Bangalore District Court
The Senior Intelligence Office vs A1 Musakkar Nawas on 16 February, 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 16th DAY OF FEBRUARY 2016
SPL.C.C. NO.09/2012
COMPLAINANT : The Senior Intelligence Office,
Directorate of Revenue Intelligence,
Bangalore Zonal Unit, Bangalore -
560 043.
(By Spl. Public Prosecutor)
V/S.
ACCUSED : A1 Musakkar Nawas, Split up -
Spl.CC.58/14
A2 Mohamed Kasim Abdul Salam,
S/o.Mohamed Kasim, No.37, Chinna
Chetty Kulam Street,
Thuvarankurichi, Manaparai, Trichy
Rural - 621 314,
Tamil Nadu.
(By Sri BNJ, Advocate)
1. Date of Commission of offence: 11.12.2011
2
2. Date of report of offence: 11.12.2011
3. Arrest of the accused : 11.12.2011
4. Date of release of accused on 18.4.2012
bail:
5. Period undergone in custody: 4 months 7 days
6. Date of commencing of 3.8.2015
recording Evidence :
7. Date of closing of Evidence : 20.1.2016
8. Name of the complainant: Sri Shivanand Prabhu
9. Offence complained of : U/s.9(A) R/w.Sec.25(A),
28, 29 of NDPS Act
10. Opinion of the Judge : Offence proved
11. Order of sentence : As per final order
JUDGMENT
The Senior Intelligence Office, Directorate of Revenue Intelligence, Bangalore Zonal Unit, Bangalore has lodged the above complaint before Court against the accused U/s.9(A) R/w.Sec.25(A), 28, 29 of NDPS Act.
CCH-33 3 SPl.C.C.9/2012.
2. Brief facts of the case are as under:
On 11.12.2011 the complainant received information that at International Airport, Bangalore two persons transporting Pseudo Ephedrine drug and directed to conduct the road. At 3.30 pm., he went along with his staff members.
At Departure Immigration, C.W.3 brought two persons along with bags to Customs Office. He informed to them that they have legal right to be personally searched before Gazetted officer or Magistrate. They agreed to be conducted before gazetted officer. He issued notice as he being a gazetted officer. On personal search no contraband found with them.
In bag, 15 pairs of chappals were found. Inside the Heels of 30 chappals white powder was there. They seized the same.
On preliminary tests they opined that it is an Ephedrine substance controlled article and seized 5.985 Kgs., Ephedrine out of which 3 samples of 25 grams each packed and sealed separately. They prepared panchanama Ex.P3 in between 4.30 to 11.30 pm., and also seized Malaysian currency, 4 mobile, bags. He arrested the accused persons and issued arrest memo. On interrogation, recorded the voluntary statement of accused persons and produced them before the jurisdictional Magistrate with a remand application and the accused were remanded to judicial custody. Thereafter, the investigation was continued and the sample was sent to the laboratory for examination and obtained the laboratory report. Statements of the witnesses were recorded and after completion of the investigation, the complainant officers filed complaint for the offences contravened U/Sec.U/s.9(A) R/w.Sec.25(A), 28, 29 of NDPS Act.
3. After taking cognizance registered the case. Copies of the prosecution papers were supplied to accused U/Sec.207 of Cr.P.C. Later on, A1 remained absent and he was not traced. Hence, case against A1 is split up in Spl.C.C.No.58/2014. After hearing, Charge framed U/Sec. U/s.9(A) R/w.Sec.25(A), 28, 29 of NDPS Act, read over and CCH-33 5 SPl.C.C.9/2012.
explained to accused No.2, he pleaded not guilty and claimed to be tried.
4. In support of the case, prosecution has examined P.Ws.1 to 9 and got marked Exs.P1 to P30. and M.Os.1 to 08. After closure, accused No.2 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:
1. Whether the prosecution proves that on 11/12/2001 by 16-30 hours at Departure Hall of Bangalore International Airport, Devanahalli, Accused No.2 along with accused No.1 was found in possession of 5.985 Kgs., of drug of pseudoephedrine without permission and licence and with dishonest intention of manufacturing, transporting and selling it to the public and thereby accused No.2 has committed an offence punishable under Section 25(A) of N.D.P.S. Act?6
2. Whether the prosecution proves that on 11/12/2001 by 16-30 hours at Departure Hall of Bangalore International Airport, Devanahalli, Accused No.2 along with accused No.1 made attempt to transport the contraband to Kualalumpur and thereby committed offence punishable U/Sec.28 of N.D.P.S. Act?
