Bangalore District Court
K.R Puram Ps (Acp, Ccb, Anw Squad) vs A1 Harlly Okonkwo on 28 April, 2025
KABC010109062023
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 28TH DAY OF APRIL 2025
: : SPL. C. C. No. 818/2023 : :
COMPLAINANT : STATE BY K. R. PURAM P.S.,
BANGALORE.
(BY PUBLIC PROSECUTOR)
V/s.
ACCUSED : SRI. HARLLY OKONKWO,
S/O. JAMES OKONKWO,
AGED ABOUT 43 YEARS,
R/AT. NO. 25, I CROSS,
ADITYA LAYOUT,
AYAPPANAGAR,
SIGEHALLI, K.R. PURAM,
BENGALURU.
NATIVE :- AQNAM, NIGERIA.
(BY SRI. K.S.V., ADVOCATE)
JUDGMENT 2 CCH-33
SPL. C C No. 818/2023
Sl.
DESCRIPTION DATE/S
No.
Date of Commission of 20.10.2022
1 :
offence
2 Date of report of offence : 20.10.2022
3 Arrest of the accused : 20.10.2022
4 Date of release of accused on Accused is in
bail Judicial
:
Custody till
date.
5 Period undergone in custody 2 years, 6
months, & 8
:
days.
6 Date On Framing Charges : 05-02-2024
Date of commencing of
7 : 15-07-2024
recording Evidence
8 Date of closing of Evidence : 23-01-2025
Date On Recording Statement
9 : 04-02-2025
U/Sec. 313 Of CR. P.C.
10 Name of the complainant Sri. Md. Mukaram
:
11 Offence complained of : U/Secs.8(c) R/w.
Sec.22(c), of
NDPS Act, 1985
& Sec. 14(a & b)
of Foreigners Act.
12 Opinion of the Judge : Prosecution is
able to prove
their case.
13 Final Order/ Sentence Accused is
: convicted/ as per
final order.
JUDGMENT 3 CCH-33
SPL. C C No. 818/2023
::JUDGMENT::
This is a case in which accused has faced trial for commission of the offence punishable under section 22(c), of the Narcotic Drugs and Psychotropic Substances Act, 1985 & Section 14 of the Foreigners Act on the allegations that he found in possession of illegal drugs & psychotropic substances to sell the same i.e., 200 grams of Methamphetamine (commercial quantity) without any permit or licence in contravention of Section 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 & overstaying in India without any valid visa/passport.
2. The case of the prosecution as borne out from the charge sheet is as under :-
2(a). The Police Inspector Sri Mohammad Mukram, (Charge Sheet witness No. 1) of Central Crime Branch, Anti Narcotic and Women Protecting Wing, Bangalore is said to have received the credible JUDGMENT 4 CCH-33 SPL. C C No. 818/2023 information at 12.00 noon on 20.10.2022 while he was in his Central Crime Branch office that an African National person keeps drugs in Suzuki Access a two wheeler bearing registration No. KA 03 JQ 1294 and comes near House No. 153/1, 6th Main, Chandravadana Layout, Kalkere Main Road, K R Puram, Bangalore everyday and sells the illegal drugs to acquainted/known persons.
He had further information that the said suspect would come to the spot on that day also. On receipt of the said information, he informed the matter to the higher officer, obtained permission to conduct the raid. Immediately, he secured the independent witnesses (Charge Sheet Witnesses No. 2 & 3) & along with his staff (Charge Sheet Witnesses No. 7 to 12) proceeded to the spot and mounted surveillance at the spot. At about 2.25 pm., a person came to the spot in a two wheeler and started waiting for someone to come. On the pointing out of the JUDGMENT 5 CCH-33 SPL. C C No. 818/2023 secret informer, the suspected was surrounded and apprehended.
2(b). On enquiry, he (accused) disclosed his name and identity. He was found possessing of above stated contraband and was got weighed with the help of scale and it weighed totally 200 grams. He (accused) has stated that he used to procure the contraband from one Mr. Dozie. He also stated that Mr. Dozie would send the contraband through courier whenever he gives him a call over the mobile phone. A detail seizure mahazar was drawn. C w. 1 seized the contraband, mobile phones, weighing machine, 20 zip lock covers, and a two wheeler under a seizure mahazar in the presence of the independent witnesses. The C w-1 visited the K R Puram police station, Bangalore handed over the apprehended person, seized articles and submitted a report to the Station House Officer, C w-14.
JUDGMENT 6 CCH-33
SPL. C C No. 818/2023
2(c). The Station House Officer C w-14, on
receipt of the said report, registered a case in Crime No. 456/2022 for the offences punishable under Sections 8(c), 22(c), of the N D P S Act, 1985 & Section 14 of the Foreigners Act. The Police Sub-Inspector (Charge Sheet Witness No. 14) arrested the accused and conducted part investigation. During the course of his investigation, recorded the voluntary statement of the accused, the statements of the witnesses (C w-2, 3, & 7 to 12) were recorded, got information from F R R O (Foreigners Regional Registration Office) in respect of accused and handover the case file for further investigation to C w-15.
The C w-15 recorded the statement of the house owner & earlier owner of the two wheeler. He deputed police personnel to trace another accused, Dozie. He prepared inventory and sent it for certification to the Hon'ble Magistrate, drawn the sample for chemical analysis in the presence of learned Magistrate. He sent the sample to the JUDGMENT 7 CCH-33 SPL. C C No. 818/2023 state F S L for chemical analysis. He handed over the case file to C w-16 for further investigation. The C w-16 obtained F S L report. After completion of investigation, evidence of crime was found against the accused and charge sheet has been presented before this Court.
3. 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), of the NDPS Act & section 14 of the Foreigners 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.
4. Since the offences levelled against the accused are cognizable in nature, this Court's predecessor-in-office JUDGMENT 8 CCH-33 SPL. C C No. 818/2023 heard the learned counsel for the accused and Public Prosecutor on the question of charges. He found that, the materials placed on record by the prosecution make out a case for trial against the accused. Thereafter, this Court's learned Predecessor-in-office framed charges against the accused for the offences punishable under sections 22(C) of the NDPS Act, 1985 and Sec.14 of Foreigners Act on 05-02-2024. Then the charges read-over, and explained to him in English language known to him. He, after understood the contents of the charges, pleaded not guilty and claimed to be tried. This Court's learned predecessor in office recorded the plea and then posted the case for recording the evidence for the prosecution.
5. In support of the case, the complainant/prosecution has examined in all nine (9) witnesses as P w-1 to P w-9, got marked Ex. P-1 to 24 & M. Os. 1 to 10 got admitted during the course of evidence. After closure of the JUDGMENT 9 CCH-33 SPL. C C No. 818/2023 prosecution / complainant's side, 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.
6. On perusal of the evidence available on record and the statement of the accused, this Court was of the 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, but he has got marked two documents as per Ex. D-1 and 2.
7. This Court has heard the arguments of the learned Public Prosecutor and also the learned counsel for the accused. The learned Public Prosecutor placed reliance on JUDGMENT 10 CCH-33 SPL. C C No. 818/2023 some decisions. The learned counsel for the accused placed following judgments/citations-
1. AIR 2013 SC 357 Kishan Chand Vs. State of Haryana.
2. AIR 2013 SC 953 Sukhdev Singh Vs. State of Haryana.
3. 2016 CRI L J 3336 State of Rajasthan Vs. Jag Raj Singh.
4. AIR 1994 SC 1872 State of Punjab Vs. Balbir Singh.
5. 1999 SC 2378 State of Punjab Vs. Baldev Singh.
6. 2011 SRI. L.J. 680 Bijausingh Chandubha Jadeja Vs. State of Gujarat.
7. 2022 Live Law (SC) 1002 Amar Chand Vs. State of Himachal Pradesh.
8. 1998(8) SCC 534 Namdi Francis Nwazor Vs. Union of India.
9. 2022(1) SCC 606 Bahadur Singh Vs. State of MP.
10. 2014(5) SCC 345 State of Rajasthan Vs. Parmanand and Anr.
JUDGMENT 11 CCH-33
SPL. C C No. 818/2023
11. 2018(1) SCC 222 Kishan Chand Vs. State of Himachal.
12. AIR 2001 SC 1002 Burubax Singh Vs. State of Haryana
13. Criminal Appeal No.S.1888-SB/2016 Jaspal Singh Vs. State of Punjab.
14. 1995 (4) SCC 255 Pradeep Narayan Madagokar Vs. State of Maharashtra.
15. 1997 Crl.L.J. 3921 Madan Vs. State of Tamil Nadu.
16. AIR 1956 SC 217 Aher Raja Khima Vs. State of Saurashtra.
8. Having heard the learned Public Prosecutor, the learned counsel for the accused, and on perusal of the above Rulings, the following Points that arise for consideration are as follows :-
Point No. 1 : Whether the prosecution has proved beyond all reasonable doubt that the accused had procured illegal Narcotic Drugs and JUDGMENT 12 CCH-33 SPL. C C No. 818/2023 Psychotropic Substance was in possession of illegal drugs i.e., 200 grams of Methamphetamine and that the same was seized by the CCB Officials on 20-10-
2022, at 6th Main Road, Chandravadana Lay-
Out, Kalkere Main Road, K. R. Puram, Bangalore and thus he violated the provision of Sec. 8(c) and committed offences punishable under Secs. 22(C) of the NDPS Act, 1985 ?
Point No. 2 : Whether the prosecution has proved beyond all reasonable doubt that accused overstaying in India and thus JUDGMENT 13 CCH-33 SPL. C C No. 818/2023 committed offence punishable under section 14 of the Foreigners Act, 1946 ?
Point No. 3 : What Order or Sentence ?
9. The findings on the above points by this Court are as under:
Point No. 1 : In the Affirmative,
Point No. 2 : In the Affirmative,
Point No. 3 : As per the final order
for the following......
::REASONS::
10. 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 JUDGMENT 14 CCH-33 SPL. C C No. 818/2023 are severe, prosecution is expected to comply with all the mandatory provisions of the Act properly.
10(a). The case of the prosecution is that C w-1, Sri. Mohammad Mukaram, who was the Police Inspector of City Crime Branch A & W and while he was in his office at 12.00 (noon) p.m., on 20-10-2022, received a credible information to the effect that an African National would come every day near house No. 153/1, 6th Main Road, Chandravadana Lay-Out, Kalkere Main Road, K.R. Puram, Bangalore in a two wheeler, Suzuki Access bearing Registration No. KA-03, JQ 1294 and would sell prohibited contraband i.e., M D M A. 10(b). The C w-1 noted the said information in the information register/SHD and communicated the said information to his higher/superior officer, C w-15 and conducted the raid and seized the contraband.
JUDGMENT 15 CCH-33
SPL. C C No. 818/2023
10(c). The learned counsel for the accused
would submit that the C w-1 had not received any credible information, not reduced 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 the following decisions rendered by the Hon'ble Apex Court in-
1. A I R 2013 S C 357 in between Kishan Chand Vs. State of Haryana.
2. AIR 2013 S C 953 in between Sukhdev Singh Vs. State of Haryana.
3. 2016 Crl. L. J 336 S C in between State of Rajasthan Vs. Rag Raj Singh alias Hansa.
4. AIR 1994 S C 1872 in between State of Punjab Vs. Balbir Singh.
10(d). On the other hand, the Learned Public Prosecutor appearing for the State submits that the entire procedure as prescribed under the N D P S Act has been JUDGMENT 16 CCH-33 SPL. C C No. 818/2023 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.
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.
JUDGMENT 17 CCH-33
SPL. C C No. 818/2023
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 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 JUDGMENT 18 CCH-33 SPL. C C No. 818/2023 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 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 JUDGMENT 19 CCH-33 SPL. C C No. 818/2023 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 :
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.
JUDGMENT 20 CCH-33
SPL. C C No. 818/2023
(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 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 JUDGMENT 21 CCH-33 SPL. C C No. 818/2023 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.
