Bangalore District Court
Adugodi P S vs Syamuel Alias Madhu Syamel Alias Sham on 20 September, 2025
KABC010229112022
THE COURT OF THE XXXIII ADDL. CITY CIVIL &
SESSIONS JUDGE & SPL. JUDGE (NDPS),
BANGALORE. CCH.33.
: P R E S E N T:
SMT.LATHA,
XXXIII ACC & SJ & SPL. JUDGE (NDPS)
BENGALURU.
DATED: THIS THE 20th DAY OF SEPTEMBER 2025
SPL.C.C. No.1939/2022
COMPLAINANT : State by Adugodi Police Station
(By Public Prosecutor)
V/S.
ACCUSED : Samuel @ sham,
S/o. Late Kamalesh,
Aged about 40 years,
R/at.No.12, BRM Nilayam,
Near Cauvery Water Tank,
(VSH Layout), near Tin Factory,
KR Puram, Bengaluru.
(By Sri.TS., Adv.)
1. Date of Commission of offence: 09.12.2021
2. Date of report of offence: 09.12.2021
2
3. Arrest of the accused : 10.12.2021
4. Date of release of accused on bail: 27.12.2021
5. Period undergone in custody: 18 days
6. Date of commencing of
21.9.2023
recording Evidence :
7. Date of closing of Evidence : 12.6.2025
8. Name of the complainant: Police Sub Inspector,
Adugodi police station
Sri.Somanath N N
9. Offence complained of : U/Sec.20(b)(ii)(B) of
NDPS Act
10. Opinion of the Judge : Charges proved
11. Order of sentence : The accused is
convicted
::JUDGMENT::
The accused is prosecuted by the Adugodi Police, Bangalore on the allegation that he is found in possession of contraband Cocaine which is an offence punishable U/Sec.20(b)(ii)(B) of N.D.P.S. Act.
2. The case of the prosecution in nutshell is as under:-
CCH-33
3 Spl.C.C.1939/2022 On 9.10.2021 at about 6.45 pm., the complainant, PSI of Adugodi police station was on patrolling duty along with his staff he saw a person moving suspiciously near the Public Toilet in Ambedkar Nagar, 80 feet road and he on seeing them tried to escape from the said place, In his hand there was a bag and he along with his staff caught hold him, enquired about his whereabouts. He revealed that his name is Samuel @ Sam, resident of Narayanapura. When he asked about the bag in his hand he revealed that it contains ganja. For the purpose of seizure of the said article through his staff secured two mahazar witnesses and his staff, investigation tools with laptop and portable printer. He seized the article found in his bag and on seeing the said article he confirmed that it is ganja, on weighing the said contraband it weighed 5 Kgs., 900 grams, seized Rs.2,000/- cash, that they packed the said articles, sealed it with 'RSN' seal, that they had also drawn a seizure mahazar. After completing the seizure proceedings he took the accused as well as the seized articles to the police station and filed a 4 report before the Station House officer. On the basis of the report submitted by PSI a case came to be registered against the accused in Cr.No.183/2021 for the offence punishable U/s.20(b)(ii)(B) of NDPS Act. Consequently, the accused was produced before jurisdictional Magistrate.
3. The learned Predecessor-in-office of this Court, took cognizance of the offence punishable under Sec.20(b)(ii) (B) of NDPS Act,1985. The copy of the charge sheet and annexed documents were furnished to the learned counsel appearing for the accused as provided under Sec.207 of the Criminal Procedure Code, 1973. After completion of investigation the investigating officer submitted charge sheet before the Court. Since the offence alleged against the accused is cognizable in nature, the predecessor-in-office of this Court heard the learned counsel for the accused and Public Prosecutor before charge and framed the Charges against the accused for the offences punishable under section 20(b)(ii)(B) of NDPS Act, 1985 on 27.01.2023, read- over and explained to the accused in the language known to CCH-33 5 Spl.C.C.1939/2022 him. He pleaded not guilty and claimed to be tried. Therefore, posted the case for recording the evidence on behalf of prosecution.
4. The prosecution in order to prove the Charges levelled against the accused examined five witnesses as P.W.1 to P.W.5 and got 14 documents marked as Exs.P1 to P.14 and got two Material objects marked as M.O.1 & 2. After conclusion of evidence of prosecution side, the accused was examined U/Sec.313 of Cr.P.C. He denied the incriminating statements made against him. However, did not offer defence evidence.
5. Heard the arguments of P.P., and learned counsel for the accused.
6. Having heard the learned Public Prosecutor, the learned Counsel for the accused and on perusal of the above rulings, the following points that arise for consideration is as follows :-
Point No.1 : Whether the prosecution 6 proves beyond reasonable doubt that on 9/12/2021 at about 7.00 pm., within the limits of Adugodi police station in Ambedkar Nagar, near 800 feet road, I Main, 3rd Cross, near BBMP Public toilet Bengaluru accused was found in illegal possession of 05 Kgs., 900 grams of Ganja without having any licence or permission to sell the same and thereby accused has committed the offence punishable U/s.20(b)(ii)(B) of NDPS Act?