3. Whether the prosecution proves that on 11/12/2001 by 16-30 hours at Departure Hall of Bangalore International Airport, Devanahalli, Accused No.2 along with accused No.1 made conspiracy to committed offence punishable U/Sec.29 of N.D.P.S., Act?
4. What order?
7. My findings on the above points are as under:
Point No.1: In the Affirmative Point No.2: In the affirmative Point No.3: In the affirmative Point No.4: See the final order for the following:-
REASONS
8. POINT NOs1 to 3: These 3 issues are interlinked with each other. Hence for the sake of convenience, they are taken together for consideration.
CCH-33 7 SPl.C.C.9/2012.
9. Learned Spl. P.P. argued that as per the evidence of P.Ws.1 to 9, Exs.P.1 to P.30 and M.Os.1 to 8, prosecution has proved the guilt. Learned counsel for accused argued that the mandatory provisions are not complied, so many contradictions and discrepancies found in their evidence.
10. On careful perusal of material placed before the Court, P.W.2 stated that on 11.12.2011 at 3.00 pm., C.W.1 called along with their staff members and informed about the information. he went along with P.W.1 and others to Bangalore Airport along with DRI brass seal, wax sticks, kit. They seized ephedrine out of 15 pairs of chappals and also seized the chappals, mobile, carbon paper, plastic covers, bag at MO 1to 8, air ticket and other documents and prepared Ex.P3 panchanama and brought the accused along with property to NCB office. On 12.12.2011 he produced the accused with remand and obtained acknowledgement Ex.P3 and also received letter Ex.P24 from laboratory. On 20.12.2011 he received copy of F.S.L and memo. In the 8 cross examination of P.W.2 stated that he has not issued notice to C.Ws.6 and 7 panchas and also accused prior to personal search. He has stated that he orally informed the legal right of the accused persons. Accused have given consent to be searched by gazetted officer as per Ex.P1 and P2. In Ex.P2 accused No.2 specifically stated that he was offered an option to conduct his personal search before Gazetted officer or Magistrate and he preferred to be searched before gazetted officer and not before Magistrate. When accused No.2 himself gave consent as per Ex.P2 that his personal search to be conducted by gazetted officer, itself is sufficient to believe that P.W.2 informed the existing legal right of the accused persons.
11. The learned counsel for the accused relied on a decision reported in 2013(1) SCC 550 in Suresh and others Vs., State of Madhya Pradesh wherein it is held that U/s.50(1) informing the suspect of his right to opt for being searched before a Gazetted Officer of Magistrate.
CCH-33 9 SPl.C.C.9/2012.
The said requirement U/s.50(1) is mandatory requiring strict compliance therewith. Merely, asked as to whether they would offer their personal search to police officer concerned or to Gazetted Officer, appellants gave their consent for their personal search by police officer concerned. It is not complied with in respect of recovery of contraband. The facts and circumstances of the above case is not similar to the case on hand as accused were appraised of their right to be searched before Gazetted Officer or Magistrate.
12. Further P.W.2 stated that he has not issued in writing to secure the check-in bag, but bag received after 5 minutes. They have not measured weight of the contraband in each chappal and not seized separately from each chappal. He has stated that as contents of all chappals are one and the same they have mixed all and weighed together. He has specifically stated that they have tested the contraband from field test kit and confirmed.
10
13. P.W.1 had also accompanied P.W.2. He has supported the testimony of P.W.2. In his cross examination he has stated that C.W.1 has not reduced the information in writing and orally informed to him regarding the information received by him and directed to conduct raid. He has stated that P.W.2 prepared complaint but he lodged the complaint as per his directions. He denied that he obtained the signature of accused forcibly on Ex.P1 and P2. P.W.1 stated that check-in bag belongs to accused No.1. Further he denied that he was not personally present and submitted Ex.P6 and P7 compliance report. He admits that in Ex.P10 name of customer is not mentioned and also no recital regarding both the accused were residing in the said room.
