Bangalore District Court
Vijayanagar Ps vs Nithin P on 22 April, 2024
KABC010178162022
THE COURT OF THE XXXIII ADDL.CITY CIVIL & SESSIONS
JUDGE & SPL. JUDGE (NDPS),
BANGALORE. CCH.33.
PRESENT:
Smt.B.S.JAYASHREE, LL.M.,
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BENGALURU.
DATED: THIS THE 22nd DAY OF APRIL 2024
SPL.C.C. NO.1602/2022
COMPLAINANT : State by Vijayanagar P.S
(By Public Prosecutor)
V/S.
ACCUSED : Nithin P, S/o.Purushotham, 24
years, R/at.No.24, 13th Main, SBI.,
Staff Colony, Vijayanagar,
Bengaluru.
(Rep.by Sri S.Balan Adv.)
1. Date of Commission of offence: 23.10.2020
2. Date of report of offence: 23.10.2020
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3. Arrest of the accused : 24.10.2020
4. Date of release of accused on 15.7.2021
bail:
5. Period undergone in custody: 8 months 21 days
6. Date of commencing of 16.11.2022
recording Evidence :
7. Date of closing of Evidence : 2.11.2023
8. Name of the complainant: Sri H K Mahananda, PI
9. Offence complained of : U/s.8(c), 22(c) of NDPS
Act
10. Opinion of the Judge : Offence not proved
11. Order of sentence : As per final order
JUDGMENT
This is a charge sheet submitted by the Police Inspector, Vijayanagar Police Station, Bangalore against the accused on the allegation that he has committed the offences punishable U/Sec.8(c) & 22(c) of N.D.P.S. Act.
2. The brief facts of the prosecution case are as follows: 3 CCH33 Spl.CC No.1602/2022 Complainant PI., CW.1 Sri H K Mahananda, PI., of Special enquiry CCB had received credible information through ACP, Gowtham on 23.10.2020 that, a resident of Vijayanagar by name Nithin, I&C Layout, Vijayanagar is procuring contraband from foreign countries to sell it to his friends and other customers, tracking ID was furnished by the ACP. Based on the said information, he has verified the information and took permission from the ACP to conduct raid. He has secured panchas, informed them about the information. He has also verified about the information in Vijayanagar Post Office. He had proceeded to the place where the article to be delivered. At around 10.20 am., a Post Woman delivered a parcel to a person to the address which is stated in the information. The same parcel was received by the person, immediately around 10.25 am., he and his team raided the premises in the presence of panchas, questioned the person who was holding the parcel, the said person has confirmed that he is Nithin Purushotham, 24 yrs, staying in the said address. Later he and his team had enquired about the parcel, on enquiry the 4 said Nithin informed that he has got the parcel from Netherlands, Foreign country which is containing M.D.M.A, ecstasy and other contraband and he has booked the same through Wicker App and Dark Web. Immediately, to conduct the personal search of the accused, he has called ACP Gowtham who came to the spot, he had apprised the accused about his right contemplated U/s.50 of NDPS Act. His personal search is conducted. During personal search no incriminatory article is recovered, but when the house is searched the postal cover which is in the house wherein the address is mentioned as Nithin Purushotham, No.24, 13 th Main, I & C Layout, Vijayanagar, Bangalore, Karnataka, India and the said cover is opened it was containing ecstasy pills, the weight of the said pills is 36 grams. The said contraband article is seized under a detail mahazar. The Apple Iphone of accused, HP Laptop of accused were seized. Accused was brought to Vijayanagar police station which is the jurisdictional police station, he has prepared a detail report and submitted before the SHO of Vijayanagar police station, basing on the report a case in 5 CCH33 Spl.CC No.1602/2022 Cr.No.240/2020 registered U/s.8(C), 22(C) of NDPS Act. The statement of accused is recorded. The contraband which is seized in the spot was submitted to FSL for analysis, FSL report is received. In the FSL report it is confirmed that it is MDMA. He has recorded the statement of material witnesses to the case. On conclusion of the investigation he has filed the charge sheet. The accused herein who is arrested by the investigating agency is produced before the court and is remanded to judicial custody. He has filed bail application before the court and he is released on bail.
3. Accused secured before the court. This court on perusing the contents of police final report and the annexed documents taken cognizance of the offences punishable U/s.8(c), 22(C) of NDPS Act. The copy of the charge sheet filed by PI., Vijayanagar PS., and the Annexures were furnished to the accused as provided U/Sec.207 of Cr.P.C. After hearing the accused, Charge framed against the accused for the offences punishable U/Sec.22(C) of NDPS Act, 1985 on 13.9.2022. The 6 contents of accusation read over and explained to him. Accused pleaded not guilty and claimed to be tried.
4. To prove the allegation leveled against the accused, prosecution has examined P.Ws.1 to P.W.12 and got marked Exs.P1 to P.38 and properties were marked as M.Os.1 to 4. After closure of prosecution evidence, accused is examined U/Sec.313 of Cr.P.C., by putting the incriminating circumstances available against him. The case of the accused is that of total denial. On perusal of the evidence available on record and the statement of the accused, this court is of the considered view that the accused are not entitled for an order of acquittal U/s.232 of Cr.P.C. Therefore, the accused is called upon to lead evidence if any. The accused has submitted that he has no evidence to lead on his side, but got marked one document as per Ex.D1 to Ex.D3.
5. Heard the arguments of P.P., and learned counsel for the accused.
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6. The points that arise for my consideration are as here under:
1. Whether the prosecution proves that on 23.10.2020 at about 10.30 am., the accused had imported contraband from Netherlands to sell the same to the customers, as such on the same day raid was conducted in the house of the accused situated at No.22, SBI Staff Colony, 13 th Main, Bangalore and seized 60 MDMA tablets weighing in all 36 grams thereby the accused has committed an offence punishable U/s.22(c) 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: As per the final order for the following:
REASONS
8. POINT NO.1 & 2 : It is always the burden on prosecution to prove the charges against the accused beyond reasonable doubt, though there is a presumption of culpable mental state U/s.35 of NDPS Act. The prosecution to discharge 8 the initial burden of proof got examined material witnesses to the case.
