Bangalore District Court
State By Inspector Of Customs vs Arun V on 30 January, 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 30th DAY OF JANUARY 2020
SPL.C.C. NO.148/2017
COMPLAINANT : State by Inspector of Customs,
Central Intelligence Unit, KIA,
Devanahalli, Bengaluru - 560 300.
(By Spl. Public Prosecutor)
V/S.
ACCUSED : Arun V, Proprietor, M/s.Integrated
Corporation, Bengaluru, S/o.V
Vijayan, No.217, 6th cross, 2nd Main,
Prakash Nagar, Bengaluru 560 021.
(By Sri KS., Adv.)
1. Date of Commission of offence: 13.10.2016 &
14.10.2016
2. Date of report of offence: 13.10.2016
3. Arrest of the accused : 15.10.2016
4. Date of release of accused on 9.5.2017
bail:
5. Period undergone in custody: 6 months 24 days
6. Date of commencing of
4.2.2019
recording Evidence :
2
7. Date of closing of Evidence : 18.10.2019
8. Name of the complainant: Sri Harshavardhan Uvare,
Addl. Commissioner, GST
9. Offence complained of : U/s.8(c), 22(C), 23(C),
28 & 29 of NDPS Act and
U/s.135A of Customs Act.
10. Opinion of the Judge : Offence not proved
11. Order of sentence : As per final order
---
JUDGMENT
The Inspector of Customs, Central Intelligence Unit, Bangalore has lodged the above complaint before Court against the accused U/s.8(C), 22(C), 23(C), 28 & 29 of NDPS Act.
2. Brief facts of the case are as under:
The case of the prosecution is that, during the course of examination by the officers on duty at the AIR India SATS Export Shed, they had absorbed the presence of white powder in the plastic tubes of non woven bags which were attempted to be exported by M/s. Integrated Corporation, Prakash Nagar, Bangalore, vide shipping Bill No.1585424 dated 13.10.2016.
On examination they found off white coloured powder in 824 CCH-33
3 SPl.C.C.148/2017 tubular handles of Non woven shopping bags. On testing the powder it turned out to be positive for Methaqualone which is a controlled substance under NDPS Act. The entire substance weighed 29.907 Kgs., of Methaqualone valued approximately Rs.11,96,28,000/-. They seized the same under mahazar. Considering the gravity of the offence the accused was arrested on 14.10.2016 produced before Magistrate and remanded to judicial custody. Later on the 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.8(c), 22(C), 23(C), 28 & 29 of NDPS Act and U/s.135A of Customs 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.22 and got marked Exs.P1 to P.37 and M.Os.1 to 3. After closure, accused is examined U/Sec.313 of Cr.P.C., 4 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 13.10.2016 at about 4.00 pm., accused being the proprietor of M/s.Integrated Corporation knowingly used the export shipment relating to shipping bill No.1585424 to illegally export Ketamine a psychotropic substance without authorisation and also exceed commercial quantity and quantity of 29.907 Kgs., of Ketamine found concealed in export consignment without any licence or permit, there by accused has committed the offences U/s.22(C), 23(C), 28 & 29 of NDPS Act R/w.Sec.135A of Customs Act?
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:
CCH-33 5 SPl.C.C.148/2017 REASONS
8. POINT NO.1 :- The learned Spl.P.P. vehemently argued that as per evidence of PWs.1 to P.W.22 and Exs.P.1 to P.37 and M.Os.1 to 3, 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
20. P.W.1 has stated that on 13.10.2016 he received information that at KIA some narcotic drugs were transported to Malaysia. He informed the same to his staff members and ordered to enquire and give report as per Ex.P1. At the time of investigation it was found that the said items were supplied by one global Export and Import Company, Chennai. He secured the report from Chennai, Asst. commissioner as per Ex.P2 and wrote letter as per Ex.P3 to Joint Commissioner of Customs, 6 Bengaluru and instructed them to conduct raid in three places. One Deputy Commissioner had reply the said letter as per Ex.P4 along with three mahazars. The said mahazars are at Ex.P5 to P7 and another letter Ex.P8. Counsel for the accused has not cross examined this witness.