Point No.2: What Order ?
7. My findings on the above points are as under:
Point No.1: In the Affirmative Point No.2: As per the final order for the following:
::REASONS::
8. POINT No.1:- The prosecution, in order to bring home the guilt of the accused, has examined CW1 Sri.Somanth N N., the then PSI of Adugodi police station as CCH-33 7 Spl.C.C.1939/2022 PW1. PW1 in his evidence deposed that on 9.10.2021 at about 6.45 pm., when he was on patrolling duty along with his staff he saw a person moving suspiciously near the Public Toilet in Ambedkar Nagar, 80 feet road and he on seeing them tried to escape from the said place that in his hand there was a bag and he along with his staff caught hold him, enquired about his whereabouts, that he revealed that his name is Samuel @ Sam, resident of Narayanapura, that when he asked about the bag in his hand he revealed that it contains ganja, that for the purpose of seizure of the said article through his staff secured two mahazar witnesses and CW.7 and 8 brought the investigation tools with laptop and portable printer, that he apprised the fact of the case to the mahazar witnesses and as they consented to be witnesses to the mahazar proceedings he issued notice to them as per Ex.P3.
9. The PW.2 has also contended that he asked with the accused whether he get the body searched in the presence of Magistrate or before the Gazetted Officer, at that 8 time the said person stated that since he has no contraband in his body or in his dress he does not want to get the body searched and therefore, the PW.2 seized the article found in his bag and on seeing the said article he confirmed that it is ganja, on weighing the said contraband it weighed 5 Kgs., 900 grams, seized Rs.2,000/- cash, that they packed the said articles, sealed it with 'RSN' seal, that they had also drawn a seizure mahazar as per Ex.P4, that after completing the seizure proceedings he took the accused as well as the seized articles to the police station and filed a report before the Station House officer namely CW.11, that the Station House officer, on the basis of the report submitted by him registered a criminal case in Cr.No.183/2021 and filed FIR before the Court.
10. He further deposed that he entered the said fact in the Station House Diary and copy of the Station House Diary is produced before the Court which is at Ex.P10. This witness has been subjected for cross examination by the learned counsel for accused in length.
CCH-33 9 Spl.C.C.1939/2022
11. CW.10 Dr.Srinath B.S., the Sr. Scientific Officer, FSL, Bangalore got himself examined as PW.1. he deposed that on 10.1.2022 their office received one article in Cr.No.183/2022 of Adugodi police station, that the seal of the said article was intact and tallied with the specimen seal sent by the investigating officer, that he opened the said article and it was weighing 33.70 grams, he conduced five tests and finally came to the opinion that the said article responded positive with cannabis and cannabis contain psychoactive consonants. He has also identified the report submitted by him and the sample seal sent along with the report which are at Ex.P1 and 2 respectively. This witness also subjected for cross examination by the learned counsel for accused.
12. Cw.2 Sri Muniraju has been examined as PW.3. This witness is the resident of Adugodi and auto rickshaw driver. This witness acted as a mahazar witness in this matter and he deposed about the seizure of contraband and case hf Rs.2000/- from the custody of accused person 10 under Ex.P4 mahazar, that he has also deposed that the police had also taken photographs at the time of seizure proceedings. This witness has also been subjected for cross examination to demolish his evidence adduced in his examination in chief.
13. CW.12 Sri Nagaraj S Shettar has been examined as PW.4. This witness is the then PSI of Adugodi police station. He deposed that on 20.7.2022 he received the FSL report from FSL., Madivala and after verifying the investigation conducted in the matter he filed charge sheet against the accused person as there was primafacie material against him. The the learned counsel for accused has also cross examined this witness and suggested certain suggestions.
14. CW.11 Sri Basavaraj Jande has been examined as PW.5 this witness is also the then PSI of Adugodi police station. He deposed that on 9.12.2021 at about 8.45 pm., he received the report, the accused person and the seized CCH-33 11 Spl.C.C.1939/2022 articles from PW.2 and on the basis of the report submitted by PW.2 he registered criminal case against the accused person under Cr.No.183/2021, filed FIR before the Court as per Ex.P9, that he had also submitted raid success report to his higher officer as per Ex.P11, he had recorded the statements of CWs.2 to 8, that he produced the accused before the Court after subjecting him for medical examination, that on 6.1.2022 he got the inventory of seized contraband done in the presence of learned VI ACMM., Bangalore, that he obtained inventory report as well as representative of sample of the contraband, that on 10.1.2022 he sent the representative sample to the FSL through CW.10 and he handed over the investigation to CW.2 on account of his transfer.
15. The prosecution apart from, examining 5 witnesses has also got marked 14 and also got material documents marked as Mos.1 and 2. As could be seen from the documents produced on behalf of the prosecution, Ex. P1 is the FSL report, Ex.P2 is the sample seal, Ex.P3 is the 12 notice issued to panchas, Ex.P4 is the seizure mahazar, Ex.P5 is the sample seal, Ex.P6 & P7 are the photos, Ex.P8 is the complaint, Ex.P9 is the FIR, Ex.P10 is the copy of Station House Diary, Ex.P11 is the raid success report, Ex.P12 is the inventory report with photos, Ex.P13 is the report of Police constable and Ex.P14 acknowledgment issued by FSL.