The testimony of search and seizing officer, investigation officers:
9. PW.1 Sri H K Mahananda, is the search and seizing officer in the case. He has testified before the court that on 23.10.2020 when he was in the office he had received credible information through ACP Gowtham that, a resident of Vijayanagar by name Nithin, I&C Layout, Vijayanagar is procuring contraband from foreign countries to sell it to his friends and other customers. Tracking ID was furnished by the ACP. The said letter is produced to the court as per Ex.P1. Basing on the said information, he has verified the information, took permission from the ACP to conduct raid. He has noted the information in the information book and produced the same to the court as per Ex.P2. The requisition submitted to ACP seeking permission to conduct raid is at Ex.P2. Thereafter, he has called the panchas, informed them 9 CCH33 Spl.CC No.1602/2022 about the information and served notices to them. He has noted the record of reasons. He along with staff and panchas left the office at 7.00 am., and reached the spot at 9.45 am. Before proceeding to the spot he has verified about the information in Vijayanagar Post Office. Around 10.20 am., a Post Woman delivered a parcel to a person. The address mentioned on the parcel is Nithin Purushotham, No.24, 13 th Cross, Police station road, Vijayanagar, Bengaluru. The same parcel was received by the addressee. Around 10.25 am., CW.1 and his team raided the premises in the presence of panchas. They have questioned the person who was holding the parcel. He has confirmed that he is Nithin Purushotham, 24 years, staying in the said address. Later, they enquired about the parcel, he has informed that he has got the parcel from Netherlands, Foreign country which is containing M.D.M.A, ecstasy and other contraband, he has booked the same through Wicker App and Dark Web. Thereafter he has informed the matter to ACP Gowtham and requested him to come to the spot to conduct the personal search of the 10 accused. He had apprised the accused about their right to have personal search through a gazetted officer. ACP on his arrival informed the accused his right to have personal search through a gazetted officer. During personal search of accused no incriminatory article is found. Thereafter, when the postal cover which is lying in the house is searched, on that the name is written as Nithin Purushotham, No.24, 13th Main, I & C Layout, Vijayanagar. On that cover stamp of Netherlands was found. Accused has informed that the said cover is containing ecstasy pills, when it was opened, it was containing ecstasy pills weighing 36 grams. It was seized under a detail mahazar. The Apple Iphone and HP Laptop of accused were seized. Mahazar was drawn in between 10.30 am., and 12.30 noon. CW.1, his staff and the ACP had affixed their signatures to the panchanama. He has identified the accused and the remnant sample before the court. The envelop cover addressed to the accused, the cover where the tablets were packed, laptop were identified by him before the court.
11 CCH33 Spl.CC No.1602/2022 9a. It is the specific contention of the defence that there is serious lacuna in the case of prosecution. CW.1 being the search and seizing officer has not followed the mandatory provisions of search and seizure. The accused herein is falsely implanted in the case, the address given in the postal cover does not belong to the accused. With these specific defence PW.1 was tested in length by cross examining him by the defence counsel.
9b. In the cross examination it is brought out that the parcel received in the case is a registered parcel as per the article tracking details issued by the Post Master. The letter is confronted to the witness and marked as Ex.D1. When it is suggested that Ex.P10 postal cover is received by the postal authority on 22.6.2020, he pleads ignorance. He states he has not ascertained the date mentioned on Ex.P10. It is elicited that in Ex.P1 there is no time mentioned about the receipt of Ex.P1 from CW.6, Ex.P3 letter is addressed to ACP Economic Wing, he has stated that it is a typographical error. In Ex.P4 12 the time of writing is not mentioned, he volunteers that it is written before drawing the mahazar.
9c. In the further cross examination it is elicited that he has not enquired about the beet of the postal woman who had delivered the postal parcel. When it is suggested that he had stated that the said postal woman is from 9 th beet and the place were the mahazar drawn falls within beet No.1 and postal woman is assigned with the work of beet No.9, he pleads ignorance. When he was questioned about the documents which was collected by the IO., from the Post Master pertaining to duty allotment of postal staff and in that page No.68 work allotment letter, Nithin Purushotham, Door No.24, 13 th Main, MC layout is written that has been assigned to postal woman Chethana M, he states he is not aware of that but he only know that post woman has delivered the parcel in question. The said letter is confronted and marked as Ex.D2. It is brought out that mahazar is drawn in SBI staff colony, but the address of the accused written in the mahazar is I&C layout, 13th Main Vijayanagar. When it is suggested that SBI staff 13 CCH33 Spl.CC No.1602/2022 colony is at a distance of 1 Km., from I&C layout, he denies the suggestion and states both the places are similar. He was further questioned that as per Ex.D2 letter, delivery point is MC layout not I&C layout, he admits the contents of the letter. He admits that in Ex.P10postal cover the address shown in the charge sheet i.e., SBI staff colony is not written.
9d. It is brought out that he has visited the Vijayanagar post office to enquire the postal parcel, but he has not recorded the statement of post office staff. Further when he is questioned that it is necessary to ascertain about the location of the parcel through the post office staff, he states he had information about the location of the parcel but he has not reduced it into writing. He admits that the location of the parcel between 6.00 am., to 7.00 am., is Vijayanagar post office and when he had gone there it was lying in the said post office, since the consignee is not traced, he has not seized the parcel, he has volunteered that time he had vague information about the consignee. When he is questioned that there is no document to show that the postal woman delivered the letter 14 and there is no endorsement of the accused for receiving the parcel, he states he has not collected any document but he has mentioned in the mahazar that a postal woman had delivered the parcel. He further admits the suggestion that he did not collect information from the post office Vijayanagar regarding receipt of the parcel and delivery.
9e. In the further cross examination he admits that PW.2 and 3 are not from Vijayanagar. He further admits that CW.6 is not an independent gazetted officer as he has authorised him to conduct raid and he has passed the information. When he is specifically questioned that CW.6 is connected with the raid since 6.00 am., in the morning on 23.10.2020, he denies it.
9f. When he is specifically questioned that the officer given information should not be the officer to conduct search, he states on taking the consent of the accused to have his search through a gazetted officer, he had conducted personal search.
15 CCH33 Spl.CC No.1602/2022 9g. Further he had not video graphed the search and seizure, but had taken photographs at the time of search. He further states photograph is not taken in the place of incident. He admits that in Ex.P2 he has not mentioned the tracking ID No., he had received Ex.P2 information at 7.00 am., before going to post office. In Ex.P2 he had mentioned the name of panchas and police constables. When he is questioned that as per Ex.D1 parcel is not delivered, he denies it. It is brought out that he has not collected any document in regard to delivery of parcel from the postal woman on the spot.
9h. When he was questioned about collecting any document in regard to procuring contraband articles from Netherlands, Poland and Germany he states he has collected document for procuring contraband articles from Netherlands, but in regard to Poland and Germany no document is collected. He admits that he has not collected any document about the accused placing order to procure contraband from Netherlands.
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10. PW.12 is the ACP of A&W who had received initial information from Foreign Post office, Chamarajpet, about the postal parcels of Netherlands, Poland, Germany and European countries and there is concealment of contraband articles. PW.12 also was present at the time of search and seizure of accused. He had send the information to CW.1 and informed him to go to the address stated in the address I,.e, the address of Nithin Purushotham along with tracking ID and to verify about the package. After CW.1 had been to the spot after taking his permission he has called him around 10.30 am., he had reached the spot at 11.15 am., informed the accused about his right U/s.50 of NDPS Act and issued body search memo. Accused has produced a envelop in that there is one plastic zip lock cover containing tablets. The tablet was tested with DD kit which has answered positive for the presence of MDMA, the said tablets were weighed and the weight came around 36 grams, mobile phone and laptop of accused were seized. RN seal is affixed on it,. Detail panchanama is drawn.
