Bangalore District Court
Customs Ps vs Nihaal S on 16 May, 2025
KABC010118932022
IN THE COURT OF THE XXXIII ADDL. CITY CIVIL
& SESSIONS JUDGE & SPL. JUDGE (NDPS),
BANGALORE. CCH-33
: : PRESENT : :
SRI. VIJAYA DEVARAJA URS, B.Com., LL.B.,
XXXIII A C C & S J & SPL. JUDGE (NDPS)
BENGALURU
DATED THIS THE 16TH DAY OF MAY 2025
: : SPL. C. C. No. 933/2022 : :
COMPLAINANT : The Inspector of Customs,
Headquarters Preventive
Unit(HPU),
Bengaluru City Customs,
Bangalore 560 001.
(BY SPL. PUBLIC PROSECUTOR)
V/s.
ACCUSED : Sri. Nihaal. S,
S/o. Sunil N,
Aged about 25 years,
R/at. No. 3, 7th Cross,
Govindappa Layout,
Horamavu Agara,
Bengaluru 43.
(BY SRI. H.P. SENIOR COUNSEL FOR M.M.,
ADVOCATE)
JUDGMENT 2 CCH-33
SPL. C C No. 933/2022
Sl.
DESCRIPTION DATE/S
No.
1 Date of Commission of offence : 18.10.2021
2 Date of report of offence : 18.10.2021
3 Arrest of the accused : 24.10.2021
4 Date of release of accused on Accused is in
bail : judicial
Custody.
5 Period undergone in custody 3 years 6
: months 22
days.
6 Date On Framing Charges : 15.10.2022
Date of commencing of
7 : 23-02-2023
recording Evidence
8 Date of closing of Evidence : 28-11-2024
Date On Recording Statement
9 : 05-12-2024
U/Sec. 313 Of CR. P.C.
10 Name of the complainant Sri. M. Shankar
:
Kumar
11 Offence complained of : U/Secs. 22(c),
23(c), 27, 28 &
29 of NDPS Act,
1985.
12 Opinion of the Judge : Accused not
found guilty
13 Final Order/ Sentence : Acquittal.
JUDGMENT 3 CCH-33
SPL. C C No. 933/2022
:JUDGEMENT::
This is a case in which accused has faced trail for commission of the offences punishable under sections 22(C) & 23(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 on the allegations that he booked and received illegal drugs & psychotropic substances to the tune of 15 grams of 1120 LSD strips without any permit or licence, in contravention of Section 8 (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985.
2. The case of the prosecution as borne out from the complaint is as under :-
2(a). The superintendent of Customs, Postal Appraisal Department, Chamarajpet, Bengaluru was on his duty on 18-10-2021 and while he was examining the parcels through scanner, a parcel with tracking No. RR 485422921PL found to be containing some contraband/items prohibited under N D P S Act, 1985.
JUDGMENT 4 CCH-33
SPL. C C No. 933/2022
He verified the said parcel. One Mr. Menedor Sp.z.o.o. ul.
Bema 40/3 08-11, Siedlee, Poland was the consignor and Mr. Madan M., White Orchid, 7th cross, Om Shakti Temple Road, Banjara Layour, Horamavu Agara, Bengaluru, Karnataka-560 113 was the consignee.
2(b). He opened the said parcel and examined the same in the presence of two independent witnesses.
The weight of the parcel was 45 grams. On opening the said parcel, he found a transparent plastic packet.
It contained 1120 paper strips totally weighing 15 grams.
He took out a strip and tested the same with DD Kit and it gave positive result for LSD. He seized the said contraband and packing materials by drawing a detailed mahazar in the presence of independent witnesses and Post Master of Foreign Post Office.
2(c). He intimated the incident to the Deputy Commissioner of Customs, Headquarters Preventive Unit JUDGMENT 5 CCH-33 SPL. C C No. 933/2022 (HPU), City Customs Commissionerate, Bangalore for further action by forwarding seizure mahazar.
2(d). The Deputy Commissioner of Customs, Headquarters Preventive Unit (HPU), Bengaluru issued authorization to one Sri. Rajiv Kumar Singh to search the consignee's premises. The said officer could not trace/locate the address mentioned on the parcel.
2(e). A request was made to the Director General, Narcotics Control Bureau, New Delhi to authorize officer of the Customs to undertake Controlled Delivery operation to intercept the actual recipient of the parcel. Sri. Rajiv Kumar Singh / Investigating Officer / Authorized Officer was authorized to undertake controlled delivery operation by the authority concern. It has come to the notice of the Investigating Officer that the postal pin code mentioned on the parcel comes within the jurisdiction of Kalyan Nagar Post Office and the address mentioned on JUDGMENT 6 CCH-33 SPL. C C No. 933/2022 the parcel comes under the jurisdiction of Horamavu Post Office.