16. As could be seen from the evidence of PW.2 on 09.12.2021 at about 06.45 pm., he was on patrolling duty along with his staff. When he was pertaining duty along with his staff and while proceeding in 80 feet Road in Ambedkar Nagara, near a public toilet, a person was found moving suspiciously and he on seeing them tried to escape from the said place and he was also holding a bag. Therefore, PW1 along with his staff caught hold of him and on enquiry he came to know that the said person is selling prohibited narcotic drugs. In view of the evidence of PW.2, it is clear that when he was on patrolling duty the accused was found in suspicious circumstances and it is not that CCH-33 13 Spl.C.C.1939/2022 when he was in police station he had received the information. Therefore, the compliance of Section 42 does not arise, as contemplated under Section 43 of NDPS Act. PW.2 immediately proceeded to take action against the said suspected person and he secured two mahazar witnesses to the said place with the help of his staff and proceeded to seize the suspected contraband. At this stage, it is relevant to rely on the decision of Karnail Singh Vs., State of Haryana reported in (2009) 8 SCC 539. In the said decision in Para No.35 it is held as under:-
35. In conclusion, what is to be noticed is Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Section 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows :
(a) The officer on receiving the information (of the nature referred to in Sub-section (1) of section 42) from any person had to record it in writing in the concerned Register and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of section 42(1).14
(b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.
(c) In other words, the compliance with the requirements of Sections 42 (1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency.
(d) While total non-compliance of requirements of sub-sections (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending a copy of CCH-33 15 Spl.C.C.1939/2022 such information to the official superior forthwith, may not be treated as violation of section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of section 42 of the Act.
Whether there is adequate or substantial compliance with section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to section 42 by Act 9 of 2001.
As observed in Para-35(b) of the aforesaid decision if the information was received when the officer was not in the police station, but while he was on the move, either on patrol duty or other wise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clause 16
(a) to (d) of Sec.42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.
17. If the said observation of the Hon'ble Apex Court is taken into consideration with the facts of this case, in the present case also the PW.2 PSI was on patrolling duty and he found the accused person who was moving suspiciously, therefore, the PW.2 caught hold the accused and as the PW.2 was not in the police station, as observed in the afore said decision the question of compliance of Sec.42(1) of NDPS Act does not arise. However, in the present case, the investigating officer has noted down the said information in the Station House diary and a copy thereof is produced to the court. The copy of Station House diary is at Ex.P10. In view of that, it cannot be said that there is no compliance of Section 42(1) of NDPS Act.
18. As could be seen from Ex.P3, the PW.2, the raiding officer, soon after getting the mahazar witnesses to CCH-33 17 Spl.C.C.1939/2022 the spot, had approached them, informed to them and since the mahazar witnesses consented to be present at the time of seizure proceeding, he had issued Ex.P3 notice to the mahazar witnesses and both the mahazar witnesses have signed the said document.
19. Now, the Court has to examine the materials on record to the effect that whether the prosecution has complied the mandatory statutory provision contemplated U/s.50 of NDPS Act. At this stage, it is relevant to rely on the decision reported in (2014) 5 SCC 345 in the case of State of Rajasthan Vs., Parmanand and anr., wherein it is held as under:-
"C. Narcotic Drugs & Psychotropic Substances Act, 1985 - S. 50 - Applicability of - Conditions for - Personal search what is search of bag - When amounts to personal search - If merely a bag carried by a person is searched without there being any search of his person, S.50 will have no application-but if bag carried by him is searched and his person is also search, S.50 will have application - In the present case, R-1's bag was searched wherefrom opium was recovered - R-1's personal search was also carried out - Personal search 18 of R-2 was also conducted - therefore, S.50 will have application."
Further it is also held in the said decision as under:-
Held:
"A joint communication of the right available under Section 50(1) of the NDPS Act to the accused would frustrate the very purport of Section 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 and, 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."
On careful perusal of the aforesaid decision it could be understood that if merely a bag carried by a person is searched without there being search of his person, Sec.50 CCH-33 19 Spl.C.C.1939/2022 will have no application. But if bag carried by him is searched and his person is also searched Sec.50 will have application. If the said preposition of law is applied in the present case, it is the definite case of the prosecution that as could be seen from Ex.P.4, the seizure mahazar, the PW.2 specifically mentioned that he had appraised the right of the accused person to be searched by body searched in the presence of Magistrate or before the gazetted officer. As seen from this document, this document is prepared in the said place of incident and in this document, it is specifically mentioned that when PW.2 appraised the right of the accused to be body searched in the presence of Magistrate or before the gazetted officer, the accused had informed him that he is not having any contraband in his body or cloth and that he has cash of Rs.2,000/- in his hand and the contraband is in his bag. Since the accused did not opt to be body searched in the presence of the Gazetted officer or before the Magistrate, the PW.2 himself seized the contraband from the possession of the accused, which was 20 in a plastic cover, in the presence of mahazar witnesses and had drawn Ex.P.4 Mahazar. In the present matter, the accused himself produced the contraband which was in his possession in a plastic cover and the PW.2 had seized the said contraband in the presence of mahazar witnesses. It is not the case of the prosecution that after searching the body of the accused the contraband was seized. Therefore, in the present matter, it cannot be said that there is violation of the provisions of Section 50 of NDPS Act.
