Bangalore District Court
State By Attibele P.S vs Smt.Lakshmamma on 14 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 14th DAY OF JANUARY 2020
SPL.C.C. NO.246/2018
COMPLAINANT : State by Attibele P.S.
(By Public Prosecutor)
V/S.
ACCUSED : 1. Smt.Lakshmamma, W/o.late
Krishnappa, 60 years, Residing
at Ballur village, Attibele Hobli,
Anekal Taluk, Bengaluru
district.
2. Kiran, S/o.Beerappa, 21 years,
Dr.Ambedkar Nagara, Ballur
village, Attibele Hobli, Anekal
Taluk, Bengaluru district.
3. Gowramma, W/o.P Papareddy,
59 years, No.353, Dasanapura
road, Belluru, Attibele, Anekal
Taluk, Bengaluru rural.
4: Prabhakar Reddy S/o
Papareddy, aged about 35 years,
R/at Dasanapura Road, Balluru
village, , Anekal Taluk,
2
Bengaluru District, Karnataka.
(A1by Sri UNP, A2 JMR,
A3 & 4 by GM., Adv.)
1. Date of Commission of offence: 7.7.2017
2. Date of report of offence: 7.7.2017
3. Arrest of the accused : 7.7.2017
4. Date of release of accused on A1 & A2: 29.7.2017
bail: A3 & A4; 28.7.2017
5. Period undergone in custody: A1 & A2: 22 days
A3 & A4: 21 days
6. Date of commencing of
20.3.2019
recording Evidence :
7. Date of closing of Evidence : 3.1.2020
8. Name of the complainant: Sri Gajendra V, PI
9. Offence complained of : U/s.20(b)(ii)(c) of NDPS
Act
10. Opinion of the Judge : Offence not proved
11. Order of sentence : As per final order
---
JUDGMENT
The Police Inspector, Attibele Police Station, Bangalore filed charge sheet against accused in Cr.No.224/2017 for the offence punishable U/Sec.20(b)(ii)(c) of N.D.P.S. Act.
CCH-33 3 SPl.C.C.246/2018
2. Brief facts of the case are as under:
The case of the prosecution is that, on 7.7.2017 at 11.00 pm., complainant received credible information that in a site at Ballur village, 3 to 4 persons unauthorisedly stored ganja and trying to sell the same to purchasers. He informed the said information to his superior officer, secured panchas and staff members and went to the spot and surrounded the house. In spite of searching the house they found a plastic cover at Pooja temple. The same consisted of ganja packets.
On weighing the same it was 2 Kgs., 600 grams. They arrested the accused persons, drew panchanama, arrested the accused and produced before Magistrate and remanded to judicial custody. Later all the accused are enlarged on bail.
3. After taking cognizance registered the case. Copies of the prosecution papers were supplied to accused persons U/Sec.207 of Cr.P.C. After hearing, charge framed U/Sec.20(B) of N.D.P.S. Act, read over and explained to them. Accused pleaded not guilty and claimed to be tried. 4
4. In support of the case, prosecution has examined P.Ws.1 to P.W.10 and got marked Exs.P1 to P.21 and M.Os.1 &
2. PP has given up C.W.3. After closure, accused are examined U/Sec.313 of Cr.P.C., they denied the incriminating circumstances appeared against them and not chosen to adduce evidence for their defence.
5. Heard the arguments on both sides.
6. The points for consideration are as under:
1. Whether the prosecution proves that on
7.7.2017 at about 11.00 am., at Balluru village, Anekal Taluk, Bengaluru district accused Nos.1 to 4 were in illegal possession of 2 Kgs., 600 grams of ganja, which is a narcotic drug without license or permit, there by accused Nos.1 to 4 have committed the offence u/S.20(B) of NDPS 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.246/2018 REASONS
8. POINT NO.1 :- The learned P.P. vehemently argued that as per evidence of PWs.1 to P.W.10 and Exs.P.1 to P.21 and M.Os.1 & 2, 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 9.