17 CCH33 Spl.CC No.1602/2022 He has identified the accused before the court and the remnant sample before the court.
10a. In the cross examination it is brought out that in Ex.P10 weight is written as 50 grams, but the weight of contraband is 36 grams. He states without the postal cover the weight is 36 grams, but he has not mentioned the same in the investigation papers. He has not reduced the information into writing and forwarded to superior officer.
10b. When he was questioned about the body search memo issued to the accused in the first question it is written as whether the search to be conducted before a jurisdictional Magistrate or gazetted officer, accused has answered 'yes', but he was not taken to Magistrate. In question No.3 accused has not answered that since he being the gazetted officer he should conduct search, but he has answered that search to be conducted by gazetted officer and accused did not say that any other gazetted officer can conduct personal search. 18
10c. Further he had not enquired about any incriminatory material in the laptop and mobile phone. He has not collected any record that the mobile phone and laptop belongs to accused. In Ex.P3 letter the address is written as ACP Economic Wing and he is not the ACP of Economic wing and in the CCB there is a post of ACP economic wing.
11. PW.3 Santosh B H, PSI who has registered the case basing on the report filed by CW.1 along with the accused on 23.10.2020. He has received the said articles at 4.20 p.m., he has noted the seized articles in Property Form No. 152/2020 and submitted the same to the Court. He has recorded the voluntary statement of accused, arrested the accused, recorded the statements of CW.17 and 18. Accused was subjected to medical examination for consumption of contraband, he has submitted electronic gadgets seized from the accused to Cyber Forensic Unit, CID for retrieval of data along with a requisition. On 28.10.2020, he has recorded the statement of CW.7. He has submitted the seized articles to 19 CCH33 Spl.CC No.1602/2022 inventory, collected the sample and submitted to FSL for Chemical Analysis, He has recorded the statements of CW.7, 8, 10 and 11. At the time of submission of electronic gadgets to the Cyber Forensic unit, he has secured the panchas and drawn the mahazar. He has submitted questionnaires to FSL to ascertain whether there is any monetary transaction in the laptop and mobile in regard to booking of the parcel in Wicker App and other Darknet sources, he has also questioned about any transactions in Bitcoin. He has identified the accused before the Court.
11a. In the cross examination it is brought out that he has not collected any incoming and outgoing call details. He did not analyze the call details as it was in seized condition. In the Ex.P10 SBI colony is not mentioned, but in the charge sheet it is mentioned. He cannot say the beet No., of SBI colony. He is not aware whether CW.11 is post woman of beet No.9. He is not aware postal cover address falls in beet No.1 and CW.11 is the postal woman of beet No.9 in that regard he 20 has not conducted any investigation. He had not enquired post master about the beet duty of CW.11 on the particular date of incident. He is not aware that SBI colony situated at a distance of 3 Kms., from I&C colony, he admits that the distance between MC layout and I&C layout is more than 1½ Kms., and the postal cover is not delivered to SBI colony and I&C layout, but it is delivered to MC layout and accused is not the resident of MC layout. He is not aware whether CW.11 is postal woman of MC layout, SBI colony and I&C layout and the MC layout is not the place of incident.
11b. In the further cross examination he admits that he has not enquired about the person who has paid the money through whatsapp to procure the contraband, he has not enquired the date of placing the order, the person who has placed the order, mode of payment. He has not investigated about the owner ship of the laptop. He has not issued Sec.67 notice to the witness prior to recording their statement.
21 CCH33 Spl.CC No.1602/2022 11c. He admits that he has not investigated who had booked the parcel and when the parcel seized in the case is booked. When he is questioned that there is no information collected about the accused transferring money for booking the parcel of contraband nor placed any order to a particular person to book the contraband parcel, he states he has not investigated into those aspects. When he is specifically questioned whether there is any nexus between the article seized in the case and the accused, he states he has conducted investigation pertaining to sending gadgets for retrieval and has conducted part investigation. He had not collected any documents in regard to ownership of laptop and the laptop is connected to the accused. He has not investigated into the monetary transaction in the account of accused inward and outward. When he is specifically questioned that in the year 201920 in the account of accused there is no balance, he states he has not investigated into that. Further in Ex.P16 & P10 seal of foreign post office does not finds place. He could not say who has written the writings on Ex.P10 in the sketch 22 pen. When he was specifically questioned whether during the course of investigation any incriminatory material was found in Mos.3 and 4 I.e, laptop and mobile, he states that he has not probed deep into those particulars. When he has sent MOs.3 and 4 to CID it was in sealed condition and intact and was handed over by CW.1. He admits that in the investigation papers there is no recital that the laptop was seized and seal is affixed on it. After one month of seizure he has sent the laptop to FSL which was in unsealed condition. He states he has sent the laptop on 11.3.2021, but as per the record it was received by the authority on 12.3.2021 and he is not aware where it was lying inbetween.
12. PW.11 Sri Manu K, is the IO., who has filed the charge sheet in the case has stated that he had test report from FSL pertaining to HP Laptop, FSL report of contraband. On conclusion of investigation he has filed charge sheet.
12a. In the cross examination It is brought out that he has not collected any information about the booking of 23 CCH33 Spl.CC No.1602/2022 contraband article through which website it has been booked and how the money is transferred. Though he has stated that user had searched Bitcoin websites, but when actually it was done he has not investigated.
Testimony of independent panch witnesses:
13. PW.9 and 10 are panch witnesses and according to prosecution they were present when the search and seizure is held and contraband article is recovered. But except identifying their signature in mahazar and panch notice they have not stated any thing about the seizure of contraband in their presence. The prosecution has treated the witnesses as hostile and cross examined them. In the cross examination nothing had been brought out to prove their presence in the spot at the time of search and seizure turned hostile.
Testimony of scientific expert witnesses:
14. PW.2 Smt.Suma S, the FSL expert who has analyzed the contraband sample and filed the report. She has deposed 24 that on 18.11.2020 her office has received one sealed article in Cr.No.240/2020 of Vijayanagar P.S., through HC 5534. Article was sealed with seal impression 'A' which were intact and tallied with the specimen seal sent by the I.O. She opened the article and found one sealed green colour paper packet containing 20 purple colour square shaped tablets in a zip locked plastic cover and it was found to be 11.2000 grams and conducted the 6 tests. Based on the chemical analysis she has arrived at the conclusion that the Article responded positive for MDMA and it is stimulant drug. Accordingly, she has issued a report. After analysis, she has repacked the remaining sample in the same cloth packet sealed with their office seal and returned back to the concerned police. She has identified the sample MDMA before the court.