20. During the course of arguments, the counsel for accused submitted that the investigating officer has not taken photographs at the time of seizure proceedings. However, Ex.P.6 and P.7 are the photographs and as seen from the cross examination of PW.2, there is no cross examination on these two documents and the authenticity of these two documents has not been disputed by the counsel for accused. Even these two photographs are kept aside, on the basis of the contents of Ex.P4, the seizure CCH-33 21 Spl.C.C.1939/2022 mahazar, it is clear that there were seizure proceedings in the said place in the presence of two mahazar witnesses. The prosecution in order to substantiate that the mahazar was drawn in the presence of two witnesses has also examined one of the mahazar witnesses namely PW3. PW.3 Sri.Muniraju is a driver. He deposed about the drawing of seizure mahazar after seizure of the contraband from the custody of the accused person in Ambedkar Nagar, near Public Toilet. This witness has been subjected for cross examination by learned counsel for the accused. As seen from the cross examination, except suggesting certain suggestions, nothing has been elicited from him to discredit his evidence in examination in chief. PW.3 is an independent witness and he deposed in conformity with the evidence of the raiding officer namely PW.2. In view of the evidence of independent witness namely PW.3, the prosecution has established the seizure of the said contraband from the custody of the accused person. 22
21. PW.5 is the Investigating Officer in this matter. As seen from his evidence, as narrated hereinafter, he received the report from PW.2 the raiding officer along with the accused and the seized contraband. The report is at Ex.P8 and the FIR is at Ex.P9. The FIR was registered at 08.45 pm. This witness has also deposed about the report submitted to the higher officer regarding the Raid success as per Ex.P11. In view of that, the Section 57 of NDPS Act has also been duly complied with by the Investigating Officer.
22. As could be seen from Ex.P12 the inventory report, the Investigating Officer after submitting the property list to the court has prepared inventory in the presence of 6th Additional Chief Metropolitan Magistrate, Bangalore City. The Magistrate has also issued Certificate regarding the compliance of Section 52A of NDPS Act. As seen from Ex.P13, one Sri.A.N. Mulla, the Police Constable, attached to Adugodi Police Station had taken the CCH-33 23 Spl.C.C.1939/2022 representative sample of contraband to the FSL and submitted acknowledgment as per Exhibit P14. Ex.P13 is the report submitted by the concerned police constable. Ex.P1 is the FSL Report submitted by PW1. As seen from Ex.P1 FSL Report, the Scientific Officer, after receiving the contraband, had subjected the said ganja for five different tests and finally came to the opinion that the said contraband has responded positively for cannabis. In view of the report submitted by the Senior Scientific Officer, no doubt the contraband seized by PW.2 is ganja and it was weighing 5 Kg., 900 grams which is intermediate quantity.
23. During the course of arguments, learned counsel for accused has relied on the decision rendered in Crl. Revision Petition No.129/2021 of Hon'ble High Court of Karnataka dated 4.4.2024 in the case of Dayananda and anr., Vs., the State wherein the Hon'ble High Court discussed about the scope of Section 154 of Cr.P.C., and Section 157 of Cr.P.C.
24This Court has carefully gone through the said decision and the dictum laid down in the said decision is definitely not applicable to the present case because in the present case PW.2 was in on patrolling duty and at that time he accidentally came to know about selling of contraband by the accused in the said place and on suspicion he had taken the accused into custody and on enquiry he came to know that the accused was selling contraband and PW.2 seized the said contraband from the possession of accused. Therefore, definitely the raiding officer had no occasion to report first prior to raid.
24. At this stage, it is also relevant to relay on the decision of Hon'ble Supreme Court in Crl.Appeal No.250/2025 in the case of Bharat Aanbake Vs., State of Chhattisgarh wherein it is observed as under:-
28.In Khet Singh v. Union of India reported in (2002) 4 SCC 380 this Court held that the Standing Order(s) issued by the NCB and the procedure envisaged therein is only intended to guide the officers and to see that a fair procedure is adopted CCH-33
25 Spl.C.C.1939/2022 by the officer-in-charge of the investigation. It further observed that there may, however, be circumstances in which it would not be possible to follow these guidelines to the letter, particularly in cases of chance recovery or lack of proper facility being available at the spot. In such circumstances of procedural illegality, the evidence collected thereby will not become inadmissible and rather the courts would only be required to consider all the circumstances and find out whether any serious prejudice had been caused to the accused or not. Further it directed, that in such cases of procedural lapses or delays, the officer would be duty bound to indicate and explain the reason behind such delay or deficiency whilst preparing the memo. The relevant observations read as under: -
"5. It is true that the search and seizure of contraband article is a serious aspect in the matter of investigation related to offences under the NDPS Act. The NDPS Act and the Rules framed thereunder have laid down a detailed procedure and guidelines as to the manner in which search and seizure are to be effected. If there is any violation of these guidelines, the courts would take a serious view and the benefit would be extended to the accused. The offences under the NDPS Act are grave in nature and minimum punishment prescribed under the statute is incarceration for a long period. As the possession of any narcotic drug or psychotropic substance by itself is made punishable under the Act, the seizure of the article from the appellant is of vital importance.
