Bangalore District Court
State By Amruthalli P.S vs Susheel Kumar Masood on 7 February, 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 7th DAY OF FEBRUARY 2020
SPL.C.C. NO.324/2017
COMPLAINANT : State by Amruthalli P.S.
(By Public Prosecutor)
V/S.
ACCUSED : Susheel Kumar Masood, S/o.M N
Chandrashekar, 33 years, No.5,
2nd floor, Dasappa Layout,
Ramamurthy Nagar, Bengaluru - 16.
(By Sri VVS., Adv.)
1. Date of Commission of offence: 7.11.2015
2. Date of report of offence: 7.11.2015
3. Arrest of the accused : 8.11.2015
4. Date of release of accused on 5.3.2016
bail:
5. Period undergone in custody: 3 months 27 days
6. Date of commencing of 30.4.2019
recording Evidence :
2
7. Date of closing of Evidence : 25.11.2019
8. Name of the complainant: Sri Satish, PI
9. Offence complained of : U/s.20(B) & 22(C) of
NDPS Act
10. Opinion of the Judge : Offence not proved
11. Order of sentence : As per final order
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JUDGMENT
The Police Inspector, Amruthalli Police Station, Bangalore filed charge sheet against accused in Cr.No.187/2015 for the offence punishable U/Sec.20(B) & 22(C) of N.D.P.S. Act.
2. Brief facts of the case are as under:
The case of the prosecution is that, 6.11.2015 the complainant got information about drug trafficking through face book in the name of Bangalore Cannabis. Complainant visited the face book page through another profile and took his contact number and ordered for two packets of ganja and LSD CCH-33
3 SPl.C.C.324/17 blotter papers through decoy and the said person demanded Rs.20,000/- for the same and informed to meet him on 7.1.2015 at 3.00 pm., opposite to Lumbini garden, near Hebbal Ring Road, Bangalore. On the next day complainant arranged a team of officers, panchas and took permission from higher authority for raid, went to the said place at 2.00 pm., and mounted surveillance over the area, at 3.00 pm., 1 person came with plastic cover and on observation and after confirmation they apprehended the said person on the spot, on enquiry he revealed the name and address. On personal search of that person, they found 1.1 Kg., of ganja and 6 LSD blotter paper and mobile phone under mahazar and after completion went to police station and registered the case and submitted F.I.R. Later accused is enlarged on bail.
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.20(B) & 22 of 4 N.D.P.S. 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 P.W.7 and got marked Exs.P1 to P.14 and M.Os.1 to
5. Prayer of PP for reissue of NBW to C.W.3, 9 to 11 is refused as sufficient time was given. PP has given up C.W.6. After closure, accused is examined U/Sec.313 of Cr.P.C., he denied the incriminating circumstances appeared against him and not chosen to adduce evidence for his defence.
5. Heard the arguments on both sides.
6. The points for consideration are as under:
1. Whether the prosecution proves that on
7.11.2015 at about 3.00 pm., at Hebbal Ring Road, Lumbini Garden, accused was in illegal possession of 1 Kg., 100 grams of ganja & 6 LSD blotter paper which is are narcotic drugs without license or permit, there by accused has committed the offence u/S.20(B) & 22(C) of NDPS Act?
CCH-33 5 SPl.C.C.324/17
2. What order?
7. My findings on the above points are as under:
Point No.1: In the Negative.
Point No.2: See the final order for the following:
REASONS
8. POINT NO.1 :- The learned P.P. vehemently argued that as per evidence of PWs.1 to P.W.7 and Exs.P.1 to P.14 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.
9. On careful perusal of the materials placed on record, the prosecution mainly relied on the testimonies of P.Ws.1 to 3, 5 to 7.
