officers shall make a video recording of the entire procedure unless for reasons beyond the control of seizing officers, they are unable to do so. They shall also mark reasons for failing to v ideograph the recovery proceedings.
32. However, in the present matter, no such procedure is followed and no photography or videography was recorded during the recovery proceedings. Though the directions issued in the year 2018 itself by Hon'ble Apex Court, in the present case, neither the photographs were take or video was recorded nor reasons for not taking videography recorded during the course of investigation. The said aspect is also fatal to the case of the prosecution.
33. If the Court examines the merits of the case, evidently, PW.2 Sri K Phani Kumar, intelligence officer is the raiding officer who had received information on 27.9.2021. In the examination in chief PW.2 explained the procedure followed by them about the recovery of contraband from 42 accused in the Airport. However, during cross examination it has been elicited from him as under:-
3. From the arrival area suspect was taken to conveyor belt area. Photograph of the suspect was not taken at the arrival area. I do not remember who has opened the trolley bag. And who has taken out the contraband from the bag. Trolley bag was not weighed before opening the bag. It is false to suggest that I do not remember the colour of the contraband substance. There is no procedure of maintaining the check list during the course of investigation. I am the officer who has seized the contraband.
34. From the evidence of PW.2 it can be gathered that though he is seizing officer and according to him the contraband was found in the trolley bag, he does not know who had opened the trolley bag and who had taken out the contraband from the said bag. It is the specific case of the prosecution that the accused had carried only hand bag and trolley bag had been received in check-in baggage. PW.4 in his examination in chief states that the passenger had two baggages, one is check-in baggage and the other is hand CCH-33 43 Spl.C.C.204/2022 bag, that check-in baggage is a trolley bag, that they identified check-in baggage basing on the baggage tag. But the said baggage tag has not been produced by the prosecution. Further, PW.4 deposed that after emptying the contents of the check in baggage, the bag was abnormally heavy, they scanned the said bag through x-ray scanner, that while scanning they found shadow type image on both side flaps of the bag, that when the accused was questioned, she said she does not know about it, that in front of her they cut opened it and found two packets and on testing them with field kit they confirmed it as Heroin and it was weighing 1848 grams and 1852 grams.
35. During cross examination the learned counsel for the accused elicited in para-7 as under:-
7. It is true to suggest that, we have not stated that suspected was carrying two luggage bags while arriving. Witness volunteers that, the luggage bags would come from International Arrival Hall luggage built. While she was coming out of the Airbus, she was carrying hand bag and she was not carrying other 44 baggages.
36. In view of the evidence of PW.4, it is clear that accused was not carrying luggage bag and it was collected from Arrival Hall luggage built. While she was coming out of the Air bus she was carrying only hand bag. As such, the seizing officers shall link the said luggage bag with the accused. PW.4 says they identified it through boarding pass and luggage tag. Both these documents are not before the Court. At the same time the PW.5 in her cross examination deposed that the accused has not admitted that the contraband was containing in her luggage, that she had voluntarily stated that the luggage was handed over by some other person and she had come to India for medical treatment. It has also come in evidence that the accused is suffering from HIV. When the accused specifically stated that she did not know that the luggage contained contraband and the luggage was handed over by some other person, it is the duty of the investigating officer to CCH-33 45 Spl.C.C.204/2022 investigate further to find out from whom the said contraband was brought through the said luggage. No doubt, the learned Spl. Public Prosecutor in Para No.13 of written arguments submitted that under Sec.35 of NDPS Act, the Court shall presume the existence of culpable mental status of the accused and it shall be a defence for the accused to prove that he had no such mental state with respect to act charged of an offence in the prosecution. It is true that the Court shall presume the existence of culpable mental state of the accused, but initially the prosecution shall establish that the accused with conscious possession brought the said contraband for gaining unlawfully. As already discussed herein above the prosecution failed to prove to connect the accused with the luggage which contain contraband. Apart from that the learned counsel for accused effectively cross examined the prosecution witnesses to establish that accused had no conscious possession of the said contraband.