xxx xxx xxx 26
10. The instructions issued by the Narcotics Control Bureau, New Delhi are to be followed by the officer-in- charge of the investigation of the crimes coming within the purview of the NDPS Act, even though these instructions do not have the force of law. They are intended to guide the officers and to see that a fair procedure is adopted by the officer-in-charge of the investigation. It is true that when a contraband article is seized during investigation or search, a seizure mahazar should be prepared at the spot in accordance with law. There may, however, be circumstances in which it would not have been possible for the officer to prepare the mahazar at the spot, as it may be a chance recovery and the officer may not have the facility to prepare a seizure mahazar at the spot itself. If the seizure is effected at the place where there are no witnesses and there is no facility for weighing the contraband article or other requisite facilities are lacking, the officer can prepare the seizure mahazar at a later stage as and when the facilities are available, provided there are justifiable and reasonable grounds to do so. In that event, where the seizure mahazar is prepared at a later stage, the officer should indicate his reasons as to why he had not prepared the mahazar at the spot of recovery. If there is any inordinate delay in preparing the seizure mahazar, that may give an opportunity to tamper with the contraband article allegedly seized from the accused. There may also be allegations that the article seized was by itself substituted and some other items were planted to falsely implicate the accused. To avoid these suspicious circumstances and to have a fair procedure in respect of search and seizure, it is always desirable to prepare the seizure mahazar at the spot itself from where the contraband articles were taken into custody.
CCH-33 27 Spl.C.C.1939/2022 xxx xxx xxx
16. Law on the point is very clear that even if there is any sort of procedural illegality in conducting the search and seizure, the evidence collected thereby will not become inadmissible and the court would consider all the circumstances and find out whether any serious prejudice had been caused to the accused. If the search and seizure was in complete defiance of the law and procedure and there was any possibility of the evidence collected likely to have been tampered with or interpolated during the course of such search or seizure, then, it could be said that the evidence is not liable to be admissible in evidence." (Emphasis supplied)
29.A similar view as above was reiterated in the decision of State of Punjab v. Makhan Chand reported in (2004) 3 SCC 453 wherein this Court after examining the purport of Section 52A of the NDPS Act and the Standing Order(s) issued thereunder, held that the procedure prescribed under the said order is merely intended to guide the officers to see that a fair procedure is adopted by the officer in charge of the investigation and they were not inexorable rules. The relevant observations read as under: -
"10. This contention too has no substance for two reasons. Firstly, Section 52-A, as the marginal note indicates, deals with "disposal of seized narcotic drugs and psychotropic substances". Under sub-section (1), the Central Government, by a notification in the Official Gazette, is empowered to specify certain narcotic drugs or psychotropic substances, having regard to the hazardous nature, vulnerability to theft, substitution, constraints of proper storage space and such other relevant considerations, so that even if they are material objects seized in a criminal case, they could be disposed of after following the procedure prescribed in sub-sections (2) and (3). If the procedure prescribed 28 in sub-sections (2) and (3) of Section 52-A is complied with and upon an application, the Magistrate issues the certificate contemplated by sub-section (2), then sub-section (4) provides that, notwithstanding anything to the contrary contained in the Indian Evidence Act, 1872 or the Code of Criminal Procedure, 1973, such inventory, photographs of narcotic drugs or substances and any list of samples drawn under sub-section (2) of Section 52-A as certified by the Magistrate, would be treated as primary evidence in respect of the offence. Therefore, Section 52-A(1) does not empower the Central Government to lay down the procedure for search of an accused, but only deals with the disposal of seized narcotic drugs and psychotropic substances.
11. Secondly, when the very same Standing Orders came up for consideration in Khet Singh v. Union of India this Court took the view that they are merely intended to guide the officers to see that a fair procedure is adopted by the officer in charge of the investigation. It was also held that they were not inexorable rules as there could be circumstances in which it may not be possible for the seizing officer to prepare the mahazar at the spot, if it is a chance recovery, where the officer may not have the facility to prepare the seizure mahazar at the spot itself. Hence, we do not find any substance in this contention."