10. P.W.2 has stated that on 13.10.2016 P.W.1 secured him and informed the information and directed to him conduct detailed investigation and give report. He secured his staff and give instructions to conduct investigation. After thorough investigation his staff submitted report regarding presence of narcotic drugs. Further his staff conducted raid and seized the drugs and the person who was transporting the same. He informed the same to P.W.1 and received the samples and kept the bulk drugs in the godown. In his cross examination he has stated that on 13.10.2016 C.W.1 told him to investigate the case at 3.00 pm., in the afternoon after he received information. He denied that C.W.1 has not instructed him to conduct raid and that they have not gone to the spot, seized CCH-33 7 SPl.C.C.148/2017 the contraband and arrested the accused and that he is deposing falsely.
11. P.W.3 has stated that on 13.10.2016 C.W.1 instructed him to conduct investigation regarding the shipping bill No.1585424 he went to export office and met the agent and enquired about the same. The agent gave information that one Mallang Shavali had introduced one Arun. He secured CWs.19 and 20 to act as panchas. Then they all went to the export shed and enquired about the shipping bill and requested to produce the said parcel. The Air India Sats export staff produced the said parcel. On verification it was mentioned that in all 7packets 1400 bags were to be exported. On showing the said parcels to the company Manager he identified them. Then they opened the said parcels. They found 1399 non woven shopping bags, 987 bags were found with 1972 of hallow plastic handles of smaller diameter and 412 bags with 824 plastic tubular handles of bigger diameter and one bag without any handle. On careful examination of the bags it was noticed that 824 plastic tubular handles of bigger diameter 8 were plugged at both edge with plastic inserts and sealed with transparent cellophane tape. On opening the tape they found off white coloured powder and on subjecting the powder for preliminary test with the kit it was found that it is positive for the presence of Methaqualone which is a restricted substance. They seized in all 29.907 Kgs., and two samples from each packet and packed separately. They drew mahazar from 5.00 pm., to next day 11.30 am., as per Ex.P9. He sent the report as per Ex.P10 to his superior officer on 15.10.2016 and submitted the shipping bill as per Ex.P11. Ex.P13 is the report given by C.W.13. he issued notice to Asst. Manager of M/s.INext as per Ex.P13. The statement given by Asst., Manager of M/s. INext Logistics & Supply Chain Pvt., ltd., is at Ex.P14. notice issued to one Anupama is at Ex.P.15 and the statement is at Ex.p16. The statement given by Arun before Ravi G is typed by him. the same is marked at Ex.P17. Form F is at Ex.P18, certificate U/s.52A is at Ex.P19 and photos are at Ex.P20.
CCH-33 9 SPl.C.C.148/2017
12. In the cross examination of P.W.3 he has stated that the articles mentioned in the mahazar are all of Chennai. He denied that the said articles have directly come from Chennai to airport. The said articles came from Chennai to Godown and then from godown to Airport. One Mallang Shavali had received the said goods. He denied that the said goods were inspected by said Mallang Shavali. He has stated that Mallang Shavali is only an agent to transport the goods and that he do not inspect. He denied that all the transactions of accused is looked after by Mallang Shavali. He denied that it is the duty of the agents to verify the documents. He denied that after verifying the goods only it is sent to Air Cargo to scan. He has stated that before coming to verification all the articles were not scanned. He got all the articles from Export department. He denied that before going to Export department the articles will be scanned and billed. On 13.10.2016 at about 5.00 pm., he had gone to Export department for inspection. At that time Mallang Shavali and Arun came to the spot at that time. At that time he had not given any notice to them. He had not given notice to CWs.19 and 20 to acct as panch. He denied 10 that the Air bill No.23262821743 is not produced before him. he denied that he has not verified any documents before the Company manager and panchas. He denied that he has not sent any articles to Hyderabad and Chennai. He had denied that he has not typed any statement and that he has not recorded the statement of one Anupama and received any documents from her. he had denied that directly from Chennai he had come to Airport. He denied that accused do not manufacture any bags, he only export the articles received.