14a. In the cross examination it is elicited that for receiving the sample seal is not affixed on the cover, date is also not noted. It is suggested that without conducting 25 CCH33 Spl.CC No.1602/2022 scientific examination she has issued the report, the said suggestion is denied.
15. PW.7 Sri Thagyaraj N, Scientific officer is examined before the court by the prosecution to speak about the queries made by the IO., in regard to monetary transaction if at all had transacted in the laptop particularly the bitcoin transaction, to speak about the darknet web related activities. PW.7 the Scientific officer of computer forensic section had received the laptop on 12.3.2021, tested it thoroughly. On checking the laptop thoroughly and analyzing he had stated that in the said laptop, there is one memory device ie., SK hynix NVMe SSD. Capacity is 256 GB. Model and serial number are mentioned in the report. The marked device subjected to forensic acquisition using FTK imager version 4.2.0.1.3. The acquired digital data was analyzed by Forensic Software magnet axiom version 4.7.0.22371. As mentioned by the I.O, he has carefully forensically analyzed for INTERNET related artifacts website URLs details related to Bitcoins and Wicker applications. After 26 examination, he has given forensic system generated details which is enclosed in a soft copy as Annexure A1 to A4 in a DVD bearing No. UMN810104038D08 and its MD5 _ value is mentioned in the report. The results of Examination report furnished by PW.7 is extracted herewith for better appreciation of the case as here under: The SSD marked as D1 is supported for internet activities. The network interfaces connected to the SSD marked as D1 are enclosed in a soft copy as AnnexureA1. There are 4 TOR URL's present in the SSD marked as D1, the details are enclosed in a soft copy as AnnexureA2. There are 119,403 website URL's / Website browsing related details present in the SSD marked as D1 and the same are enclosed in a soft copy as AnnexureA3. There are 9 website URL's related to Bitcoins present in the SSD marked as D1 and the same are enclosed in a soft copy as AnnexureA4.
The "Wicker" application is not present in the SSD marked as D1.
He has furnished the test report and it is marked as Ex.P.24 and the report stated in DVD, the said DVD is at Ex.P.26.
16. As per the questionnaires of I.O, he had examined the laptop to assess whether the user has used the laptop for Internet connected activities. I.O has also asked for Darknet 27 CCH33 Spl.CC No.1602/2022 web related activities, related to that, he has found 4 TOR URLs which can be used to access Darknet. He has furnished the details of all the Website URLs ie., accessed in the said laptop. The question of the IO was whether there is any Bitcoin transaction and any Bitcoin Website related artifacts in the laptop, he has answered stating that, there were 9 Website URLs found present in the laptop which he has found in Chrome logins, Chrome Cookies and other Website related artifacts which he has furnished in DVD. The user has used the said device to login to local bitcoin.com. The owner name ie., found in the operating system information is [email protected]. He has identified M.O No.3 HP Laptop before the Court.
16a. In the cross examination it is brought out that In Ex.P.24 report, he had not mentioned the name of owner, holder and user of Laptop. Holder name would not be available in the Laptop. He admits that he had not mentioned in his report about money related transactions in the said 28 Laptop using particular App. It is elicited that the hash value of the device in the report and hashing is authentic process. It is brought out that since the IO., has not asked the mirror image and the hash value of the hard disc, hence, he has not provided. On checking the URLs of the device he states that there is no bitcoin transaction in the device.
17. PW.8 Sri Kiran Kumar, is the Technical Expert, Cyber Lab, CID who has spoken about the mirror image of laptop and mobile phones taken in the case in the Cyber forensic unit. He had deposed that on 27.1.2021, PSI Santosh, Vijayanagar PS., had brought articles to their Cyber forensic unit for the purpose of mirror image of laptop and mobile phones seized in the case. CW.21 had submitted a requisition to the S.P, Cyber Crime, CID for collection of data of seized mobile and laptop. S.P, Cyber Crime, had instructed him to do mirror image and data extraction of the laptop and mobile phone. CW.21 came along with panchas to their office, the said articles were opened in the presence of panchas. He has 29 CCH33 Spl.CC No.1602/2022 handed over the mobile phone and laptop for his custody for mirror image and data extraction.
17a. He has opened the Apple Iphone XS max to extract the data, the said mobile is having encryption password, he had returned the mobile as it was password protected. He has opened the laptop, it is a HP company laptop containing 256 GB of SSD hard disk. He has removed the hard disk from the laptop connected to their Forensic Work Station to do mirror image. After taking the mirror image of laptop hard disc, he has handed over laptop and hard disc to CW.21, on that day, he has not taken it. A detail mahazar is drawn to that effect at the time of handing over the articles for mirror image as per Ex.P28.
17b. In the cross examination it is suggested that Hash value found in the hard disc and hash value found in the mirror image should be one and the same, the said suggestion is denied. He has stated that hash value would appear only 30 after mirror image of the laptop hard disc. He states that hash value of the mirror image is not mentioned in the mahazar.
Testimony of postal officials:
18. PW.4 Sri M Vishwanath, Post Master of foreign post office he is examined by the prosecution to prove about the letter correspondence made by the investigating agency with him with regard to the parcel seized in this case. He has stated that on 11.1.2021 he has received information from Vijayanagar police station questioned about the parcel addressed to accused, for which he has issued reply on 15.1.2021, he has also sent 'Item Internal Manifest' along with the reply.
18a. In the cross examination it is elicited that article was received in the Foreign Post Office on 22.6.2020 and dispatched on 22.10.2020 as per Ex.P.16 reply letter. He has further stated that since it is an objectionable article, it was in the hold of Customs. In Ex.P.16 letter he has not stated that the article in the present case is an objectionable article. Any 31 CCH33 Spl.CC No.1602/2022 foreign articles would be opened in the presence of Customs. On 22.6.2020, the baggage containing foreign posts were opened by the Customs in the presence of officers of Foreign Post Office. The article was in their office from 22.6.2020 till 22.7.2020, he further states that it was in their office till 22.12.2020 and it was not withheld by them, but by the Customs Office. It is elicited that the article was lying in foreign Post Office for 120 days as it was withheld by the Customs, but there is no specific authorization to keep the article for 120 days. The entries of Ex.P10 is made in foreign post office and the concerned branch had written the weight as 50 grams. The bag weight is mentioned as 265 grams. He has weighed the parcel on 22.6.2020 on opening it, but had not informed the police. Once they come to know that, the post article contains contraband, they are not authorized to deliver it, but in the case on hand, Customs Department had authorized him to send Ex.P.10 parcel to the addressee in writing on 22.10.2020. The Customs inspection was done on 22.6.2020. The weight mentioned after weighing the article in 32 the Foreign Post Office, the Ex.D.3 weight is mentioned after weighing the bag. In respect of Registered Post, it could not be delivered without acknowledgment, and in Ex.P.16, it is not mentioned as registered letter.