2(f). The I O has a reasonable belief that the consignee / Madan M would come to the post office to collect the parcel as the address/pin code mentioned on it was not proper. He directed the Foreign Post Office to move the Dummy parcel through Kalyan Nagar Post Office to Horamavu Post Office. He along with his team and independent witnesses visited the Horamavu Post Office on 23-10-2021 and confirmed that the Dummy parcel with same tracking number was within the custody of the delivery official. One Sri. U Sharon, Post man had intimated the I O that he was the in-charge of the area i.e., address mentioned on the dummy parcel. The I O shared the information that he had with above said U Sharan and requested him to raise his hand in the air JUDGMENT 7 CCH-33 SPL. C C No. 933/2022 once the person comes to collect the above said tracking number parcel.
2(g). On 23-10-2021 at about 9.30 a.m. a person entered the post office and enquired with the receptionist and later approached Sri. U Sharan. He(Sri. U Sharan) raised his hands in the air. Thereafter, he handed over the foreign parcel to the said person after taking acknowledgment on a paper. When the said person about to exist from the Post Office, the I O and his team intercepted the said person and enquired about his name/identity and address.
2(h). On enquiry, he disclosed his name as " Nihaal S " and he came to the post office on the instructions of his friends " Madan M " & " Melford " to collect the parcel. The I O has apprised rights of the accused in respect of body search. The I O seized the JUDGMENT 8 CCH-33 SPL. C C No. 933/2022 dummy parcel, mobile phone and cash of Rs. 680/- under a mahazar in the presence of independent witnesses.
2(i). Thereafter, notice under section 67 of the Act was issued to accused to appear before the authorized officer/C w-7. The accused appeared and gave voluntary statement. That statement revealed that, his friend Melford Laybourne booked the LSD in a fictious- name, Madan M and also the address. He (Melford Laybourne) asked him(acccused) to collect the parcel from Kalyan Nagar Post office. He went to the Kalyan Nagar Post office and came to know that the parcel was re-directed to Horamavu Post Office. It also revealed that, he used to consume ganja which was received from his friend. The accused confessed his crime when he was interrogated and then he was arrested and produced before this Court.
JUDGMENT 9 CCH-33
SPL. C C No. 933/2022
2(j). The C w-12 filed a requisition before the
Hon'ble Magistrate, prepared the inventory, produced the seized article for drawing samples for sending the same to forensic analysis, & obtained the certificate,. Two samples i.e., S-1 and S-2 were received from the Hon'ble Magistrate Court and one part of samples was forwarded to the Central Revenues Control Laboratory, Chennai (CRCL). During the further investigation, Statements of C w-2 to 5, 3, & 13 to 16 were recorded. Mobile was sent to CFSL, Hyderabad for data analysis. After analysis, reports were received from the CRCL to the effect the samples gave positive test for LSD and CFSL, Hyderabad in respect of data retrieve. After completion of the investigation, the I O (Charge-sheet witness No. 12) filed charge sheet/complaint for the offences mentioned in it against the accused person.
JUDGMENT 10 CCH-33
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2(k). The accused has been in judicial
custody since the date of his arrest. This Court's learned Predecessor-in-office on perusing the contents of the charge sheet and the annexed documents, had taken cognizance for the offences punishable under sections 8(c), 22(c), 23(c), 27, 28 and 29 of the NDPS Act. 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.
3. Since the offences levelled against the accused are cognizable in nature, this Court's learned Predecessor-in- office heard the learned counsel for the accused and Spl. Public Prosecutor on the question of charges. The materials placed on record by the prosecution made out a case for trial against the accused. Thereafter, this Court's learned Predecessor-in-office framed charges JUDGMENT 11 CCH-33 SPL. C C No. 933/2022 against the accused for the above offences on 15-10- 2022. Then, the charges read-over, and explained to him in the language known to him. He, after understood the contents of the charges, pleaded not guilty and claimed to be tried. This Court recorded the plea and then posted the case for recording the evidence for the prosecution.
4. In order to bring home the guilt of the accused, the prosecution has examined in all eleven witnesses as P w-1 to 11, got marked eighteen documents i.e., Ex. P-1 to 18, & M. O. 1 got admitted during the course of evidence. After closure of the prosecution side evidence, accused was examined under section 313 of the Criminal Procedure Code, 1973 by explaining the incriminating circumstances available against him. The case of the accused is that of total denial.
5. On perusal of the evidence available on record and the statement of the accused, this Court was of the JUDGMENT 12 CCH-33 SPL. C C No. 933/2022 considered opinion that the accused was not entitled for an order of acquittal under section 232 of Criminal Procedure Code, 1973. Thereafter, the accused was called upon to lead evidence, if any. The accused has submitted that he has no evidence to lead on his side. However he got marked four documents as Ex.D-1 to D-4 through prosecution witnesses.
6. This Court has heard the arguments of the learned Public Prosecutor and also the learned counsel for the accused. The learned Spl. Public Prosecutor also filed written arguments. The learned counsel for the accused placed following judgments/citations-
1. 2021 (19) SCC 606 in between Boota Singh Vs. State of Harayana.
2. 2009(8) SCC 539 in between Kanail Singh Vs. State of Haryana.