14. P.W.3 has stated that he has recorded the voluntary statement of accused No.2 who stated that he came to Airport along with Nawas-accused No.1 and told that the bag belongs to accused No.1 and do not know the contents of the bag. In his cross examination stated that one Ivin George CCH-33 11 SPl.C.C.9/2012.
brought accused No.2 to his office and accused No.2 is in custody of George and denied that he has not recorded the statement of accused No.2.
15. P.W.4 stated that he has recorded the voluntary statement of accused No.1 who stated that the bag belongs to one Jageer. Accused No.2 and himself were going to Kualalumpur and Jageer assured them that if they handed over the bag he would pay Rs.2 lakhs. In his cross examination denied that he has not recorded the statement of accused No.1.
16. P.W.5 stated that on 12.12.2011 at evening, DRI Officials instructed to bring the check-in bag from Aircraft. They seized the drugs from the said bag but he do not know the nature of drugs and whether accused No.2 was present or not. Prosecution treated this witness as hostile and nothing is elicited in his cross examination to discard his evidence 12 except denial. P.W.9 has also stated that about 3 years back at 3.40 pm., he furnished Ex.P18 Manifest to DRI officials and he denied that he was not instructed by DRI officials to produce the check-in bag from Aircraft and he do not know about the drugs in the said bag. Prosecution has treated this witness as hostile but nothing is elicited in his cross examination. Independent panch witnesses 5 and 9 have specifically stated that on 12.12.2011 they produced the check-in bag from Aircraft as per the request of DRI officials and said bag contain drugs. Of course, they have denied that contraband and articles seized in their presence and drawn mahazar. However, they admit the signature on mahazar. They are working at Custom Service office, Aeronautics department. The presence of independent witnesses and production of check-in bag from Aircraft is proved. Merely both panch witnesses have partly supported and partly denied the case of the prosecution is not a ground to discard their entire evidence.
CCH-33 13 SPl.C.C.9/2012.
17. P.W.7 stated that he went to Hindustan hotel and obtained Ex.P30 records regarding accused persons staying in the said hotel. He denied the suggestions in the cross examination. P.W.8 stated that in the month of December 2011, accused No.2 came to Hindustan hotel and took Room No.178, after paying advance amount. After two days he vacated the said room. In his cross examination by learned S.P.P., he admitted that on 15.12.2013 P.W.1 came to his hotel, gave requisition Ex.P8 to furnish information. Accordingly, he furnished Ex.P9 to P12 and also admits his signature at Ex.P8(a) to P12(a). But denied that he has not identified accused No.2. In his cross examination denied the suggestions. More over, Receptionist of Hindustan Hotel - P.W.8 has specifically stated that in the month of December 2011 accused No.2 came to hotel and booked room No.178 and after two days he vacated the room. In his cross examination admitted that he issued Ex.P8 to P12 documents from his hotel. They reveal that accused No.2 booked the said room and stayed there. Ex.P11 bill issued by Hindustan 14 hotel in favour of accused No.2 on 10.12.2011. So the testimony of P.W.8 who is independent witness working in the hotel is corroborative to the case of the prosecution that prior to the incident accused were staying at Hindustan Hotel.
18. P.W.6 stated that on 26.12.2011 he conducted various tests on sample articles and issued report Ex.P27 and opined that sample articles responded positive for Pseudo Ephedrine Hydrochloride and that it is used for Methamphetamine synthesis. In his cross examination denied that he has not conducted tests personally and issued false report.
19. Ex.P3 mahazar reveals that PW.s.1 and 2 seized M.Os.1 to 8 at International Airport, Bangalore in the presence of panch witnesses from the possession of accused Nos.1 and 2. Ex.P4 and 5 arrest memos of both accused at International Airport. Ex.P6 and P7 report submitted U/s.57 CCH-33 15 SPl.C.C.9/2012.
of NDPS Act, after success of raid to superior officer. Ex.P13 and P14 reveal that seized articles deposited in customs godown. Ex.P15 and P16 Boarding passes, Ex.P17 baggage tag, Ex.P18 manifest regarding names of passengers. Ex.P19 and P20 Air tickets. Ex.P21 and P22 departure card reveal that P.W.1 and 2 arrested the accused persons and seized the above documents from their possession and also M.Os.1 to 8. Ex.P23 acknowledgement for having produced the accused before Central Jail.
