Bangalore District Court
State By I.O vs A1: Shyamala on 7 February, 2020
THE COURT OF THE XXXIII ADDL.CITY CIVIL & SESSIONS
JUDGE & SPL. JUDGE (NDPS),
BANGALORE. CCH.33.
PRESENT:
Sri. G.M.SHEENAPPA, B.A., LL.B.,
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BENGALURU.
DATED: THIS THE 7th DAY OF FEBRUARY 2020
SPL.C.C. NO.840/2018
COMPLAINANT : State by I.O., NCB, Bangalore.
(By Spl. Public Prosecutor)
V/S.
ACCUSED : A1: Shyamala, w/o.Shiva aged
about 25 years,
r/at.Bhagatsingh Colony,
Punganur, Chittoor, Andhra
Pradesh.
A2: Savitri W/o.Ramya, aged about
29 years, R/at Bhagatsingh
Colony, Punganur, Chittoor,
Andhra Pradesh.
(By Sri RR., Adv.)
1. Date of Commission of offence: 25.5.2018
2. Date of report of offence: 25.5.2018
3. Arrest of the accused : 25.5.2018
2
4. Date of release of accused on In JC
bail:
5. Period undergone in custody: In JC till date
6. Date of commencing of
10.7.2019
recording Evidence :
7. Date of closing of Evidence : 9.1.2020
8. Name of the complainant: Sri Vivek Kumar Pandey,
I.O
9. Offence complained of : U/s.8(C) R/w.Sec,20(C)
of NDPS Act
10. Opinion of the Judge : Offence not proved
11. Order of sentence : As per final order
---
JUDGMENT
The Intelligence Office, NCB., Bangalore Zonal Unit, Bangalore has lodged the above complaint in NCB.F.No.48/1/11/2018/BZU before Court against the accused persons U/s.8(C) R/w.Sec.20(C) NDPS Act.
2. Brief facts of the case are as under:
The case of the prosecution is that, on 25.5.2018 complainant received information that around 8.00 hours two ladies wearing sarees coming from Vishakapatnam, Andhra CCH-33
3 SPl.C.C.840/2018 Pradesh are carrying large quantity in white gunny bags traveling in general compartment in Train no.18463 Prashanthi Express and will arrive at Yelahanka railway Station, Bengaluru at 10.30 am., on 25.5.2018. He informed the said information to his superior officer, secured panchas and staff members and went to the spot with all necessary equipments at 1.00 hours. Said Train reached the station at 10.50 hours and few passengers got down from the rare and general compartments among them two ladies were wearing sarees and carrying 4 gunny bags. They intercepted them near parking area and on search they found dark green colour flowering, fruiting tops and cannabis plant which had strong pungent smell. On weighing the same it was 44 Kgs. They drew mahazar and arrested the accused persons and produced before Court and remanded to judicial custody.
3. After taking cognizance registered the case. Copies of the prosecution papers were supplied to accused persons U/Sec.207 of Cr.P.C. After hearing, charge framed U/Sec.8(C) 4 R/w.Sec.20(C) of N.D.P.S. Act, read over and explained to them. Accused pleaded not guilty and claimed to be tried.
4. In support of the case, prosecution has examined P.Ws.1 to P.W.6 and got marked Exs.P1 to P.30 and M.Os.1 to
8. After closure, accused are examined U/Sec.313 of Cr.P.C., they denied the incriminating circumstances appeared against them and not chosen to adduce evidence for their defence.
5. Heard the arguments on both sides and perused the written arguments submitted by learned counsel for the accused.
6. The points for consideration are as under:
1. Whether the prosecution proves that on 25.5.2018 at about 10.30 am., at Yelahanka railway station, Train No.18463 Prashanthi Express, Bengaluru accused Nos.1 and 2 were in illegal possession of 44 Kgs., of ganja, which is a narcotic drug without license or permit, there by accused Nos.1 & 2 have committed the offence u/S.8(c) R/w.Sec.20(C) of NDPS Act?
2. What order?
CCH-33 5 SPl.C.C.840/2018
7. My findings on the above points are as under:
Point No.1: In the negative.
