Bangalore District Court
State By Banaswadi Police vs A1: Syed Munna @ Firdose @ on 30 April, 2016
IN THE COURT OF THE XXXIII ADDL.CITY CIVIL &
SESSIONS JUDGE & SPL. JUDGE (NDPS),
BANGALORE. CCH.33.
PRESENT:
Sri. D.Y. BASAPUR, B.Com., LL.B. (Spl.)
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BENGALURU.
DATED: THIS THE 30th DAY OF APRIL, 2016
SPL.C.C. NO.214/2011
COMPLAINANT : State by Banaswadi Police
(By Public Prosecutor)
V/S.
ACCUSED:
A1: Syed Munna @ Firdose @
Munna, S/o.Syed Ali, 45 years,
No.271, P&T Drivers Colony,
Ayodidas nagar, DG Halli,
Bangalore.
(By Sri HSI., Advocate)
1. Date of Commission of offence: 21.10.2010
2. Date of report of offence: 21.10.2010
3. Arrest of the accused : 21.10.2010
4. Date of release of accused on 5.11.2011
bail:
2
5. Period undergone in custody: 1 year 14 days
6. Date of commencing of 5.12.2015
recording Evidence :
7. Date of closing of Evidence : 2.4.2016
8. Name of the complainant: Sri T.Rangappa, PI
9. Offence complained of : U/s.22 of NDPS Act
10. Opinion of the Judge : Offence not proved
11. Order of sentence : As per final order
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JUDGMENT
The Police Inspector, Banaswadi Police Station, Bangalore filed charge sheet against accused in Cr.No.546/11 for the offences punishable U/Sec.22 of N.D.P.S. Act.
2. Brief facts of the case are as under:
That on 21.10.2011 at about 10.00 am., when the complainant was in station he got credible information that one person is selling brown sugar to the public on a two wheeler bearing No.KA 03 S 8936 near Muneshwara Temple, CCH-33
3 SPl.C.C.214/2011 Chikkabanaswadi, within the limits of Banaswadi Police Station. He informed the information to ACP and secured panchas. They all left to the spot at about 10.15 am., reached the spot at 10.30 am. They saw accused along with his two wheeler selling some thing to public. They apprehended him and enquired. He told that he was selling brown sugar. The complainant gave notice to the accused and informed about his personal search to be conducted before Gazetted officer or Magistrate. The accused consented to be searched before gazetted officer. He called ACP to come to the spot. ACP arrived at spot at about 11.45 am., and searched the accused. They seized 15 small plastic boxes containing brown sugar weighing in all 15 grams. They seized the two wheeler and brought the accused and property to police station and produced the accused before Magistrate and remanded to judicial custody.
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3. After taking cognizance registered the case. Accused appeared through their counsel and enlarged on bail. Copies of the prosecution papers were supplied to accused U/Sec.207 of Cr.P.C. After hearing, charge framed U/Sec.22(B) of N.D.P.S. Act, read over and explained to him. Accused pleaded not guilty and claimed to be tried.
4. In support of the case, prosecution has examined P.Ws.1 to 5 and got marked Exs.P1 to P16 and M.Os.1 to 04. After closure, accused is examined U/Sec.313 of Cr.P.C., he denied the incriminating circumstances appeared against him and not chosen to adduce evidence for his defence.
5. Heard the arguments on both sides.
6. The points for consideration are as under:
CCH-33 5 SPl.C.C.214/2011
1. Whether the prosecution proves that on 21.10.2010 at about 10.30 am., in front of Muneshwara Temple, Chikka Banasawadi, within the limits of Banaswadi Police station accused was found in illegal possession of 15 grams of brown sugar in the dickey of Kinetic Honda bearing No.KA 03 V 8936 which is a narcotic drug, without license or permit for the purpose of selling, there by accused committed the offence u/S.22(B) of NDPS Act?
2. What order?
7. My findings on the above points are as under:
Point No.1: In the negative.
Point No.2: See the final order for the following:
REASONS
8 POINT NO.1 :- The learned P.P. vehemently argued that as per evidence of pws.1 to 5 and Exs.P.1 to P.16 and M.Os.1 to 4, the prosecution proved the guilt. Learned counsel for accused argued that no mandatory provision complied and so many contradictions and discrepancies found in the prosecution witnesses.
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9. On careful perusal of the materials placed on record, the prosecution mainly relied on the testimonies of P.Ws.1, 2 and 5.