P.W.3 has stated that on 7.7.2017 at 11.00 am., he received information that at Balluru village, Anekal Taluk accused have stored ganja illegally in their house. He reduced the information to SHD as per Ex.P6 and called to Dy.SP and informed the information and sent email and accorded permission as per Ex.P7. he secured panchas informed the information and issued notice as per Ex.P4 and requisition to Medical officer to act as Gazetted Officer as per Ex.P1. He 6 secured staff members and informed the information and they all went to the spot and issued notice to the persons present in the house as per Ex.P8. They apprehended them and explained the legal right of the accused persons to be searched before Gazetted officer or Magistrate. accused agreed to be searched before Gazetted Officer. They personal search of the accused persons. Accused No.1 produced the ganja from Pooja room. He secured the weighing machine and weighed the ganja it was 2 Kgs., 600 grams. They took some ganja for sample. they drew mahazar Ex.P3 between 1 - 2 pm. He brought the accused persons along with property to P.S., and lodged complaint Ex.P9. He recorded the statement of panchas and witnesses. He sent report for success of raid to his superior as per Ex.P10. he handed over the record to C.W.12 for further investigation.
10. In his cross examination he has stated that he reduced the information in the SHD and not written else where. His staff secured panchas to the police station. in all 8 members went in the office vehicle. He only secured C.W.2.
CCH-33 7 SPl.C.C.246/2018 C.W.2 came to the police station. after raid C.W.2 came to the police station and at 2.30 pm., he went. He denied that he has not explained the legal right of the accused to be searched before Gazetted officer or Magistrate. He denied that he has not explained who is Gazetted Officer to the accused. the house which they raided was facing towards east. They had taken digital weighing machine to weigh ganja. he denied that he has not sent report for success of raid to the superior and obtained acknowledgement. He denied that they have not gone to the spot, he did not secure the Gazetted Officer, panchas and apprehended the accused persons and seized ganja from them and drew mahazar. he denied that Ex.P3 is prepared in the police station. he denied that he has forcibly taken the signatures of the panchas and that he has not issued any notice to them. He denied that accused are not connected to this case at all.
11. P.W.1 Gazetted Officer has stated that on 7.7.2017 when he was on duty, C.W.1 gave requisition requesting him to come to the spot and act as Gazetted Officer as per Ex.P1. 8 They all went to a House at Balluru village. In the said house two male and two female persons were present. They found ganja in the pooja room. He issued notice to the accused persons as per Ex.P2 and explained the legal right of the accused. He secured weighing machine and weighed ganja which was 2 Kgs., 600 grams. They took two packets of 50 grams for sample. They drew mahazar Ex.P3.
12. In the cross examination he has stated that when he received the call from police he directly went to the spot in his own vehicle. Whereas P.W.1 has stated that he secured C.W.2 to the station and then they all went in the office jeep. He denied that he has not explained the legal right of the accused to be searched before Gazetted officer or Magistrate. He denied that he has put his signature at station. he denied that when they went to the house there were 4 persons. He denied that they did not arrest the accused persons seized ganja and drew mahazar. he has stated that near the house of accused there were no houses. He do not know whether police had bought the metal seal to seal the seized items. He has stated that CCH-33 9 SPl.C.C.246/2018 police secured the weighing machine from out side. After completion of raid he did not accompany police he directly went to the hospital. Whereas P.W.1 has stated that C.W.2 had come to the station and then at 2.30 he left the station. he denied that police did not secure him to the spot, he did not issue notice to the accused and conducted personal search of the accused persons and seized ganja and drew mahazar.