11(d). C w-1, Sri. Mohammad Mukram has been examined before the Court as P w-1 on 14-07-2024. He deposes that he was discharging his duties on 20-10- 2022 and at 12.00 p.m. received a credible information that, a foreign national would come every day and sells the contraband to the public near House No. 153/16th Main Road, Chandravadana Lay-Out, Kalkere Main Road, K.R. Puram, Bangalore in a two wheeler, Suzuki Access bearing Registration No. KA-03, JQ 1294 and he immediately noted the said information in the Station House Diary (SHD). He further deposes that he informed the matter to C.w-15, Assistant Commissioner of Police, Central Crime Branch, Bangalore. He also deposes that JUDGMENT 22 CCH-33 SPL. C C No. 818/2023 he has sent requisition to the higher official to conduct raid. He further deposes that C w-15 gave written permission to conduct raid. He identifies the SHD as Ex. P-1, requisition letter as Ex. P-2, & permission letter issued by C w-15 as Ex. P-3.
11(e). The Ex. P-1 is a true copy of the Station House Diary. This document is for the day of 20-10-2022 timings is 12.00 p.m. There is a reference about the receipt of credible information by the P w-1 at 12.00.p.m. 11(f). Ex. P-2 is the intimation letter and requisition to conduct raid. It is addressed to Respected Assistant Commissioner of Police, CCB, Bangalore i.e., to C w-15 (P w-4) and it is dated 20-10-2022. There is a signature of C w-15 (P w-4) and P w-1 in the said letter. C w-15 (P w-4) has endorsed the document for having received the letter. Timing of 12.30 p.m. is mentioned below the signature of C w-15 (P w-4). There is a JUDGMENT 23 CCH-33 SPL. C C No. 818/2023 reference of contents found in the Ex. P-1 in this document i.e., in Ex. P-2. Ex. P-3 is dated 20-10-2022 addressed to P w-1 and it is a permission letter to conduct raid. The same is issued by C w-15 (P w-4).
11(g). The P w-1 was cross examined by the learned defence counsel. During the course of cross examination, he deposes that, he received information from an informant over the phone. He further deposes that the copy of information was submitted to the A C P(C w-15) along with requisition. He deposes that except in Station House Diary, he has not made any entry in respect of information received in any other Register. He admits that there is no page number for Ex. P-1. He also admits that ' K R Puram ' was written by using whitener and also admits that it (word ' K R Puram ' ) was not in his handwritten. He gives explanation that he had signed for correction. He also deposes that he has JUDGMENT 24 CCH-33 SPL. C C No. 818/2023 not mentioned that accused would come near to Ramesh's house. He further deposes that he had informed the information to A C P(C w-15) through telephone and immediately went to him for obtaining permission.
11(h). The P w-1 admits the suggestion that there is no official designation seal below his signatures and he also submits that the time has not been mentioned below his signatures. He also deposes that he has not furnished earlier and later entries of Ex. P-1. He admits the suggestion that he has not mentioned that at what time the accused would come on that day. He also admits the suggestion that he has not mentioned that he had received the information through phone. He denies the suggestion that Ex. P-1 was created for the purpose of this case.
11(i). Though the P w-1 was cross examined, even remotely no suggestion was put to him that he had not JUDGMENT 25 CCH-33 SPL. C C No. 818/2023 received any credible information as per Ex. P-1 and he had not forwarded/shared the information to his superior officer as per Ex. P-1 or over the phone. Even remotely, no suggestion was put to him that, copy of the information was not submitted by him to the Assistant Commissioner of Police. The P w-1 admits the suggestion that he reduced the information as per Ex. P-1(page No. 13 paragraph No. 2). This suggestion cut root the case of the defence that C w-1 had not received any credible information as per Ex. P-1. The Ex. P-1 to 3 are of the same day i.e., 20-10-2022. The learned defence counsel could not extract anything material in the cross examination of this witness to assail his version about receipt of the credible information and passing on the said information to his superior officer within 72 hours.
11(j). Sri. B. Ramachandrappa (C w-15), the then Assistant Commissioner of Police, C C B was JUDGMENT 26 CCH-33 SPL. C C No. 818/2023 examined as P w-4 on 24-07-2024. He has deposed that C w-1(P w-1) visited his office around 12.30 p.m. and submitted a requisition. He identifies the said requisition as Ex. P-2 and his signature as Ex. P-2 (b). He further deposes that C w-1 had attached Ex. P-1(copy of the S H D) to the Ex. P-2(intimation and requisition letter). He further deposes that he had given permission to conduct raid as per Ex. P-3.
11(k). This witness was subjected to cross examination. He admits the suggestion that he has not endorsed on Ex. P-2 for having received the SHD / Ex. P-1. This suggestion goes to show that P w- 4 had received Ex. P-1 along with Ex. P-2. On careful reading of the Ex. P-2 there is a recital that the suspect would come near Ramesh's house and there is a specific recital that copy of the information was attached to that requisition. It means that copy of the Ex. P-1 was also served / JUDGMENT 27 CCH-33 SPL. C C No. 818/2023 shared to the P w-4 by the P w-1 on that day i.e., 20-10- 2022.
11(l). Learned defence counsel argues that the house number and the accused would come near the Ramesh's house are not found in Ex. P-1 and whereas same is mentioned in the Ex. P-2 and as such, the information shared is not in accordance with the provisions of the N D P S Act i.e., as per Sec. 42.
11(m). As per Ex. P-3, P w-4 gave permission to the Cw-1(P w-1) to conduct raid. P w-4 denies the suggestion that he has not issued Ex. P-3 to C w-1 to proceed for raid. The information was passed on the same day i.e., 20-10-2022. The learned defence counsel could not extract anything material in the cross examination of this witness to assail his version about receipt of the information from C w-1 on 20-10-2022. The testimony of the P w-1 has been duly supported by the P w-4 in JUDGMENT 28 CCH-33 SPL. C C No. 818/2023 respect of credible information sharing to the superior officer within 72 hours.
11(n). Even Ex. P-1 is admissible evidence under Sec. 32 of the Indian Evidence Act as it is maintained in the usual course of business. One more thing has to be noticed in Ex. P-1 is that, not only the relevant entry is made available but another entry can also be seen. Question of fabricating this document is ruled out.
11(o). All the information taken down as per Ex. P-1 are available in Ex. P-2. If all the information as per Ex. P-1 had not made available in Ex. P-2, it would have been non- compliance of Section 42. Though the exact place mentioned in Ex. P-2 i.e., near Ramesh's house is not available in Ex. P-1 the same would not in any way prejudice the accuser's right/interest.
JUDGMENT 29 CCH-33
SPL. C C No. 818/2023
11(p). From the testimonies of aforesaid
witnesses and documentary evidence at Ex. P-1 to 3, it is established on record that, a credible information about the crime was received by P w-1 at about 12.00 p.m. on 20-10-2022 and gist of the same was mentioned in Ex. P-1 & copy of handwritten S H D was forwarded along with Ex. P-2 to his superior officer, P w-4 within the short span of time. It is, thus, held that compliance of Section 42 N D P S Act has been properly made in the present case.
11(q). It was the fervent contention of the learned defence counsel (the accused counsel) that the search and seizure proceedings are vitiated on account of non-compliance of the mandatory procedure provided under Section 42 of the NDPS Act. The said contention is on the fact of record is not tenable. The credible information which was received by C w-1/P w-1 was to JUDGMENT 30 CCH-33 SPL. C C No. 818/2023 the effect that a suspect would be selling contraband at near the House No. 153, near Ramesh's house, 16th Main Road, Chandravadana Lay-Out, Kalkere Main Road, K.R. Puram, Bangalore, which is a public place.
11(r). Learned Public Prosecutor would contend that there was no search and seizure from a building, conveyance or enclosed place. Absolutely, compliance of Section 42 of N D P S Act is not at all necessary. However, the investigating Officer with a bonafide impression that he had to comply Sec. 42 of the N D P S Act, took down the information, shared the same to his Superior Officer. The recovery of the contraband is taken out by the accused and was handed over the same to the investigating officer on public place / public road. Though there was no necessity to comply Sec. 42 of the N D P S act, but the investigating officer complied it and the contention of the accused deserves no merits.
JUDGMENT 31 CCH-33
SPL. C C No. 818/2023
What all the citations relied upon by the learned defence counsel cannot be made applicable to the present case on hand.
11(s). Section 42 of the N D P S Act deals with search and seizure from a building, conveyance or enclosed place. When the search and seizure is effected from a public place, the provisions of Section 43 of the N D P S act would apply and hence, there is no merit in the contention of the learned defence counsel that non- compliance of the requirement of Section 42 vitiates the search and seizure. Hence, the said contention is noted to be rejected.
11(t). There is no disagreement with regard to the dictum laid down by the Hon'ble Apex Court in the cases cited above. However, the same may not be made applicable to the present case as they are distinguishable on facts.
JUDGMENT 32 CCH-33
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11(u). 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 that case P w-1 that is authorised officer, upon receiving the secret information, neither reduced the same in writing nor communicated to his senior officer about receiving the secret information as required under Section 42 of NDPS Act. Whereas, in this/present case the P w-1 reduced the information in writing as per Ex.P-1 and shared the same with his superior officer(P w-4) and he was duly authorized vide written authorization as per Ex. P -3 by P w-4 to conduct raid.
JUDGMENT 33 CCH-33
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11(v). 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 - total non-compliance with provisions of Sec.42 - such defect is incurable - accused liable to be acquitted.
The facts and circumstances of the above decisions are not applicable to the case on hand as P.w-1 has reduced the information in writing in the concerned register and forthwith send the copy of the same to his next superior officer.
JUDGMENT 34 CCH-33
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11(w). In case State of Rajasthan Vs. Jag Raj
Singh @ Hansa reported in (2016)11 S C C 687, the search was carried out by the Investigating Officer himself without seeking any search / authorization and without procuring the presence of any empowered officer at the spot. Whereas, in this case the P w-1 was duly authorized vide written authorization as per Ex. P -3 by P w-4 to conduct raid.
11(x). In the case of A I R 1994 S C 1872 in State of Punjab v. Balbir Singh wherein (paragraph No. 26) it is held that:
Under Section 42(2) the empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior.
If there is total non-compliance of this provision the same affects the prosecution case. To that extent it is JUDGMENT 35 CCH-33 SPL. C C No. 818/2023 mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case.
The Hon'ble Trial Court in that case acquitted the accused on the ground that the arrest, search and seizure were in violation of some of the relevant and mandatory provisions of the NDPS Act i.e., Sec. 42. In the present case, the provision of Sec. 42 of the N D P S Act has been followed in letter and spirit.
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 JUDGMENT 36 CCH-33 SPL. C C No. 818/2023 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 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-
1.1999 SC 2378 State of Punjab Vs. Baldev Singh.
2.2011 Crl. L. J 680 Vijausingh Chandubha Jadeja Vs. State of Gujarat.
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3. 1998(8) SCC 534 Namdi Francis Nwazor Vs. Union of India.
4. 2014(5) SCC 345 State of Rajasthan Vs. Paramanad and another.
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.
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.
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(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.
(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 JUDGMENT 39 CCH-33 SPL. C C No. 818/2023 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 Hon'ble Supreme Court in the case of State vs Baldev Singh reported as (1999) 6 S C C 172(relied by the learned counsel for accused) 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 JUDGMENT 40 CCH-33 SPL. C C No. 818/2023 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(relied by the learned counsel for accused) that,-
"24. Although the Constitution Bench in Baldev Singh case [(1999) 6 SCC 172 : 1999 SCC (Cri) 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 JUDGMENT 41 CCH-33 SPL. C C No. 818/2023 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 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:-
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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) 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.
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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 (1998) 8 S C C 534 in between Namdi Francis Nwazor Vs. Union of India contends that search of handbag or the like which a person is carrying, held, amounts to search of his person attracting Sec. 50. If that person is carrying a handbag or the like and incriminating article is found therefrom, it would still be a search of the person of the accused requiring compliance with section 50 of the Act.
