Bangalore District Court
State By Yelahanka P.S vs A1: Amaldeep Bora @ Vicky on 31 January, 2018
THE COURT OF THE XXXIII ADDL.CITY CIVIL & SESSIONS
JUDGE & SPL. JUDGE (NDPS),
BANGALORE. CCH.33.
PRESENT:
Sri. D.Y. BASAPUR, B.Com., LL.B. (Spl.)
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BENGALURU.
DATED: THIS THE 31st DAY OF JANUARY 2018
SPL.C.C. NO.517/2014
COMPLAINANT : State by Yelahanka P.S.
(By Public Prosecutor)
V/S.
ACCUSED : A1: Amaldeep Bora @ Vicky,
Amldeep bora @ Vicky S/o
J.P.Bora, Aged about 19 years,
No.311, 'B' Radient Jamshmine
Apartment, 3rd floor, Jakkur
road, Yelahanka, Bengaluru.
Native of:
House No.3, Bipin Borghan Path,
Dibrugarh, Assam - 786 001.
A2: R K Momavishal singh,
S/o.R.K.Indubhushan Singh,
22 years, No.311 B Radiant
Jamshmine Apartment, 3rd
Floor, Jakkur Road,
Yelahanka, Bengaluru.
2
A3: Rahul Meibam - (Minor separate
charge sheet filed against him
before Juvenile Tribunal.)
(By Sri A1: KSV, A2 MRA, Adv.)
1. Date of Commission of offence: 13.10.2013
2. Date of report of offence: 13.10.2013
3. Arrest of the accused : 13.10.2013
4. Date of release of accused on A1: 31.10.2013
bail: A2: 30.10.2013
5. Period undergone in custody: A1: 18 days
A2: 17 days
6. Date of commencing of
19.1.2016
recording Evidence :
7. Date of closing of Evidence : 18.12.2017
8. Name of the complainant: Sri Subramanya, PI
9. Offence complained of : U/s.21(b), 22 of NDPS
Act & Sec.420, 120(B)
R/w.Sec.34 of IPC.
10. Opinion of the Judge : Offence not proved
11. Order of sentence : As per final order
---
CCH-33
3 SPl.C.C.517/14
JUDGMENT
The Police Inspector, Yelahanka Police Station, Bangalore filed charge sheet against accused in Cr.No.286/13 for the offence punishable U/Sec.21(B), 22 of N.D.P.S. Act & Sec.420, 120(B) r/w.Sec.34 of IPC.
2. Brief facts of the case are as under:
that on 12/10/2013 at about 3-00 p.m. when the complainant was in his office, he received credible information that three persons aged between 20 -25 years are engaged in sale of narcotic drugs near Shivanahalli Main Road, Radiant Jasmine Apartment, Jakkur and they are sitting in Blue coloured Honda Civic Car No.KA-03-MG-740. It is further stated in the said complaint that on the basis of the said information, the complainant secured presence of his staff and panchas and went to the said place and found that three persons were sitting in the said car and on enquiry they revealed their names as Amaldeep Bora @ Vicky, R.K. 4 Momovishal Singh and Rahul Maibam. The complainant introduced himself to be ACP of CCB and that he has information that the said persons are possessing and selling narcotic drugs. He further appraised them about their right of being searched in the presence of a Gazetted Officer or a Magistrate and they can opt any one of them and the accused persons opted to be searched in the presence of complainant himself being ACP and Gazetted Officer. The complainant directed one of his staff to conduct personal search of the accused persons. On searching the person of first person Amaldeep Bora @ Vicky, accused No.1, 42 grams of Heroin and plastic covers and other materials were found. This apart a sum of Rs.9,000/- and a mobile phone were found. On searching the person of accused No.2 R.K. Momovishal Singh, he was found in possession of 3 grams 2 milligrams of MDMA and further possessed 19 Ecstasy tablets and the weight of it is 4 grams 2 milligrams. This apart he also had cash of Rs.2,000/- and a mobile phone. On searching the person of accused No.3 R.K. Rahul Maibam, he possessed 29 grams of CCH-33 5 SPl.C.C.517/14 Cocaine, cash of rs,.3,000/- and a mobile. All these articles were recovered from the possession of each accused and certain quantity of the drugs were taken out for the purpose of sample, wrapped in white cloth, stitched and sealed. Accused were produced before Magistrate and remanded to judicial custody. Later on accused are enlarged on bail. Later charge sheet submitted against accused Nos.1 and 2 and separate charge sheet submitted against accused No.3 who is minor before Juvenile Tribunal.