13. P.W.2 has stated that he know the accused persons. On 7.7.2017 C.W.2 secured him to the station issued notice Ex.P4 and informed the information regarding possessing of ganja illegally at a house in Balluru village. They went to the said house and found 4 persons. On search of the house below the cot they found ganja weighing 2 Kgs., 600 grams. They took 50 grams two packets for sample. They drew mahazar Ex.P3. he took photos at the spot. Sample seal is at Ex.P5. In the cross examination he has stated that police secured him to the station at 12.00 noon. He denied that what was written in the mahazar is not explained to him. he denied that he did not go to the spot and police drew mahazar in his 10 presence. He denied that he has signed the mahazar in the police station. He denied that photos are taken in the police station. he denied that only to help the police he is deposing falsely. He oftenly goes to the police station to take photos. He went to the police station. only police were present. They all went in two vehicles. They secured weighing machine from near by shop. ganja was in 10 packets he do not know the weight of each packet. Other than 10 packets there was 2 Kgs., of ganja in another cover. In all it was 2 Kgs., 600 grams. After mahazar he again went to the police station. C.W.2 was also present at that time. C.W.2 had come to the police station before going to the spot.
14. P.W.5 has stated that on 7.7.2017 at about 11.00 am., C.W.1 secured him and informed the information regarding illegal possession of ganja in a house at Balluru village. They all went to the said house in a vehicle and found 4 persons in the said house. On enquiry the accused persons produced ganja from pooja room weighing 2 Kgs., 600 grams. They took 2 packets of 50 grams each and packed separately CCH-33 11 SPl.C.C.246/2018 for sample and drew mahazar Ex.p3. he gave statement before C.W.1. C.W.1 went to the PS and gave complaint. They had taken 12 photos at spot which are at Ex.P12.
15. In his cross examination he has stated that there are neighbouring houses near the house of accused. they have affixed chits on M.Os., at the spot. He admitted that only after registering the case they get Cr.No. and PF No. he has stated that C.W.2 had come to the station after raid. Ganja contained leaves, flowers seeds etc. he do not remember the weighing machine. He denied that he did not go to the spot, apprehended the accused persons, seized ganja and drew mahazar.
16. P.W.6 has stated that on 7.7.2017 at about 11.00 am., C.W.1 secured him and informed the information regarding illegal possession of ganja in a house at Balluru village. They all went to the said house in a vehicle and found 4 persons in the said house. The conducted personal search 12 and seized 2 Kgs., 600 grams of ganja. They took 2 packets of 50 grams each and packed separately for sample and drew mahazar Ex.P3. photos are at Ex.P12. He gave statement before C.W.1.
17. In his cross examination he has stated the C.W.2 had come to the station before raid and accompanied them to the spot in their vehicle. There were no houses near the accused house. He denied that the panchas are stock witnesses of their station. he denied that he did not go to the spot, apprehended the accused persons seized M.Os., and drew mahazar.
18. P.W.7 has stated that C.W.1 at about 2.45 pm., produced the accused persons, property and documents and lodged complaint Ex.P9. He registered the case and submitted FIR Ex.P13, he arrested the accused persons and recorded the voluntary statement of accused persons as per Ex.P14 to 17 CCH-33 13 SPl.C.C.246/2018 and produced before court, subjected the property to PF. He handed the records to C.W.13 for further investigation.
19. In his cross examination he denied that C.W.1 did not produced the accused persons along with seized items and gave complaint. He denied that he has registered a false case. he denied that accused have not given their voluntary statement before him and that he has forcibly taken the signatures on Ex.P14 to P17.
20. P.W.8 has stated that he submitted the sample articles to FSL and obtained acknowledgement as per Ex.P18 and gave his report as per Ex.P19. in his cross examination he has denied that he has not given the samples to FSL and gave false report.
21. P.W.9 has stated that on 2.9.2017 he took the records from C.W.12 for further investigation, received FSL 14 report as per Ex.P20 and after completion of investigation filed charge sheet.
22. In his cross examination he has stated that when he received the record he did not see the sample seal. He has not verified any documents. He denied that even though there is no evidence against the accused persons he has filed false charge sheet.