Point No.2: See the final order for the following:
REASONS
8. POINT NO.1 :- The learned P.P. vehemently argued that as per evidence of PWs.1 to P.W.6 and Exs.P.1 to P.30 and M.Os.1 to 8, the prosecution proved the guilt. Learned counsel for accused argued that no mandatory provision complied and so many contradictions and discrepancies found in the prosecution witnesses.
9. On careful perusal of the materials placed on record, the prosecution mainly relied on the testimonies of P.Ws.1, 2 & 4 to 6.
P.W.4 has stated that on 25.5.2018 at about 8.00 am., he received information that two women carrying white colour bags are coming in Prashanthi Express illegally carrying ganja with them. He reduced the information in NCB-1 as per Ex.P16 and explained the same before C.W.3. He sent a copy 6 of the said information to Superintendent. C.W.3 permitted him to conduct raid and gave seal No.4. He along with his staff members went to the Yelahanka station at 10.00 am., and there he secured panchas CWs.4 & 5 and informed the information and issued notice as per Ex.P17 and P18 to them. The Prashanthi Express came at 10.50 am. they were near general compartment and two ladies got down from the train with white bags. The informant showed the said ladies. The apprehended the said ladies and on search of the bags they found 44 Kgs., and they tested the same with DD kit and confirmed that it was ganja. He took 24 grams of two packets each and packed separately for sample. They drew mahazar Ex.p7. The said mahazar is translated and signed by C.W.6. They prepared test memo Ex.P8. he issued summons to accused persons as per Ex.P9 and P10. The voluntary statements of accused are at Ex.P11 and P12. Arrest memo is at Ex.P17 and P18. Panch notices are at Ex.P19 and P20 and their statements are at Ex.P21 and P22. The forwarding memo is at Ex.P23, godown receipt is at Ex.P24. Next day he sent seizure report and arrest report as per Ex.P25 and P26.
CCH-33 7 SPl.C.C.840/2018 Certificate U/s.52(A) issued by Tahsildar at Ex.P27 to P29, photos are at Ex.P30.
10. In the cross examination of P.W.4 he has stated that he has not reduced the information in the office diary. He has seized the railway tickets for having transporting ganja in prashanthi Express nor enquired with the Railway ticket collector. It is true that train came at 10.30 am., whereas in the panchanama it is mentioned that train came in time. He has admitted that he has stated in his chief examination that train came at 10.15 am. he denied that they had prepared mahazar before the train arrived. He had enquired the mahazar witnesses about knowing of Telugu language but he has not mentioned the same in mahazar. he denied that he has not explained the accused in their language known to them. He denied that his staff members do not know Telugu. One constable by name Raja knew Telugu and he explained the accused persons but the same is not mentioned in the mahazar. He admitted that they have altered the date in the mahazar. He denied that panchas have not given any 8 statement before him. he denied that he did not go to the station, apprehended the accused and seized ganja and drew mahazar. he denied that he has not secured any person from railway department as witness and that they have prepared all the documents in the office.
11. P.W.1 has further stated that on 27.6.2018 he took further investigation from C.W.1 and on 11.7.2018 he took search warrant from C.W.3 to search the houses of the accused. On search of the said houses they did not find any thing. He drew mahazar Ex.P2. He received the FSL report Ex.P4 and kept in record. On 17.7.2018 he wrote letter Ex.P5 to Airtel Company to furnish the details of the SIM card of accused. Remand is at Ex.P6. he gave information to the Police commissioner regarding arrest of the accused. he filed complaint to the court. in spite of sufficient opportunity was given the counsel for the accused has not cross examined this witness.