P.W.1 has stated that on 21.10.2011 at 10.00 am., he received information that on Banaswadi near Muneshwara Temple jagalikatte, a person standing with Kinetic Honda bearing No.KA 03 Y 8936 was selling brown sugar to public. He sent the said information through phone and obtained permission. He reduced the information in writing as per Ex.P1 to the SHD. He secured panchas C.Ws.2 and 3 issued notices Ex.P2 and also secured C.Ws.4 to 9 staff members and informed the same. they went to the spot, apprehended the accused. He explained the right of the accused prior to search and agreed to be searched by gazetted officer. he submitted Ex.P3 letter to ACP and requested to come to the spot, who came to the spot and prepared questionnaires Ex.P4 and obtained signature of the accused. on personal search they seized 15 small boxes of brown sugar weighed CCH-33 7 SPl.C.C.214/2011 about 27 grams brown sugar, separated and weighed. It was 15 grams, out of which 5 grams taken for sample and also seized mobile from him and prepared panchanama Ex.P5 and also prepared Ex.P6 sample seal. he brought the accused and property to the station and lodged complaint Ex.P7. he registered case and submitted F.I.R. he arrested the accused and recorded the voluntary statement of the accused Ex.P10. He submitted Ex.P11 report for success of raid. on 26.10.2011 he sent the sample articles to F.S.L and obtained report. In the cross examination of P.W.1 stated that he has not sent the information in writing to superior officer. Ex.P10 attested by him and he has not obtained search warrant. Panch witnesses are not neighbouring witnesses. he admits that he has not produced the log book to show that they used the departmental vehicle. Further admits that crime No., and PF No., is mentioned on articles. According to P.W.1 he seized the articles and affixed the chit at spot. In the cross examination stated that he has written the crime No. at the time of property submitted to the court. chits bear the 8 signature of P.W.1 and panch witnesses. but in the absence of panch witnesses he has over written the crime No. on the chits. So it creates doubt that whether chits affixed prior to registering the case or subsequent to registering of the case. He admits that when he left the office, one ASI-Shanthappa was SHO. If it is so, when he returned to the station after seizure, P.W.1 would have lodged complaint before SHO. But he himself voluntarily registered the case and investigated the case. So P.W.1 himself is a search and seizure officer as well as I.O. Naturally his testimony cannot be believable. However, it can be considered along with other reliable evidence. He admits that as per Ex.P1 case is registered at 3.00 pm. In Ex.P8 F.I.R shows that it submitted to court on next day at 3.00 pm. But no explanation for delay in submitting the F.I.R to court. he denied that he has not recorded the voluntary statement of the accused and witnesses and falsely submitted the charge sheet.
CCH-33 9 SPl.C.C.214/2011
10. P.W.2 then ACP, P.W.5 HC are also raiding members and supported the testimony of P.W.1. P.W.2 stated that he received the information through PW1, at 11.00 am., he received Ex.P3 and went to the spot and seized the articles from the possession of the accused. He prepared Ex.P4 questionnaires to the accused prior to search and obtained LTM. In the cross examination of P.W.2 stated that one Razak PC brought Ex.P3 to his office. He has not put his seal. Further stated that he has not seized personally. P.W.1 seized the boxes. But it is not packed before him. When M.O.3 is shown to him he answered that they are bottles. So, the presence of P.W.2 is contrary to the testimony of P.W.1. He admits that prior to raid P.W.1 has not obtained the written permission from him. P.W.5 in his cross examination stated that they tried to apprehend the other persons along with accused, but they escaped. No person appointed as decoy to confirm the drugs.
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11. P.W.4 stated that he took further investigation from PW.1 and received the F.S.L report and submitted charge sheet. In his cross examination denied that he has falsely filed charge sheet. P.W.3 F.S.L officer stated that on 19.12.2011 he opened the sample articles and conducted various tests on the sample articles and issued report Ex.P15 and opined that the sample articles responded positive for presence of diacetyl morphine (brown sugar) along with Alfrazolam, caffeine and Paracetamol. In his cross examination denied that he has not personally conducted the tests. As per testimony of P.W.3 sample articles may respond positive for the presence of diacetyl morphine (brown sugar) along with Alfrazolam, caffeine and Paracetamol but the said sample articles are seized from the possession of the accused is not proved as none of the panch witnesses examined by the prosecution in spite of sufficient opportunity was given. He admits that caffeine and Paracetamol are medicines available in the market. So opinion of P.W3 is also not helpful to the case of the prosecution in the absence of proving seizure.