20. As per evidence of P.W.6 F.S.L officer and Ex.P27 report, sample articles responded positive for Pseudo Ephedrine Hydrochloride, which is a controlled substance. Even at the time of seizure said contraband tested with test kit by P.W.1 and 2. So prosecution proves that the said contra band seized from the possession of the accused persons is a controlled substance.
16
21. So far as the arrest of the accused persons at International Airport at particular point of time is concerned, testimonies of PW.s.1 to 5 and 9 corroborate with each other. So the testimony of P.Ws.1 to 4 is corroborated by independent mahazar witnesses P.W.5 and 9. Ex.P15 to P22 boarding passes, Manifest, tickets seized from the accused persons. The said documents were not in the custody of DRI officials. The said documents will be issued from Aircraft department to the concerned persons. The said documents reveal that on the particular date both accused were booked and made attempt to fly to Kualalumpur. Mean while, DRI officials on reliable information apprehended them and seized the contraband and documents. Ex.P15 to P22 are material documents. It cannot be believed that DRI officials created the said documents in the name of accused persons. The arrest of accused at particular point of time in Airport is not disputed. It is simply denied the suggestion of prosecution witnesses that they have not arrested the accused and seized the articles from their possession. No explanation given by CCH-33 17 SPl.C.C.9/2012.
accused No.2 in his statement recorded U/s.313 of Cr.P.C. He has not explained regarding incriminating circumstances appearing against him. Even no suggestion put to the witnesses that why DRL officials impleaded accused No.2 in this case. P.Ws.1 and 2 seized the chappals from the check- in bag and cut open the heel of the chappal and found white power inside the chappal is corroborated in the evidence of P.W.1 and 2. It would be gathered that accused have made conspiracy and attempted to transport the controlled substance to Kualalumpur.
22. C.W.1 is not examined by prosecution in spite of sufficient opportunity was given. However, P.W.1 and 2 specifically stated that C.W.1 received the information that two persons trying to transport the controlled substance. As per the information and directions issued by C.W.1, P.W.2 conducted raid along with his team members and seized the articles and arrested the accused persons. Of course, 18 information is not reduced in writing. However, C.W.1 is the Superior officer who himself received the information. Such being the case, recording of information in writing does not arise. If P.W.1 and 2 received the information who are subordinate officers to C.W.1, then only they have to reduce the information in writing and send it to superior officer to obtain permission to conduct raid. Such being the case not reducing the information in writing by C.W1 himself does not mean that prosecution has not complied the mandatory provisions under Sections 41 and 42 of NDPS Act.
23. Learned counsel for accused relied on a decision reported in SCC (2013) 2 SCC 212 in Sukdev Singh Vs., State of Harayana wherein it is held that Sec.42(1) & (2) and (18) requirement of writing down and conveying information to immediate superior officer mandatory nature need for strict compliance.
CCH-33 19 SPl.C.C.9/2012.
2007 Supreme Court Cases online AP 156 between Polamarasetti Naga Sreenivasarao Vs., State of AP wherein it is held that the accused could discharge the burden cast upon him U/s.35 of the Act that Accused No.1 and A2 did not disclose to him about concealing of contraband in the gunny bags. Unless it is shown by the evidence that appellant conveyed with Accused No.1 and A2 to transport the contraband, and has entered into a criminal conspiracy with Accused No.1 and A2 to transport the contraband. It is unsafe to convict the accused merely because he tried to over turn the auto on seeing the police. Facts and circumstances of the above cases are not similar to the case on hand as information conveyed to Superior officer.
23. The learned SPP has relied on a decisions reported in 2014(4) Crimes 266 (Karnt.) M.D.Kohiunddin @ Phohinuddin Vs., State, 2015(4) Crimes 153 (SC) Kulwinder Singh and another Vs., State of Punjab. In the 20 above decisions Hon'ble Apex Court held that Sec.50 does not apply if recovery from truck or suitcase. It applies only in a case of personal search of a person. Non-compliance of section 50 does not vitiate the conviction, 2015 SAR (Criminal) 597 in the case of Kulwinder Singh and another Vs., State of Punjab wherein it is held that once possession is found, the accused is presumed to be conscious possession.