12(f). This Court unable to accept contention of the learned defence counsel for the simple reason that the Hon'ble Apex Court in the case of State of H P Vs. Pawan Kumar reported in (2005) 4 SCC 350 has not followed the law laid down in the above case. The Hon'ble JUDGMENT 44 CCH-33 SPL. C C No. 818/2023 Apex Court observed in the above reported judgment that
-
16. Learned counsel for the respondent has placed strong reliance on Namdi Francis Nwazor v. Union of India & Anr. 1998 (8) SCC 534 which is a decision by a Bench of three learned Judges. In this case, the accused had checked in at the Indira Gandhi International Airport for taking the flight from Delhi to Lagos. A team of the Narcotics Control Bureau, on suspicion, decided to check his baggage. At the point of time when the actual search took place, he was carrying two handbags but nothing incriminating was found therefrom. He had booked one bag which had already been checked in and was loaded in the aircraft by which he was supposed to travel. The bag was brought to the customs counter and on checking 180 gms. of heroine was found therein. The Bench held that on a plain reading of Sub-section (1) of Section 50, it applies to cases of search of a person and not to search of any article in the sense that the article is at a distant place from where the offender is actually searched. After arriving JUDGMENT 45 CCH-33 SPL. C C No. 818/2023 at the above finding, the Bench also observed - (SCC p. 537 para 3) "We must hasten to clarify that if that person is carrying a handbag or the like and the incriminating article is found therefrom, it would still be a search of the person of the accused requiring compliance with Section 50 of the Act. However, when an article is lying elsewhere and is not on the person of the accused and is brought to a place where the accused is found, and on search, incriminating articles are found therefrom it cannot attract the requirements of Section 50 of the Act for the simple reason that it was not found on the accused person."
The Bench then finally concluded that on the facts of the case Section 50 was not attracted. The facts of the case clearly show that the bag from which incriminating article was recovered had already been checked in and was loaded in the aircraft. Therefore, it was not at all a search of a person to which Section 50 may be attracted. The observations, which was made JUDGMENT 46 CCH-33 SPL. C C No. 818/2023 in the later part of the judgment (reproduced above), are more in the nature of obiter as such a situation was not required to be considered for the decision of the case. No reasons have been given for arriving at the conclusion that search of a handbag being carried by a person would amount to search of a person. It may be noted that this case was decided prior to the Constitution Bench decision in State of Punjab v. Baldev Singh. After the decision in Baldev Singh, this Court has consistently held that Section 50 would only apply to search of a person and not to any bag, article or container, etc. being carried by him.
(Emphasis is made by this Court) 12(g). The Hon'ble Apex Court observed in the reported judgment-(2014) 5 S C C 345 in between State of Rajasthan Vs. Parmanand and another that,-
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"15. Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag is carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application. In this case, Respondent 1 Parmanand's bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of Respondent 2 Surajmal was also conducted. Therefore, in the light of the judgments of this Court mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have application.
(Emphasis is made by this Court) There is no dispute in respect of the law laid down in the above decision.
12(h). Learned Public Prosecutor has referred to large number of decisions of the Hon'ble Apex Court wherein Section 50 was held inapplicable in the case of JUDGMENT 48 CCH-33 SPL. C C No. 818/2023 search of some baggage or article etc., which was in immediate possession or was being carried by the accused. Some of them are as follows :-
1. Abdul Rashid Ibrahim Mansuri v. State of Gujarat 2000 (2) SCC 51. This is a decision by a Three Judge Bench presided over by Dr. A.S. Anand, C.J., who wrote the opinion of the Court in the Constitution Bench decision in State of Punjab v.
Baldev Singh. In this case four gunny bags were found in an auto rickshaw which the accused was driving and there was no other person present. The argument based on non-compliance of Section 50 as explained in the case of Baldev Singh was rejected on the ground that the gunny bags were not inextricably connected with the person of the accused.
2. Madan Lal v. State of H.P. 2003 (7) SCC 465 (para 16)- It was held that Section 50 would apply in the case of search of a persona as contrasted to search of vehicles, premises or articles.
3. State of Punjab v. Makhan Singh 2004 (3) SCC 453 - The accused was apprehended while JUDGMENT 49 CCH-33 SPL. C C No. 818/2023 alighting from a bus with a tin box in his hand in which contraband was found. The High Court acquitted the accused on account of non-compliance of Section 50. On the finding that Section will not apply, the judgment of the High Court was reversed and the accused was convicted.
4. Krishna Kanwar v. State of Rajasthan 2004 (2) SCC 608 (para 19)- Held, Section 50 applies where search has to be in relation to a person as contrasted to search of premises, vehicles, articles or bag.
5. Saikou Jabbi v. State of Maharahstra JT 2003 (9) SC 609- Heroine was found in a bag. It was held that Section 50 was not applicable as it applies to search of a person.
6. In Kalema Tumba v. State of Maharashtra reported in (1999) 8 SCC 257, 2 kgs of heroin was recovered from a bag belonging to the accused. It was argued that as the requirements under Section 50 were not complied with, the contraband recovered in the course of the search would be inadmissible. The Hon'ble Apex Court, while rejecting such JUDGMENT 50 CCH-33 SPL. C C No. 818/2023 argument and relying upon Baldev Singh (supra), held that Section 50 would not apply to the search of a bag belonging to the accused. The relevant paragraph is as under:-
"4. As rightly pointed out by the High Court search of baggage of a person is not the same thing as search of the person himself. In State of Punjab v. Baldev Singh this Court has held that the requirement of informing the accused about his right under Section 50 comes into existence only when person of the accused is to be searched. The decision of this Court in State of Punjab v. Jasbir Singh, wherein it was held that though poppy straw was recovered from the bags of the accused, yet he was required to be informed about his right to be searched in presence of a Gazetted Officer or a Magistrate, now stands overruled by the decision in Baldev Singh's case (supra). If a person is carrying a bag or some other article with him and narcotic drug or the psychotropic substance is found JUDGMENT 51 CCH-33 SPL. C C No. 818/2023 from it, it cannot be said that it was found from his "person". In this case heroin was found from a bag belonging to the appellant and not from his person and therefore it was not necessary to make an offer for search in presence of a Gazetted Officer or a Magistrate."
7. In Sarjudas Vs. State of Gujarat reported in (1999) 8 SCC 508, the contraband was recovered from a bag which was hanging on the accuser's scooter, which he was riding. The Hon'ble Apex Court while holding the bag not to be included in the " search of the person " held as under:-
"4. What is contended by the learned Counsel for the appellant is that the appellants were not informed of their right under Section 50 of the NDPS Act that they were entitled to be examined in presence of a gazetted officer or a Magistrate and, JUDGMENT 52 CCH-33 SPL. C C No. 818/2023 therefore, the search of the appellants was illegal and the evidence regarding recovery of charas from their possession could not have been relied upon.
5. We do not find any substance in this contention as the charas was not found on the person of the appellants but it was found kept in a bag which was hanging on the scooter on which they were riding. Therefore, this was not a case where the person of the accused was searched and from his person narcotic drug or psychotropic substance was found. The correct position of the law on this point has been stated by this Court in State of Punjab v. Baldev Singh ".
10.
8. In Birakishore Kar v. State of Orissa reported in (2000) 9 SCC 541, the contraband was recovered from a plastic bag on which the accused was sitting while travelling in JUDGMENT 53 CCH-33 SPL. C C No. 818/2023 a train. As the body of the accused was not searched, Section 50 was held to be inapplicable. The Hon'ble Apex Court held as under:-
"3. What is now contended by the learned counsel for the appellant is that the mandatory requirement of Section 50 of the NDPS Act, 1985, viz., that the person to be searched should be told about his right to be examined in the presence of a Magistrate or a gazetted officer was not complied with in this case. This contention is really misconceived. In this case it was not the person of the appellant which was searched. He was found sitting on a plastic bag which belonged to him and which contained poppy straw. As pointed out by this Court in State of Punjab v. Baldev Singh [(1999) 6 SCC 172], Section 50 would come into play only in the case of search of a person as distinguished from search of any premise etc. As we do not find any substance in this appeal, it is dismissed."
11.
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9. In Kanhaiya Lal v. State of M.P.
reported in (2000) 10 SCC 380, opium was recovered from the bag which was being carried by the accused. Section 50 was not made applicable as it was held that the recovery was made from the bag and not the person, and it was held by the Hon'ble Apex Court held as under:-
"2. The only point raised in this appeal is that the mandatory requirement of Section 50 of the Act was not complied with in this case and therefore the conviction of the appellant is illegal. In our opinion, there is no substance in this contention because 1 kg of opium was not found from the person of the appellant but it was found from a bag which was being carried by the appellant. Therefore, this cannot be said to be a case where on search of the person of the accused, a narcotic drug or psychotropic substance was found. In our opinion, the JUDGMENT 55 CCH-33 SPL. C C No. 818/2023 courts below have correctly held that the appellant is guilty of committing the said offence. The appeal is, therefore, dismissed."
12.
10. Similarly, in Gurbax Singh v. State of Haryana reported in (2001) 3 SCC 28, the accused therein was apprehended while disembarking from a train carrying a gunny bag containing poppy straw weighing 7 kgs. The counsel for the State therein argued that the procedure under Section 50 was not required to be followed as nothing was recovered from the person. The Hon'ble Apex Court while accepting the said argument and referring to Baldev Singh (supra) held that:-
" 8. In view of the aforesaid decision of the Constitutional Bench, in our view, no further discussion is required on this aspect. However, we may mention that this right is extension of right conferred under Section JUDGMENT 56 CCH-33 SPL. C C No. 818/2023 100(3) of the Criminal Procedure Code. Sub- Section (1) of Section 100 of the Code provides that whenever any place liable to search or inspection is closed, any person residing in, or being in charge of, such place, shall, on demand of the officer or other person executing the warrant, and on production of the warrant, allow him free ingress thereto, and afford all reasonable facilities for a search therein. Sub-Section (3) provides that where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched and if such person is a woman, the search shall be made by another woman with strict regard to decency. Sub-
section (7) of Section 100 further provides that when any person is searched under sub- section (3) a list of all things taken possession of shall be prepared and a copy thereof shall be delivered to such person. This would also be clear if we refer to search and seizure, procedure provided under JUDGMENT 57 CCH-33 SPL. C C No. 818/2023 Sections 42 and 43 of the building, conveyance or place. Hence, in our view, Section 50 of the NDPS Act would be applicable only in those cases where the search of the person is carried out."
13. 12(i). The P w-1 deposes in the examination-in- chief that he got information that an African national would come near the house of Ramesh, Chandravadana lay out, K. R. Purm, Bangalore and would sell drugs to his acquainted/known persons. He further deposed that he took down the information and shared the same to his superior officer and collected independent witnesses. He specifically deposes that it may consume time for obtaining the permission from the Court and as such, prepared a record of reason as per Ex. P-5 and visited the spot along with investigation instruments.
12(j). The P w-1 further deposes that they mounted surveillance at the spot and around 2.25 p.m, a person JUDGMENT 58 CCH-33 SPL. C C No. 818/2023 came in a two wheeler, Suzuki Access bearing registration No. K A-03- JQ 1294 and started waiting for someone. On the pointing out of the secret informer, the suspect was apprehended. They introduced themselves to the suspect. The suspect disclosed his name and identity. When he asked about the possession of narcotic drugs/contraband, the suspect disclosed that, he was having/possessing M D M A and would sell the same to his acquainted/known persons. He also disclosed that the contraband was in the two wheeler.
12(k). He specifically deposes that he had called his superior officer i.e., A C P and informed him the incident. The A C P had told him to carry out the recovery & seizure procedure since the contraband was not in the body of the suspect. The accused took out plastic zip lock covers and shown some articles and informed that they were M D M A. He (P w-1) tested a small crystal with DD kit and it JUDGMENT 59 CCH-33 SPL. C C No. 818/2023 turned into brownish colour. He weighed the same and it was about 190 grams. He has further deposed and as per the same, accused took out one by one i.e., 5 zip lock covers and each cover contains 2 grams of M D M A. 12(l). This witness was cross examined with regard to search. He admits the suggestion that since the accused had not having any contraband in his personal body, he asked him to produce the contraband from his vehicle dicky. He also admits the suggestion that there is a reference in Ex. P-6(seizure mahazar) that, accused only took out the contraband & placed before him. He admits the suggestion that no photos were taken while the accused was taking out the contraband. These suggestions go to show that accused himself took out the contraband and placed before the investigating officer.