CCH-33 11 SPl.C.C.214/2011
12. Ex.P1 SHD is pertaining to particular single date and xerox copy attested by P.W.1, subsequently. The copy of Ex.P1 is not sent in writing to superior officer. Ex.P2 panch notice is original. Whether copy of Ex.P2 is issued to panchas or not is not explained. Moreover, panch witnesses have not examined by the prosecution to believe whether notice issued to them and seized the articles in their presence. Ex.P3 letter sent to ACP and requested to come to the spot. it is also carbon copy, no seal of ACP put on Ex.P3. Ex.P4 questionnaires issued to accused does not reveal that whether accused produced before independent Gazetted officer or Magistrate and as ACP himself is a gazetted officer, whether search may be conducted by him or not. Legal right of the accused is not specifically mentioned in Ex.P4. Alternate suggestions put to accused are not in accordance with law. LTM of accused is obtained, answers taken by him is also written by same person. No endorsement for contents of Ex.P4 is read over and explained to accused. Ex.P5 mahazar reveals that legal right of the accused is not 12 explained and it is not proved by examining independent panch witnesses. Ex.P10 voluntary statement of accused is not admissible in evidence as it is recorded after seizure and arrest and no further articles seized from his possession. Ex.P11 report submitted after success of raid. in the absence of complying mandatory provisions U/s.42 and 50 of NDPS Act, compliance U/s.57 is not a valid compliance. Compliance with provisions of Sec.57 does not dispense compliance with requirement of Ss.42 and 50.
13. In view of the decisions reported in AIR 2013 Supreme Court 357 in the case of Krishan Chand Vs., State of Haryana wherein it is held that:-
(A) Narcotic Drugs and Psychotropic Substances Act (61 of 1985), Ss 42, 50, 57 -
Search - Pre search requirement of recording information received and sending it to superior officer-Demands exact and definite compliance as opposed to substantial CCH-33 13 SPl.C.C.214/2011 compliance - So is requirement of S.50 - Compliance with provisions of S.57 does not dispense compliance with requirements of Ss.42 and 50.
2014 Crl.L.J. 1756 in the case of State of Rajasthan Vs., Parmanan and another wherein it is held that:-
(c) Narcotic Drug and Psychotropic Substances Act (61 of 1985), S 50 - Search and seizure -
Option to be searched before Gazetted officer or Magistrate -third option given to accused persons viz., to be searched before Superintendent who was part of raiding party-Would frustrate provisions of S.50 (1) Search conducted therefore, is vitiated." 2002 Crl.L.J. 4502 in the case of Koyappakalathil Ahamed Koya Vs., A.S.Menon and another, wherein it is held that:-
(c) Narcotic Drug and Psychotropic Substances Act (61 of 1985), S 50 - Search an seizure-
procedure-Right given to accused to get searched in presence of Gazetted officer or 14 Magistrate -fact that members of raiding party informed accused that Gazetted Officer is present in raiding party-It is allurement given to accused prompting him for expressing no objection for being searched in presence of said Gazetted officer - An not for asking to be searched in presence pf any other Gazetted officer or Magistrate -Sai procedure is against safeguard provided by S.50 to accused.
AIR 2013 Supreme court 953 in the case of Sukhdev Singh Vs., State of Haryana wherein it is held that:-
(B) Narcotic Drug and Psychotropic Substances Act (61 of 1985), S 42 - Search an seizure - On receipt of secret information-
Requirement to reduce information in writing and sent it forthwith to superior officer- Is mandatory-Needs strict compliance-Some delay in compliance is permissible only for special reasons but compliance should be prior to recovery.
(c) Narcotic Drug and Psychotropic Substances Act (61 of 1985), S 42, 15 - Search conducted CCH-33 15 SPl.C.C.214/2011 hours after receipt of information-no effort was made by I.O to reduce information in writing and inform his higher authorities instantaneously or even after or reasonable delay-No evidence produced to show as to what prevented I.O from recording information and sending it to superior total non compliance with provisions of S.42 - Such defect is incurable -Accused liable to be acquitted.
2009 Crl.L.J. 2407 in the case of UOI Vs., Bal Mukund and others wherein it is held that:-
(B) Narcotic Drug and Psychotropic Substances Act (61 of 1985), Ss.8, 18, 67 -
Recovery of narcotics-confessional statements by accused-Admissibility purported raid conducted early in morning-Large number of police officers including high ranking officers were present-accused were found to be in possession of 10 Kgs., of narcotics-Documents categorically show that accused were interrogated - Therefore, confessional statements cannot be said, in the back drop 16 of aforementioned events, to be made by them although they had not been put under arrest- court while weighing evidentiary value of such statements cannot lose sight of ground realities-circumstances attendant to making of such statements should be taken into consideration.
On careful reading of the above said decisions, the fact, circumstances and ratio is similar with case on hand.
2014(4) Crimes 304 (P&H) - Ram Lubhaya vs. State of Punjab, 2011 (3) Crimes 210 (SC) - Rajendra Singh vs. State of Haryana, 2013 (1) Crimes 51 (SC) - Suresh and others vs. State of Madhya Pradesh, 2011 (4) Crimes 26 (SC) - State of Delhi vs. Ram Avtar @ Rama, 2011(1) Crimes 508 (Karnataka) - K.K. Rejji and others vs. State by Murdeshwar Police Station, Karwar.