46
37. The learned Spl.P.P., has also vehemently argued that U/s.54 of the NDPS Act the Court shall presume, unless and until the contrary is proved that the accused has committed an offence for possession of illicit materials in respect of which he fails to account satisfactorily. However, in the present case the accused specially stated that she did not know that the baggage contain contraband and the said luggage was given by some other person to her. When such being the case, the Court has to hold that the accused specifically explained that she had no conscious possession of the alleged contraband.
38. The learned Spl.P.P., while arguing on conscious possession relied on the decision reported in (2015) SCC 222 in the case of Mohan Lal Vs., State of Rajasthan wherein it is observed as under:-
A. Narcotic Drugs and Psychotropic Substances Act, 1985-- Ss.13 to 22, 25 and 35-- Possession of contraband-- Contraband hidden away in secret place by accused-- Absence of physical control over the contraband, but accused exercising requisite control over contraband to give rise to culpable mental state--"Possession, held, is a flexible CCH-33 47 Spl.C.C.204/2022 concept, and its meaning depends upon the contextual purpose and objective of statute concerned and an appropriate meaning has to be assigned to the word to effectuate the statutory object--Ordinarily, elements of possession are physical control and animus to control the thing concerned/contraband--However, even in absence of physical control of the contraband, culpable mental state of accused can arise if the accused still has the requisite degree of control over the contraband--Accused's conscious possession, in view of his special knowledge of location or site of contraband article, with animus and intention to retain exclusive control or dominion over it, would constitute offence punishable under S.18--Fact that accused after stealing opium form Magistrate Court's malkhana concealed it in a secret place and later led police party to discover the same, shows his conscious possession--Words and Phrases
-- "Possession"," conscious possession"--"Possession" when possible without actual physical control.
The concept of possession is basically connected to "actus of physical control and custody". Attributing this meaning in the strict sense would be understanding the factum of possession in a narrow sense. With the passage of time there has been a gradual widening of the concept and the quintessential meaning of the word "Possession". There is a degree of flexibility in the use of the said term and that is why the word "Possession" can be usefully defined and understood with reference to the contextual purpose for the said expression. Over the years, courts have refrained form adopting a doctrinaire approach towards defining Possession. A functional and flexible approach in defining and understanding the possession as a concept is acceptable and thereby emphasis has been laid on different possessory rights according to the commands and justice of the social policy. Thus, the word "possession" in the context of any enactment would depend upon the object and 48 purpose of the enactment and an appropriate meaning has to be assigned to the word to effectuate the said object. The term "possession" ordinarily consists of two elements. First, it refers to the corpus or the physical control and the second, it refers to the animus or intent which has reference to exercise of the said control. Coming to the context of section 18 of the NDPS Act, it would have a reference to the concept of conscious possession. The legislature while enacting the said law was absolutely aware of the said element. The word "possession" refers to a mental state as is noticeable from the language employed in Section 35 of the NDPS Act. It includes knowledge of a fact. That apart, Section 35 raises a presumption as to knowledge and culpable mental state from the possession of illicit articles. The expression "possess or possessed" is often used in connection with statutory offences of being in possession of prohibited drugs and contraband substances. Conscious or mental state of possession is necessary and that is the reason for enacting Section 35 of the NDPS Act, 1985.
39. The learned Spl.P.P., has also relied on the decision reported in (2015) 6 SCC 674 in the case of Kulwinder Singh and another Vs., State of Punjab wherein it is observed as here under:-
A. Narcotic Drugs and psychotropic Substances Act, 1985--Ss. 35 and 15--Recovery of contraband from truck--factum of conscious possession--Invocation of presumption of culpable mental state--Expressions 'conscious' and 'possession'--Meaning of, restated-- Conviction confirmed--Held, once possession of CCH-33 49 Spl.C.C.204/2022 contraband is established, accused is presumed to be in conscious possession--Further, if accused takes a stand that he was not in conscious possession, he has to establish the same--Herein, defence plea that both appellant-accused were only traveling in truck and had no knowledge of what the bags contained, rejected.