P.W.2 has stated that on 7.11.2015 he received information that through Face book drugs is being sold he 6 opened the web site Cannabis in that in Ravi Profile he saw about the sale of drugs in it. There was also a mobile No.8971740172 for purchasing the same. He appointed a decoy and he called to the said phone No., and confirmed that there was sale of drugs. Decoy asked for ganja and LSD the person told to bring Rs.25,000/- on the next day to Lumbani Garden entrance at 3.00 pm. He secured panchas to station through his staff Ravi and issued notice as per Ex.P2. He took out print of the information regarding sale of drugs in Face book and he along with panchas have signed on it. The said print out is at Ex.P3. He attached the said copy to SHD Ex.P4 and sent copy of the same to ACP and requested to conduct raid as per Ex.P5. They all went in the office vehicle to the spot at 2.00 pm. When the decoy called the said person and asked how to identify him, he had told that the photo available in the Face book consuming drugs is of himself. On the spot they searched themselves and confirmed that they do not possess any drugs and at about 2.15 pm., a person who was similar to the photo in the Face book had come with an orange CCH-33 7 SPl.C.C.324/17 and white plastic cover near Lumbani garden. They apprehended him and explained the legal right of the accused to be searched before Gazetted officer or Magistrate. Accused agreed to be searched before Gazetted Officer. He called ACP and secured him to the spot at 4.00 pm., and issued requisition as per Ex.P6. ACP issued questionnaires to the accused and he signed on it. On personal search of accused they found 1 Kg., 50 grams of ganja out of which they took 50 grams for sample and packed separately. On search of the right pant pocket of the accused they found 6 LSD bloating paper weighing 0.14 grams. In his left pocket they seized one mobile, in the said mobile they found the SIM bearing No.8971740172 which was displaced in the Face Book. They prepared sample seal Ex.P7 and gave the metal seal to C.W.5 to produce before the court. They drew mahazar Ex.P1. He brought the accused persons along with property to P.S., and lodged complaint Ex.P8. He sent email for success of raid. 8
10. In the cross examination he has stated that the photos in Face book are not taken from IP address. He has not enquired about the subscriber of mobile Nos. The photos appeared in the Face book on 6th date is taken from mobile. He has stated that they went to the spot at 2.00 pm., and accused came to the spot at 2.10 pm., further he admits that in mahazar it is written that accused came to the spot at 3.10 pm. He further stated that they started to write mahazar from 2.00 pm. But he admits that in the mahazar Ex.P1 it is mentioned that after accused came they started to draw mahazar. Further stated that when they started to write mahazar accused was not present. They have not obtained the accused signature on mahazar. He denied that the legal right of the accused to be searched before Gazetted officer or Magistrate is to be explained in writing to the accused. He denied that they have not seized LSD paper from the right pant pocket of the accused and a cover from his hand. He has stated that in spite all his staff had mobile phones they have not taken the photos while seizing ganja and LSD from the CCH-33 9 SPl.C.C.324/17 accused. He denied that on 6.11.2015 in the Face Book photo of accused had not displayed. He denied that they have not drawn any mahazar on 7.11.2015 at 3.00 pm., on the spot. He denied that since they had prepared mahazar at station they have mentioned the wrong timings. He denied that he is deposing falsely. He denied that they have taken the signature of ACP later in the station.
11. P.W.1 raiding member has stated that on 7.11.2015 C.W.1 secured him along with other staff and informed the information found in the Face book. He secured decoy and he called to a phone no., and asked for ganja and LSD the said person in the phone said to bring Rs.20,000/- to ring road and take the ganja. C.W.1 informed the said fact to the ACP and accorded permission for raid. They went to the spot at 2.00 pm., at 3.00 pm., the person seen in the Face book was coming with a plastic cover. They apprehended him and on personal search they seized 1 Kg., 100 grams of ganja and 6 LSD paper and drew mahazar Ex.P1.
10
12. In the cross examination he has stated that when they went to the spot it was 2.00 pm., the accused came to the spot at 3.00 pm., they drew mahazar from 2.00 pm., to 6.00 pm. He has stated that he do not know from whom the accused had purchased the ganja and to whom he was selling. He denied that they have filed a false case. He denied that they have not seized M.Os., from the possession of the accused.
13. P.W.3 has stated that on 8.11.2015 he took sample articles from C.W.1 and on the next day he submitted to FSL office and obtained acknowledgement Ex.P9 and submitted his report. In his cross examination he denied that he has not gone to FSL and submitted the sample and obtained acknowledgement.