19. PW.5 Smt.Chethana M, Post woman of Vijayanagar post office, Vijayanagar is examined by the prosecution to prove the delivery of contraband parcel to the addressee. She had deposed that on 23.10.2020, she was assigned with a work at 9th Beet along with Beet No.1. On that day, she had attended the office at 8.00 am., she had delivered the foreign ordinary post to the addressee one Nithin Purushotham to the address ie., No.24, 13th Main, Vijayanagar, inbetween 10.15 a.m., to 10.20 a.m., she has affixed her signature to the Foreign Article Register prior to leaving the Post Office for delivering the post. She has affixed her signature to Ex.D.2 at entry No.5 dtd 23.10.2020. she has collected the postal cover addressed to Nithin Purushotham, No.24, 13 th Main, Vijayanagar, said entries were made by Delivery Clerk, 33 CCH33 Spl.CC No.1602/2022 Vijayanagara Post Office. She had delivered the post to the Nithin Purushotham. She has identified the accused before the Court.
19a. In the cross examination it is brought out that she has affixed her signature to Ex.D.2 after reading and understanding it. Further she admits that I&C Layout is situated at a distance of half km from M.C. Layout. She states that she cannot say the beets of M.C Layout, because there are several beets, M.C Layout may be 5 th beet and she is not the Post Woman for 5th Beet. In Ex.D.2, entry No.5, it is mentioned as M.C Layout, in Ex.P.10, address is typed as I&C Layout. She further admits that in her Employment ID Card her beet no., is mentioned as Beet No.9. Post Master had passed an order to go to Beet No.1, that has been noted in the order book of their office. She further states that she had not stated before the police that as per the order of post master she was sent to Beet No.1. further on 23.10.2020, police have not recorded her statement nor she had seen them.
34
20. PW.6 Smt.Susheelamma, she had worked as Post Master at the relevant time of incident at Vijayanagar Post Office had testified that on 23.10.2020, CCB Police came to their Post Office and enquired about receipt of any article or post from foreign country to their office. The CCB Police also placed an address before her and enquired whether any post addressed to that particular address is received in their Post Office. The name of the addressee is Nithin. She has checked the bag wherein the foreign posts were kept. When the bag is checked one post cover addressed to Nithin received from Netherlands is found. When the police asked her to hand over the said post, she said, she cannot hand over the said postal cover. They have questioned her whether they are going to deliver the said post to the addressee. She has stated in respect of the foreign post, they will make a note in the Register and thereafter, send the said post to the addressee after taking acquittance from the Post Man or Post Woman. On that day, Post Woman by name Chethana was assigned with a duty to serve the post of that particular beet and address ie., 35 CCH33 Spl.CC No.1602/2022 beet No.9. Thereafter, she has send the said post through PW.5 to deliver the post.
20a. She has further testified that again in the month of December 2020, she had received a letter from police and a phone call. The Vijayanagara Police have sent a letter to her seeking certain queries pertaining to the present case postal parcel, she has furnished the documents sought by the Investigating Agency, she has produced invoice of foreign post and a copy of label stating the bag No., name of the post office, dispatch date from foreign post office, weight of the bag which is at Ex.D3.
20b. She has further testified that she had made a note in the register for allotting the post to post woman which is at Ex.D2, PW.5 had affixed her signature to that, she has furnished the ID card to PW.5, she had furnished article tracking list to the IO, she had replied the letter furnished by IO., by furnishing the document, she had given statement before the IO.
36
20c. In the cross examination it is brought out that in the Ex.D1 tracking information is given about the registered letter. She had explained the registered letter as any article which is from a foreign country with a bag and invoice would be noted in the register and would be called as registered letter and the said foreign article would be having tracking details. In this case she had received ordinary postal article from foreign country and it is an ordinary foreign post. As per the tracking ID the foreign post of this case is received at 8.00 am., at that time she was not in the office. But, in her statement before the IO., she has stated that at 7.00 am., when the police came to their office on 23.10.2020 to enquire about foreign post she was in foreign post office.
20d. In the further cross it is elicited that she had not seen CCB Police Mahanand upto 9.00 a.m., of 23.10.2020 and CCB police had not enquired her nor shown any letter to her. She admits that she had not stated before the police that on 37 CCH33 Spl.CC No.1602/2022 23.10.2020 at 9.00 a.m., police have enquired her about the present case post.
20e. It is further elicited that as per Ex.D.2, letter is delivered to M.C Layout and she is not aware of the distance between M.C Layout and I & C Layout, in the Ex.D.2, it is written that, M.C Layout falls within beet No.9 and she states it is wrong. She is ignorant of the fact that I & C Layout falls within beet No.1 and she has not verified the address at the time of issuing Ex.D2, in Ex.P.10 address, it is stated I & C Layout of 13th Main.
20f. Further in the further cross examination it is elicited that as per Sec. 24 and 26 of Indian Post Office Act, 1898 she has not informed the concerned authority that it is a suspected parcel and the said article has to be detained. She is not aware whether men Post Man is posted to beet No.1 and women Post Woman is posted to beet No.9. She further admits that as per Ex.D.2, PW.5 was assigned with a duty to deliver post of beet No.9. It is suggested that the statements made by 38 her in her chief examination is made first time before the court about assigning PW.5 for duty to deliver the post and she has checked the bag and found the post cover addressed to Nithin received from Netherlands and about noting the same in the register, she denies the suggestion. When it is suggested to her that 265 grams written in Ex.D.3 is written by her as per the say of police, to the said suggestion she states it is written by the Foreign Post Office. Similarly, When it is suggested to her that 0.50 grams written in Ex.P10 is written by her as per the say of police, to the said suggestion she states it is written by the Foreign Post Office, which may be Netherlands or any other country.