3. After taking cognizance registered the case. Copies of the prosecution papers were supplied to accused No.1 and 2 U/Sec.207 of Cr.P.C. After hearing, charge framed U/Sec.21(B) & 22(B) of N.D.P.S. Act and Sec.420, 120(B) R/w.Sec.34 IPC., read over and explained to them. Accused pleaded not guilty and claimed to be tried. 6
4. In support of the case, prosecution has examined P.Ws.1 to 6 and got marked Exs.P1 to P.22 and M.Os.1 to 15. Prayer of PP for reissue B/W to C.W.11 is refused as sufficient time is given. PP has given up C.W.5 & 6. 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 13.10.2013 at about 7.00 pm., in front of Radient Jamshmine Apartment, Shivanahalli Main road, Jakkur accused No.1 was in illegal possession of 42 grams of Heroin and accused No.2 was in illegal possession of 3.2 grams of MDMA power and 4.2 grams of 19 ecstasy tablets which are narcotic drugs without license or permit, there by accused Nos.1 and 2 along with accused No.3 have committed the offence u/S.21(B) & 22(B) of NDPS Act and 420, 120(B) R/w.Sec.34 of IPC?
2. What order?
CCH-33
7 SPl.C.C.517/14
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 6 and Exs.P.1 to P.22 and M.Os.1 to 15, 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.2, 3 &
5. P.W.2 has stated that on 12.10.2013 at 3.00 P.M., he received information that in front of Radient Jasmin Apartment, Shivanahalli Main Road, Jakkur, three persons are selling cocaine and heroin in car KM 03 MG 740. He informed 8 the information to DCP as per Ex.P5 and obtained permission to conduct raid. He secured staff members CW4 to 6 and CWs.2 and 3 panchas and informed the information to panchas and staff members and issued notice Ex.P3 and 4 to panchas. They went to the spot and apprehended 3 persons and informed the existing legal right of the accused for their personal search to be conducted before Gazetted officer or Magistrate. They agreed to be searched by Gazetted Officer. P.W.2 further stated that he informed that he himself is a Gazetted officer and may conducted the search, they agreed and issued questionnaires to accused Ex.P6 to P8. On personal search of accused No.1 they seized 42 grams heroin, Samsung mobile and Rs.9000/-. From accused No.2, 3 grams 2 mile gram MDMA, 4.2 gram tablets black berry mobile, Rs.2,000/- Cash, from accused No.3 29 grams cocaine, Sony mobile and Rs.3000/- and drew mahazar Ex.P9. He produced the accused persons to station and lodged complaint Ex.P11. He took further investigation and arrested the accused, recorded their voluntary statement Ex.P14 to 16 and recorded CCH-33 9 SPl.C.C.517/14 the statement of Panchas and staff members and produced the accused before the Court. He has submitted report Ex.P17 to DCP for success of the raid. In the cross examination of P.W.2 stated that he has not reduced the information in the movement register but written in weekly diary. Copy of the said diary is not produced. Usually copy of weekly diary will be sent to superior officer during week end. Further he admits that notice issued to panchas Ex.P3 and P4 is not written immediately after receipt of notice. He has not prepared memorandum prior to leaving the office. P.W.2 further stated that CWs.2 and 3 panchas are not neighbouring persons of the spot. He has not secured the security persons of the apartment or public at the spot. He has not made attempts to apprehend the public who were near the accused. So it is crystal clear that P.W.1 has not reduced the information immediately in writing and also secured neighbouring persons to conduct raid. Further P.W.2 admitted that notice issued to panchas, existing legal right of the accused for their personal search it is not specifically mentioned. He has not produced 10 the accused before other Gazetted Officer and not prepared the inventory. Thus, P.W.2 search and seizure officer and also acted as Gazetted Officer and I.O. P.W.2 has not made efforts to produced the accused before independent Gazetted Officer to conduct personal search or explain the existing legal right of the accused. P.W.2 denied that on 12.10.2013 early morning at 1.30 am., he brought the accused persons from the house of accused No.1 and detained in the station illegally then registered a false case. He admits that on the same day he conducted raid in other two cases. He denied that Ex.P17 report for success of raid is not immediately submitted to superior officer and recorded the statements of panchas and staff. So P.W.2 has not complied the mandatory provisions U/s.41, 42, 50 and 52(A) of NDPS Act.