3. 2013(2) SCC 502 in between Kishan Chand Vs. State of Haryana.
4. 2013(2) SCC 502 in between Sukhdev JUDGMENT 13 CCH-33 SPL. C C No. 933/2022 Singh Vs. State of Haryana.
5. 1995 (4) SCC 255 in between Pradeep Narayan Madgaonkar Vs. State of Maharashtra.
6. 2006(12) SCC 321 in between Ritesh Chakarvarti Vs. State of M.P.
7. 2023 SCC Online SC 906 in between Simranjit Singh Vs. State of Punjab.
8. 2023 SCC Online SC 862 in Mangilal Vs. State of M.P.
9. 2023 SCC Online SC 1213 in between Balwinder Singh Vs. NCB.
10. 2024 SCC Online SC 680 in between Firdos Khan Vs. State of Gujarath.
11. 2022 Live Law (SC)1002 in Amar Chand Vs. State of Gujrath.
12. 2021 (2) SCC 50 in between Bharat Choudhary Vs. Union of India.
13. 1999(7) SCC 280 in between State of H.P Vs. Jail Lal and Others.
7. Having heard the learned Public Prosecutor, the learned Counsel for the accused and on perusal of the above rulings and the written arguments, the following points that arise for consideration is as follows :-
JUDGMENT 14 CCH-33
SPL. C C No. 933/2022
Point No. 1 : Whether the prosecution has proved beyond all reasonable doubt that accused had visited the Horamavu Post Office on 23-
10-2021 to collect the parcel with tracking No. RR 485422921PL representing himself as " Madan M " by furnishing false identity card/ID and received the Dummy parcel ?
Point No. 2 : Whether the prosecution has proved beyond all reasonable doubt that accused procured the/imported LSD 1120 strips weighing to the tune of 15 grams from Poland and thus he has violated the provision of Sec. 8(c) and committed offences JUDGMENT 15 CCH-33 SPL. C C No. 933/2022 punishable under Secs. 22(c) & 23(c) of the N D P S Act, ?
Point No. 3 : What Order or Sentence?
8. The findings on the above points by this Court are as under :-
Point No. 1 : In the Negative,
Point No. 2 : In the Negative,
Point No. 3 : As per the final order for
the following....
::REASONS::
9. Point No. 1 :
Even in case punishable under the provisions of NDPS Act, 1985, the burden is upon the prosecution to prove the charges leveled against the accused. Since the punishment contemplated under the provisions of this Act are severe, prosecution is expected to comply with all the mandatory provisions of the Act properly.
JUDGMENT 16 CCH-33
SPL. C C No. 933/2022
9(a). The prosecution has examined C w-1,
Sri. M. Shankar Kumar as P w-1 who deposes that he was working as Postal Appraisal Department during the years 2021 & 2022 in Foreign Post Office, Chamarajpet, Bangalore. On 18-10-2021 he was examining the parcels and he suspected the parcel bearing No. RR 485422921Pl to be contained some illegal articles. He scanned the said parcel and came to know that it contained some Narcotic Drugs. He opened the said parcel in the presence of two independent witnesses (C w-3 & Cw-4) and found some stamps like strips. He tested one of the stamp/strip with Drugs Detection Kit and the same gave positive result for L S D. He immediately, seized the contraband by drawing a mahazar as per Ex.P-1. He further deposes that he had intimated the same to the Deputy Commissioner of Customs, Headquarters Preventive Unit (HPU), City Customs, Bangalore for further action by forwarding JUDGMENT 17 CCH-33 SPL. C C No. 933/2022 seizure mahazar. He identifies the said letter as Ex. P-2.
9(b). The prosecution has examined one of the attesting witnesses to the Ex. P-1 i.e., Sri. Tejas J N, C w-3 as P w-4. He deposes that he was working in Foreign Post Office, Chamarajapet, Bangalore in the year 2021. He was there on contract basis. During that period, the Customs Inspector informed him that he suspected a parcel to be containing drugs. He opened the same and tested the same with Drugs Detection Kit. He further deposes that in his presence, a detailed mahazar was drawn and seized the article. He identifies the mahazar before the Court and seized article as M O No. 1.
9(c). As per the Ex. P-1 the parcel was addressed to one " Sri. Madan M., White Orchid, 7th cross, Om Shakti Temple Road, Banjara Layout, Horamavu Agara, Bangalore-560 043 ". The parcel JUDGMENT 18 CCH-33 SPL. C C No. 933/2022 was sent by one Mr. Menedor Sp. Z.o.o., ul Bema 40/3 08-110 Siedlce, Poland (from foreign country).
9(d). As per Ex. P-2 i.e., letter dated 18-10- 2021 the Pw-1, addressed a letter to the Deputy Commissioner of Customs, Preventive Section, City Customs, Bangalore reporting/intimating the Tracking No. of the Parcel, Recipient's Name and address and to take necessary legal action. As per Ex. P-2, the mahazar and copy of Way-Bill were also enclosed along with the letter.