2014(2) Crimes 234 (Kar) in Ravi and others Vs., State by Manna-E-Khelli Police, Bidar district wherein it is held that:-
CCH-33 17 SPl.C.C.214/2011 "Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 20(b)(ii)(c) and 42 -
Recovery of 5 bags of ganja weighing 45 kilograms from possession of appellants - Conviction by Trial Court - Appeal against conviction - Failure to comply with procedure under section 42 of Act - absence to record in writing the information received in first instance - No emergent situation which warranted postponement of said Act of recording the information received in writing- Nor any such record in writing at a later point of time - Held entire proceedings Vitiated by virtue of failure to record circumstances in writing - Quantity of ganja indicated as having been in possession of appellants was also inaccurate as the weighment was of stalks, leaves seeds and possibly the flowering and fruiting tops - inaccurate weighment would have a telling effect on the degree of punishment that could be imposed-this was because NDPS Act provides for a schedule which prescribes the degree of punishment dependent on the weight of substance involved
-m hence, held that there was a failure in the 18 charges being framed accurately against accused - impugned judgment of court below set aside - Appeal allowed."
2014 (1) Crime 324 (SC) State of Rajasthan Vs., Parmanand and another wherein it is held thus:
(a) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 50 - Provision is mandatory - but it applies to search of the person of the accused only - does not apply to search of a bag carried by him - However, if the bag carried by him is searched and his person is also searched, Section 50 applies.
"(b) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 50 - Two accused persons - not informed of their rights individually - Joint notice communicated - one of the accused signing for both - conviction vitiated."
On careful reading of above decisions, facts, circumstances and ratio is applicable to case on hand, as prosecution has not followed mandatory provisions.
CCH-33 19 SPl.C.C.214/2011
14. For the above, in the absence of corroborated evidence the testimony of prosecution witnesses cannot be reliable to prove the guilt of the accused. So many considerable contradictions and discrepancies found in the prosecution witnesses. There is no link of chain found in the circumstantial evidence. Serious doubt arises in the mind of the Court to believe that accused has committed the offence. So accused is entitled for the benefit of doubt. Hence prosecution has utterly failed to prove the guilt beyond reasonable doubt. Accordingly, I answer point No.1 in the 'Negative'.
15. Point No.2: In the result, following:
ORDER Acting under Section 235(1) of Cr.P.C. accused is acquitted for the offence punishable under Section 22(B) of N.D.P.S. Act.20
M.Os.1, 2 & 4 sample, bulk and mobile are ordered to be confiscated to State after appeal period is over.
M.Os.1 & 2 sample and bulk are ordered to be returned to PI, Banaswadi Police station, Bangalore with a direction to destroy the same as per law.
M.O.3 plastic covers is ordered to be destroyed.
Bail bond of the accused shall stands cancelled.
Accused is released U/Sec.437(A) of Cr.P.C., on execution of bond for Rs.50,000/- with a surety for likesum, for the purpose of his appearance before Appellate Court, in the event of filing of any appeal by the State.
[Dictated to the Stenographer, transcribed and computerised by her, corrected, signed and then pronounced by me in Open Court on this the 30th day of April, 2016.] (D.Y. BASAPUR) XXXIII ACC & SJ & SPL.JUDGE (NDPS) BANGALORE.
CCH-33 21 SPl.C.C.214/2011 ANNEXURE
1. List of witnesses examined for the:
(a) Prosecution:
P.W.1 : T Rangappa
P.W.2 : Narayanaswamy
P.W.3 : PR Jayaram
P.W.4 : Rohit CE
P.W.5 : Ravindra
(b) Defence :
NIL
2. List of documents exhibited for the:
(a) Prosecution:
Ex.P.1 : SHD
Ex.P.2 : Notice
Ex.P.3 : Request letter
Ex.P.4 : Body search memo
Ex.P.5 : Panchanama
Ex.P.6 : Specimen seal
Ex.P.7 : Complaint
Ex.P.8 : F.I.R
Ex.P.9 : PF
Ex.P.10 : Statement of accused
Ex.P.11 : Report of DCP
Ex.P.12 : passport
Ex.P.13 : Acknowledgement of F.S.L
Ex.P.14 : Photo of vehicle
Ex.P.15 : F.S.L report
Ex.P16 : Sample seal
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(b) Defence:
NIL
3.List of Material Objects admitted in evidence:
M.O.1 : Sample of F.S.L
M.O.2 : Brown sugar bulk
M.O.3 : Plastic cover
M.O.4 : Mobile
(D.Y. BASAPUR)
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BANGALORE.
CN/*