10. P.W.3 raiding member has also supported the testimony of P.W.2. he has stated that on 13.10.2013 at 3.00 pm., C.W.2 secured panchas and staff members and informed the information received by him. they went to the spot CCH-33 11 SPl.C.C.517/14 apprehended the accused persons. P.W.2 informed their legal right for their personal search. accused agreed to be searched by P.W.2. on personal search of accused persons they seized M.Os.1 to 15 and drew mahazar. In the cross examination of P.W.3 stated that P.W.2 has not shown the information received by him in writing. P.W.2 has not enquired either residents of apartment or neighbouring persons at spot. He admits that CCB seal usually used in other case also. Copy of panchanama is handed over to either panchas or accused persons.
11. P.W.4 stated that on 19.10.2013 he submitted sample articles to FSL obtained acknowledgement Ex.P19 and submitted his report Ex.p20. In the cross examination denied that he has not personally produced the sample articles to FSL.
12. P.W.5 has stated that on 13.10.2013 at 1.00 pm., P.W.2 produced the accused persons, property and lodged 12 complaint Ex.P11 and registered the case and submitted FIR Ex.P12 to court. again handed over further investigation to P.W.2. in his cross examination denied that P.W.2 has not personally produced the accused and lodged complaint and registered false case.
13. P.W.5 - drugs inspector stated that on 13.8.2014 received sample articles through Ex.P21 from CCB Police. He conducted various tests and opined that in article No.1 he found Peppernol medicine. It is the origin for preparing the medicine. Permission and licence is not necessary. In article No.2 he found caffeine which is a cool drink. It is also not necessary to obtain permission and submitted his report Ex.P22. in his cross examination stated that all three articles are not prohibited articles under NDPS Act. Caffeine and paracetomol usually available in medical shop. According to drug inspector all the three sample articles are medicines. They are not prohibited drugs under NDPS Act.
CCH-33 13 SPl.C.C.517/14
14. P.W.1 FSL officer stated that she conducted 8 tests on the sample articles and issued report Ex.P1 and opined that in article No.1 found brown sugar, article No.2 found peppernol and the same could be used in thesynthesis of derivatives of amphetamine type drugs. Further opined that as per tests HPTLC and FTIRS in articles No.3 found presence of caffeine. Scott test, thin layer chromatography, HPTLC and FTIRS tests conducted by her on article No.4 found presence of paracetomol. In her cross examination denied the suggestion that she has not personally conducted tests on the sample articles and issued false report. Further stated that I.O submitted for opinion whether sample articles are heroin or not. She admits that samples at article Nos.6, 8 and 12 are not drugs. But article No.1 is drug. Thus, opinion of expert P.W.1 and 5 is not helpful to the case of prosecution. According to prosecution they seized heroin and MDMA from the possession of accused persons. But expert opinion is contrary to the case of the prosecution. Moreover, independent panch witnesses are not examined in spite of 14 sufficient opportunity was given. In the absence of corroborated independent panch witnesses, the testimony of P.Ws.2 and 3 are not reliable and credit worthy. So many considerable contradictions and discrepancies found in the prosecution witnesses.
15. Ex.P3 and P4 notice issued to panchas are not prepared immediately after receipt of information as admitted by P.W.2. the address of both panchas reveals that they are hailing from Kodahalli village, Shimoga, Soraba Taluk. So, P.W.2 has failed to secured local panch witnesses. Ex.P5 letter submitted to ACP regarding information received by P.W.2 and sought for permission. ACP is not examined and ACP had also not gone to the spot. Ex.P6 to 8 notices issued to accused persons wherein existing legal right of the accused for their personal search is not specifically mentioned. Even question No.2 posed to the accused that "Do you required to be searched by jurisdictional Magistrate or by a Gazetted Officer?"
Answer taken as "yes". So whether accused gave consent to be CCH-33 15 SPl.C.C.517/14 searched by Gazetted Officer or not is not clearly mentioned.
Again 3rd question put is "......... even I am a Gazetted Officer, do you required to be searched by me or by another Gazetted Officer? Answer taken as "yes". Thus, the notice issued to accused persons is not in accordance with the Section 50 of NDPS Act. Ex.P9 panchanama is also not proved as none of the panch witnesses examined. Ex.P12 FIR reveals that delay in submitted the FIR to magistrate is not properly explained.
Ex.p11 complaint lodged by P.W.2 wherein details of seizure and information received by him is not specifically mentioned.
Ex.p13 PF reveals that in column No.7 signature of panch witnesses is not obtained. Ex.P14 to 16 voluntary statements 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 their statements.