9(e). Both these witnesses were cross examined by the learned senior counsel for the defence. Even remotely, no suggestion was put to them that, the MO-1 parcel was not received from Poland with tracking No. RR 485422921Pl. Even remotely, no suggestion was put to them that, the P w-1 has not opened the same and the same was not contained any kind of contraband.
JUDGMENT 19 CCH-33
SPL. C C No. 933/2022
The Ex. P-1 and 2 are not contraverted in any manner. P w-1 admits the suggestion that he did not secure any independent witnesses for mahazar proceedings. He also admits the suggestion that he had not video recorded the proceedings i.e., opening of parcel, seizure procedure and drawing up of mahazar. These suggestions indicate that the Foreign Post Office, Chamrajapet received the parcel i.e., tracking bearing No. RR 485422921Pl from Poland and the addressee was one M. Madan.
9(f). It is its further case of the prosecution that the case paper was handed over to C w-7 for investigation. The C w-7 has been examined as P w-6, Sri. Rajiv Kumar Singh. He deposes that he could not trace the address mentioned on the parcel i.e., " Madan M, White Orchid, 7th Cross, Om Shakti Temple Road, Banjara Lay-Out, Horamavu Agara, Bangalore-560 043 ". There-afterwards, the Director General, Narcotics JUDGMENT 20 CCH-33 SPL. C C No. 933/2022 Control Bureau, New Delhi issued authorisation letter in his favour to undertake Controlled Delivery as per Ex. P-3.
9(g). He deposes that on the basis of the Ex. P-3, formed a team to undertake Controlled Delivery to find out the recipient of the above stated track number parcel/ RR 485422921Pl. He and others visited the Horamavu Post office on 23-10-20221 and shared the information to the Post Man, Sri. U Sharan, Cw-13 (Pw-8) and requested him to raise his hand in the air if the recipient/consignee approaches him for collection of the above said track number parcel.
9(h). He further deposes that around 9.30 a.m. on 23-10-2021 a person approached C w-13 and the said C w-13 raised his hand in the air. Thereafter, the suspected collected the parcel from the C w-13 and he was about to exist from the Post Office. At that time, he along with his team intercepted the suspected, enquired JUDGMENT 21 CCH-33 SPL. C C No. 933/2022 and insisted him to show his Identity Card in the presence of independent witnesses. He disclosed his name as " Nihaal ". On further enquiry, he disclosed that his friends, Madan M and Melfourde Laybourne had informed him to collect the parcel by representing himself to be Madan & mention incomplete mobile number. He further disclosed that as per his friends' instructions, he signed as Madan on the delivery sheet and obtained the parcel. He has identified the delivery manifesto as Ex. P-8. He has also identified the accused that was shown to him through video conference from Judicial Custody / Jail Authorities.
9(i). The prosecution has examined U Sharan, C w-13 as P w-8. He deposes that he came to know that drugs being supplied through Courier and a person came to collect the said drugs. He alerted the Customs officer JUDGMENT 22 CCH-33 SPL. C C No. 933/2022 by raising his hand. He deposes by collecting Identity Proof handed over the said parcel to him.
9(j). The P w-8 was subjected to cross examination by the learned counsel for the defence. He admits the suggestion that post parcel would be delivered to the person/addressee at his address by way of " Door Delivery " Or " Window Delivery ". He voluntarily deposed that a person on that day had furnished his Identity card and received the parcel.
9(k). He admits the suggestion that as per order of the Post Master, post man would go to the area and deliver the parcel. He admits the suggestion that in the present case, parcel was not delivered at addressee's house. He admits the suggestion that postal authorities will hand over a parcel to the person named on it after verifying their identity, usually JUDGMENT 23 CCH-33 SPL. C C No. 933/2022 through an identity card. He also admits the suggestion that the parcel would be handed over if the address mentioned on the parcel matches with the address mentioned on the Identity Card. He specifically denies the suggestion that the person named and address mentioned on the parcel had not furnished the Identity card. Inferences that can be drawn from these evidence that the person approached the C w-13/Pw-8 had given his Identity card as " Madan M "
& address is " White Orchid, 7th Cross, Om Shakti Temple Road, Banjara Lay-Out, Horamavu Agara, Bangalore-560 043 ".
9(l). Admittedly, the prosecution has not furnished the said document i.e., the Identity Card obtained by P w-8 at the time of handing over the dummy parcel. Withholding such an important document, an adverse inference will have to be drawn under Sec.
JUDGMENT 24 CCH-33
SPL. C C No. 933/2022
114(g) of the Indian Evidence Act, stating either the accused had not visited the Horamavu Post Office and represented himself to be Madan M or if such document is produced, it will be un-favorable to the Prosecution's case.
9(m). An interesting point to be noted herein is that if the accused had visited the Horamavu Post Office to collect the dummy parcel, he should have been identified by the P w-8 during the course of evidence. He has not deposed before the Court that the accused in this case had appeared before him and collected the dummy parcel by producing/furnishing Identity Card. The identification of the accused is very much relevant and the same has not been done by the prosecution.