(1997) 3 Supreme Court Cases 721 in the case of K I Pavunny Vs., Asst, Collector (HQ) Central Excise Collectorate, Cochin, wherein it is held that a voluntary confessional statement given by accused in pursuant to his appearing against summons or on surrender held, cannot be said to have been obtained by threat, inducement or promise, hence, is admissible in evidence for prosecution U/s.135 of Customs Act or other relevant statutes. The facts and circumstances of the said decisions are similar to the case on CCH-33 21 SPl.C.C.9/2012.
hand. So, the statement of the accused is admissible and also he is having a conscious possession.
2015(2) Crimes 219 (SC) Yunus Zia Vs., State of Karnataka and another wherein it is held that;
(a) Cr.P.C., 1973 Sec.2(d) and 154 - respondent 2 an Inspector of Police, though deputed to Lokayuktha - Empowered to act suo-motu on published reports against Appellant warranting registration of FIR and investigate the matter.
(d) Administration of justice - Fair investigation
- Inspector of Police deputed to Lokayuktha - Suo moto registering FIR and investigating the case - investigation transferred to Corps of Detectives (COD) of the State.
Facts and circumstances of the above decision is applicable to the case on hand as IO is empowered to act suo-motu on information warranting registration of FIR and investigating the matter in other law, when FIR discloses commission of cognizable offences and trial case is made out. 22
2004(3) Crimes 109 (SC) S Jeevanantham Vs., State through Inspector of Police, Tamil Nadu wherein it is held that contention of P.W.8 Inspector who got FIR registered after search and recovered being complainant himself conducted investigation and that was illegal. Appellant failing to point out any circumstances by which investigation caused prejudice or was biased against the appellant. P.W.8 was not in any way personally interested in the case. Conviction could not be disturbed. Facts and circumstances of the above decision is applicable to the case on hand as accused failing to point out any circumstances by which investigation caused prejudice or biased against him and also IO was not in any way personally interested in the case.
2002 (3) Supreme 95 Gopal Vs., State of MP wherein it is held that contraband was recovered from a heap of Kadvi lying on the boundary of agricultural fields Sy.Nos.1511 and 1517. Conscious possession of the accused was not proved.
CCH-33 23 SPl.C.C.9/2012.
Facts and circumstances s of the above decision is not similar to the case on hand as prosecution seized in the presence of the accused in his rented house.
1996 (1) Crimes 358 (SC) Ummed Vs., State of Rajasthan wherein it is held that complainant and I.O was one and the same person. Place was recovery in common possession of the accused and his brother against whom also search warrants were issued. No action was taken against brother of appellant. Investigation suffers from basic infirmity and conviction cannot be sustained.
AIR 2002 SC 3658 between Narayanaswamy Ravishankar Vs., Asst. Director, Directorate of Revenue Intelligence wherein it is held that search and seizure taking place at Airport which is a public place, Provisions of Sec.43 would be applicable but not of Sec.42. Question of non-compliance of provisions of Sec.42 would be wholly irrelevant. Further held that witness who made the seizure was examined. Non 24 examination of witness by whom mahazar was drawn would be of no consequence.
(2007) 6 SCC 410 between Ravindran @ John Vs. Superintendent of Customs & 2011 AIR SCW 3106 Ram Singh Vs., Central Bureau of Narcotics wherein it is held that merely because officers of Central Bureau of Narcotics are invested with powers of an officer-in- charge of police station shall not make them police officers within meaning of Sec.25, 26 of Evidence Act. They are not conferred with power to submit report U/s.173 of Cr.P.C., which is necessary to make them police officers. Confession recorded by these officers is admissible in evidence. Further, held that confession recorded by officers of Narcotics Bureau, accused produced before court on several dates not complaining of any torture or harassment in recording confession, confession is voluntary. Retraction of confession for first time in statement U/s.313 of Cr.P.C., irrelevant.
CCH-33 25 SPl.C.C.9/2012.
Conviction for offence U/s.8, 18 of NDPS Act can be maintained solely on basis of such confession.
2011 (1) SCC (Cri) 1191 Jarnail Singh Vs., State of Punjab wherein it is held that Sec.50 can be invoked only in cases where drug/narcotic substance is recovered as a consequence of body search of accused. In case recovery is made from container being carried by individual, provisions of Sec.50 would not be attracted.