14. P.W.5 has stated that on 7.11.2015, P.W.2 produced the accused, property and documents and lodged complaint Ex.P8. He registered the case and submitted FIR Ex.P13, He CCH-33 11 SPl.C.C.324/17 recorded the statements of witnesses. He arrested the accused and produced before court on 8.11.2015, sent the samples to FSL through C.W.7. On 13.5.2015 he received the FSL report Ex.P11 and kept in file. After completion of investigation he submitted charge sheet. In spite of sufficient opportunity was given to the accused, this witness is not cross examined.
15. P.W.6 ACP has stated that on 7.11.2015, P.W.2 submitted Ex.P5 regarding information received by him through Face book, he permitted to conduct raid. On the same day at 3.20 pm., P.W.2 requested to come to the spot and act as Gazetted Officer as per Ex.P6. He went to the spot and issued questionnaires Ex.p14 to accused. On personal search of the accused they seized M.Os.1 to 5 and drew mahazar ExP1. In spite of sufficient opportunity was given to the accused, this witness is not cross examined. 12
16. P.W.7 has stated that on 7.11.2015 complainant secured him to the police station and requested him to act as panch witness. He agreed and received notice as per Ex.P2. They all went to the spot at about 2.00 pm. At about 3.00 pm., the accused before court came to the spot and they all apprehended him. ACP came to the spot and explained the legal right of the accused and issued notice as per Ex.P14. Then P.W.2 conducted personal search of the accused and seized M.Os.1 to 5 and they drew mahazar Ex.P1. In spite of sufficient opportunity was given to the accused, this witness is not cross examined.
17. P.W.4 F.S.L officer stated that she conducted in all 9 various tests on the sample articles and issued report Ex.P11 and opined that the sample articles responded positive for ganja and LSD. In her cross examination denied the suggestion that she has not personally conducted tests on the sample articles and issued false report. Of course as per the evidence of P.W.4, the sample article may respond positive for CCH-33 13 SPl.C.C.324/17 ganja and LSD, but the said sample articles are seized from the possession of the accused is not proved as there is lot of discrepancies in the evidence of the prosecution official witnesses itself wherein P.W.1 in his cross examination has clearly stated that before accused coming to the spot they had started mahazar and at one breath he has stated that accused came to the spot at 2.10 pm., and at another breath he has agreed that in the mahazar it is written that accused came to the spot at 3.10 pm. This creates a serious doubt in the minds of the court whether accused had come to the spot and they apprehended him and seized the M.Os.
18. Ex.P1 mahazar wherein the legal right of the accused is not mentioned. Ex.P2 notice to panchas. Single notice is issued both the panchas. Ex.p3 print of Face Book pages. The prosecution mainly rely on this to prove the guilt of the accused. But the details of Face book regarding IP address etc., is not verified by the prosecution to show that it was posted by the accused himself. Based on the social media 14 prosecution cannot prove the guilt of the accused. Ex.P4 SHD reveals that C.W.1 has reduced the information in writing. But it is difficult to believe that whether it is reduced in writing immediately or created later as Ex.P4 is a single sheet wherein the entry pertaining to this case is only forthcoming. Ex.P5 letter to ACP regarding the information received by C.W.1 and permission to conduct raid. Ex.P6 is request letter given to ACP to act as Gazetted Officer. Ex.P7 specimen seal, Ex.P8 complaint lodged by P.W.1 wherein existing legal right of the accused is not mentioned. Ex.P9 acknowledgement of FSL, Ex.P10 passport, Ex.P11 FSL report, Ex.p12 specimen seal, Ex.p13 FIR submitted to court reveals that delay in submitting the FIR to court is not properly explained. Ex.P14 body search notice issued to accused wherein ACP has put questions and himself written the answers on behalf of accused persons. ..... Wherein 3rd option is given to the accused persons. Sec.50 Part 1 of the NDPS Act does not provide for it and when such option is given it would frustrate the provisions.
CCH-33 15 SPl.C.C.324/17
19. It is pertinent to note that prosecution has not produced the voluntary statement of the accused, not sent the report for success of raid to the superior officers. Though the official witnesses are not cross examined by the accused, but due to the failure of the prosecution in complying the mandatory provisions, the accused is cannot be convicted.