9(n). The Learned Special Prosecution has placed much reliance on Ex. P-8 and contents that JUDGMENT 25 CCH-33 SPL. C C No. 933/2022 accused had signed this document as Madan M and obtained the parcel and as such, the prosecution has proved the guilt of the accused.
9(o). Ex. P-8 is a Delivery Manifest of Shiva Kumar N. Name of the Post man is shown as-SHIVA KUMAR N. Shift is shown as GEN-2, Beat is shown as 4, and mode of delivery is show as " Window Delivery " .
9(p). A " Delivery Manifest " is a document that lists all the items that a postal worker or driver is responsible for delivering to a specific route or area. It serves as a record of the items to be delivered, a tool to track the status of deliveries, and a method to ensure accountability. A manifest is a list of shipments, often used in post offices and courier services that act as a record of what is being delivered. It's a way to organize and track the items that need to be delivered on a specific route or to a particular delivery area. The main purpose of JUDGMENT 26 CCH-33 SPL. C C No. 933/2022 a delivery manifest is to ensure that all items are accounted for and delivered correctly. It helps postal workers and drivers keep track of their deliveries, and it also provides a record of the items that have been delivered. The manifest typically includes details like the item's tracking number, the recipient's address, and the item's description. When a postal worker or driver completes their route, they can use the manifest to verify that they have delivered all the items.
9(q). Window delivery in a post office refers to the practice of receiving or picking up postal items (like letters, parcels, or Speed Post) directly from a designated window or counter at the post office, rather than having them delivered to a specific address. A person would typically visit the post office, present his Identity card / authorization letter and the relevant tracking number (if applicable), and a post office clerk would JUDGMENT 27 CCH-33 SPL. C C No. 933/2022 retrieve the item from a designated storage area and hand it to that person at the window.
9(r). As per Ex. P-8, name of the post man is N Shiva Kumar. The Post Master has entrusted the parcel to deliver to the person mentioned on the parcel i.e., Madan M. But Shiva Kumar is not examined before the Court for the best reason known to the prosecution. Even he is not arrayed as witness. This creates serious doubt about the procedure adopted by the investigation office and the same has not been clarified by the prosecution.
9(s). CCTV systems in post offices are often high-resolution and may have features like remote monitoring and panning/zooming capabilities. The Prosecution has not produced the CCTV footage of the relevant date and time. Best evidence which could have clinched the issue, was withheld by prosecution.
JUDGMENT 28 CCH-33
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The Hon'ble Supreme Court held in the case of Tomaso Bruno and another vs. State of Uttar Pradesh reported in (2015) 7 S C C 178 that failure to produce CCTV footage and call records and withholding the best evidence which could have clinched the issue would be fatal to the prosecution case.
9(t). According to the prosecution, Cw-8-Sri. Sana Lakshminarayana was the superintendent of Customs in City Customs at the relevant time. He was examined as P w-5. He deposes that he accompanied the C w-7 for conducting controlled delivery and he visited the Horamavu Post office. He has not identified the accused before the Court during the course of his deposition. If really this witness had accompanied the C w-7, he would have identified the accused before the court that he had visited the Horamavu Post office to collect the dummy parcel. According to the prosecution, he was the Gazetted JUDGMENT 29 CCH-33 SPL. C C No. 933/2022 officer at the time of apprehending the accused and in his presence his body was searched. But he has not identified the accused before the Court to say that in his presence, the accused was apprehended and his body search was conducted. The prosecution has failed to prove that accused had visited the Horamavu Post office, represented himself to be Madan M and produced fake identity card and received the parcel. Therefore, this point is answered in the Negative.
10. Point No. 2 :
10(a). The learned senior counsel for the accused would submit that the C w-1 had reduced the information into writing and not informed his higher / superior official and there is a violation of Sec. 42 of the N D P S Act. Hence on this ground only, the accused has to be acquitted. In support of his contentions, he relied on JUDGMENT 30 CCH-33 SPL. C C No. 933/2022 the following decisions rendered by the Hon'ble Apex Court in-
1. 2021(19) SCC 606 in between Boota Singh Vs. State of Harayana.
2. 2009(8)SCC 539 in between Karnail Singh Vs. State of Haryana.
3. A I R 2013 S C 357 in between Kishan Chand Vs. State of Haryana.
4. AIR 2013 S C 953 in between Sukhdev Singh Vs. State of Haryana.
10(b). On the other hand, the Learned Special Public Prosecutor submits that the entire procedure as prescribed under the N D P S Act has been followed in letter and spirit and there is no violation of Sec. 42 of the N D P S Act as contended by the learned counsel for the defence.
JUDGMENT 31 CCH-33
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11. DISCCUSION ON THE POINT OF COMPLIANCE OF SECTION 42 OF THE N D P S ACT, 1985.
11(a). As per provision of Section 42 of the Act, the concerned police officer/empowered officer, who receives the secret information, has to write/note down the said information and is required to inform his immediate superior officer about the secret information within 72 hours of its receipt.
11(b). Coming to the contention of the learned counsel for the accused that there was no compliance of Section 42 of the NDPS Act, this Court would like to deal with the same now.