(1994) 3 SCC 299 in state of Punjab Vs., Balbir Singh wherein it is held that if empowered officer while effecting search or arrest in accordance with Sec.100, 165 of Cr.P.C., fails to record reasons such a failure will not amount to an illegality vitiating the trial.
ILR 2004 Kar. 3855 between The Intelligence officer, Bangalore and others Vs., Arshad Saleem Khan and others wherein it is held that the special procedure of arrest, search and seizure U/s.50 becomes applicable only to the officers named in Sec.42 of the Act. The 26 provisions of Sec.50 does not apply to first category of empowered Gazetted Rank officers contemplated in Sec.41(2).
2000 SCC (Cri) 496 between Abdul Rashid Ibrahim Mansuri Vs., State of Gujarat wherein it is held that requirements U/s.42 of taking down in writing the information received and sending a copy thereof to the immediate official superior, non compliance with effect action taken on unrecorded information, held would become suspect and one causing prejudice to the accused but would not ipso-facto vitiate the trial.
(2010) 4 SCC 445 between Bahadur Singh Vs., State of Haryana wherein it is held that with advancement of technology and availability of high speed exchange of information, some of the provisions of NDPS Act including Sec.42 have to be read in the changed context. Delay caused in complying with provisions of Sec.42 could result in escape of offender or even removal of CCH-33 27 SPl.C.C.9/2012.
contraband. Hence, substantial compliance is sufficient, if the information received were subsequently sent to the superior officer.
AIR 2000 SCC 403 in Sarjudas and another Vs. State of Gujarat wherein it is held that Charas was not found on person of accused, but it was found kept in a bag which was hanging on scooter on which they were riding. Said search cannot be said to be illegal on ground that accused were not informed of their right U/s.50 to be examined in presence of Gazetted Officer or Magistrate. Facts and circumstances of the above decisions are similar to the case on hand.
24. Merely, some minor discrepancies found in the prosecution witnesses, is not a ground to discard their reliable corroborative evidence. Some minor contradictions and discrepancies bound to be happen, while witnesses depose before court after many years. So the testimony of 28 P.Ws.1 to 5 and 9 are corroborative and consistent to each other. Their testimony is supported by documentary evidence. So there is no reason to disbelieve the evidence of prosecution. For the above, prosecution has complied the mandatory provisions U/s.41, 42, 50 and 57 of NDPS Act and also proved that the seizure of contraband from the possession of accused persons at the spot. Hence, the prosecution has proved the guilt of the accused No.2 beyond reasonable doubt. Accordingly, I answer Point Nos.1 to 3 in the affirmative.
25. POINT NO.4:- In the result, I proceed to pass the following:
ORDER Acting under Section 235(2) Cr.P.C accused No.2 is convicted for the offence punishable U/Sec.25(A), 28, 29 of N.D.P.S. Act.
CCH-33 29 SPl.C.C.9/2012.
To hear before Sentence.
[Dictated to the Stenographer directly on computer, typed and computerised by her, corrected, signed and then pronounced by me in Open Court on this the 16th day of February 2016.) (D.Y.BASAPUR) XXXIII ACC & SJ & SPL.JUDGE (NDPS) BANGALORE.
HEAR BEFORE SENTENCE Accused No.2 is present. He submits that he is sole earning member of his family having aged mother and three school going children. He is innocent and poor person. He is not involved in any offence, previously. Hence, prays for taking lenient view.
The learned SPP argued that he has committed heinous offence. It is punishable upto 10 years R.I., and fine of Rs.1,00,000/-. So he is not entitled for any lenient view. 30
On perusal of order sheet, after enlarge on bail accused is attending the court regularly. Taking into consideration the nature of offence, social and economic status of accused No.2 and the reasons for which he appeared to have committed the offence, conduct and dependency of the family members, and he is carrier only, prime accused No.1 is absconded, I feel it is a fit case to take lenient view in the interest of justice. The learned counsel for the accused relied on the judgment and sentence passed in Crl.Appeal.No.1311/14 & Crl.M.A.No.14713/2014 on the file of Hon'ble High Court of New Delhi dated 24.2.2015 between NCB Vs., Nthadiseng Josephina Bulaya and another. In the said case trial court convicted and passed sentence one year RI and fine of Rs.75,000/- each to both accused who were women and foreign nationality for the offence punishable U/s.25(A) of NDPS Act. In the Appeal filed by the complainant Hon'ble High Court disposed the Appeal directing the accused to pay fine of Rs.75,000/- only. The CCH-33 31 SPl.C.C.9/2012.
facts and circumstances of the above case is similar with the case on hand. Hence, I proceed to pass the following:-
ORDER Accused No.2 is sentenced to undergo 3 years R.I., and he shall pay fine of Rs.25,000/- in default, he shall undergo 3 months SI for the offence punishable U/s.25(A) of NDPS Act.