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12(m). This witness denies that no contraband was seized / recovered from the accused. He admits the suggestion that since there was no contraband in his personal body & on his(accused) request he (P w-1) directed/ordered him (accused) to produce the contraband. He also admits the suggestion that there is a reference in Ex. P-6 that accused himself had produced the articles. All these suggestions go to show that, accused possessed contraband and he took out from his vehicle produced the same before the C w-1. Though, this witness was cross examined, even remotely, no suggestion was put to him that accused had not informed them that he was in possession of M D M A and it was not kept in the two wheeler dicky. The learned defence counsel could not extract anything material in the cross examination of this witness to assail his version about the recovery of the contraband from the accused. By looking into the evidence available on JUDGMENT 61 CCH-33 SPL. C C No. 818/2023 record, personal search of the accused was not conducted on the date of apprehending him. 12(n). The learned Public Prosecutor argued that section 50 of the NDPS Act is not applicable at all in the present case. He submits that the personal search of the accused was not searched by the CCB officials. According to him, the accused himself informed the CCB team that the contraband was kept in the dicky of the two wheeler and as such, Sec. 50 of the NDPS Act is not applicable. The arguments of the learned Public Prosecutor hold good by looking at the evidence on record. 12(o). There is no disagreement with regard to the dictum laid down by the Hon'ble Apex Court in the cases cited (except one) by the learned defence counsel. However, the same may not be made applicable to the present case as they are distinguishable on facts.
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12(p). The above cited decisions by the Learned Public Prosecutor are aptly applicable to the case on hand as the personal search has not been done on the accused and Sec. 50 of the N D P S Act is not applicable to the present case.
13. DISCUSSION ON THE POINT OF COMPLIANCE OF SEARCH AND RECOVERY OF THE CONTRABAND 13(a). It is the specific case of the prosecution that on 20-10-2022 at about 12.00 pm., C. w-1 received the credible information about the illegal possession and sale of narcotic drugs and psychotropic substances. Immediately he reduced the same into writing and informed the superior officer and obtained the permission to conduct raid. To substantiate these facts, C w-1/P w.-1 examined before the Court as stated above. In his evidence he has stated/deposed that he along with independent witnesses and staff visited the spot around 2.00 pm., and mounted surveillance. At about 2.25 pm., JUDGMENT 63 CCH-33 SPL. C C No. 818/2023 a person came to the spot in a two wheeler and started waiting for someone to come. On the pointing out of the secret informer, the suspected was surrounded and apprehended. On enquiry, he (accused) disclosed his name and identity. He was found possessing of above stated contraband and was got weighed with the help of scale. He (accused) has stated that he used to procure the contraband from one Mr. Dozie. A detail seizure mahazar was drawn. C w. 1 seized the contraband, two mobile phones, weighing machine, 20 zip lock covers, and two wheeler under a seizure mahazar in the presence of the independent witnesses. He apprised him about his legal rights. He called the A C P i.e., C. w.-15/P w-4 to visit the spot and conduct personal search of the accused.
13(b). He further deposed that A C P had told him that since no contraband was in possession of the suspected i.e., in his body and no personal search was JUDGMENT 64 CCH-33 SPL. C C No. 818/2023 required and asked the C w-1 to conduct seizure procedure.
13(c). The P w-1 deposes that the accused took out a plastic zip lock covers and showed some articles and stated the same was/were M D M A. He further deposes that he tested a small crystal with the help of NDPS Kit. He weighed the same and it was around 190 grams. The bulk was packed and sealed with "PI-1 ANW" English alphabet seal. The P w-1 further deposes that similarly totally 5 zip lock covers containing 2 grams each were placed before him and the same were packed and sealed with " PI-1 ANW " English alphabet seal.
13(d). P w-1 further deposed that accused took out two mobile phones i.e., basic Nokia company handsets and placed before him, electronic weighing machine, & 20 small zip lock covers. The same were packed and sealed with " PI-1 ANW " English alphabet seal. The articles JUDGMENT 65 CCH-33 SPL. C C No. 818/2023 which were found in the possession of accused and placed before the P w-1 were seized, packed and numbered as Article Nos. 1 to 10. He identifies the seized articles before the Court as M. Os. 1 to 10.
3(e). The learned defence counsel cross examined P w-1 at length on the point of search and recovery. He denies the suggestion that M.Os. were not seized from the spot. He denies the suggestion that M.Os. are created for the purpose of the present case. The P w-1 denies the suggestion that except two mobiles other M.Os. are not belonged to accused. It means that the Mobile phones seized are of accused. Under what circumstances, these two mobiles came to the hands of the Investigating Officer/search and seizure officer is not forthcoming. Even in statement U/S.313 of Cr.P.C., the accused has not stated how and when he gave two mobiles to I.O. An inference that can JUDGMENT 66 CCH-33 SPL. C C No. 818/2023 be drawn is that, I O has conducted raid, seized the articles at the spot and drawn the seizure mahazar / panchanama. Though this witness was cross examined at length nothing useful has been extracted from his mouth to discredit his version.
13(f). The C w-2, Sri. Manjunath was an independent witness deposed as P w-6 before the Court on 25-07-2024. He deposes that about 2 years back, while he was going on his work, police called him and requested him to be part of recovery mahazar. He also deposes that police had informed him that a person would be selling drugs at Kalkere Main Road. He further deposes that police had given him a notice and he identified the same as per Ex. P-4 and his signature as Ex. P-4(b). The police took him to Kalkere and after that, a person came to there in Suzuki Access. The police apprehended by showing their identity. He specifically JUDGMENT 67 CCH-33 SPL. C C No. 818/2023 deposes that an informer alerted the police and went off. He deposes that suspected took out zip lock covers and placed 190 grams MDMA, 5 zip lock covers each containing 2 grams of MDMA. The contraband articles were packed and sealed. He affixed his signatures on the Articles. He identifies his signature on M.O. 7 to 10.
13(g). This witness was cross examined by the learned defence counsel. He admits the suggestion that he has signed as independent witness on two mahazars i.e., in Spl. C. C No. 1375/2024 and Spl. C. C. No. 745/2024. The same are marked as Ex. D-1 & 2. Though, P w-6 was cross examined, even remotely, no suggestion was put to him that he was not present at the spot. He denies the suggestion that no M.Os. were recovered from the accused. He denies the suggestion that he uses to help the police officials. Even remotely, no suggestion was put to him that signatures found on JUDGMENT 68 CCH-33 SPL. C C No. 818/2023 MOs., especially MOs. 7 & 8 are not of him and it was not done at the spot/place of occurrence.
13(h). Admittedly, MOs. 7 & 8 (mobile phones) are of accused. If the I O had not seized the articles as per Ex. P-6, the signatures of the witnesses would not have been there on MOs. It means the I O seized the articles as per Ex. P-6 and obtained signatures of the witnesses at the spot on MOs.
13(i). The C w-3, Sri. Lokesh was another independent witness deposed as P w-7 before the Court on 17-08-2024. He deposes that, on 20-10-2022, police called him and requested him to be part of recovery mahazar. He also deposes that police had informed him that a person would be selling drugs at K R Puram. He further deposes that police had given him a notice and he identified the same as per Ex. P-4. The police took him to spot and after that, a person came there in Suzuki Access.
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The police apprehended by showing their identity. He
specifically deposes that an informer alerted the police and went off. He deposes that suspected took out zip lock covers and placed 190 grams MDMA, 5 zip lock covers each containing 2 grams of MDMA. The contraband articles were packed and sealed. He affixed his signatures on the Articles. He identifies his signature on M.O. 7 to 10.
13(j). This witness was cross examined by the learned defence counsel. He deposes that one RadhaKrishna had given him a telephone call on that day. He deposes that he knew that person as he used to visit market. He deposes that he has signed to a mahazar only. Though, P w-7 was cross examined, even remotely, no suggestion was put to him that he was not present at the spot. Even remotely, no suggestion was put to him that the police have not recovered any contraband and JUDGMENT 70 CCH-33 SPL. C C No. 818/2023 other articles from the accused. He denies the suggestion that he had not seen the accused. He denies the suggestion that he uses to help the police officials.
13(k). It is submitted that the prosecution examined only interested witnesses. According to him the prosecution projected mahazar witness i.e., P w-6, Manjunath as a reliable witness but he is a stock witness and as such, his evidence cannot be a reliable / trustworthy witness. Learned counsel relied on Ex. D-1 & 2 to support his contention. He also placed reliance on the decision reported in 1997 Crl. L J 3921 in between Madan Vs. The state to contend that one of the witnesses admitting to have given evidence in favour of police 23 times before-said fact showing that he was a stock witness of police.
13(l). There is no dispute with regard to the proposition of law that has been laid down by the Hon'ble JUDGMENT 71 CCH-33 SPL. C C No. 818/2023 High Court of Madras. The only question that arises for consideration is as to whether it is applicable to the facts of the present case.
13(m). This Court has perused the said judgment. In the said case the prosecution failed to give account for the presence of P w-9(said to have been independent witness for seizure mahazar) at the time of recovery of a weapon said to have been used for the crime. It was also brought to the notice of the court that he gave evidence in favour of the police for nearly 23 times and as such, the Hon'ble High Court held that he was a stock witness for the police.
13(n). Now, coming to the case on hand, Ex. D- 1 is a mahazar, dated 25-12-2023 & Ex. D-2 is a mahazar, dated 24-01-2024. No doubt, P w-6 signed these documents as one of the mahazar witnesses. Ex. P- 6 i.e., mahazar in the present case. It is dated 20-12-
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2022. No document was forthcoming to say that P w-6 was signed as independent witness to any mahazar before 20-12-2022 & he cannot be said to be a stock witness at that time. Much is said on behalf of the accused that the prosecution has examined only interested witnesses and even the mahazar witness, P w-6 is a selected/stock witness. Considering the entire oral and documentary evidence on record, this Court does not find any substance in the submissions made on behalf of the accused in this respect. The prosecution not only examined P w-6 but also examined P w-7. In fact P w-7 has not signed any mahazar / panchanama to contend that he is also a stock witness. His evidence is credible and reliable.
13(o). The learned defence counsel placed reliance on the decision reported in Pradeep Narayan Madgaonkar v. State of Maharashtra (1995) 4 SCC JUDGMENT 73 CCH-33 SPL. C C No. 818/2023 255 and contended that to hold any search and seizure procedure free from doubt, independent and respectable inhabitants of locality should be the best seizure mahazar.
In that case, the appellants were
apprehended during a police raid at their
hideout, where they were found in possession of firearms and ammunition. The prosecution's case hinged significantly on the testimonies of panch witnesses, P w-2 and P w-5, along with official police officers, P w-1, P w-4, and P w-6. Additionally, confessional statements from two appellants were presented but later excluded by the Designated Court due to doubts about their reliability. The Hon'ble Supreme Court scrutinized the involvement and credibility of P w-2 and P w-5, uncovering inconsistencies and ties to the police force, which undermined the prosecution's case. Ultimately, the Hon'ble Apex Court set aside the convictions, emphasizing the necessity for independent and respectable witnesses in compliance with JUDGMENT 74 CCH-33 SPL. C C No. 818/2023 Section 100(4) of the Code of Criminal Procedure (CrPC).
The Hon'ble Supreme Court's legal reasoning centered on the adherence to Section 100(4) of the Cr P C which mandates the inclusion of at least two independent and respectable local inhabitants as witnesses during a search operation. The Hon'ble Supreme Court examined the backgrounds and testimonies of P w-2 and P w-5, revealing their close association with the police and their lack of genuine ties to the locality where the search was conducted. P w-2's history of assisting police raids and P w-5's false address and prior gambling activities cast significant doubt on their reliability as independent witnesses. The Hon'ble Apex Court highlighted that their testimonies lacked credibility and were intrinsically linked to the police, thereby violating the independence required under the law.