Section 42 of the Act runs as follows :-
42. Power of entry, search, seizure and arrest without warrant or authorization--
(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of JUDGMENT 32 CCH-33 SPL. C C No. 933/2022 the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or JUDGMENT 33 CCH-33 SPL. C C No. 933/2022 concealed in any building, conveyance or enclosed place, may between sunrise and sunset--
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such entry;
(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may 22 furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and
(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act :
JUDGMENT 34 CCH-33
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Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances, granted under this Act or any rule or order made there under, such power shall be exercised by an officer not below the rank of sub-inspector:
Provided further that if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.
(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.
11(c). A close perusal of Section 42 of the Act means that if the empowered officer has any information JUDGMENT 35 CCH-33 SPL. C C No. 933/2022 out of his personal knowledge or information given by any person and taken down in writing about the storage of any narcotic drug or psychotropic substance in any house, enclosed place or in any conveyance, he may between sunrise and sunset enter into and search any building, conveyance or place and seize such contraband. The proviso of Section 42 reveals that such search can be conducted between sunset and sunrise. When Section 42(1) contemplates search during day time, the proviso contemplates search during night time. According to Section 42(2) of the Act where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within 72 hours send a copy thereof to his immediate official superior.
(Emphasis is made by this Court)
JUDGMENT 36 CCH-33
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11(d). C w-1 i.e., P w-1 deposes that during
regular examination a parcel was found be suspicious to be containing narcotic drugs, while scanning on 18-10- 2021. He requested two independent witnesses (C w-3 & C w-4) to be witnesses for the Mahazar. C w-2 was instructed to type the mahazar proceedings as deposed by C w-3 and 4. He further deposes that he informed the Dy. Commissioner of customs by forwarding the mahazar as per Ex. P-2. This witness during the course of cross examination deposed that he had not recorded in writing about his suspicion containing narcotic drugs while scanning in that particular parcel. He further deposed that before seizure, he had not recorded the reason to believe whey the parcel was being seized. These facts are nothing but violation of Sec. 42.
JUDGMENT 37 CCH-33
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11(e). In the case of Kishan Chand Vs., State
of Haryana reported in AIR 2013 SC 357 wherein it is held that:-
(A) Narcotic Drugs and Psychotropic Substances Act (61 of 1985), Ss 42, 50, 57
- Search - Pre search requirement of recording information received and sending it to superior officer-Demands exact and definite compliance as opposed to substantial compliance.
In the case of A I R 2012 S C 953 in Sukhdev Singh Vs., State of Haryana wherein it is held that:
(C) NDPS Act - Search conducted hours after receipt of information - No effort was made by I.O to reduce information in writing and inform his higher authorities instantaneously or even after or reasonable delay - No evidence produced to show as to why prevented I.O from recording information and sending it to superior -
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total non-compliance with provisions
of Sec.42 - such defect is incurable -
accused liable to be acquitted.
In the present case, the C w-1 has not complied the provisions of Sec. 42 of N D P S and as such, the above decisions are squarely applicable to the case on hand.
12. DISCUSSION ON THE POINT OF COMPLIANCE OF SECTION 50 OF NDPS ACT 12(a). The learned defence counsel contended that there is no compliance of Section 50 of the N D P S Act which is a mandatory provision. The said section deals with conditions under which search of persons should be conducted. Under this Section the person has a right to be taken to the nearest Gazetted Officer of any of the Departments mentioned in Sec. 42 or to the nearest Magistrate. According to him, this is an important safeguard given to the accused person by the Legislature JUDGMENT 39 CCH-33 SPL. C C No. 933/2022 keeping in view of our Criminal Jurisprudence. Therefore, after a person is apprehended and before a search is conducted, it is mandatory on the part of the officer to inform him that he has a right to be searched in the presence of a Gazetted Officer or a Magistrate. According to the learned defence counsel, in the present case, the prosecution failed to establish that the mandatory provision was complied with. He also relied on the following decisions in support of his contentions-
1. 2006(12) SCC 321Ritesh Chakarvarti Vs. State of M. P. 12(b). Coming to the contention of the learned counsel for the accused that there was no compliance of Section 50 of the NDPS Act, this Court would like to deal with the same now.
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Section 50 of the Act runs as follows :-
50. Conditions under which search of persons shall be conducted.--
(1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazette Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in subsection (1).
(3) The Gazette Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.
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(4) No female shall be searched by
anyone excepting a female.
(5) When an officer duly authorised
under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazette Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974).
(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.
12(c). The legal position in respect to the Section 50 NDPS Act has been laid down by the JUDGMENT 42 CCH-33 SPL. C C No. 933/2022 Hon'ble Supreme Court in the case of State vs Baldev Singh reported as (1999) 6 S C C 172 that the compliance of the provisions of section 50 NDPS Act is mandatory. It is also held in this case that the compliance of this provision is not necessary where recovery was effected without prior information and where it was the case of a chance recovery. It was held that the same provisions of Section 50 containing certain protection and safeguards implicitly make it imperative and obligatory and cast a duty on the investigating officer to ensure that search and seizure of the person concerned is conducted in a manner prescribed by Sec. 50.