CCH-33 9 SPl.C.C.840/2018
12. P.W.2 has stated that 25.5.2018 C.W.1 secured him to the Yelahanka railway station at about 10.50 am., Prashanthi Express came from Andhra Pradesh. From the general compartment two ladies got down from the train with white colour bags and were going near parking place. They stopped them and on search of the bags they found flowers, seeds, steam and leaves. On testing the same with DD Kit by C.W.1 it was confirmed that it was ganja. in all it was 44 Kgs., they took 12 grams each from each bag and packed separately for sample. They drew mahazar Ex.P7. Accused put their LTM. He explained the mahazar in Telugu language to the accused persons. They issued notice to the accused persons as per Ex.P9 and P10. He explained the said notice in Telugu to the accused persons and recorded voluntary statement as per Ex.P11 and 12 by C.W.1. The same was translated to Telugu. Arrest Memo is at Ex.P13 and he translated it to Telugu. The said ganja was destroyed before Taluk Executive Magistrate and the said photos are at Ex.P30. 10
13. In his cross examination he has stated that when they got the information he was in his house, C.W.1 called me to the office. they left the office at 10.00 am., to the railway station. when they left the office except C.W.1 and other staff members no one had accompanied them. They did not enquire at the Yelahanka railway station. he has clearly stated that he has completed his primary school in Telugu medium. He denied that he do not know the knowledge to operate DD kit. He admitted that they recorded the voluntary statement of accused persons in the office. he denied that they drew mahazar in the office. he admitted that when the articles were seized at that time the panchas were not present. He denied that he has not translated English to Telugu language. He denied that he do not know English properly.
14. P.W.5 has stated that 25.5.2018 C.W.1 informed the information received by him and accorded permission to conduct raid. He gave permission to raid. He received copy of information as per Ex.P16. On the same day at night 11.45 pm., C.W.1 produced forwarding Memo Ex.P23, godown receipt CCH-33 11 SPl.C.C.840/2018 Ex.P24. Seizure report and arrest memo are at Ex.P25 and P26. On 29.5.2018 he sent the samples to CFSL, Hyderabad and obtained acknowledgement on 30.5.018 as per Ex.P15. In his cross examination he has stated that in Ex.P16 information report he has not mentioned the time. He denied that since he received the information at a belated stage he has not mentioned the same. he was in charge superintendent at that time he has not produced any document in this regard. He has not signed on Ex.P23. he denied that since he has not received Ex.p23 forwarding memo he has not signed the same. he denied that godown receipt also he has received at belated stage. He has not produced any document to show that he has sent samples to CFSL, Hyderabad. He voluntaries that he has produced the xerox copy. He denied that since he had not sent any articles to CFSL, Hyderabad he has not produced any document. he denied that he has not registered the M.Os., to Mal-kana register.
15. P.W.6 has stated that on 25.5.2018 they received the information that two ladies are transporting ganja. she was 12 also one of the raiding team members. they went to the spot and saw two ladies carrying bags. They apprehended the said ladies and searched the bags. They found ganja and the same was confirmed by testing it in DD Kit. It weighed in all 44 Kgs., and took 12 grams each from each bag for sample and drew mahazar Ex.P7, prepared test memo Ex.P8. Summons was served on the accused as per Ex.P9 and P10 and recorded the voluntary statement of the accused persons as per Ex.P11 and P12, test memos as per Ex.P13 and P14. in his cross examination he has stated that he is working as a technician and denied that since he is a technician he cannot participate in raid. The accused knew Telugu. He denied that in their team no one knew Telugu. He has not given any statement regarding participation in raid. He has stated that he do not remember what are the articles taken with them at the time of raid. He denied that he do not know who were the officials participated in the raid since he had not gone to the spot. He denied that accused hve not given any voluntary statement. He denied that he is deposing falsely.
CCH-33 13 SPl.C.C.840/2018
16. Both independent panch witnesses CWs.4 and 5 are not examined in spite of sufficient opportunity was given. In the absence of corroborated evidence of independent witnesses, the testimony of official witnesses is not reliable and credit worthy.
17. P.W.3 C.F.S.L officer stated that he conducted in all 6 various tests on the sample articles and issued report Ex.P4 and opined that the sample articles responded positive for ganja. In his cross examination denied the suggestion that he has not personally conducted tests on the sample articles and issued false report. Of course as per the evidence of P.W.3, the sample article may respond positive for ganja, but the said sample articles are seized from the possession of the accused is not proved as none of the panch witnesses examined by the prosecution.