13. P.W.4 has stated that on 13.10.2016 he issued summons to one Arun, Pradeep Manikal. On 14.10.2016 he recorded the voluntary statement of accused as per Ex.P21. notice issued to accused is at Ex.P22. Notice issued to Pradeep is at Ex.P23 and his statement is at Ex.P24. notice issued to IDBI bank Manager is at Ex.P25 and statement of the bank account is at Ex.P26. Summons issued to Krishna Murthy, Proprietor as per Ex.P27 and he has given his reply along with two manifests. He obtained the DL, company CCH-33 11 SPl.C.C.148/2017 registration copy etc. he issued summons to one Fiaz as per Ex.P28 and he gave his statement as per Ex.P29.
14. In the cross examination of P.W.4 he has stated that he had verified from where he goods had come. It is true that the goods were sent to M/s.MS Logistics, SR Nagar, Bengaluru from Chennai. He denied that it belongs to one Pradeep. The said goods were received in the name of Arun. He denied that except IEC was in the name of Arun the said articles were not sent to accused Company. It is true that the said goods had not reached accused company. He denied that at SR Nagar they verify the documents and then sent to Customs. It is true that the agents of the Customs verify all documents and goods and then sent the same to Air Cargo. He denied that on 13.10.2016 he had not issued summons to the accused and that he has not recorded the voluntary statement of accused on 14.10.2016. he denied that he has not issued letter to IDBL Bank, not issued any notice to M/s.MS Logistics and received any documents. he denied that he has not issued notice to one Fayaz sheriff and not recorded his statement. 12
15. P.W.5 has stated that on 20.10.2016 he typed Ex.P9 Mahazar and signed on it. He assisted in sending the samples to CFSL, Hyderabad. He deposited the M.Os., to godown. He has stated that he has not seen the accused. in his cross examination he has stated that he cannot say at what time he typed Ex.p9. he denied that he has not sent the samples to CFSL.
16. P.W.6 has stated that he recorded the statement of one Ravikumar and issued summons to one Mallang Shavali as per Ex.P31 and recorded the statement on 14.10.2016. He has taken two sets of documents from tempo driver Fiaz. They have taken the IDs of Mallang Shavali. He has typed the statement of Arun, D Krishna Murthy as P.22 and P27. in his cross examination he has stated that while recording the voluntary statement of accused his relatives were not present. He has stated that he do not remember whether accused gave his statement in his handwriting. He has stated that he do not know that under NDPS Act the statement of the accused should be in his own hand writing. He do not remember on CCH-33 13 SPl.C.C.148/2017 which date and time he recorded the voluntary statement of the accused. He received the goods from Mallang Shavali office. he had admitted that after the goods reached Cargo complex remaining packing was done by Mallang Shavali. It is true one Fiaz had bought the goods from M/s.MS Logistics. Again he has stated that he do not know whether Fiaz bought goods from MS Logistics. He denied that he has received two copies of the documents from the Tempo driver. He denied that he has not recorded any statements.
17. P.W.7 has stated that on 13.10.2016 he conducted search of the cartoon boxes at Export shed and found 29.907 Kgs., of narcotic drugs out of which they took samples and drew mahazar as per Ex.P9. in his cross examination he has stated that CWs.19 and 20 are staff of Air India. He has stated out of 1399 bags, in 412 bags having 2 big handles contain narcotic drugs. He denied that he has not typed Ex.P9 mahazar.
14
18. P.W.8 has stated that on 13.10.2016 they had gone to Prakash Nagar Integrated Corporation with panchas on conducting raid they did not found any thing. They drew mahazar as per Ex.P5. the counsel for the accused has not cross examined this witness.
19. P.W.9 has stated that on 13.10.2016 they had gone to Integrated Corporation, Gyathrinagar with panchas. There was one Anupama was there. They showed the search warrant to her and explained the purpose of raid. They conducted raid and examined all the documents and seized the necessary documents and a computer and drew mahazar as per Ex.P6 and the seized items are mentioned as per Ex.P32. in the cross examination he has stated that when he secured panchas he has not issued any notice to them. On 13.10.2016 when he went to the office except Anupama he do not remember whether any other person was present. He seized the computer and documents and produced before Air Cargo. He denied that he has not seized any items from the office.