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13(p). In the above decision, the Hon'ble Apex
Court also held that police officials evidence must be subject to strict scrutiny, however, the evidence of police officials cannot be discarded merely on the ground that they belong to the police force and are either interested in the investigation or in the prosecution. However, as far as possible the corroboration of their evidence on material particulars should be sought. 13(q). Therefore, in view of the above mentioned case law, it becomes clear that while the testimony of the police officials cannot be discarded away forthwith in the absence of any public witnesses, however, it would be prudent to examine or scrutinise their testimonies more closely and should preferably be corroborated. Accused may be convicted on the basis of the testimonies of the police officials if their testimonies are found to be reliable and trustworthy.
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13(r). The learned counsel for the defence relied on one more decision. The principle was laid down in the matter of Bahadur Singh v. State of M.P. and Anr. (2002)1 S.C.C. 606 in which it is held as under :
8. Under the aforesaid circumstances the appellant cannot be convicted on the sole testimony of police witness, PW.3. The question of applicability of Section 35 of the Act will not arise in the present case when the recovery itself doubtful. The appellant had disputed the recovery of contraband. There are serious discrepancies in its recovery, seizure and deposit in the malkhana.
The Supreme Court in Krishan Chand vs. State of Himachal Pradesh, (2018) 1 SCC 222, holds, " 21. From the evidence which has come on record, it is quite clear that the place, where the accused is alleged to have been apprehended, cannot be said to be an isolated one as the house of Govind Singh DW-2 is situated on the edge of Patarna Bridge. Thus the version of the JUDGMENT 77 CCH-33 SPL. C C No. 818/2023 complainant PW-6 that independent witnesses could not be associated as it was an isolated place does not inspire confidence. Moreover, from the evidence of Govind Singh PW-2 the case of the prosecution regarding apprehension of the accused, at Patarna bridge, while being in possession of bag containing 7 kgs of charas, becomes highly doubtful because had he been so apprehended, by the police, this fact was to come to his notice, for the reason, that his house is situated at the edge of the bridge in which he resides, along with his family."
It is well settled law that the evidence of police officials cannot be doubted unless previous enmity between accused and the police officials is shown. In the absence of any animosity between the accused and official witnesses, there is nothing wrong in relying upon their testimonies and accepting the documents placed for basing conviction. After taking into account the entire material relied upon by the prosecution there is no JUDGMENT 78 CCH-33 SPL. C C No. 818/2023 animosity established on the part of the official witnesses by the Accused in defence and this Court did not find any infirmity in the present case.
13(s). On scanning the testimony of the material witnesses i.e., P.W.1, 2, & 5, it reveals that crucial facts deposed by them in the examination in chief have remained unchallenged and uncontroverted. Mere suggestions were put in the cross examination denying the Accused; apprehension and recovery from accused conscious possession, no ulterior motive whatsoever was assigned to the prosecution's evidence for falsely implicating the accused. Admittedly, accused is not from Bangalore / Karnataka. He is a resident of a foreign nation. In the absence of any prayer animosity or ill-will, the P. ws' who had no familiarity with the accused, was not expected to falsely implicate him in this serious case. No material infirmity has been extracted in the cross JUDGMENT 79 CCH-33 SPL. C C No. 818/2023 examination of these witnesses to suspect the version given by them. In 'Ramjee Rai Vs., State of Bihar reported in (2006) 13 SCC 229 the Hon'ble Apex Court has opined as follows:-
"it is now well settled that what is necessary for proving the prosecution case is not the quantity but quality of the evidence. The Court cannot over look the changes in the value system in the society. When an offence is committed in a village owing to land dispute, the independent witness may not come forward".
13(t). According to the learned counsel for accused there were general public near the spot and no one was examined or could have made as an independent witness. He submits that the P w-1 has admitted in the course of cross examination that public had enquired him about the presence of police personnel at the spot and he also admits the suggestion that, he did not take down their JUDGMENT 80 CCH-33 SPL. C C No. 818/2023 names. Since the P w-1 has not secured them as independent witnesses, the prosecution case is doubtful. As we know that 6th Main, Chandravadana Lay out, Kalkere Main Road, K.R. Puram, Bangalore is purely a residential area. Most of the residents would be having their own business and they would be busy in their work. The offence was taken place around 2.30 p.m. Expecting general public at that time outside their residents is not possible. They would not have patience to come and witness the search and seizure mahazar and expecting them to come to the Court and depose is highly impossible. In such a circumstances this court cannot find fault with the investigation officer for not securing the independent witness at the spot.
13(u). It is not the case of the defence that the general public were present at the time of visiting the spot/place of occurrence. During the course of following JUDGMENT 81 CCH-33 SPL. C C No. 818/2023 seizure procedure, the public enquired with the I O. The I O cannot be expected to stop his official work and give explanation/share the information to the general public at that time. Moreover, when he took two independent witnesses along with him, question of requesting the public during the course of conducting seizure procedure does not arise.
13(v). The testimony of P w-1 has been duly corroborated by P w-6 and P w-7. The aforesaid testimonies of above recovery witnesses make it clear that they have stood firm on their deposition and very well withstood the test of cross examination and no material contradiction has surfaced in their cross examination to doubt their version regarding the search & recovery proceedings.
13(w). Moreover, considering the entire evidence on record, nothing emerges that there was any animosity JUDGMENT 82 CCH-33 SPL. C C No. 818/2023 by any of the police officers examined by the prosecution in this case with accused person. To put it differently, nothing emerges that there was any motive available to any of the police officials to falsely rope in the accused person.
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). P w-1 deposes that in the in the presence of independent witnesses and police personnel seized the articles under the mahazar between 2.30 p.m. to 6.30 p.m. on 20-10-2022. The P w-1 identifies the said mahazar as Ex. P-6 and his signature has been marked as Ex. P-6(a). He specifically identifies the signature of accused as Ex. P-6(d). He deposed that on that date, seized articles were packed and were affixed ' PI-ANW ' seal on them. He identifies the sample contraband before JUDGMENT 83 CCH-33 SPL. C C No. 818/2023 the Court and seized Mobiles and other articles. He also identifies the Accused before the Court. He deposes that, he went to the police station (K. R. Police Station) handed over the accused, seized articles and submitted a report to C w-14. He identifies the said report (complaint in common parlance) as Ex. P-8 and signature as Ex. P-8(a). He has specifically deposed that at the time of mahazar proceedings, a photo had been taken by his one of the police personnel and the same has been inserted in Ex. P-6, Mahazar. He further deposes that, accused, seized articles, vehicle used for the commission of the offence, panch/mahazar witnesses and other police personnel were seen in the photo and he identifies that photo as per Ex. P-23.
14(b). He denies the suggestion that photo was taken at C C B office. He admits the suggestion that the proceedings as per Ex. P-6 was done for JUDGMENT 84 CCH-33 SPL. C C No. 818/2023 four hours. This suggestion cut root the case of the defence that no recovery mahazar was done. No suggestion was put to him that signature found on Ex. P-6 is not of the accused. In the cross examination except suggesting that he has not received any information, not came to the spot and no seizure was done, there is no serious cross examination about his presence at the time of search and seizure. In the cross examination nothing is brought out to disbelieve his presence at the time of seizure, handing over the accused and filing the report along with seized articles.
14(c). The P w-6 also deposes that C w-1 drawn a detail mahazar at the spot. He identifies the spot mahazar at Ex. P-6 and signature at Ex. P-6(b). He also identifies the sample seal before the Court at Ex. P-7. During the course of cross examination, he denies the suggestion that photo in the Ex. P-6 was taken at C C B Office. He JUDGMENT 85 CCH-33 SPL. C C No. 818/2023 denies the suggestion that he has been deposing falsely that police had drawn mahazar in his presence and he subscribed his signature.
14(d). The P w-7 also deposes that C w-1 drawn a detail mahazar at the spot. He identifies the spot mahazar at Ex. P-6 and signature at Ex. P-6(c). He also identifies the sample seal before the Court at Ex. P-7. During the course of cross examination, he denies the suggestion that photo in the Ex. P-6 was taken at C C B Office. He denies the suggestion that he has signed all the documents at C C B office. Even remotely, no suggestion was put to him that he was not present at the time of drawing up seizure mahazar as per Ex. P-6 at the spot. Though this witness was cross examined, even remotely, no suggestion was put to him that Ex. P-6 was not drawn in his presence and no articles were recovered as per Ex. P-6. There is no focus on Ex. P-7 during the course of JUDGMENT 86 CCH-33 SPL. C C No. 818/2023 cross examination. On going through the entire cross examination of these witnesses, the learned defence counsel could not get any useful admission from these witnesses. No material surfaced in their cross examination to doubt their version regarding seizure of contraband and proceedings of drawing up of mahazar.
15. I N V E S T I G A T I O N :
According to the prosecution, C w -14 i.e., Sri. Pradeep Gowda was the Investigating officer in this matter. The prosecution has examined this C w -14 as P. w-3 before the Court on 24-07-2024. He deposes that he was in police station on 20-10-2022 at 7.00 p.m. and at that time, C w-1 visited the police station and submitted a report, handover the accused, produced seized articles, panchanama/mahazar and other documents. He further deposes that on the basis of Ex. P-8 he registered a case in Crime No. 456/2022 JUDGMENT 87 CCH-33 SPL. C C No. 818/2023 against accused. He submits that on the basis of the complaint, he prepared First Information Report as per Ex.P.12 and submitted to the higher authorities.
He submits that he noted the seized articles in Property Form No. 174/2022. He has recorded the statements of CWs. 2, 3 & 7 to 12 in the matter. He further deposes that he has produced the seized articles before the Magistrate for Inventory. He has enquired about validity of passport and visa of the accused with authority concerned(FRRO). He further deposes that he had received letters from the authority concerned as per Ex. P-15 & 16.
15(a). He admits the suggestion that he has not subscribed his signatures on all the documents and on MOs. He deposes that he had not given any notice before recording the statements of the witnesses. He deposes that photo available in Ex. P-6 was not separately given to JUDGMENT 88 CCH-33 SPL. C C No. 818/2023 him & no 65 B certificate was given to him. He denies the suggestion that he had recorded the statements of the witnesses.
15(b). According the prosecution, C w-14 is the further investigating officer. He was examined as P w-4.
He deposes that he took the investigation papers from C w-14 and conducted further investigation in this matter.
He deposes that he had given requisition letter to prepare inventory and obtained the certificate and identifies the same as Ex. P-19. After receipt of the permission from the Hon'ble Magistrate he sent the sample contraband to FSL for its analysis. He further deposes that on the basis of voluntary statement of accused he deputed his staff to secure another accused i.e., Dozie.
15(c). He was subjected to cross examination.
He fairly submits that he had sent the inventory requisition immediately. He admits the suggestion that he JUDGMENT 89 CCH-33 SPL. C C No. 818/2023 sent requisition to the Hon'ble Magistrate for certification on 22-11-2022. He denies the suggestion that C w-6 & 7 had not given statements before him and the same were recorded by the writer and he has simply signed those documents.
15(d). According to the prosecution, C w-16 is the final investigating officer. He was examined before the Court as P w-2. He deposes that he received the investigation papers from C w-15 and during his investigation, he received the report from the F S L and he could not secure the presence of another accused and filed the charge sheet.
15(e). During the course of cross examination, he fairly admits the suggestion that he has not done entire investigation except receiving the F S L report. On going through the entire cross examination of these witnesses, the learned defence counsel could not get any useful JUDGMENT 90 CCH-33 SPL. C C No. 818/2023 admission from these witnesses. No material surfaced in their cross examination to doubt their version regarding investigation 15(f). The prosecution has examined C w-6, Vinod Kumar as P w-8 before the Court. According to the prosecution, he was the earlier owner of the vehicle bearing Registration No. K A -03 J Q 1294 Suzuki Access-
two wheeler. He sold the same to the accused. The said witness deposed to the same above facts. He further identifies the accused in photo at Ex. P-22 and deposes that he had sold his vehicle to that person. Though, this witness was cross examined, even remotely, no suggestion was put to him that he was not the owner of the vehicle in question and he had not sold the same to the accused.