23. P.W.4 independent panch witness has not supported the case of the prosecution. Nothing is elicited in their cross examination by learned PP except denial. Further the evidence of P.W.2 is also not believable as he has admitted that he is taking photos concerned to this police station since two years. In the absence of corroborated independent witnesses, the testimony of official witnesses are not reliable and credit worthy.
CCH-33 15 SPl.C.C.246/2018
24. P.W.10 F.S.L officer stated that he conducted in all 5 tests on the sample articles and issued report Ex.P20 and opined that the sample articles responded positive for ganja. 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.10, the sample article may respond positive for ganja, but the said sample articles are seized from the possession of the accused is not proved as none of the panch witnesses have supported the case of the prosecution.
25. Ex.P1 request letter to Gazetted Officer to be present at the time of raid to conduct personal search of the accused persons. Ex.P2 is the consent given by the accused persons to be searched by Gazetted Officer. On perusal of Ex.P2 entire document is typed by the Gazetted Officer, no questions are put to the accused persons individually and just taken the signatures of the accused persons. Ex.P3 mahazar is not proved as none of the independent panch witnesses have supported the same. Ex.P4 notice to panchas. Single notice is 16 issued both the panchas. Moreover, P.W.4 panch witness has denied the issuance of notice to him. Ex.P5 specimen seal, Ex.P6 SHD, Ex.P7 letter to ACP regarding the information received by C.W.1 and permission to conduct raid. But the said letter is not accompanied with the copy of SHD. Ex.P8 notice issued by C.W.1 to accused. Ex.P9 complaint wherein the legal right of the accused persons is not explained. Ex.P10 report submitted to DCP for success of raid. In the absence of complying mandatory provisions U/s.42 and 50 of NDPS Act, compliance U/s.57 is not a valid compliance. Compliance with provisions of Sec.57 does not dispense compliance with requirement of Ss.42 and 50. Ex.P11 Statement of P.W.4 which is contrary to his evidence. Ex.P12 photos (12), Ex.p13 FIR, Ex.p14 to 17 voluntary statements of the accused persons 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 acknowledgement of FSL, Ex.P19 report of P.W.8, Ex.P20 FSL report and Ex.P21 sample seal. Thus the mandatory provisions U/s.41, 42, 50 and 57 of NDPS Act is not complied by the prosecution.
CCH-33 17 SPl.C.C.246/2018
26. The learned counsel for the accused Nos.1 and 2 relied on the decisions reported in:-
AIR KAR 2017 1 441 in Abdul Razak and another Vs., State of Karnataka, 2011 Crl.L.J. 3407 in Jagadish and anr Vs., State of Rajasthan, ILR 2015 Kar 5787 in Chandpash Vs., State through Excise PS, Yadgir, 2013 Crl.L.J 723 in Kishan Chand Vs., State of Haryana, 2012 AIR SCW 2471 in Myla Venkteswarlu Vs., State of AP, 2016 Crl.L.J.(NOC) 95 (UTR.) in Karan singh Vs., State of Uttarakhand, LAWS (CHH) 2009 8 4 in Gangaram Vs., State of Madhya Pradesh, LAWS(KAR) 2016 2 100 in Subramanyam Vs., State of Karnataka and in 2010 Cri.L.J. 4129 in Sant singh Vs., State of Punjab All the above citations are relating to strict compliance of the mandatory provisions of NDPS Act. The facts and circumstances of the above decisions are aptly applicable to the case on hand 18
27. Further, in view of the decisions reported in 2009 Crl.L.J. 4299 in Karnal Singh Vs., State of Haryana, (2007) 1 Supreme Court Cases (Cri) 744 in Ritesh Chakarvarti Vs., State of MP, (1999) 7 SCC 280 in State of 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 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-
CCH-33 19 SPl.C.C.246/2018 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 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 20 only for special reasons but compliance should be prior to recovery.