CCH-33 15 SPl.C.C.148/2017
20. P.W.10 has stated that on 13.10.2016 he was instructed to conduct raid of the accused Arun. He along with other staff and panchas went to the house of Arun. The owner's son of the house showed the house of Arun. In the said house one Uma was present. She told that now Arun was not residing there he was residing 5-6 years back. They drew mahazar as per Ex.P7. The statements of Ravikumar and Lokesh is at Ex.P8. In his cross examination he has stated that he has received written instructions to conduct raid of the house of the accused. The said copy is not produced before court. he has denied that he has not issued notice to panchas, he had not raided the house of the accused.
21. P.W.11 has stated that on 13.10.2016 he received FAX message from Bengaluru Customs. He conducted raid on the company of the accused and got information that the accused was exporting drugs in the bags. They searched in Chennai and drew mahazar along with mahazar letter of Abdul Sattar and lease agreement copy is also produced. In his cross examination he has denied that on 13.10.2016 he has not 16 received any information, he has not raided the office of accused and drew mahazar, he has not received the letter from Abdul Sattar and lease agreement copy.
22. P.W.12 has stated that on 1.12.2016 as per the instructions of Bengaluru Custom's officers he raided the house of one Tameer but no documents were found. he drew mahazar as per Ex.P33. One Suresh Babu had written the said mahazar. he obtained the ID of one Raja M and Srinivasan T, letter of one Harish Ranganathan and copy of lease agreement. In his cross examination he has stated that on 1.12.2016 the complainant had sent letter and on the basis of the same they had not gone to Integrated Corporation Company and not drawn mahazar, not received the ID proofs, lease agreement, not received letter of Harish Rangarajan.
23. P.W.13 has stated that on 14.10.2016 he issued arrest memo Ex.P34. He typed the statement of Anupama Ex.P16 and statement of Pratap Ex.P16. on 23.3.2017 he received the voluntary statement of the accused from Jailer as CCH-33 17 SPl.C.C.148/2017 per Ex.P17. he gave report to C.W.3 regarding arrest of the accused as per Ex.P12. after completion of investigation filed complaint before court. in his cross examination he has stated that they have not taken the statement of the accused in his own handwriting. He has typed the same. he has produced 7 samples before C.W.3. he denied that he has not recorded the statements of Anupama and Pradeep. He denied that he has not produced the M.Os., before court and filed false complaint.
24. P.W.14 has stated that he typed the statement of Mallang Shavalli on 14.10.2016, Ravikumar statement on 16.10.2016 and Claimant statement on 19.10.2016 and gave his report Ex.P31 before C.W.6. in his cross examination he has stated that he has not recorded the statements of Mallang Shavali, K Ravi Kumar, F Claimant.
25. PW.15 has stated that on the instructions of C.W.5 he has typed the statement of T Kamalannavan on 7.11.2016. In his cross examination he has denied that he has not recorded the statement of T Kamalannavan. 18
26. P.W.16 has stated that on 13.10.2016 he wrote mahazar Ex.P6 on the say of C.W.9. he prepared inventory as per Ex.P32. in his cross examination he denied that he has not drawn mahazar on the say of C.W.9 and that he has not prepared the inventory.
27. P.W.17 has stated that on 13.10.2016 he went along with C.W.10 to the house bearing No.41, 7th Main, 5th cross at about 7.30 pm., on the instructions of Dy.Director to conduct raid. He met one Ravikumar who is son of the owner of the house. Said Ravikumar stated that the accused was residing in the ground floor of the building but now he has vacated the same and he do not know where he is residing. In the said house one Uma was residing. he enquired Uma. She told that since 2015 she is residing in the said house. They did not find any thing in the said house. They drew mahazar Ex.P7 before panchas.
28. In the cross examination he has denied that on 13,.10.2016 he had not gone to the above address of HR CCH-33 19 SPl.C.C.148/2017 Ravikumar, that Ravikumar was not present and that he has not drawn mahazar as per Ex.P7 and taken the signatures of witnesses and Ravikumar and that enquired on D.Uma.