15(g). The learned defence counsel submits that P w-1 has admitted in his evidence that the Key of a vehicle JUDGMENT 91 CCH-33 SPL. C C No. 818/2023 is very important to start the vehicle. But the I O has not produced the vehicle Key and as such, the accused went near the spot is highly impossible.
15(h). There is no dispute that in normal course without a key of the vehicle same cannot be started but with the help of ignition wires, the spark plugs can fire, and the engine will start and no key is required for to start the engine. It is not in dispute that the vehicle in question can be seen in Ex. P-6/mahazar and also in Ex.
P-23, photo clicked at the spot. According to the defence, the Ex. P-23 was clicked at C C B office. If that has to be accepted, how the vehicle in question brought to the C C B office is not forthcoming and there is no focus on this point. The learned Public Prosecutor submits that the vehicle in question was seized at the spot only and all the recovery witnesses deposed to that effect and the vehicle in question was not brought to the C C B office and in fact JUDGMENT 92 CCH-33 SPL. C C No. 818/2023 it was taken to the K R. Puram police station which is very near to the place of occurrence. The arguments of the Learned Public prosecutor are more probable than that of the learned counsel for the defence.
16. F S L REPORT 16(a). Dr. Vani N, Assistant Director, Scientific Officer, F S L, Bangalore has been examined as P w-5. She has deposed that her laboratory had received sealed article on 01-12-2022 in Crime No. 456/2022. The articles were sealed with seal impression " CCB " which was intact and tallied with the specimen seal sent by the I O. She further deposed that she carried out respective tests on the sample articles. She further deposes that Articles responded positive for Methamphetamine and it was stimulant drug. She deposed that she had issued report as per Ex. P-10, signature as Ex. P-10(a) and sample seal JUDGMENT 93 CCH-33 SPL. C C No. 818/2023 at Ex. P-11. She identifies the said articles as M.Os. No. 1 to 6 before the Court.
16(b). This witness was cross examined by the learned defence counsel. Nothing elicited from her mouth to disprove her report. The F S L report at Ex. P-10 is admissible under Sec. 293 of Cr. P. C to conclude that sample gave positive for Methamphetamine.
17. DISCUSSION ON THE POINT OF COMPLIANCE OF SECTION 52A OF THE NDPS ACT 17(a). The learned defence counsel contended that charge-sheet stood vitiated because of the non- compliance of Section 52-A of the NDPS, Act. He submits that sample was not drawn in the presence of the learned Magistrate & there is a delay in sending the sample drawn articles to the F S L for chemical analysis. The learned counsel appearing for the accused placed strong reliance on some decisions of the Hon'ble Apex Court to make JUDGMENT 94 CCH-33 SPL. C C No. 818/2023 good his submission that non-compliance of Section 52A of NDPS Act along with the relevant rules would vitiate the entire trial. The Hon'ble Apex Court in the following two decisions and laid down guidelines :-
1. 2024 S C C OnLine S C 3848 in between Narcotics Control Bureau Vs. Kashif.
2. 2025 S C C OnLine S C 110 in between Bharat Aambale Vs. State of Chhattisgarh.
17(b). The Hon'ble Apex Court, reported in 2024 S C C OnLine S C 3848 in between Narcotics Control Bureau Vs. Kashif, held that, any lapse or delay in compliance of Section 52A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) would not vitiate the trial. The Court will have to consider other circumstances and the other primary evidence collected during the course of investigation, as also the statutory presumption permissible under Section 54 of the NDPS JUDGMENT 95 CCH-33 SPL. C C No. 818/2023 Act. The Hon'ble Apex also said that Section 52A NDPS Act was inserted for an early disposal of the seized narcotic drugs and psychotropic substances, having regard to the hazardous nature, vulnerability to theft, substitution, constraints of proper storage space, and other relevant considerations. The paragraphs Nos. 31 to 39 are very important and the same have been reproduced herewith for easy understanding-
31. From the above decisions, the position that emerges is that this Court in catena of decisions, has approved the procedure of spot searches and seizures in compliance with the Standing Orders and the Notifications issued by the NCB and the Central Government, and upheld the convictions on being satisfied about the search and seizure made by the officers as per the provisions of the Act and being satisfied about the scientific evidence of F.S.L. reports etc. Even otherwise, in view of the law laid down by the Constitution Benches in case of Pooran Mal and in case of JUDGMENT 96 CCH-33 SPL. C C No. 818/2023 Baldev Singh, any procedural illegality in conducting the search and seizure by itself, would not make the entire evidence collected thereby inadmissible. The Court would have to decide the admissibility of evidence in the context and the manner in which the evidence was collected and was sought to be used during the course of trial. The evidence collected during the course of investigation in legal and proper manner and sought to be used in the course of trial with regard to the seized contraband substance could not be simply brushed aside, on the ground of procedural irregularity if any, committed by the concerned officer authorized in making application to the Magistrate as contemplated under Section 52A of the Act.
32. Significantly, the Authorized Officer can make the application under subsection (2) of Section 52A for three purposes - (a) for certifying the correctness of the inventory prepared by him; or
(b) taking in presence of such magistrate, photographs of the seized drugs, substances and conveyances and certifying such photographs as JUDGMENT 97 CCH-33 SPL. C C No. 818/2023 true; or (c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate, and certifying the correctness of any list of samples so drawn. The use of the conjunction "OR" made in between the three purposes mentioned therein, itself makes it explicitly clear that the purposes for which the application could be made under sub-section (2) are alternative and not cumulative in nature. Such provision specifying multiple alternative purposes could not be construed as a mandatory provision muchless its non-compliance fatal to the case of prosecution.
33. Though it is true that the inventory certified, photographs taken and the list of samples drawn under sub-section (2) has to be treated by the Court as primary evidence in view of sub-section (3), nonetheless the documents like Panchnama, seizure memo, arrest memo etc. prepared by the Investigating Officer on the spot or during the course of investigation are also primary evidence within the meaning of Section 62 of the Evidence Act, carrying the same evidentiary value as any JUDGMENT 98 CCH-33 SPL. C C No. 818/2023 other primary evidence. Such primary evidence with regard to Search and Seizure of the contraband substance could not be overlooked merely because some lapse or non-compliance is found of Section 52A of the Act.
34. In our opinion reliance placed by the High Court on the decision of this Court in Union of India Vs. Mohanlal and Another, is thoroughly misplaced. In the said case, the issue of pilferage of contraband was the main issue. The Court after noticing the non-compliance of the procedure laid down in the Standing Order No. 1 of 89 dated 13.06.1989, and the possibility of the pilferage of contraband goods and their return to the market place for circulation, had appointed an amicus curiae for making a realistic review of the procedure for search, disposal or destruction of the narcotics and remedial steps that need to be taken to plug the loopholes, if any. The Court, thereafter, had raised the queries with regard to the seizure, storage, disposal/destruction and also with regard to the judicial supervision in respect of the seized narcotic drugs and JUDGMENT 99 CCH-33 SPL. C C No. 818/2023 psychotropic substances. The prime focal in case of Mohanlal was the disposal of seized contraband goods as contemplated in Section 52A. Though it held that the process of drawing samples has to be done in presence of and under the supervision of the Magistrate, it nowhere held that non- compliance or delayed compliance of the procedure prescribed under Section 52A (2) would vitiate the trial or would entitle the accused to be released on bail.
35. None of the provisions in the Act prohibits sample to be taken on the spot at the time of seizure, much less Section 52A of the said Act. On the contrary, as per the procedure laid down in the Standing Orders and Notifications issued by the NCB and the Central Government before and after the insertion of Section 52A till the Rules of 2022 were framed, the concerned officer was required to take samples of the seized contraband substances on the spot of recovery in duplicate in presence of the Panch witnesses and the person in whose possession the drug or substance recovered, by drawing a Panchnama.
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It was only with regard to the remnant
substance, the procedure for disposal of the said substance was required to be followed as prescribed in Section 52A.
36. At this stage, we must deal with the recent judgments in case of Simarnjit vs. State of Punjab, (Criminal Appeal No.1443/2023), in case of Yusuf @ Asif vs. State (2023 SCC Online SC 1328), and in case of Mohammed Khalid and Another vs. State of Telangana ((2024) 5 SCC
393) in which the convictions have been set aside by this Court on finding non-compliance of Section 52A and relying upon the observations made in case of Mohanlal. Apart from the fact that the said cases have been decided on the facts of each case, none of the judgments has proposed to lay down any law either with regard to Section 52A or on the issue of admissibility of any other evidence collected during the course of trial under the NDPS Act. Therefore, we have considered the legislative history of Section 52A and other Statutory Standing Orders as also the judicial pronouncements, which clearly lead to an JUDGMENT 101 CCH-33 SPL. C C No. 818/2023 inevitable conclusion that delayed compliance or noncompliance of Section 52A neither vitiates the trial affecting conviction nor can be a sole ground to seek bail. In our opinion, the decisions of Constitution Benches in case of Pooran Mal and Baldev Singh must take precedence over any observations made in the judgments made by the benches of lesser strength, which are made without considering the scheme, purport and object of the Act and also without considering the binding precedents.
37. It hardly needs to be reiterated that every law is designed to further ends of justice and not to frustrate it on mere technicalities. If the language of a Statute in its ordinary meaning and grammatical construction leads a manifest contradiction of the apparent purpose of the enactment, a construction may be put upon it which modifies the meaning of the words, or even the structure of the sentence. It is equally settled legal position that where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftsman's JUDGMENT 102 CCH-33 SPL. C C No. 818/2023 unskillfulness or ignorance of the law. In Maxwell on Interpretation of Statutes, Tenth Edition at page 229, the following passage is found: -
"Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence. Where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftsman's unskilfulness or ignorance of the law, except in a case of necessity, or the absolute intractability of the language used."
38. As observed by this Court in K.P. Varghese vs. Income Tax Officer, Ernakulam and Another8, a statutory provision must be so construed, if it is possible, that absurdity and mischief may be avoided. Where the plain and literal interpretation JUDGMENT 103 CCH-33 SPL. C C No. 818/2023 of statutory provision produces a manifestly absurd and unjust result, the Court may modify the language used by the Legislature or even do some violence to it, so as to achieve the obvious intention of the Legislature and produce a rational construction and just result.
39. The upshot of the above discussion may be summarized as under:
(i) The provisions of NDPS Act are required to be interpreted keeping in mind the scheme, object and purpose of the Act; as also the impact on the society as a whole. It has to be interpreted literally and not liberally, which may ultimately frustrate the object, purpose and Preamble of the Act.
(ii) While considering the application for bail, the Court must bear in mind the provisions of Section 37 of the NDPS Act which are mandatory in nature. Recording of findings as mandated in Section 37 is sine qua non is known for granting bail to the accused involved in the offences under the NDPS Act.
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(iii) The purpose of insertion of Section 52A laying down the procedure for disposal of seized Narcotic Drugs and Psychotropic Substances, was to ensure the early disposal of the seized contraband drugs and substances. It was inserted in 1989 as one of the measures to implement and to give effect to the International Conventions on the Narcotic drugs and psychotropic substances.
(iv) Sub-section (2) of Section 52A lays down the procedure as contemplated in sub-section (1) thereof, and any lapse or delayed compliance thereof would be merely a procedural irregularity which would neither entitle the accused to be released on bail nor would vitiate the trial on that ground alone.
(v) Any procedural irregularity or illegality found to have been committed in conducting the search and seizure during the course of investigation or thereafter, would by itself not make the entire evidence collected during the course of investigation, inadmissible. The Court would have to consider all the circumstances and find out JUDGMENT 105 CCH-33 SPL. C C No. 818/2023 whether any serious prejudice has been caused to the accused.
(vi) Any lapse or delay in compliance of Section 52A by itself would neither vitiate the trial nor would entitle the accused to be released on bail. The Court will have to consider other circumstances and the other primary evidence collected during the course of investigation, as also the statutory presumption permissible under Section 54 of the NDPS Act.