(Emphasis supplied)
30.Thus, from above it is clear that the procedure prescribed by the Standing Order(s) / Rules in terms of Section 52A of the NDPS Act is only intended to guide the officers and to ensure that a fair procedure is adopted by the officer-in- charge of the investigation, and as such what is required is CCH-33 29 Spl.C.C.1939/2022 substantial compliance of the procedure laid therein. We say so because, due to varying circumstances, there may be situations wherein it may not always be possible to forward the seized contraband immediately for the purpose of sampling. This could be due to various factors, such as the sheer volume of the contraband, the peculiar nature of the place of seizure, or owing to the volatility of the substance so seized that may warrant slow and safe handling. There could be situations where such contraband after being sampled cannot be preserved due to its hazardous nature and must be destroyed forthwith or vice-verse where the nature of the case demands that they are preserved and remain untouched. Due to such multitude of possibilities or situations, neither can the police be realistically expected to rigidly adhere to the procedure laid down in Section 52A or its allied Rules/Orders, nor can a strait-jacket formula be applied for insisting compliance of each procedure in a specified timeline to the letter, due to varying situations or requirements of each case. Thus, what is actually required is only a substantial compliance of the procedure laid down under Section 52A of the NDPS Act and the Standing Order(s)/Rules framed thereunder, and any discrepancy or deviation in the same may lead the court to draw an adverse inference against the police as per the facts of each and every case. When it comes to the outcome of trial, it is only after taking a cumulative view of the entire material on record including such discrepancies, that the court should proceed 30 either to convict or acquit the accused. Non-compliance of the procedure envisaged under Section 52A may be fatal only in cases where such non-compliance goes to the heart or root of the matter. In other words, the discrepancy should be such that it renders the entire case of the prosecution doubtful, such as instances where there are significant discrepancies in the colour or description of the substance seized from that indicated in the FSL report as was the case in Noor Aga (supra), or where the contraband was mixed in and stored with some other commodity like vegetables and there is no credible indication of whether the narcotic substance was separated and then weighed as required under the Standing Order(s) or Rules, thereby raising doubts over the actual quantity seized as was the case in Mohammed Khalid (supra), or where the recovery itself is suspicious and uncorroborated by any witnesses such as in Mangilal (supra), or where the bulk material seized in contravention of Section 52A was not produced before the court despite being directed to be preserved etc. These illustrations are only for the purposes of bringing clarity on what may constitute as a significant discrepancy in a given case, and by no means is either exhaustive in nature or supposed to be applied mechanically in any proceeding under the NDPS Act. It is for the courts to see what constitutes as a significant discrepancy, keeping in mind the peculiar facts, the materials on record and the evidence adduced. At the same time, we may caution the courts, not to be hyper-technical whilst CCH-33 31 Spl.C.C.1939/2022 looking into the discrepancies that may exist, like slight differences in the weight, colour or numbering of the sample etc. The Court may not discard the entire prosecution case looking into such discrepancies as more often than not an ordinarily an officer in a public place would not be carrying a good scale with him, as held in Noor Aga (supra). It is only those discrepancies which particularly have the propensity to create a doubt or false impression of illegal possession or recovery, or to overstate or inflate the potency, quality or weight of the substance seized that may be pertinent and not mere clerical mistakes, provided they are explained properly. Whether, a particular discrepancy is critical to the prosecution's case would depend on the facts of each case, the nature of substance seized, the quality of evidence on record etc."
This Court carefully gone through the afore mentioned decision. As held in the aforesaid decision, the standing orders intending to guide the investigating agency to see that a fair procedure is adopted by the officers of investigation. It is also held that they were not inexorable rules, as there could be circumstances in which it may not be possible to seizing officer to draw mahazar at the spot. It is also made clear in the said decision as under:- 32
30.Thus, from above it is clear that the procedure prescribed by the Standing Order(s) / Rules in terms of Section 52A of the NDPS Act is only intended to guide the officers and to ensure that a fair procedure is adopted by the officer-in-
charge of the investigation, and as such what is required is substantial compliance of the procedure laid therein. We say so because, due to varying circumstances, there may be situations wherein it may not always be possible to forward the seized contraband immediately for the purpose of sampling. This could be due to various factors, such as the sheer volume of the contraband, the peculiar nature of the place of seizure, or owing to the volatility of the substance so seized that may warrant slow and safe handling. There could be situations where such contraband after being sampled cannot be preserved due to its hazardous nature and must be destroyed forthwith or vice-verse where the nature of the case demands that they are preserved and remain untouched. Due to such multitude of possibilities or situations, neither can the police be realistically expected to rigidly adhere to the procedure laid down in Section 52A or its allied Rules/Orders, nor can a strait-jacket formula be applied for insisting compliance of each procedure in a specified timeline to the letter, due to varying situations or requirements of each case. Thus, what is actually required is only a substantial compliance of the procedure laid down under Section 52A of the NDPS Act and the Standing Order(s)/Rules framed thereunder, and any discrepancy or deviation in the same may lead the court to draw an adverse inference against the police as per the facts of each and every case. When it comes to the outcome of trial, it is only after taking a cumulative view of the entire material on record including such discrepancies, that the court should proceed either to convict or acquit the accused. Non-compliance of the procedure envisaged under Section 52A may be fatal only in cases where such non-compliance goes to the heart or root of CCH-33 33 Spl.C.C.1939/2022 the matter. In other words, the discrepancy should be such that it renders the entire case of the prosecution doubtful, such as instances where there are significant discrepancies in the colour or description of the substance seized from that indicated in the FSL report as was the case in Noor Aga (supra), or where the contraband was mixed in and stored with some other commodity like vegetables and there is no credible indication of whether the narcotic substance was separated and then weighed as required under the Standing Order(s) or Rules, thereby raising doubts over the actual quantity seized as was the case in Mohammed Khalid (supra), or where the recovery itself is suspicious and uncorroborated by any witnesses such as in Mangilal (supra), or where the bulk material seized in contravention of Section 52A was not produced before the court despite being directed to be preserved etc. These illustrations are only for the purposes of bringing clarity on what may constitute as a significant discrepancy in a given case, and by no means is either exhaustive in nature or supposed to be applied mechanically in any proceeding under the NDPS Act. From the above observation the could has to look into the factor cumulatively considering the facts and circumstances of each case. If the Court has otherwise reason to doubt the case of prosecution, then look into the procedure followed by the investigating agency carefully to find out whether there is any infirmity in the investigation. When there is no reason to doubt the process of investigation and the flaws pointed out by the learned counsel for accused regarding 34 improper compliance of the provisions of NDPS Act, it does not go to the root of the prosecution.