20. In view of the decisions reported in 2009 Crl.L.J. 4299 in Karnal Singh Vs., State of Haryana, (2007) 1 Supreme Court Cases (Cri) 744 in Ritesh Chakarvarti Vs., State of MP, (1999) 7 SCC 280 in State of HP Vs., Jailal and others and in AIR 2013 Supreme Court 357 in the case of Krishan Chand Vs., State of Haryana wherein it is held that:-
(A) Narcotic Drugs and Psychotropic Substances Act (61 of 1985), Ss 42, 50, 57 - Search - Pre search requirement of recording information received and sending it to superior officer-Demands exact and definite compliance as opposed to substantial compliance - So is requirement of S.50 - Compliance 16 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."
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 CCH-33 17 SPl.C.C.324/17 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-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.
182009 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 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. CCH-33 19 SPl.C.C.324/17 Ram Avtar @ Rama, 2011(1) Crimes 508 (Karnataka) - K.K. Rejji and others vs. State by Murdeshwar Police Station, Karwar.
2014(2) Crimes 234 (Kar) in Ravi and others Vs., State by Manna-E-Khelli Police, Bidar district wherein it is held that:-
"Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 20(b)(ii)(c) and 42 - Recovery of 5 bags of ganja weighing 45 kilograms from possession of appellants - Conviction by Trial Court - Appeal against conviction - Failure to comply with procedure under section 42 of Act - absence to record in writing the information received in first instance - No emergent situation which warranted postponement of said Act of recording the information received in writing-Nor any such record in writing at a later point of time - Held entire proceedings Vitiated by virtue of failure to record circumstances in writing - Quantity of ganja indicated as having been in possession of appellants was also inaccurate as the weighment was of stalks, leaves seeds and possibly the flowering and fruiting tops - inaccurate weighment would have a telling effect on the degree of punishment that could be imposed-this was because NDPS Act provides for a schedule which prescribes the degree of punishment 20 dependent on the weight of substance involved -m hence, held that there was a failure in the charges being framed accurately against accused - impugned judgment of court below set aside - Appeal allowed."
2014 (1) Crime 324 (SC) State of Rajasthan Vs., Parmanand and another wherein it is held thus:
(a) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 50 - Provision is mandatory - but it applies to search of the person of the accused only -
does not apply to search of a bag carried by him - However, if the bag carried by him is searched and his person is also searched, Section 50 applies.
"(b) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 50 - Two accused persons - not informed of their rights individually - Joint notice communicated - one of the accused signing for both -
conviction vitiated."
On careful reading of above decisions, facts, circumstances and ratio is applicable to case on hand, as prosecution has not followed mandatory provisions.
CCH-33 21 SPl.C.C.324/17
21. 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 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 20(B) & 22 of N.D.P.S. Act.
Bail bond of the accused shall stands cancelled.22
M.O.5 mobile is ordered to be confiscated to State after appeal period is over.
M.Os.1 to 4 sample is ordered to be returned to the complainant to produce before 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 7th day of February 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 B T Satish Kumar
CCH-33
23 SPl.C.C.324/17
P.W.2 : M H Satish
P.W.3 : L Maruthi
P.W.4 : Smt.Vani N
P.W.5 : B.S.Srinivas Raj
P.W.6 : B.S.Shanthakumar
P.W.7 : Sachin Goutham
(b) Defence :
NIL
2. List of documents exhibited for the:
(a) Prosecution:
Ex.P.1 : Panchanama
Ex.P.2 : Panch notice
Ex.P.3 : Copy of Face Book
Ex.P.4 : SHD
Ex.P.5 : Request letter to ACP
Ex.P.6 : Request letter to act as Gazetted Officer
Ex.P.7 : Specimen seal
Ex.P.8 : Complaint
Ex.P.9 : Acknowledgement of acknowledgement
Ex.P.10 : Passport
Ex.P.11 : FSL report
Ex.P.12 : Sample seal
Ex.P.13 : FIR
Ex.P.14 : Body search memo
(b) Defence:
NIL
3.List of Material Objects admitted in evidence:
M.O.1 : Ganja
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M.O.2 : Ganja
M.O.3 : LSD
M.O.4 : Ganja
M.O.5 : Mobile
(G.M.SHEENAPPA)
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BANGALORE.
CN/*