D. Narcotic Drugs and psychotropic Substances Act, 1985
--S. 15--Recovery of contraband from truck--No independent witness examined to substantiate allegation of prosecution as they had been allegedly won over by accused--But, evidence of official witnesses, trustworthy and credible--Prosecution case, trustworthy--Held, no reason not to rest conviction on basis of such evidence of official witnesses--Conviction confirmed. This Court has gone through both the decisions carefully, as held in the case of Mohan Lal -
The concept of possession is basically connected to "actus of physical control and custody". Attributing this meaning in the strict sense would be understanding the factum of possession in a narrow sense. With the passage of time there has been a gradual widening of the concept and the quintessential meaning of the word "Possession". There is a degree of flexibility in the use of the said term and that is why the word "Possession" can be usefully defined and understood with reference to the contextual purpose for the said expression.
When the possession also refers mental state as noticeable from the language employed in Sec.35 of NDPS Act, the 50 initial burden of establishing that the contraband was in the possession of the accused is on the prosecution. When the accused specifically stated that she had no knowledge about the seized contraband, it was the duty of the investigating agency to investigate further to ascertain whether the accused herself with conscious possession brought it or not. However, the investigating agency did not make further enquiry in the matter. During the course of investigation they did not collect material to show that the accused herself brought the said contraband. When the investigating agency apprehend a person with the allegation of serious offence, it has to ascertain at least from whom it was brought and whether the accused had made payment for it or not. However, in the record absolutely no material to link the accused with the said trolley bag which contained so called contraband. The learned counsel apart from oral arguments has also filed written arguments and relied on the decision reported in 1992 Crl.L.J.3206 in the case of CCH-33 51 Spl.C.C.204/2022 Soorajmal Vs., The State of Madhya Pradesh in support of his arguments which is as under:-
7. The trial Court vide its order dated 29-6-91 has framed a charge against Surajmal only on the ground that the contraband opium was found in possession of Surajmal as the field belonged to him. The trial Court has solely relied on Section 54 of the N.D.P.S. Act. It has failed to notice that possession for the purpose of Section 54 of the N.D.P.S. Act has to be a conscious possession and not a constructive possession alone. It is true that it is not necessary that the contraband must be found on the person of an accused person or in his house alone. A person could be held responsible for something which was found on the premises, which are in his control but in such a case there should be something in the circumstances that it was not likely that the accused-person had no knowledge of the existence of the contraband on the premises. In the present case, there is absolutely no evidence collected by the police, which could show that Surajmal had any knowledge of the contraband being concealed in his field. The circumstances do not indicate that the contraband could not have been kept on the field of Surajmal without his having knowledge of it. It is after all; an open field, to which anyone could have had an access in the absence of the owner and especially when the owner had engaged a servant for looking after the field, the possibility of a servant engaging himself in illegal activities without the knowledge of his master cannot be ruled out. As no evidence to connect the master with the contraband has been collected, it appears that the police have implicated Surajmal solely because he is the owner of the field from which contraband opium was recovered.
Therefore, as held in the said decision the 'possession' is not a legal concept but also a matter of fact i.e., as a 52 relationship between a person and a thing. The test for determining whether a person is in possession of any thing is whether he is in general control of it.
40. If the principles laid down in the aforesaid decision is taken into consideration, as already noted herein above the investigating agency did not ascertain whether actually the accused with conscious brought the said contraband or not. No iota of evidence to come to the conclusion that the accused with an intention to bring contraband to India brought the trolley bag. The investigating agency had to work more in this regard and had to collect relevant documents to show that the accused there was nexus between the accused and the so called contraband. Further in the decision rendered in Crl.Appeal No.1953/2014 in the case of Rakesh Kumar Raghuvanshi Vs., State of MP wherein it is observed as under :-
Thus, before the Court holds the accused guilty of the offence under the NDPS Act, possession is something that CCH-33 53 Spl.C.C.204/2022 the prosecution needs to establish with cogent evidence. If the accused is found to be in possession of any contraband which is a narcotic drug, it is for the accused to account for such possession satisfactorily, if not, the presumption under Section 54 comes into place.