Arguments advanced by the prosecution and defence, Appreciation of evidence and conclusion:
21. The contention of defence is IO has not followed the procedures contemplated U/s.42 and 50 of NDPS Act. There is total non compliance of Sec.42(2) of NDPS Act. The ACPPW.12 is the person who has received the first information but he has 39 CCH33 Spl.CC No.1602/2022 not noted the information in any of the information book. He has instructed PW1 to conduct raid. Information has not been noted in any of the registers. That apart, PW.1 who is the search and seizing officer and PW.3 who has conducted investigation in the case has not collected any document from the postal authorities about the parcel which is being delivered to that office. As per the statement of PW.1 he has received information about the one person by name Nithin, IC layout, Vijayanagar is procuring contraband from foreign countries to sell it to his customers and tracking ID is furnished by the ACP. In the Ex.P1 letter of ACP tracking ID is not mentioned. He has reduced the information into writing, but Ex.P2 information reads he has not reduced the information immediately into writing but it speaks that he had proceeded to Vijayanagar along with staff and panchas. Ex.P2 information does not contain the previous and the subsequent entries of information book, the time is also not clear. It is argued that the first information in the case is PW.12 he has not reduced the information into writing and had not informed 40 the matter to higher officer to proceed with the raid and to issue necessary directions to his subordinate. Added to that the information note does not contain the tracking ID of the post. He has admitted that he has not noted the time of receipt of information in the mahazar. Further, he has not issued any direction to register the case immediately on receipt of information. PW.1 had not collected the documents from the post office about the allotment of duty to the particular post woman or man. The address stated in the post cover is different from the place where the accused is residing, no information collected about the order placed by the accused to book the contraband parcel. No document collected about receipt of parcel and delivery of parcel. PW.3 being the IO had not properly investigated the case, had not investigated who had booked the parcel and when it was booked. Further no document collected about monetary transaction and dark web and bitcoin transaction. Personal search requirements not complied. Panch witnesses turned hostile, delay in sending the articles to FSL for analysis, postal authorities have not 41 CCH33 Spl.CC No.1602/2022 complied Sec.22 and 24 of Indian Post Act. As there are serious lacuna in the case of prosecution and the testimony of witnesses does not inspire confidence about the booking of contraband parcel by the accused he is entitled for acquittal.
22. The prosecution vehemently argues that contraband parcel seized which is addressed to the accused. The prosecution witnesses have spoken in unequivocal terms about the seizure of contraband which was booked by the accused through post from a foreign country. The parcel is addressed to the accused. IO on complying the statutory provisions of NDPS Act has seized the articles. The charges against the accused stands proved.
23. Herein the case on hand, this court has to appreciate whether the provision of 42 of the Act have been strictly complied by the complainant police. The ACPPW.12 is the person who has received the first information, but he has not noted the information in any of the information book. He has instructed PW1 to conduct raid. Information has not been 42 noted in any of the registers. That apart, PW.1 who is the search and seizing officer and PW.3 who has conducted investigation in the case has not collected any document from the postal authorities about the parcel which is being delivered to that office. As per the statement of PW.1 he has received information about the one person by name Nithin, IC layout, Vijayanagar is procuring contraband from foreign countries to sell it to his customers and tracking ID is furnished by the ACP. In the Ex.P1 letter of ACP tracking ID is not mentioned. He has reduced the information into writing, but Ex.P2 information reads he has not reduced the information immediately into writing but it speaks that he had proceeded to Vijayanagar along with staff and panchas. Ex.P2 information does not contain the previous and the subsequent entries of information book, the time is also not clear. It is also necessary for me to note that the first information in the case is PW.12 he has not reduced the information into writing and had not informed the matter to higher officer to proceed with the raid and to issue necessary directions to his 43 CCH33 Spl.CC No.1602/2022 subordinate. Added to that the information note does not contain the tracking ID of the post. He has admitted that he has not noted the time of receipt of information in the mahazar. Further, he has not issued any direction to register the case immediately on receipt of information.
24. Since the information is received initially by PW.12 he ought to have made a note about the information in the official register. PW.1 has reduced the information into writing which is at Ex.P2 which does not contain the details of tracking ID and it contains the information of follow up action. It is also astonishing to note that PW.12 being the higher officer of CCB has not made a note of information in writing as provided U/s.42 of NDPS Act. The Hon'ble Apex Court in a case reported in AIR 2013 SC 357 in Kishan Chand Vs., State of Haryana was pleased to observe that: presearch requirement of recording information received and sending it to superior officer demands exact and definite compliance as opposed to substantial compliance. Compliance with provisions of Sec.57 does not dispense compliance with requirements of Sec.42 and 50. The 44 language of Sec.42 does not admit any ambiguity, These are penal provisions and prescribe very harsh punishment for the offender. The question of substantial compliance of these provisions would amount to misconstruction of relevant provisions. It is settled cannon of interpretation that the penal provisions particularly with harsher punishments and with clear intendment of the legislature for definite compliance, ought to be construed strictly. The provisions of Sec.42 or 50 are the provisions which requires exact and definite compliance as opposed to the principles of substantial compliance. Where the duty is absolute the element of prejudice would be of least relevancy. Absolute duty coupled with strict compliance would rule out the element of prejudice where there is total non compliance of the provisions. The presearch requirement of recording the information received in writing and sending it to superior officer to not complied with, the sending of report as required U/s.57 will be no compliance, factually and or in the eyes of law to the provisions of Sec.42. These are separate rights and protection available to the accused and their compliance has to be done in accordance with the provisions of Sec.42, 50 and 57 of the Act. They are inter linked nor interdependent so as to dispense compliance of one with the compliance of another. In fact, they operate in different fields and at different stages.
Further, in the case of State of Rajasthan Vs., Jag Raj Singh reported in 2016 Crl.L.J 3336 the Hon'ble Apex Court made a categorical observation that:
13. what section 42(2) require is that where an officer takes down an information in writing under subsection (1) he shall sent a copy thereof to his immediate officer senior.
45 CCH33 Spl.CC No.1602/2022 The communication Ex.P15 which was sent to Circle Officer, Nohar was not as per the information recorded in Ex.P14 and Ex.P24. Thus, no error was committed by the High court in coming to the conclusion that there was breach of Section 42(2).
As per the Drug law enforcement field officers hand book if a complainant receives information from a person he should get it recorded in writing in the first person, preferably in the handwriting of the informer duly signed by him or by putting his left thumb impression. The officer would then seal the recorded information after endorsing "recording by me" and sign it mentioning his name, designation and the time and date of recording. The next step involves filling in other entries including the gist of information in required format and sending the same along with sealed envelop to his superior officer, if possible, immediately, or within 72 hours of such recording. The compliance of Sec.42(2) is mandatory. Here in the case on hand, PW.12 as per his testimony before this court has not reduced the information into writing. As per the dictum of Hon'ble Apex Court when there is non compliance of 46 Sec.42, the evidence collected is inadmissible. It is also astonishing to note that no document is collected about tracking the parcel.
25. PW.1 in the cross examination had admitted that the parcel seized in the case is received by the postal authority on 22.6.2020 which is evident from Ex.P10 postal cover. PW.1 states he has not ascertained about the date mentioned on Ex.P10. When the parcel is received on 22.6.2020 what made them to retain the parcel nearly for a period of 4 months without verifying about its contents and communicating the same to concerned authorities in case any contraband article is concealed inside the parcel. The said 4 months delay is not explained by the raiding officer during the course of his testimony. Ex.P10 is an unregistered parcel, but the postal authorities states that it is a registered parcel. In regard to that there is no clarity.