12(d). The Hon'ble Apex Court observed in the reported judgment-2011 Crl. L. J. 680 in between Vijausingh Chandubha Jadeja Vs. State of Gujarat that,-
"24. Although the Constitution Bench in Baldev Singh case [(1999) 6 SCC 172 : 1999 SCC (Cri) JUDGMENT 43 CCH-33 SPL. C C No. 933/2022 1080] did not decide in absolute terms the question whether or not Section 50 of the NDPS Act was directory or mandatory yet it was held that provisions of sub-section (1) of Section 50 make it imperative for the empowered officer to "inform" the person concerned (suspect) about the existence of his right that if he so requires, he shall be searched before a gazetted officer or a Magistrate; failure to "inform" the suspect about the existence of his said right would cause prejudice to him, and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from the person during a search conducted in violation of the provisions of Section 50 of the NDPS Act. The Court also noted that it was not necessary that the information required to be given under Section 50 should be in a prescribed form or in writing but it was mandatory that the suspect was made JUDGMENT 44 CCH-33 SPL. C C No. 933/2022 aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him. We respectfully concur with these conclusions. Any other interpretation of the provision would make the valuable right conferred on the suspect illusory and a farce.", and laid down vide paragraph 29 of the said verdict to the effect:-
29. In view of the foregoing discussion, we are of the firm opinion that the object with which the right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that insofar as the obligation of the authorised officer under sub-section (1) JUDGMENT 45 CCH-33 SPL. C C No. 933/2022 of Section 50 of the NDPS Act is concerned, it is mandatory and requires strict compliance.
Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search.
There is no dispute with regard to the law laid down by the Hon'ble Apex Court.
12(e). The learned counsel for the defence relied on the decision reported in 2006 (12) S C C 321 in between Ritesh Chakkarvarti Vs. State of M P contends that search in the presence of a gazetted officer in the raiding team would not subserve the requirements of Section 50 of the N D P S, Act. In the present case, C w-8 i.e., P w-5-Sri. Sana Lakshminarayana was the gazetted officer and he accompanied C w-7 i.e., investigating officer and as such, the above decision JUDGMENT 46 CCH-33 SPL. C C No. 933/2022 comes to the aid of the accused. The investigating officer has not complied the provision of Sec. 50.
13. DISCUSSION ON THE POINT OF COMPLIANCE OF SEARCH AND RECOVERY OF THE CONTRABAND 13(a). According to the prosecution, P w-1 seized the parcel and he has handed over the same to the Post Master of Foreign Post Office, Chamarajpet. He has not identified the said parcel before the Court. The Post Master of Foreign Post Office, Chamarajpet has not been examined before the Court. The P w-4 has identified the seized article as M O No. 1. The defence counsel marked three (3) documents through him as Ex. D-1 to 3. In all these documents, this witness attested as one of the Mahazar witness. He cannot be said to be an independent witness to the procedure rather he can be said to be a pocket witness. In post office, usually, there will be number of customers. But the I O has not made any effort JUDGMENT 47 CCH-33 SPL. C C No. 933/2022 to secure such independent witness to witness the mahazars. In the case of Pradeep Narayan Madgaonkar Vs. State of Maharashtra reported in 1995(4) SCC 255 observed that failure of police to join witness from locality during search creates doubt about fairness of the investigation and the benefit of the same has to be given to the accused. The fact that no public witness has been joined in the investigation creates serious doubts over the search. The benefit of which ought to be given to the accused.
14. DISCUSSION ON THE POINTS OF SEIZURE OF CONTRABAND, PROCEEDINGS REGARDING DRAWING OF SAMPLE AND COMPLIANCE OF SECTION 55 OF THE NDPS ACT.
14(a). According to the prosecution, dummy parcel was seized by drawing a mahazar as per Ex. P-7 in the presence of witnesses. Arun Kumar H(C w-10) has been examined as P w-9 before the Court. According to JUDGMENT 48 CCH-33 SPL. C C No. 933/2022 the prosecution he was one of the attesting witnesses to the Ex. P-7. During his examination chief he has not identified the said document. Only during the cross examination by the Learned Special Public Prosecutor, he admits the suggestion a mahazar was drawn as per Ex. P- 7 at Horamavu Post office. According to him, Nihaal was arrested at Horamavu Post Office. But he has not identified the accused as Nihaal before the Court. He admits the suggestion during the course of cross examination that he signed the document at Customs Office. More over dummy parcel has not been produced before the Court and the same has not been marked as M O. As such, mandatory provisions are not complied with. This is fatal to the case of prosecution.
15. DISCUSSION ON THE POINT OF COMPLIANCE OF SECTION 57 OF THE NDPS ACT 15(a). The defence counsel argued that, there is non- compliance of Section 57 of the Act. He submits JUDGMENT 49 CCH-33 SPL. C C No. 933/2022 under it, an obligation is cast on the prosecution while making an arrest or seizure, the officer should make full report of all particulars of such arrest or seizure and send it to his immediate superior officer within 48 hours of such arrest or seizure. The argument is, this has not been done. Hence the entire case vitiates.