29. P.W.18 has stated that he along with C.W.8 went to a house at Prakash Nagar on 13.10.2016 for raid at about 6.30 pm. They secured two panch witnesses and in the said house they met one Anish vijaya. On search of the house they did not find any thing. They drew mahazar as per Ex.P5. in his cross examination he has denied that he has not gone to the house at Prakash Nagar and met Anish vijaya and drew mahazar.
30. P.W.19 & 20 have stated that on 13.10.2016 at about 5.30 pm., C.W.3 came to them and stated that they have to verify the 7 parcels which are ready for shipment from Bengaluru to Malaysia and requested them to be panch witnesses. They agreed to act as panch witness. They opened all the 7 boxes and found shopping bags having small and big pipe handles. They separated small and big pipes and found 20 narcotic drugs in the said pipes. They took 7 samples and packed separately. In all they seized 29 Kgs., and it was Methaqualone. They drew mahazar Ex.P9 till 11.30 am., of 14.10.2016. The accused was also present at the time of mahazar. The shipping bill is at Ex.P11.
31. In the cross examination both the witnesses have stated the C.W.3 has not issued notice in writing to them to act as mahazar witness. They have stated the quantity of the narcotic drugs from each bag in the mahazar. they have taken 2 grams from each bag for sample. They have duly signed on all the documents. they have denied that they have not seized any articles and that no one were present at the time of mahazar.
32. P.W.21 FSL officer has stated that on 20.10.2016 they received 7 sample articles in an envelop. She has conducted tests on the sample articles but the presence of Methaqualone could not be detected hence, for exact identification the samples were directed to be forwarded to CCH-33 21 SPl.C.C.148/2017 Central Forensic laboratory, Hyderabad. The said samples were packed and handed over to Ravi G I.O on 1.12.2016 along with test report Ex.p35. the counsel for the accused has not cross examined this witness.
33. P.W.22 CSFL Asst. Director has stated that on 15.2.2016 he received a sealed envelop from Customs Bengaluru. He received in all 7 samples. On conducting various test, Methaqualone was not detected however, Ketamine was detected in all the 7 samples. Thus he issued report as per Ex.P36 and opined that the samples articles responded positive for the presence of Ketamine. In his cross examination he has stated that he received the sealed samples through a Messenger. After one month of the receipt of the samples he conducted examination. He took nearly two months time to examine the same. He has not done qualitative examination. He has admitted that he has not mentioned the percentage of drugs found in the sample. He cannot explain on what basis he has given report that the samples are not Methaqualone but it is Ketamine. He denied that he has not 22 examined as per the procedure. He denied that based on the suggestion of Customs officers that the seized article is Ketamine he has also given his report as Ketamine. He denied that based on the say of Customs officers he has given his report. But in the end of his cross examination he has stated Methaqualone and Ketamine are white powder but when he received the samples it was not in white powder. Further he has denied that the powder will change its colour when contacted with water and air. Thus, there is inconsistency in the evidence of P.W.22 whether the seized substance is Ketamine or not.
34. Ex.P1 is the search letter issued to Prl. Commissioner, Chennai to conduct raid of the address mentioned in the said letter. Ex.P2 is the report issued by the Prl. Commissioner, Chennai for having conducted raid of the house. But nothing incriminating was found or recovered in the said house. Ex.P3 is the search letter issued to Joint Commissioner, Bengaluru to conduct raid of the addresses mentioned in the said letter. Ex.P4 is the report submitted by CCH-33 23 SPl.C.C.148/2017 the Joint Commissioner, Bangalore after conducting raid of the three addresses mentioned in Ex.P3. Ex.P5 to P7 are mahazars relating to the search of the said addresses. Ex.P8 is the letter issued by the owner of the house in which the accused was residing earlier. Ex.P9 is the Mahazar drawn at Air Cargo office in which 29.907 Kgs., Ketamine was seized from the handles of the bags. But the complainant has failed to prove that the said substance is filled and transported by the accused. Ex.P10 is the success report, Ex.p11 shipping bill, Ex.P12 is the success report, Ex.P13 summons issued to Clement Asst. Manager of INext Logistics & Supply chain Pvt., ltd. Ex.P14 statement of Clement. Ex.P15 summons issued to Smt.Anupama employee of Integrated Corporation, Ex.P16 statement of Smt.Anupama. Ex.P17 & 21 voluntary statement of accused has no presumptive value and it is not admissible in evidence as it is recorded after search, seizure and arrest. No further contraband seized on the basis of his statement. Ex.p18 seizure report, Ex.p19 inventory report, Ex.P20 photos. Ex.P22 summons issued to the accused. Ex.P23 summons issued to Manaikkal Pradeep Variar, Regional manager, INext 24 Logistics Company. Ex.P24 statement of Manikkal Pradeep Variar. Ex.P25 letter to IDBI bank regarding furnishing of the details of the account of the accused. Ex.p26 is the details of the account of accused. Ex.P27 statement of Krishnamurthy, Ex.P28 is the summons issued to Fayaz Shariff, Ex.P29 is the statement of Fayaz Shariff. Ex.P30 summons to Mallang Shavalli. Ex.P31 statement of Mallang Shavalli. Ex.P32 annexure of Mahazar drawn at Integrated Corporation. Ex.P33 Mahazar drawn during search of a house at Chennai and seizure of articles and documents. Ex.P34 arrest memo, Ex.P35 letter from CFSL, Chennai to this court, Ex.P36 FSL report and Ex.P37 letter from CFSL, Hyderabad.