26. PW.1 being the search and seizing officer ought to have collected from the post master regarding the duty 47 CCH33 Spl.CC No.1602/2022 allotment document about allotting the particular post man or post woman to deliver the parcel. Further there is ambiguity about the address given in the postal cover and the actual address of the address. In the postal cover under the name Nithin Purushotham address is mentioned as 13th main I&C layout, whereas in the charge sheet address of the accused is shown as SBI staff colony, Vijayanagar. The defence has successfully demonstrated before the court that I&C layout and the MC layout are different. PW.3 during the course of his cross examination has stated that I&C layout and MC layout are different and there is a distance of 1½ Kms., between the two layouts. He has categorically stated that the parcel is delivered to MC layout and not SBI colony and I&C layout and accused is the resident of MC layout. PW.1 had categorically admitted that he did not collect any document from the postal authority Vijayanagar regarding the receipt of parcel and delivery of parcel. Further CWs.2 and 3 panch witnesses are not localities. Further photography and videograph of search and seizure is not taken by CW.1. Interestingly no documents 48 collected by CW.1 about accused procuring contraband articles from Poland and Germany which is stated in the information report. Further he has not collected any document at the time of search about accused procuring contraband from Netherlands.
27. PW.3 being the investigation officer had failed to collect information about the booking of parcel by the accused on particular date and time, through what app he has booked the parcel, what is the mode of payment, what is the amount paid towards the parcel. As admitted by him in the seized laptop and mobile Mos.3 and 4 there is no incriminatory material about accused booking the parcel and paying the money to book the parcel.
28. Mos.3 and 4 laptop and mobile phones were sent to FSL analysis. The FSL experts examined before the court as PWs.7 and 8 particularly about retrieving the data from those instruments to assess the mode of transaction of the accused to procure the contraband. Their testimony is of no assistance 49 CCH33 Spl.CC No.1602/2022 to the prosecution as in the data retrieved there is no incriminatory information about booking of contraband parcel by the accused and mode of payment. Though they were examined in length before th court their testimony is of no assistance to prove the transaction of the accused in procuring the contraband article from a foreign country. PW.3 had send the laptop to FSL in unsealed condition about one month of seizure, even otherwise no incriminatory material collected in the said gadgets.
29. The postal authorities who were examined before the court PWs4, 5 & 6 have spoken about the receipt of parcel in their office and about the delivery of parcel through postal woman, particulars of the date of visit and delivery. PW.4 being the post master of foreign post office had stated that the parcel seized in the case was there in their office from 22.6.2020 till 22.10.2020. He has stated that the Customs office had with held the said parcel. The said article was lying in the office for a period of 120 days. The customs officers 50 have opened the present case parcel. In the cover writings were made by the postal staff stating that it contains 50 grams. He had not given information to police and the parcel was opened on 22.6.2020 after weighing the article. Further he states customs department has authorised him to deliver the parcel on 22.10.2020, Customs inspection was done on 22.6.2020.
30. PW.5 the Postal woman she had delivered the parcel had stated that I&C layout is situated at a distance of 1/2 Km., from MC layout. MC layout is 5 th beet and she is not the postal woman for 5th beet. In Ex.D2 foreign article register entry it is mentioned as MC layout and in Ex.P10 address is typed as I&C layout. Post master had passed an order directing her to go to beet No.1 and MC layout falls in 5 th beet.
31. PW.6 post Master of Vijayanagar Post office she in the cross examination has admitted that on 23. She was not in the post office in between 7.00 to 9.00 am., though she has stated before the IO., that she was in the office when the police 51 CCH33 Spl.CC No.1602/2022 came there to enquire about the foreign post. She categorically states Ex.D2 letter is delivered to MC layout and she is not aware of the distance between MC layout and I&C layout, In Ex.D2 it is written as MC layout falls within beet No.9, but it is not correct. She is not aware that I&C layout falls in beet No.1. Address in Ex.P10 is I&C layout of 13 th Main, PW.5 was assigned wit a duty to deliver post of beet No.9. The testimony of PW.4, 5 and 6 the postal authorities who were in charge of the parcel seized in the case have spoken in detail about keeping the postal parcel in their office, delivering the same to the addressee. Here it is to be noticed that the address stated in the postal cover is different from the address of accused stated in the charge sheet. The postal woman who is assigned with a duty to deliver the present case parcel is assigned with a duty to deliver post of beet No.9 and not beet No.1, but as per Ex.D2 letter is delivered to MC layout which is beet No.1. It is also astonishing to note that the present case parcel received in the office of foreign post office from 22.6.2020 and it was lying there till 22.10.2020, the customs authorities have 52 opened the parcel, mentioned the weight but no action taken immediately. There is delay of 4 months in taking action on the contraband parcel which is received and lying in the foreign post office.
32. ACP being the responsible officer had not made any enquiry about the incriminatory information in the laptop and mobile phone which were seized in the case, further while conducing body search accused had answered that search should be conducted by judicial officer or gazetted officer, he has opted for two options for search. The weight written on the postal cover is 50 grams whereas the contraband seized in the case is 36 grams which is not explained by PW.12.
33. PW.11 who is the IO filed the charge sheet had not collected any information about the bitcoin transaction, about the booking of parcel and no incriminatory information collected from the gadgets seized in the case. He is not aware when actually the bitcoin website were searched by the user of the laptop.
53 CCH33 Spl.CC No.1602/2022
34. Added to all these discrepancy, contradictions and omissions in the case of prosecution, the independent panch wittinesses through were examined before the court are hostile to the case of prosecution. Coupled with these aspects, articles seized must reach FSL safely within the stipulated period of 72 hours. Here in this case, articles seized were sent to FSL only on 18.11.2020 i.e., more than 15 days of seizure which is bad in law. The sample must reach FSL within the stipulated period of 72 hours. In this case, that has not been complied. This rule is salutary because any attempt at tampering with the sample recovered from the accused can have fatal consequences to the case of the prosecution. Strict compliance has to be insisted upon in such an event.
35. Yet another aspect is to be noted is the seal which is going to be affixed on the article should not be used repeatedly. The seal has to be handed over to panchas in order to avoid tampering with the article. But in this case 54 there is no material for handing over the seal to the panchas. Sample seal is not prepared in the spot.
36. Learned counsel for accused referred to the dictum of Hon'ble Apex Court reported in the case of Valsala Vs., State of Kerala 1993 Supplementary SCC 65 for a proposition that when there is delay in seizure and submitting the same t the court, it was doubtful whether the very same article was sent to chemical examination, investigation was held to be perfunctory, conviction was set aside. Here in the case on hand there is in ordinate delay in delivering the parcel to the accused, it was lying in the post officer for a period of 4 months, further after seizure it was sent to FSL after 20 days, therefore, there is a serious lacuna on the part of investigating agency. The principle referred in the dictum can be aptly made applicable to the present facts.