15(b). The contention of the learned counsel for the defence is regarding the non-compliance of Sec. 57 of the NDPS Act. It is vehemently argued by the learned counsel that the investigating agency has not complied the mandatory procedure i.e., Sec. 57 of NDPS Act and the benefit of those lapses have to be given in favour of the accused. The learned counsel for the defence pressed into service of the law laid down by the by Hon'ble Apex Court in the case of Gurbax Singh Vs. State of Haryana, reported in A I R 2001 SC 1002.
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15(c). The prosecution has not placed any
materials to show that they have complied the provisions of Sec. 57 of the N D P S Act. Therefore, the case of the prosecution is fatal for non compliance of this provision. The prosecution is not able to prove that the accused had procured and transported illegal Narcotic Drugs and Psychotropic substances from foreign country to out country by placing cogent and acceptable evidence and as such, this Court answers this Point in the Negative.
16. Point No. 3 :
In view of the Negative findings on Point Nos. 1 & 2, this Court proceeds to pass the following ...
::ORDER::
Acting under section 235(1) of the Criminal Procedure Code, 1973, the accused is acquitted for the offences punishable under sections Sec.22(c) & 23(c) of NDPS Act, 1985.
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M.O. 1 sample is ordered to be returned to the complainant/IO to produce before Drug Disposal Committee for disposal in accordance with Law., after the appeal period is over.
Accused shall be released forthwith if he is not required in any other case.
(Typed and computerized by me, corrected, signed and then pronounced by me in Open Court on this the 16th day of May 2025) (VIJAYA DEVARAJA URS) XXXIII ACC & SJ & SPL.JUDGE, (NDPS) BENGALURU.
::ANNEXURE::
1. LIST OF THE WITNESS/ES EXAMINED FOR THE PROSECUTION :-
P-w.-1 C w.-1 Sri. M Shankar Kumar, P-w.-2 C w -2 Sri. Rohit Kumar Bhadana , P-w.-3 C w -6 Sri. Mashood Ur Rehman Farooqui, JUDGMENT 52 CCH-33 SPL. C C No. 933/2022 P-w.-4 C w -3 Sri. Thejas J N, P-w.-5 C w -8 Sri. Sana Lakshminarayana, P-w.-6 C w -7 Sri. Rajiv Kumar Singh, P-w.-7 C w -17 Sri. Ponnusamy, P-w.-8 C w -13 Sri. U Sharan, P-w.-9 C w -10 Sri. Arun Kumar H, P-w.-10 C.W.-9 Sri. Sachin Raj Purohit, P-w.-11 C w -12 Sri. Boss Kumar Varshney.
2. LIST OF THE WITNESS/ES EXAMINED FOR THE DEFENCE :-
-NIL-
3. LIST OF THE DOCUMENTS EXHIBITED FOR THE PROSECUTION :-
Ex. P-1 : Seizure Mahazar,
Ex.P-1(a & : Signatures,
b)
Ex. P-2 : Letter dated 18.10.2021 to
detain the parcel,
Ex. P-2(a) : Signature,
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Ex.P-3 : Order dated 20.10.2021 to take
controlled delivery operation,
Ex.P-4 & P- : Letter to CRCL, Chennai, 5 Ex.P-6 : Request letter to collect test reports, Ex.P-7 Mahazar dated 23.10.2021, Ex.P-7(a to : Signatures,
c) Ex.P-8 : Delivery manifest of Post office Ex.P-9 : Notice U/s.50 of NDPS Act Ex.P-9(a & : Signatures,
b) Ex. P-10 : FSL report, Ex. P-10(a) : Signature, Ex.P-11 : Letter dated 23.2.2022, Ex.P-12 : Test Report issued by the State FSL dated 23/03/2022, Ex.P-13 : Statement of Post Man, Ex.P-14 : Mahazar dated 23.10.2021, Ex.P-15 : Voluntary statement of accused, Ex.P-16 : Arrest Memo dated 24.10.2021 JUDGMENT 54 CCH-33 SPL. C C No. 933/2022 Ex.P-17 : Inventory of seized psychotropic substances U/s.52(A) of NDPS Act, Ex.P-18 : Complaint, Ex.P-18(a) : Signature.
5. LIST OF MATERIAL OBJECTS ADMITTED IN EVIDENCE :-
M.O. 1 : Sample
3. LIST OF THE DOCUMENTS EXHIBITED FOR THE PROSECUTION :-
Ex.D-1 : Mahazar dated 14.10.2022, Ex.D-2 : Mahazar dated 14.10.2022, Ex.D-3 : Mahazar dated 13.10.2022, Ex.D-4 : Delivery manifest of post office.
(VIJAYA DEVARAJA URS) XXXIII ACC & SJ & SPL.JUDGE, (NDPS) BENGALURU.