25. When the prosecution initially established its case and could prove that the investigating officer seized the prohibited narcotic drug from the custody of accused, the alleged possession of prohibited narcotic drug found in the possession of the accused ought to have explained by the accused. The accused has also been subjected for examination under Section 313 of Code of Criminal Procedure. During the course of his examination under Section 313 of Code of Criminal Procedure also the accused except denying the incriminating statements made against him, has not put forth any explanation regarding the possession of the said prohibited narcotic drug in his possession. When the witnesses examined on behalf of the prosecution including independent witness namely PW.3, supported the case of the prosecution and as the counsel for CCH-33 35 Spl.C.C.1939/2022 the accused could not take a specific defence, there is no reason to doubt the case of the prosecution.
26. Further, as contemplated under Section 35 of NDPS Act. In any prosecution for an offence under NDPS Act, which requires a culpable mental state of the accused, the court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. For the purpose of Section 35 of NDPS Act, a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probabilities. However, in the present case, it is the specific case of the prosecution that PW.1 the raiding officer caught hold the accused with the contraband, which was in his custody and if at all the accused is able to explain under which circumstances he was in custody of the said contraband, then only the court can doubt the case of 36 the prosecution and by accepting the defence taken by the accused. However, in the present case, there is no such explanation by the accused regarding the possession of the said contraband when he was caught hold by PW.2.
27. Further, it is true that Section 54 of NDPS Act raises a presumption and the burden shifts on the accused to explain as to how he came into possession of the contraband. But to raise the presumption under Section 54 of the Act, it must first be established that a recovery was made from the accused. In the present case, undoubtedly, the prosecution successfully established that the contraband, namely 5.900 Kgs., of ganja had been seized from the custody of the accused.
28. In view of the discussion made in the foregoing paragraphs, it is the considered view of this Court that the prosecution has proved beyond all reasonable doubt that the accused has committed the offence punishable U/s.20(b)(ii)(B) of NDPS Act. Therefore, the accused is liable CCH-33 37 Spl.C.C.1939/2022 to be convicted for the said offence. In view of that, the point for consideration is answered in the Affirmative.
29. Point No.3: In the result, this Court proceeds to pass the following:
::ORDER::
Acting under Section 235(2) of Cr.P.C., accused Samuel @ Sham is convicted for the offence punishable under Section 20(b)(ii)(B) of NDPS Act.
To hear regarding Sentence.
[Dictated to the Stenographer, directly on the computer, typed by her, corrected, signed and then pronounced by me in Open Court on this the 20th day of September 2025) (LATHA) XXXIII ACC & SJ & SPL.JUDGE (NDPS) BANGALORE.38
ORDER ON SENTENCE Heard the accused, learned counsel for accused and learned Public Prosecutor regarding sentence.
2. It is submitted by learned counsel for accused that his conduct during trial has to be taken into consideration, that if he is convicted and sentenced to undergo imprisonment his reputation would be tarnished in the society, that he has no bad antecedents, that on looking to the conduct of the accused through out the trial, lenient view may be taken into consideration.
Further the learned counsel for accused has also produced certain medical documents relating to the health issues of the wife of the accused and submitted that the accused has two children who are studying and if the accused is sentenced for more years his family would be ruined.
3. On the other hand, it is submitted by the prosecution that the accused has committed the offence punishable under NDPS Act, which affects the younger generation and interest of the Society. Therefore, the accused being guilty is liable for maximum punishment prescribed under the Act.
CCH-33 39 Spl.C.C.1939/2022
4. The Hon'ble Apex court in State of M.P V/s Surendra Singh AIR 2015 SC 3980 based on the theory of proportionality it is laid down as under:-
"undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of the every court to award proper sentence having regard to the nature of offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. The court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment. Meager sentence imposed solely on account of lapse of time without considering the degree of the offence will be counter productive in the long run and against the interest of the society. One of the prime objectives of criminal law is the imposition of adequate, just, proportionate punishment which commensurate with gravity , nature of crime and the manner in which the offence is committed. One should keep in mind the social interest and conscious of the society while considering the determinative factor of the sentence with the gravity of crime.40
The Hon'ble Supreme Court reported in AIR 2015 SUPREME COURT 398 in the case of State of Madhya Pradesh Vs., Surendra Singh wherein it is held that: -
(A) Penal Code (45 of 1860) S.53 - Sentence - Proportionality
-Imposition of sentence must commensurate with gravity of offence.
Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every Court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing Courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. The court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment. Meager sentence imposed solely on account of lapse of time without considering the degree of the offence will be counter- productive in the long run and against the interest of the society. One of the prime objectives of criminal law is the imposition of adequate, just, proportionate punishment which commensurate with gravity, nature of crime and the manner in which the offence is committed. One should keep CCH-33 41 Spl.C.C.1939/2022 in mind the social interest and conscience of the society while considering the determinative factor of sentence with gravity of crime. The punishment should not be so lenient that it shocks the conscience of the society. It is, therefore, solemn duty of the court to strike a proper balance while awarding the sentence as awarding lesser sentence encourages any criminal and, as a result of the same, the society suffers.
With the backdrop of guidelines of Hon'ble Apex Court in the above referred decisions if the case on hand is scrutinized, in the instant case the accused herein was found in possession of 5 Kgs., 900 grams of ganja which is punishable U/Sec.20(b)(ii)(B) of NDPS Act.
The punishment for the offence U/s.20(B) of NDPS Act
- rigorous imprisonment for a term which may extend to ten years, and with fine.
5. At this juncture it is relevant to refer the judgment of Hon'ble High Court reported in ILR 2016 Kar 1232 Christian Chidieere Chukwu Vs., State - KR Puram PS., Bangalore and another. In the said case while considering the bail plea of the accused the Hon'ble High Court made an observation that the court shall take up the case on priority and shall pronounce verdict on priority basis. When convicted and he is sentenced to undergo imprisonment, 42 steps must be necessarily taken to deport him by the concerned. Further it is observed that court expects that there should not be any flea-bite sentence and the courts can use discretion in exceptional cases to impose lesser punishment and there must be exceptional grounds to adopt such a course.
6. On meticulous examination of available evidence on record, it is evident that the accused to earn money easily, went upto the extent of the spoiling the future of younger generation by selling the illegal drugs to them. When the individual right of the accused is compared in the light of the interest of the Society as a whole, which is to be protected by unscrupulous drug peddlers, the balance will tilt in favour of the society as a whole, rather in favour of the accused. This court has taken aggravating and mitigating circumstances put forth before the court, so also the nature and gravity of the offences. Therefore, in the considered opinion of this court, the accused has to be sentenced to rigorous imprisonment for a period of 03 years and a fine of Rs.50,000/- for the offence punishable under Sec.20(b)(ii)(B) of NDPS Act. In the result, this court proceeds to pass the following :-
CCH-33 43 Spl.C.C.1939/2022 ::ORDER::
Accused shall undergo rigorous imprisonment for a period of 03 years and shall pay fine of Rs.50,000/- in default, he shall undergo SI for a period of 6 months for the offence punishable U/s.20(b)(ii)(B) of NDPS Act.
M.O.1 contraband shall be destroyed through the Drug Disposal Committee in accordance with law. M.O.2 Cash of Rs.2,000/- shall be confiscated to State.
Further, office is hereby directed to send a copy of findings and sentence imposed in this case to learned jurisdictional District Magistrate as required U/s.365 of Cr.P.C.
It is apprised to the accused that he may prefer Appeal against this order before the Hon'ble High Court of Karnataka.
Office is directed to supply free copy of judgment to accused forthwith.
[Dictated to the Stenographer, directly on the computer, typed by her, corrected, signed and then pronounced by me in Open Court on this the 23rd day of September 2025) (LATHA) XXXIII ACC & SJ & SPL.JUDGE (NDPS) BANGALORE.44
ANNEXURE
1. List of witnesses examined for the:
(a) Prosecution:
P.W.1 : Dr. Srinatha B S
P.W.2 : Sri.Somanath N N
P.W.3 : Sri. Muniraju
P.W.4 : Sri. Nagaraj S Shettar
P.W.5 : Sri Basavaraj Jande
(b) Defence :
- NIL -
2. List of documents Exhibited for the:
(a) Prosecution:
Ex.P.1 : FSL report
Ex.P.2 : Sample seal
Ex.P.3 : Notice to mahazar witness
Ex.P.4 : Seizure mahazar
Ex.P.5 : Sample seal
Ex.P.6 : photo
Ex.P.7 : photo
Ex.P.8 : Complaint
Ex.P.9 : FIR
Ex.P.10 : Station House Diary
Ex.P.11 : Raid success report
Ex.P.12 : Certificate U/s.52A of NDPS Act, photos
Ex.P.13 : Report of Police constable
Ex.P.14 : FSL Acknowledgment
CCH-33
45 Spl.C.C.1939/2022
(b) Defence:
-Nil-
3.List of Material Objects admitted in evidence:
M.O.1 : Sample
M.O.2 : Cash
(LATHA)
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BANGALORE.
CN/*