37. He has referred to the dictum of Hon'ble Apex Court reported in 2014 SCC 345 state of Rajasthan Vs., Paramanand and another it is held that a joint 55 CCH33 Spl.CC No.1602/2022 communication of right available U/s.50(1) of the NDPS Act to the accused would frustrate the very purport of Sec.50. Communication of the said right to the person who is about to be searched is not an empty formality it has a purpose. Most of the offences under the NDPS Act carry stringent punishment, therefore, the prescribed procedure has to be meticulously followed. These are minimum safeguards available to an accused against the possibility of false involvement. The communication of this right has to be clear, unambiguous and individual. The accused must be made aware of the existence of such a right. This right would be of little significance if the beneficiary thereof is not able to exercise it for want of knowledge about its existence. A joint communication of the right may not be clear or unequivocal. It may create confusion. It may result in diluting the right. We are, therefore, of the view that the accused must be individually informed that under Section 50(1) of the NDPS Act, he has a right to be searched before a nearest gazetted officer or before a nearest Magistrate. In view of categorical 56 observation of Hon'ble Apex Court in the case on hand the answers given by the accused about opting two options for search and three questioned posed by the IO., which is not clear about apprising the accused his right stipulated under the act as per the diction communication of his right has to be clear unambiguous and individual. The dictum referred to by the defence can be made applicable to the present facts in holding hat the personal search right of accused as stipulated U/s.50 had not been properly complied.
He has referred to the dictum of State of Delhi Vs., Ramavathar (2011) 12 SCC 207 for a proposition that it is imperative for the authority concerned to inform the accused of the choice available to him U/s.50 and failure to do so render the recovery of contraband illegal. I have carefully gone through the dictum in detail. The dictum referred to by the defence can be made applicable to the present facts in holding that the personal search right of accused as stipulated U/s.50 had not been properly complied.
57 CCH33 Spl.CC No.1602/2022 He has referred to the dictum Rithesh Chakravarthi Vs., State of MP 2006 (12) SCC 321 for a proposition tat when no independent witnesses examined to prove the search which is taken in busy place, adverse inference can be drawn for non examination of material witness. In this case all the material witnesses were examined, but the panch witnesses turned hostile. Thus, for a limited purpose the dictum can be referred to as the panch witnesses who are the independent witnesses to seizure and are material witnesses their testimony is material to prove the case of prosecution. In the absence of corroborating evidence of panch witnesses, doubt arises about the actual seizure effected as affirmed by the prosecution.
38. On careful appreciation of the material as per the detailed discussions made in the aforesaid paragraphs, I proceed to hold that the evidence collected during search is in clear violation of procedure contemplated under the Act. The prosecution has failed to prove that the search and seizing officer has followed the mandatory provisions of law in 58 conducting search of accused person. When the mandatory provisions were found to be not followed by the raiding officer, recovery has to be termed as illegal. Once recovery is held to be illegal, that means accused did not actually possess illicit article or contraband and that no such illicit article was recovered from possession so as to enable conviction. There is lot of discrepancies, contradictions in the testimony of prosecution witnesses which creates doubt about the contraband parcel being booked by the accused and it is seized from him after delivery. Further there is no probable material placed on record by the prosecution to prove the booking of parcel by the accused and about the payment being made for the booking of parcel. There is also discrepancy about delivery of contraband parcel to the address of the accused stated in the charge sheet. No incriminatory material collected from the gadgets seized from the accused about the booking of parcel and payment. There is delay in sending the contraband for FSL analysis, there is no proper compliance of Sec.50 of NDPS Act and Sec.42. Therefore, it has to be held that the charges 59 CCH33 Spl.CC No.1602/2022 against accused herein is not established by the prosecution, hence he is entitled for benefit of doubt. Hence, I answer the point for consideration in the negative.
39. Point No.4: In the result, I pass the following:
ORDER Acting under Section 235(1) of Cr.P.C. accused - Nithin is acquitted for the offences punishable under Section 22(C) of N.D.P.S. Act.
M.O.1 sample contraband is ordered to be returned to complainant PI., Vijayanagar PS., for producing before the Drug Disposal committee for disposal, M.O.2 cover is ordered to be destroyed, Mos.3 and 4 Laptop and mobile phone shall be returned to the accused.
[Dictated to the Stenographer, directly on the computer, typed by her, corrected, signed and then pronounced by him in Open Court on this the 22nd day of April 2024) (B.S.JAYASHREE) XXXIII ACC & SJ & SPL.JUDGE (NDPS) BANGALORE.60
ANNEXURE
1. List of witnesses examined for the:
(a) Prosecution:
P.W.1 : Sri Mahananda
P.W.2 : Dr.Suma
P.W.3 : Sri Santosh B M
P.W.4 : Sri M Vishwanath
P.W.5 : Smt.Chethana M
P.W.6 : Smt.Susheelamma
P.W.7 : Sri Thyagaraj N
P.W.8 : Sri Kiran Kumar C
P.W.9 : Sri Lokesha
P.W.10 : Sri Umesh
P.W.11 : Sri Manu K
P.W.12 : Sri K C Gowtham
(b) Defence :
NIL
2. List of documents exhibited for the:
(a) Prosecution:
Ex.P.1 : Letter of ACP
Ex.P.2 : Information
Ex.P.3 : Request letter
Ex.P.4 : Panch notice
Ex.P.5 : Record of reasons
Ex.P.6 : FSL report
Ex.P.7 : Sample seal
Ex.P.8 : Request letter
Ex.P.9 : Panchanama
Ex.P.10 : Postal cover
Ex.P.11 : Complaint
61 CCH33
Spl.CC No.1602/2022
Ex.P.12 : FIR
Ex.P.13 : Request letter to for medical
examination of accused regarding
consumption
Ex.P.14 : Request for inventory
Ex.P.15 : Request letter
Ex.P.16 Letter from post master
Ex.P.17 Item internal manifest
Ex.P.18 Postal cover
Ex.P.19 Request letter
Ex.P.20 Item internal manifest
Ex.P.21 Revised list date 22.10.2020
Ex.P.22 Employee ID of post woman
Ex.P.23 Letter of postal department
Ex.P.24 FSL report
Ex.P.25 Sample seal
Ex.P.26 CD
Ex.P.27 Request letter
Ex.P.28 Mahazar
Ex.P.29 Acknowledgement for receiving the MOs.
Ex.P.30 Returning of articles
Ex.P.31 Sample seal
Ex.P.32 Letter to FSL
Ex.P.33 Body search memo
Ex.P.34 Request for inventory
Ex.P.35 Certificate U/s.52A
Ex.P.36 Panch notice
Ex.P.37 Report of police constable
Ex.P.38 Acknowledgement of FSL
Ex.P.39 Articles sent to FSL
Ex.P.40 Raid success report
(b) Defence:
Ex.D.1 : Article tracking
Ex.D.2 : Foreign article register
Ex.D.3 : Way slip
62
3.List of Material Objects admitted in evidence:
M.O.1 : Sample
M.O.2 : Cover
M.O.3 : Lap top
M.O.4 : Mobile phone
(B.S.JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BANGALORE.
CN/*