Accused No.2 is sentenced to undergo 3 years R.I., and he shall pay fine of Rs.25,000/- in default, he shall undergo 3 months SI for the offence punishable U/s.28 of NDPS Act.
Accused No.2 is sentenced to undergo 3 years R.I., and he shall pay fine of Rs.25,000/- in default, he shall undergo 3 months SI for the offence punishable U/s.29 of NDPS Act.
All sustentative sentences shall run concurrently.
Further, JC period of accused No.2 is given set up.32
The bail bond of the accused No.2 shall stands cancelled.
The entire records and property shall be kept in Spl.C.C.58/2014 for trial of accused No.1.
(D.Y.BASAPUR) XXXIII ACC & SJ & SPL.JUDGE (NDPS) BANGALORE.
ANNEXURE
1. List of witnesses examined for the:
(a) Prosecution:
P.W.1 : Sri Ivin K George
P.W.2 : Shivananda Prabhu
P.W.3 : Sundar Raman
P.W.4 : Nanda kumar B G
P.W.5 : Ajeesh
P.W.6 : P R Jayaramu
P.W.7 : Somanath M R
P.W.8 : Vikkur Ahmed
P.W.9 : Rooman Sajad
(b) Defence :
NIL
CCH-33
33 SPl.C.C.9/2012.
2. List of documents exhibited for the:
(a) Prosecution:
Ex.P.1 : Body search memo
Ex.P.2 : Body search memo
Ex.P.3 : Mahazar
Ex.P.4 : Arrest memo
Ex.P.5 : Arrest memo (a) (b) sig.
Ex.P.6 : U/s.57 NDP S Act report (a) sig.
Ex.P.7 : Report (a) sig.
Ex.P.8 : Letter of Hotel (a) sig.
Ex.P.9 : Arrival register extract of Hotel (a) sig.
Ex.P.10 : Receipt of hotel (a) sig.
Ex.P.11 : Bill of hotel (a) sig.
Ex.P.12 : Bill of hotel (a) sig.
Ex.P.13 : Deposit of seized goods (a) (b) sig.
Ex.P.14 : Deposit of seized goods (a) (b) sig.
Ex.P.15 : Boarding pass (a)(b) (c)(d) sig.
Ex.P.16 : Boarding pass (a)(b) (c)(d) sig.
Ex.P.17 : Baggage tag (a)(b) (c)(d) sig.
Ex.P.18 : Manifest
Ex.P.19 : Air ticket (a)(b) (c)(d) sig.
Ex.P.20 : Air ticket (a)(b) (c)(d) sig.
Ex.P.21 : Departure card (a)(b) (c)(d) sig.
Ex.P.22 : Departure card (a)(b) (c)(d) sig.
Ex.P.23 : Acknowledgement of jail authorities
Ex.P.24 : Letter to F.S.L
Ex.P.25 : Statement of P.W.3 (a)(b) (c)sig.
Ex.P.26 : Statement of accused (a)(b) sig.
Ex.P.27 : F.S.L report (a) sig.
Ex.P.28 : Specimen seal (a) sig.
Ex.P.29 : Letter (a) sig.
Ex.P30 : Letter (a) sig.
34
(b) Defence:
NIL
3.List of Material Objects admitted in evidence:
M.O.1 : Box 'A' (a) (e) sig.(f) black box M.O.2 : Bulk - white power (a) (d) sig.
M.O.3 : Sample (a) (e) sig.
M.O.4 : Sample (a) (e) sig.
M.O.5 : Box (a) (e) sig. (f) box
M.O.6 : Plastic cover (a) (e) sig.
M.O.7 : Trolley Bag (black)
M.O.8 : 15 pairs of chappals
(D.Y. BASAPUR)
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BANGALORE.
CN/*