35. The learned Spl.P.P., relied on the decisions reported in:-
AIR 2002 SC 3658 between Narayanaswamy Ravishankar Vs., Asst. Director, Directorate of Revenue Intelligence wherein it is held that search and seizure taking place at Airport which is a public place, Provisions of Sec.43 would be applicable but not of Sec.42. Question of non-compliance of provisions of Sec.42 would be wholly CCH-33 25 SPl.C.C.148/2017 irrelevant. Further held that witness who made the seizure was examined. Non examination of witness by whom mahazar was drawn would be of no consequence.
(2014) 13 SCC 344 in Yasihey Yobin and another Vs., Department of Customs, (2018) 9 SCC 708 in SK Raju @ Abdul Haque @ Jagga Vs., State of West Bengal The facts and circumstances of the above decisions are applicable to the case on hand.
AIR 2016 SC 4317 in Girish Raghunath Mehta Vs., Inspector of Customs and another (2000) 2 SCC 513 in Abdul Rashid Ibrahim Mansuri Vs., State of Gujarat The facts and circumstances of the above decisions are not applicable to the case on hand.
AIR 2008 SC 1044 in Kanhaiyalal Vs., Union of India wherein it is held that Statement of accused U/s.67 is not same as statement made under Sec.161 of Cr.P.C., can be used as confession against him - more so, when it is corroborated by other evidence. 26 As against this, the learned counsel for the accused relied on the decision reported in 2000 Crl.L.J 100 in Paramjit Singh and another Vs., Union of India wherein it is held that:-
S.67 - self inculpatory statements admissibility of statement of accused made under S.67 - accused arrested much before recording of their statements - held, their statements cannot be relied upon to sustain conviction as the possibility of their being recorded under duress or coercion, threat or promises cannot be ruled out.
Thus, in view of the above decision relied by the counsel for the accused the above decision relied by the learned Spl.PP is not helpful to the complainant.
ILR 2004 Kar. 3855 between The Intelligence officer, Bangalore and others Vs., Arshad Saleem Khan and others wherein it is held that the special procedure of arrest, search and seizure U/s.50 becomes applicable only to the officers named in Sec.42 of the Act. The provisions of Sec.50 does not apply to first category of empowered Gazetted Rank officers contemplated in Sec.41(2).
(2010) 4 SCC 445 between Bahadur Singh Vs., State of Haryana wherein it is held that:-
CCH-33 27 SPl.C.C.148/2017 with advancement of technology and availability of high speed exchange of information, some of the provisions of NDPS Act including Sec.42 have to be read in the changed context. Delay caused in complying with provisions of Sec.42 could result in escape of offender or even removal of contraband.
Hence, substantial compliance is sufficient, if the information received were subsequently sent to the superior officer.