(c) Narcotic Drug and Psychotropic Substances Act (61 of 1985), S 42, 15 - Search conducted hours after receipt of information-no effort was made by I.O to reduce information in writing and inform his higher authorities instantaneously or even after or reasonable delay-No evidence produced to show as to what prevented I.O from recording information and sending it to superior total non compliance with provisions of S.42 - Such defect is incurable -
Accused liable to be acquitted.
2009 Crl.L.J. 2407 in the case of UOI Vs., Bal Mukund and others wherein it is held that:-
(B) Narcotic Drug and Psychotropic Substances Act (61 of 1985), Ss.8, 18, 67 - Recovery of narcotics-
confessional statements 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 CCH-33 21 SPl.C.C.246/2018 statements cannot lose sight of ground realities- circumstances attendant to making of such statements should be taken into consideration. On careful reading of the above said decisions, the fact, circumstances and ratio is similar with case on hand.
2014(4) Crimes 304 (P&H) - Ram Lubhaya vs. State of Punjab, 2011 (3) Crimes 210 (SC) - Rajendra Singh vs. State of Haryana, 2013 (1) Crimes 51 (SC) - Suresh and others vs. State of Madhya Pradesh, 2011 (4) Crimes 26 (SC) - State of Delhi vs. Ram Avtar @ Rama, 2011(1) 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 22 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 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 CCH-33 23 SPl.C.C.246/2018 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.
28. For the above, in the absence of corroborated evidence the testimony of prosecution witnesses cannot be reliable to prove the guilt of the accused Nos.1 to 4. So many considerable contradictions and discrepancies found in the prosecution witnesses. There is no link of chain found in the circumstantial evidence. Serious doubt arises in the mind of the Court to believe that accused have committed the offence. So accused are 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'.
29. Point No.2: In the result, following: 24
ORDER Acting under Section 235(1) of Cr.P.C. accused Nos.1 to 4 are acquitted for the offence punishable under Section 20(B) of N.D.P.S. Act.
Bail bond of the accused shall stands cancelled.
M.Os.1 & 2 samples is ordered to be returned to the complainant to produce before Drug Disposal Committee for disposal in accordance with law.
Accused Nos.1 to 4 are released U/Sec.437(A) of Cr.P.C., on execution of bond for Rs.50,000/- each 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 14th day of January 2020) (G.M.SHEENAPPA) XXXIII ACC & SJ & SPL.JUDGE (NDPS) BANGALORE.
CCH-33 25 SPl.C.C.246/2018 ANNEXURE
1. List of witnesses examined for the:
(a) Prosecution:
P.W.1 : Dr.Bhagyalakshmi
P.W.2 : Sri Nagaraj
P.W.3 : Ganjendra
P.W.4 : Anil Kumar
P.W.5 : Stella Mary
P.W.6 : Krishnaiah
P.W.7 : T Bala Nayaka
P.W.8 : Nagaraju C
P.W.9 : Mahaboob Suban
P.W.10 : Smt.Suma
(b) Defence :
NIL
2. List of documents exhibited for the:
(a) Prosecution:
Ex.P.1 : Request letter
Ex.P.2 : Consent letter
Ex.P.3 : Mahazar
Ex.P.4 : Notice
Ex.P.5 : Specimen seal
Ex.P.6 : SHD
Ex.P.7 : Request letter
Ex.P.8 : Notice
Ex.P.9 : Complaint
Ex.P.10 : Report for success of raid
Ex.P.11 : Statement of P.W.4
Ex.P.12 : 12 photos
Ex.P.13 : FIR
26
Ex.P.14 : Voluntary statement
Ex.P.15 : Voluntary statement
Ex.P.16 : Voluntary statement
Ex.P.17 : Voluntary statement
Ex.P.18 : Acknowledgement of FSL
Ex.P.19 : Report of P.W.8
Ex.P.20 : FSL report
Ex.P21 : Sample seal
(b) Defence:
NIL
3.List of Material Objects admitted in evidence:
M.O.1 : Sample
M.O.2 : Sample
(G.M.SHEENAPPA)
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BANGALORE.
CN/*