16. Ex.P17 report submitted to ACP 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.16
Compliance with provisions of Sec.57 does not dispense compliance with requirement of Ss.42 and 50.
17. 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:-
CCH-33 17 SPl.C.C.517/14
(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 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:- 18
(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.
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 CCH-33 19 SPl.C.C.517/14 number of police officers including high ranking officers were present-accused were found to be in possession of 10 Kgs., of narcotics-Documents categorically show that accused were interrogated- Therefore, confessional statements cannot be said, in the back drop of aforementioned events, to be made by them although they had not been put under arrest-court while weighing evidentiary value of such statements cannot lose sight of ground realities- circumstances attendant to making of such statements should be taken into consideration. On careful reading of the above said decisions, the fact, circumstances and ratio is similar with case on hand.
2014(4) Crimes 304 (P&H) - Ram Lubhaya vs. State of Punjab, 2011 (3) Crimes 210 (SC) - Rajendra Singh vs. State of Haryana, 2013 (1) Crimes 51 (SC) - Suresh and others vs. State of Madhya Pradesh, 2011 (4) Crimes 26 (SC) - State of Delhi vs. Ram Avtar @ Rama, 2011(1) 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:- 20
"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 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:
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(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.
18. 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 and 2. 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. 22 Already accused No.3 is acquitted in JC No.314/2014 before Juvenile Tribunal, Bangalore. Accused persons are also footing on the same position and entitled for the benefit of parity. The 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'.
19. Point No.2: In the result, following:
ORDER Acting under Section 235(1) of Cr.P.C. accused Nos.1 and 2 are acquitted for the offence punishable under Sections 21(B) & 22 of N.D.P.S. Act and Sec.420, 120(B) R/w.Sec.34 of IPC.
Bail bond of the accused shall stands cancelled.
M.O.5 & 8-mobiles & M.Os.13 to 15 - cash, are ordered to be confiscated to State after appeal period is over.
CCH-33 23 SPl.C.C.517/14 M.Os.1, 3, 4, 6, 7, 9 to 11 sample and bulk are ordered to be returned to the I.O/complainant with a direction to produce before Drug Disposal Committee for disposal in accordance with law.
M.Os.2 and 12 plastic covers is ordered to be destroyed.
Accused 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 appearance before Appellate Court, in the event of filing of any appeal by the State.
[Dictated to the Stenographer, transcribed and computerised by her, corrected, signed and then pronounced by me in Open Court on this the 31st day of January 2018) (D.Y. BASAPUR) XXXIII ACC & SJ & SPL.JUDGE (NDPS) BANGALORE.
24ANNEXURE
1. List of witnesses examined for the:
(a) Prosecution:
P.W.1 : Vani
P.W.2 : Subramanya
P.W.3 : Puttanrasaiah
P.W.4 : Abdul Rasheed
P.W.5 : Umesh.S
P.W.6 : Thirumalappa
(b) Defence :
NIL
2. List of documents exhibited for the:
(a) Prosecution:
Ex.P.1 : FSL Report
Ex.P.2 : Specimen Seal of FSL
Ex.P.3 : Panch Notice
Ex.P.4 : Panch Notice
Ex.P.5 : Letter of ACP
Ex.P.6 : Search Notice
Ex.P.7 : Search Notice
Ex.P.8 : Search Notice
Ex.P.9 : Panch Notice
Ex.P.10 : Sample Seal
Ex.P.11 : Complaint
Ex.P.12 : FIR
Ex.P.13 : PF
Ex.P.14to16 : Voluntary Statement
Ex.P.17 : Report to DCP
Ex.P.18 : Passport
Ex.P.19 : Acknowledgment of FSL
Ex.P.20 : Report to FSL
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Ex.P.21 : Letter of PW5
Ex.P.22 : letter
(b) Defence:
NIL
3.List of Material Objects admitted in evidence:
M.O.1 : 32 grams heroin
M.O.2 : Plastic cover
M.O.3 : MDMA
M.O.4 : Ecstasy tablets
M.O.5 : Mobile
M.O.6 : cocaine
M.O.7 : FSL Sample
M.O.8 : Mobile
M.O.9 : FSL Sample
M.O.10 : FSL Sample
M.O.11 : FSL Sample
M.O.12 : Empty Plastic Covers
M.O.13 : Cash
M.O.14 : Cash
M.O.15 : Cash
(D.Y. BASAPUR)
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BANGALORE.
CN/*