17(c). The Hon'ble Apex Court, reported in 2025 S C C OnLine S C 110 in between Bharat Aambale Vs. State of Chhattisgarh, held that, mere non-compliance of the procedure under Section 52A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) will not be fatal to the trial unless there are discrepancies in the physical evidence. The Hon'ble Apex Court has observed, "Mere non-compliance of the procedure under Section 52A or the Standing Order(s) / Rules thereunder will not be fatal to the trial unless there JUDGMENT 106 CCH-33 SPL. C C No. 818/2023 are discrepancies in the physical evidence rendering the prosecution's case doubtful, which may not have been there had such compliance been done. Courts should take a holistic and cumulative view of the discrepancies that may exist in the evidence adduced by the prosecution and appreciate the same more carefully keeping in mind the procedural lapses."
17(d). The Honb'le Apex Court held further that although Section 52A of NDPS Act is primarily for the disposal and destruction of seized contraband in a safe manner yet it extends beyond the immediate context of drug disposal, as it serves a broader purpose of also introducing procedural safeguards in the treatment of narcotics substance after seizure inasmuch as it provides for the preparation of inventories, taking of photographs of the seized substances and drawing samples therefrom in the presence and with the certification of a Magistrate.
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17(e). The Hon'ble Apex Court added that where
there has been lapse on the part of the police in either following the procedure laid down in Section 52A of the NDPS Act or the prosecution in adequately proving compliance of the same, it would not be appropriate for the Courts to resort to the statutory presumption of commission of an offence from the possession of illicit material under Section 54 of the NDPS Act, unless the Court is otherwise satisfied as regards the seizure or recovery of such material from the accused persons from the other material on record. Similarly, irrespective of any failure to follow the procedure laid under Section 52A of the NDPS Act, if the other material on record adduced by the prosecution inspires confidence and satisfies the Court regarding both the recovery and possession of the contraband from the accused, then even in such cases, the Courts can without hesitation proceed for conviction JUDGMENT 108 CCH-33 SPL. C C No. 818/2023 notwithstanding any procedural defect in terms of Section 52A of the NDPS Act.
17(f). In paragraph No. 47 it has been held as-
Wherever any non-compliance or contravention of either the provision or the Rules / Standing Order(s) thereunder is alleged, the same must be something tangible and not a mere bald assertion or superficial claim. The accused must impute something palpable to make good its case that there has been non-compliance of the mandate of the said provision.
The Hon'ble Apex Court observed that mere assertion by the accused that there has been non-compliance of the said provision may not be sufficient and the initial burden will always be on the accused to lay down the foundational facts for establishing that there has been a non-compliance of Section 52A of the NDPS Act, either by leading evidence of their own or by relying upon the JUDGMENT 109 CCH-33 SPL. C C No. 818/2023 evidence of the prosecution itself such as by putting direct and specific questions to the police officers and key witnesses.
The Hon'ble Apex Court, therefore, summarized the following points -
(I) Although Section 52A is primarily for the disposal and destruction of seized contraband in a safe manner yet it extends beyond the immediate context of drug disposal. Mere drawing of samples in presence of a gazetted officer would not constitute sufficient compliance of the mandate under Section 52A sub-section (2) of the NDPS Act.
(II) Although, there is no mandate that the drawing of samples from the seized substance must take place at the time of seizure, yet the process of inventorying, photographing and drawing samples of the seized substance shall as far as possible, take place in the presence of the JUDGMENT 110 CCH-33 SPL. C C No. 818/2023 accused, though the same may not be done at the very spot of seizure.
(III) Any inventory, photographs or samples of seized substance prepared in substantial compliance of the procedure prescribed under Section 52A of the NDPS Act and the Rules / Standing Order(s) thereunder would have to be mandatorily treated as primary evidence as per Section 52A sub-section (4) of the NDPS Act, irrespective of whether the substance in original is actually produced before the court or not. (IV) The procedure prescribed by the Standing Order(s) / Rules in terms of Section 52A of the NDPS Act is only intended to guide the officers and to see that a fair procedure is adopted by the officer in-charge of the investigation, and as such what is required is substantial compliance of the procedure laid therein.
(V) Mere non-compliance of the procedure under Section 52A or the Standing Order(s) / Rules thereunder will not be fatal to the trial unless there are discrepancies in the physical evidence.
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(VI) If the other material on record adduced by the prosecution, oral or documentary inspires confidence and satisfies the Court as regards the recovery as-well as conscious possession of the contraband from the accused persons, then even in such cases, the Courts can without hesitation proceed to hold the accused guilty notwithstanding any procedural defect in terms of Section 52A of the NDPS Act.
(VII) Non-compliance or delayed compliance of the said provision or rules thereunder may lead the Court to drawing an adverse inference against the prosecution, however no hard and fast rule can be laid down as to when such inference may be drawn, and it would all depend on the peculiar facts and circumstances of each case.
(VIII) Where there has been lapse on the part of the police in either following the procedure laid down in Section 52A of the NDPS Act or the prosecution in proving the same, it will not be appropriate for the Court to resort to the statutory presumption of commission of an JUDGMENT 112 CCH-33 SPL. C C No. 818/2023 offence from the possession of illicit material under Section 54 of the NDPS Act, unless the Court is otherwise satisfied as regards the seizure or recovery of such material from the accused persons from the other material on record. (IX) The initial burden will lie on the accused to first lay the foundational facts to show that there was non-compliance of Section 52A, either by leading evidence of its own or by relying upon the evidence of the prosecution, and the standard required would only be preponderance of probabilities.
(X) Once the foundational facts laid indicate non- compliance of Section 52A of the NDPS Act, the onus would thereafter be on the prosecution to prove by cogent evidence that either (i) there was substantial compliance with the mandate of Section 52A of the NDPS Act OR (ii) satisfy the Court that such non-compliance does not affect its case against the accused, and the standard of proof required would be beyond a reasonable doubt.
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17(g). As per the prosecution case, the P w-1
recovered and seized the contraband from the accused i.e., total 200 grams of M D M A(commercial quantity) and handed over the articles to C w-14. The C w-14 during the course of his investigation forwarded a requisition as per Ex. P-17 (dated 31-10-2022) to the Hon'ble Magistrate Court for inventory and certificate. The further investigation was taken over by the P w-4. In his evidence, he has stated that on 22-11-22 once again sent a requisition as per Ex. P-18 for inventory and certificate. He further deposes that as per Ex. P-19 he received the sample for sending the same to FSL. He further deposes that he sent the sample to the F S L for chemical analysis as per Ex. P-20. Though this witness was cross examined, nothing elicited from his mouth to disprove his version. Admittedly, this procedure was conducted on 26-11-2022. P w-4 sent this sample to the F S L for chemical analysis on 30-11-2022. Thus, it JUDGMENT 114 CCH-33 SPL. C C No. 818/2023 can be said that there has been no procedural lapse in terms of the Sec. 52A of NDPS Act, rather it appears that P w-4 has followed the process prescribed thereunder that was in force at the time of seizure and sampling.
18. DISCUSSION ON THE POINT OF COMPLIANCE OF SECTION 57 OF THE NDPS ACT 18(a). The defence counsel argued that, there is non- compliance of Section 57 of the Act. He submits 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.
18(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 JUDGMENT 115 CCH-33 SPL. C C No. 818/2023 counsel that the C w-1 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.
18(c). The learned Public Prosecutor placed reliance on Ex. P- 9 and contended that Sec. 57 of the N D P S Act has been complied with. The Ex. P- 9 is dated 21-10-2022. It is addressed to Respected-The Deputy Commissioner of Police(crimes), Office of the Commissioner, Bangalore. As per this document, P w-1(C w-1) intimated the arrest and detail seizure report to his higher officer. The P w-1 & 4 deposed before the Court to that effect. They depose that on the date of arrest itself, they sent and received the information in JUDGMENT 116 CCH-33 SPL. C C No. 818/2023 respect of arrest & seizure. Though, these witnesses were cross examined, there is no focus on the above document. Even remotely, no suggestion was put to him that he had not sent the Ex. P- 9 to his higher officer.
18(d). The section 57 is not mandatory in nature. When substantial compliance has been made, as in the present case it would not vitiate the prosecution case. Thus this Court does not find any violation of Section 57 of the Act.
18(e). The Hon'ble Supreme Court in Mohan Lal Vs. State of Rajasthan reported in AIR 2015 S C 2098 in paragraph 34, relying upon its earlier decisions in the matters of State of Punjab v. Balbir Singh, has held that Section 57 is not mandatory in nature and when substantial compliance is made, it would not vitiate the prosecution case.
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18(f). In the instant case, the prosecution has
been able to demonstrate as per Ex. P- 9 that substantial compliance of the provision contained in Section 57 of the NDPS Act has been made. Therefore, the argument raised on the basis of Section 57 is rejected.
19. PRESUMPTION UNDER SECTION 35 & 54 OF THE NDPS ACT The learned Special Public Prosecutor sought to rely on the legal presumption envisaged in Sec. 35 & 54 of the Act. Section 35 reads thus.
35. Presumption of culpable mental state.-- (1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.
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Explanation: In this section "culpable mental state" includes intention, motive knowledge of a fact and belief in, or reason to believe, a fact. (2) For the purpose of this section, a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability.
Section 54 reads thus.
[[
54. Presumption from possession of illicit articles.--
In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of--
(a) any narcotic drug or psychotropic substance or controlled substance;
(b) any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated;
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(c) any apparatus specially designed or any
group of utensils specially adopted for the
manufacture of any narcotic drug or psychotropic substance or controlled substance; or
(d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured, for the possession of which he fails to account satisfactorily.
19(a). Now, it is relevant to refer herein certain presumption as contemplated under Section 35 of the NDPS Act. According to Section 35 of the Act, in any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be JUDGMENT 120 CCH-33 SPL. C C No. 818/2023 a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. The explanation of the above shows that "culpable mental state‟ includes intention, motive knowledge of a fact and belief in, or reason to believe a fact. The Hon‟ble Supreme Court in catena of decision held that once possession is established, then the person who claims that it was not a conscious possession has to establish it because how he came to be in possession is within his special knowledge. Bashir Ahmed Zaroo Vs. State of J & K 2013 (3) Sri L j 877 is useful decision on this point.
19(b). The learned defence counsel placed reliance on the decision reported in 2002(1) SCC 606 in between Bahadur Singh Vs. State of M P to contend that section 35 of the N D P S Act will not arise when recovery of contraband from the accused is doubtful.
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He also contended that late entry made by the police official in their register/records by interpolation should be held not permissible. He brought to the notice of this Court that in Ex. P-1 & 2 ' K R Puram ' was written by using whitener and as such, the same are not admissible in evidence and benefit of doubt should be given to the accused.
19(c). During the course of cross examination, the P w-1 admits the suggestions that there are corrections in Ex. P-1 & 2 i.e., " K. R. Puram " is over- written. He immediately gives explanation that he had affixed his Chota signatures / initials for having corrected/overwritten on these documents. It is not the case of the defence that this word has been incorporated subsequently to suit the case of the prosecution. It is also not in dispute that the initials found besides the corrections were of subsequent. It is quite natural that JUDGMENT 122 CCH-33 SPL. C C No. 818/2023 when we write/type the document mistake bound to happen and the same would be corrected by affixing a " Chota signature " /initials. Chota signature is used when signing documents quickly / whenever there is a correction. As such, the contention of the defence has to be rejected.
19(d). According to Section 54 of the NDPS Act, it contemplates certain presumptions. According to the said section in trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused committed the offence under this Act in respect of any narcotic drug or psychotropic substance or controlled substance for the possession of which he fails to account satisfactorily.
19(e). It is no doubt true that the presumption under Section 54 of the NDPS Act and the presumption under Section 35 would arise after the prosecution JUDGMENT 123 CCH-33 SPL. C C No. 818/2023 discharged its burden to prove the recovery of the contraband from the accused.