Therefore, as envisaged by the provision itself, unless and until the contrary is proved in trials of cases involving offences coming within the purview of the NDPS Act, it may be presumed that the accused has committed an offence under the Act in respect of any articles prohibited to be possessed by him and for the possession of which, he failed to account satisfactorily. Therefore, it is the burden of the prosecution to establish that the contraband was seized from the conscious possession of the accused. Only when that aspect has been successfully proved by the prosecution, the onus will shift to the accused to account for the possession legally and satisfactorily. Conscious possession refers to a scenario where an individual not only physically possesses a narcotic drug or psychotropic substance but is also aware of its presence and nature. In other words, it requires both physical control and mental awareness. This concept has evolved primarily through judicial interpretation since the term "conscious possession"
is not explicitly defined in the NDPS Act. This Court through various of its decisions has repeatedly underscored that possession under the NDPS Act should not only be physical but also conscious. Conscious possession implies that the 54 person knew that he had the illicit drug or psychotropic substance in his control and had the intent or knowledge of its illegal nature.
From the observations made in the aforesaid decisions it is clear that the possession of contraband shall be conscious possession. When once the prosecution initially establishes the ingredients of the offences alleged against the accused, then the burden shift on the accused to give explanation about her possession of the article. However, in the present matter, as already noted herein above the prosecution failed to establish the conscious possession of the alleged contraband with the accused. Hence, the reverse burden did not shift on the accused. Accordingly, considering all the aspects discussed herein above, this Court is of the considered view that the prosecution failed to prove the guilt of the accused for the offences punishable U/s.22(c) & 23(c) of NDPS Act beyond all reasonable doubt. The benefit of doubt shall be extended to the accused. Hence, the accused is entitled to be acquitted for the offences U/Sec.22(c) & CCH-33 55 Spl.C.C.204/2022 23(c) of NDPS Act. Accordingly, I answer Point Nos.1 and 2 in the Negative.
41. Point No.3: In the result, following:
::ORDER::
Acting under Section 235(1) of Cr.P.C. accused
- Ms.Mukarushema Saida is acquitted for the offences punishable under Sections 22(c) & 23(c) of NDPS Act.
Accused shall be set at liberty if she is not required in any other case subject to the compliance of Sec.437A of Cr.P.C.
M.O.1 & 2 contraband is ordered to be returned to complainant for producing before the Drug Disposal committee for disposal. [Dictated to the Stenographer, directly on the computer, typed by her, corrected, signed and then pronounced by me in Open Court on this the 1st day of August 2025) (LATHA) XXXIII ACC & SJ & SPL.JUDGE (NDPS) BANGALORE.56
ANNEXURE
1. List of witnesses examined for the:
(a) Prosecution:
P.W.1 : Smt.Deepti Perumal
P.W.2 : Sri K. Phanikumar
P.W.3 : Smt. Sabita Naik
P.W.4 : Sri Viji John
P.W.5 : Sri Dinesh Kumar S
P.W.6 : Sri Nikil S K
(b) Defence :
- NIL -
2. List of documents exhibited for the:
(a) Prosecution:
Ex.P.1 : Information (a) Sig., of PW.1
Ex.P.2 : Intimation of arrest of foreign National to
to P6 Embassy of Republic of Uganda and Joint
Secretary CPV Diision, Ministry of
External Affairs
Ex.P.7 : Mahazar (a)(b)(c) signatures
Ex.P.8 : Copy of Passport
Ex.P.9 : FSL report
Ex.P.10 : Sample seal
Ex.P.11 : Voluntary statement of accused (a)(b)
signs.
Ex.P.12 : Statement of Ms.Nisha Kumari (a) Sign
Ex.P.13 : Statement of Dr.Zulesh Patle (a) Sign
Ex.P.14 : Statement of Manish Sravan Modkar (a)
Sign
CCH-33
57 Spl.C.C.204/2022
Ex.P.15 : Complaint
(b) Defence:
Ex.D.1 : Letter dated 7.5.2021
3.List of Material Objects admitted in evidence:
M.O.1 : Sample contraband
M.O.2 : Sample contraband
(LATHA)
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BANGALORE.
CN/*