2000 SCC (Cri) 496 between Abdul Rashid Ibrahim Mansuri Vs., State of Gujarat wherein it is held that:-
requirements U/s.42 of taking down in writing the information received and sending a copy thereof to the immediate official superior, non compliance with effect action taken on unrecorded information, held would become suspect and one causing prejudice to the accused but would not ipso-facto vitiate the trial.
The facts and circumstances of the above decisions are applicable to the case on hand.
AIR 2011 SC 1568 in Jagadish Rai Vs., State of Punjab wherein it is held that :-
S35, S54 - conscious possession of contraband - appellant driving motor cycle bag containing opium was carried by pillion rider - on intercepted by police party tried to flee away- both were traveling on private 28 motor cycle - can be presumed that appellant was conscious of fact that pillion rider is carrying opium. Conscious possession of opium can be attributed to appellant.
The facts and circumstances of the above decision is not applicable to the case on hand as accused was not traveling along with contraband.
36. 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'.
37. Point No.2: In the result, following:
CCH-33 29 SPl.C.C.148/2017 ORDER Acting under Section 235(1) of Cr.P.C.
accused is acquitted for the offence punishable under Section 8(c) 22(C), 23(C), 28 and 29 of N.D.P.S. Act R/w.Sec.135A of Customs Act.
Bail bond of the accused shall stands cancelled.
M.Os.1 to 3 samples 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 30th day of January 2020) (G.M.SHEENAPPA) XXXIII ACC & SJ & SPL.JUDGE (NDPS) BANGALORE.
30ANNEXURE
1. List of witnesses examined for the:
(a) Prosecution:
P.W.1 : Sri Harshavardhan Umare
P.W.2 : Sujeeth Kumar P Sompur
P.W.3 : Prasad CS
P.W.4 : Ramprasad
P.W.5 : Gowri Shankar SS
P.W.6 : Varaprasad PS
P.W.7 : Manjunath K
P.W.8 : Muralidhar Acharya
P.W.9 : Santosh V giri
P.W.10 : Ramesh G
P.W.11 : S Abdul Nasar
P.W.12 : Aruna Ganesha
P.W.13 : Ravi G
P.W.14 : Sham Prasad Gera
P.W.15 : Shiva Gopala Chowrasaiah
P.W.16 : Ajay kumar
P.W.17 : Pavan Kumar goutham
P.W.18 : Gara Sharma
P.W.19 : Mithya Sureshnath
P.W.20 : Kumar
P.W.21 : Mercy Stella
P.W.22 : Sema Srivastav
(b) Defence :
NIL
2. List of documents exhibited for the:
(a) Prosecution:
Ex.P.1 : Letter
Ex.P.2 : Reply and report
Ex.P.3 : Permission letter
Ex.P.4 : Reply and report
CCH-33
31 SPl.C.C.148/2017
Ex.P.5 : Mahazar
Ex.P.6 : Mahazar
Ex.P.7 : Mahazar
Ex.P.8 : Letter
Ex.P.9 : Letter
Ex.P.10 : Success report
Ex.P.11 : Shipping bill
Ex.P.12 : Success report
Ex.P.13 : Summons
Ex.P.14 : Statement of witness
Ex.P.15 : Summons
Ex.P.16 : Statement
Ex.P.17 : Summons
Ex.P.18 : Seizure report
Ex.P.19 : Inventory report
Ex.P.20 : Photos
Ex.P.21 : Voluntary statement
Ex.P.22 : Summons
Ex.P.23 : Summons
Ex.P.24 : Statement
Ex.P.25 : Letter to bank
Ex.P.26 : Reply from bank
Ex.P.27 : Statement of witness
Ex.P.28 : Summons
Ex.P.29 : Statement of witness
Ex.P.30 : Summons
Ex.P.31 : Statement of witness
Ex.P.32 : Annexure of mahazar
Ex.P.33 : Mahazar
Ex.P.34 : Arrest memo
Ex.P.35 : Letter CFSL, Hyderabad
Ex.P.36 : FSL report
Ex.P.37 : Letter CFSL, Hyderabad
(b) Defence:
NIL
32
3.List of Material Objects admitted in evidence:
M.O.1 : Sample
M.O.2 : Sample
M.O.3 : Sample
(G.M.SHEENAPPA)
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BANGALORE.
CN/*