19(f). This Court has recorded statement under section 313 of Cr.P.C. In the said statement accused did not give plausible explanation to the incriminating circumstances proved against him. The Hon'ble Apex Court in Ganesh lal Vs., State of Rajasthan reported in 2002 (1) SCC 731 had convincingly clarified the hesitation when it held that :-
If an accused fails to offer any explanation for his possession of the stolen property in a case built solely on circumstantial evidence that would held the trial court to draw an inference against the accused in the case, the fact omitted by him to answer being one within his exclusive knowledge. Therefore, a dual purpose is contemplated by the examination of the accused U/s.313 (1)(b) of Cr.P.C., rather than offering an opportunity to the accused to explain incriminatory circumstances against him, it would also help the court in the JUDGMENT 124 CCH-33 SPL. C C No. 818/2023 matter of appreciation of the entire evidence adduced during trial, on the basis of the answer furnished.
Here in the present case, during the course of recording 313 statement, accused herein has failed to give plausible explanation as to how he was in possession of the contraband. Except denial of incriminatory statement made against him there is no explanation by him in regard to his false implication in the case.
19(g). It is pertinent to note that as provided U/s. 54 of the NDPS Act which lays down a rule of statutory presumption and rule of evidence which empowers the court to raise a presumption against the accused that until and unless contrary is proved that the accused has committed an offence under Chapter IV of the said Act in respect of possession of any Narcotic Drugs and Psychotropic Substances, possession of which he fails JUDGMENT 125 CCH-33 SPL. C C No. 818/2023 to account satisfactorily. The object of Sec. 54 is to lighten the burden less on the prosecution to prove every ingredients of the offence under Chapter IV by calling in aid the presumption under Sec. 54 of the said Act. The object behind this provision is to subordinate the interest of an ordinary citizen to the wider social and economic interest of the community and the needs of the law enforcement agencies. The stage for raising the presumption arises when the prosecution proves that the accused had dealt with or had physical possession of the contraband drug. If the accused is found to be in possession of the narcotic drug, it is for him to account for such possession satisfactorily otherwise the presumption under section 54 comes into play. N D P S Act provides for a reverse burden of proof upon accused, contrary to normal rule of criminal jurisprudence for presumption of innocence unless proved guilty. This however does not dispense with requirement of JUDGMENT 126 CCH-33 SPL. C C No. 818/2023 prosecution to have first establish a prima facie case, only where after, burden will shift to accused. Mere registration of a case under N D P S Act will not ipso facto shift burden on to accused from the very inception. Compliance with statutory requirements and procedures shall have to be strict and scrutiny stringent. If there is any iota of doubt, benefit shall have to be given to accused.
19(h). The accused has not able to disprove the material facts brought out by the prosecution in the form of evidence. The prosecution is able to prove that the accused was in conscious possession of illegal drugs & psychotropic substances i.e., 200 grams (commercial quantity) of Methamphetamine without any permit or licence by placing cogent and convicting evidence before the Court.
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19(i). The learned counsel for the accused
submits that the accused was arrested on 19-10-2022 at 9.30 p.m. from the house of Ramesh( according to the accused he is his house owner). The P w-4 has deposed in his examination chief that he recorded the statement of the accused house owner's on 6-11-2022. The statement is available on record. This fact is not controverted by the learned defence counsel in any manner. The P w-1 has also deposed that the accused had stated before him that he had been living in Ravikumar's house on the basis of rent. This fact has not been disputed by the learned defence counsel in any manner. The owner's name is Ravikumar. Therefore, the contention that accused was arrested from Ramesh's house is nothing but a falsehood. The first day of the Order-Sheet in Crime No. 456/2022 of MMTC-I Court is available on record. Accused has stated before the Hon'ble Magistrate that he was arrested on 20-10-2022 at Kalkare Main Road.
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This assertion runs contrary to the contention of the learned defence counsel.
19(j). The 313 statement of accused is an important one. Accused states that he does no know to the specific incriminating evidence that is - Q. No. 2= P.W.1 Sri. Md. Mukram S, PI., CCB., has deposed that on 20.10.2022 at about 12.00 noon had received credible information that within the limits of K R Puram Police Station at House No. 153/1, in front of one Ramesh house, 6th Main, Chandravadana Layout, Kalkere Main Road, K.R Puram, Bengaluru you the accused being an African National will come daily on your Suzuki two wheeler bearing No. KA-03 JQ-1294 and sell the prohibited contraband to the public, illegally, basing on the said information on following the mandatory provisions, he came to the spot at 2.00 pm., along with his staff, panchs and investigation tools and mounted surveillance, at about 2.25 pm., you accused came to the spot on a two wheeler, got down from the vehicle and JUDGMENT 129 CCH-33 SPL. C C No. 818/2023 was waiting for someone, the informant showed you the accused and went away, he along with his staff surrounded and apprehended you the accused. What do you say?
Ans.: I do not know.
Q. No. 3 = This witness has further deposed that on enquiry you the accused has revealed your name and address, on further enquiry about the passport and VISA you did not give satisfactory reply, on further probing you have stated that you were in possession of MDMA crystals and that one Dozie from Nigeria used to send the contraband through courier to you and you would sell the same for Rs. 10,000/- to Rs. 20,000/- per gram. What do you say?
Ans.: I do not know.
Q. No. (last) = Have got anything to say? Ans. : Nothing.
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The accused in his examination under Section 313 of the code of Criminal Procedure, 1973, did not state that he was not apprehended on 20-10-2022 and he was arrested on 19-10-2022 & he was not aware of the contraband. He did not say that he had no connection with another accused.
19(k). This Court has gone through the testimony of four material prosecution witnesses ( Pw-1, 4, 6 & 7) and finds that the seizure of contraband narcotic drug, i.e., Methamphetamine weighing 200 grams(commercial quantity), from the accused's conscious possession has been established by these witnesses in their own testimony and is corroborated by documents which were exhibited by them and so also the material objects. These witnesses have faithfully deposed about the whole process beginning from the receipt of the credible information, summoning of the panchas, raid at public road, followed JUDGMENT 131 CCH-33 SPL. C C No. 818/2023 by search and recovery of contraband, the seizure effected and the panchanama/mahazar proceedings, followed by the transmission of the sample to the FSL in sealed condition. The search and seizure procedure is free from all doubts. In these circumstances, this Court is of the view that the prosecution has duly proved guilty of the accused beyond all manner of doubt by leading convincing and satisfactory evidence. This Court is of the considered view, that, the prosecution discharged its burden about the recovery of contraband from the conscious possession of the accused. In such circumstances, it is for the accused to prove the contrary. The accused had no semblance of say much less probable say to prove contrary. Therefore, the presumption available by application of logic flowing from Sections 35 & 54 of the NDPS Act clearly applies to the facts of the present case and this Court answers this point in the Affirmative.
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20. Point No. 2 :
20(a). The prosecution has alleged that accused
has been overstaying in India without a valid Visa. P w-1 deposed that on enquiry, accused has not tender proper information/explanation in respect of Passport and Visa. P w-4 deposes that the authority concern i.e., FRRO send letters as per Ex. P-15 & 16. As per these documents, the accused has been overstaying in India i.e., the Visa expired on 05/07/2019. The P w-3 admits the suggestion that as per the reply of FRRO, Visa of accused had expired. This suggestion goes to show that, accused has been overstaying in India. Foreigners visiting India for more than 180 days in a calendar year must register with the FRRO. Admittedly, this has not done by the accused.
20(b). Though these witnesses were cross examined, there is no focus on these facts. These documents have not been contraverted in any manner.
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In the cross examination of the prosecution witnesses, even remotely no suggestion was put them that, accused has got valid Passport and VISA. Even U/sec. 313 statement also, the accused has not explained about the VISA. As per Sec. 106 of the Indian Evidence Act, it was burden on the accused to prove that, he has a valid VISA to stay in India. He has not produce the same before the Court and as such, an adverse inference has to be drawn that, accused has been in India without a valid VISA. In these circumstances, this Court is of the view that the prosecution has duly proved the guilt of the accused beyond all manner of doubt by leading convincing and satisfactory evidence. And as such, this point is answered in Affirmative.
21. Point No. 2 :
In view of the Affirmative finding on Point Nos. 1, & 2, this Court proceeds to pass the following ...
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::ORDER::
Acting under section 235(2) of the Criminal Procedure Code, 1973, the accused is convicted for the offences punishable under sections Sec. 22(c) of NDPS Act, 1985 & also under Section 14 of the Foreigners Act.
M.O. 1 to 6, 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.
M.Os. 7 to 9 weighing machine, Mobiles, shall be confiscated to State, after appeal period is over.
Vehicle bearing No. K A -03 J Q 1294 is confiscated to the State, after appeal period is over.
M.O. 10- zip-lock covers being worthless are ordered to be destroyed after the appeal period is over.
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Office is directed to furnish copy of this judgment to the accused free of costs forthwith.
(Typed and computerized by me, corrected, signed and then pronounced by me in Open Court on this the 28th day of April 2025) (VIJAYA DEVARAJA URS) XXXIII ACC & S J & SPL. JUDGE (NDPS) BANGALORE.
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::ANNEXURE::
1. LIST OF THE WITNESS/ES EXAMINED FOR THE PROSECUTION :-
P-w.-1 C.W.-1 Sri. Mohammad Mukram, P-w.-2 C.W.-16 Sri. Kumar P-w.-3 C.W.-14 Sri. Pradeep Gowda P-w.-4 C.W.-15 Sri. Ramachandra, P-w.-5 C.W.-4 Dr.Vani N P-w.-6 C.W.-2 Sri. Manjunath P.w.-7 C.W.-3 Sri. Lokesh P.w.-8 C.W.-6 Sri. Vinod Kumar P.w.-9 C.W.-8 Sri. Krishnamurthy S N
2. LIST OF THE WITNESSE /S EXAMNINED FOR THE DEFENCE :-
-NIL-
3. LIST OF THE DOCUMENTS EXHIBITED FOR THE PROSECUTION :-
Ex. P-1 : Copy of the S H D dated
20/10/2022,
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Ex. P-2 : Intimation & Raid
permission letter dated
20/10/2022,
Ex. P-2(a) : Signature,
Ex.P-3 : Permission given by ACP
dated 20.10.2022,
Ex.P-3(a) : Signature,
Ex.P-4 : Notice to independent
witnesses dated
20.10.2022,
Ex.P-4(a to c) : Signatures,
Ex.P-5 : Record of reasons dated
20.10.2022,
Ex.P-5(a to c) : Signatures,
Ex.P-6 : Seizure Mahazar
Ex.P-6(a to d) : Signatures,
Ex.P-7 Sample Seals,
Ex.P-7(a to c) : Signatures,
Ex.P-8 Complaint/report dated
21/10/2022,
Ex.P-8(a) : Signature,
Ex.P-9 : Raid Success Report
dated21.10.2022
Ex.P-9(a & b) : Signatures,
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Ex.P-10 : Test Report issued by the
State FSL dated
11/01/2023,
Ex. P-11 : Sample seal,
Ex.P-12 : First Information Report,
Ex.P-13 : Property Form,
Ex.P-14 : Letter sent to FRRO dated
27.10.2022 regarding the
information of accused,
Ex.P-15 & 16 : Reply received by FRRO, Ex.P-17 : Request letter given to Magistrate for inventory Ex.P-18 : Certificate, Photos, Sample Seals issued by the Hon'ble XXXVII ACMM, Bangalore, Ex.P-19 : Intimation letter dated 05-
11-2022, Ex.P-20 Property Form, Ex.P-21 : Acknowledgment issued by the state FSL dated 1/12/2022, Ex.P-22 : Photo of the accused, Ex.P-23 : Photos, Ex.P-24 : Certificate U/s.65B.
Ex.P-24(a) : Signature.
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4. LIST OF THE DOCUMENTS EXHIBITED FOR THE DEFENCE :-
Ex. D-1 : Mahazar dated 25-12-2023 in Spl C C No. 745/2024.
Ex. D-2 : Mahazar dated 24-01-2024 in Spl C C No. 1375/2024.
5. LIST OF MATERIAL OBJECTS ADMITTED IN EVIDENCE :-
M.Os. 1 - 6 : Contraband Samples, M.Os.7 & 8 : Two Mobile phones, M.O. 9 : Weighing machine, M.O. 10 : 20 Zip lock covers (VIJAYA DEVARAJA URS) XXXIII A C C & S J & SPL. JUDGE, (NDPS) BENGALURU.