18. Ex.P1 letter to Superintendent regarding permission to conduct raid. But the said letter is not accompanied with the copy of information report Ex.P16. Ex.P.2 mahazar for 14 having conducted the house of the accused persons. Bu nothing was seized from the houses. Ex.P3 letter sent by CFSL, Hyderabad, Ex.P4 CFSL report, Ex.P5 & 6 letters to Airtel office, Ex.P7 spot mahazar is not proved as none of the independent panch witnesses are not examined before the court. Ex.P8 test memo, Ex.P9 & 10 Summons, Ex.P11 & 12 voluntary statements of accused has no presumptive value and it is not admissible in evidence as it is recorded after search, seizure and arrest. No further contraband seized on the basis of his statement. Ex.P13 & P14 arrest memos, Ex.p15 acknowledgement of CFSL, Hyderabad, Ex.P16 information report, Ex.P17 and P18 notice issued to panch witnesses. But none of the panchas have been examined before the court. Ex.p19 and P20 summons, Ex.P21 and P22 statements of panch witnesses but the same is not corroborated by examining them, Ex.P23 forwarding memo, Ex.P24 godown receipt, Ex.P25 seizure report submitted to Superintendent for success of raid. In the absence of complying mandatory provisions U/s.42 and 50 of NDPS Act, compliance U/s.57 is not a valid compliance. Compliance with provisions of Sec.57 CCH-33 15 SPl.C.C.840/2018 does not dispense compliance with requirement of Ss.42 and
50. Ex.P26 arrest report, Ex.P27 to P29 certificate U/s.52(A) issued by Tahsildar for production of the property before Tahsildar and Ex.P30 are 16 photos are taken before the Magistrate at the time of compliance U/s.52A of NDPS Act. But the said bulk ganja is seized from the possession of the accused persons is not proved.
19. It is pertinent to note that the notice or questionnaires not issued to accused persons U/s.Sec.50 of NDPS Act which is mandatory. Thus the mandatory provisions U/s.42 and 50 of NDPS Act is not complied by the prosecution.
20. The learned SPP has relied on the decision reported in:-
(2018) 9 SCC 708 in SK Raju @ Abdul Haque @ Jagga Vs., State of West Bengal wherein it is held that:-
Search and seizure in public place - contraband recovered from bag carried by accused - compliance 16 with S.42 not mandatory in such circumstances rather it is S.43 which would comply. The facts and circumstances of the above decision is not applicable to the case on hand as P.W.4 in his evidence at page 2 has clearly stated that they have conducted search of the accused persons.
2011 AIR SCW 3106 Ram Singh Vs., Central Bureau of Narcotics wherein it is held that:-
Ss.42 and 43 applicability of Sec.42 arrest and seizure at bus stand and not in any building, conveyance or enclosed place held S.42 was not attracted in such a case - case was covered under S.43 which does not require the information of any person to be taken down in writing or that the officer concerned must send a copy thereof to his immediate official superior within 72 hours.
The facts and circumstances of the above decision is not applicable to the case on hand as the place where the contraband is seized is a public place or not is not clearly explained by the complainant.
CCH-33 17 SPl.C.C.840/2018
21. The learned counsel for the accused has relied on the Crl.Appeal Nos.1206/2013 in Hanif Khan Vs., Central Burearu of Narcotics and Crl.Appeal No.1250/2005 in E.Micheal Raj Vs., NCB.
The facts and circumstances of the above is helpful to the case of the accused.
22. further in view of the decisions reported in 2009 Crl.L.J. 4299 in Karnal Singh Vs., State of Haryana, (2007) 1 Supreme Court Cases (Cri) 744 in Ritesh Chakarvarti Vs., State of MP, (1999) 7 SCC 280 in State of HP Vs., Jailal and others and in AIR 2013 Supreme Court 357 in the case of Krishan Chand Vs., State of Haryana wherein it is held that:-
(A) Narcotic Drugs and Psychotropic Substances Act (61 of 1985), Ss 42, 50, 57 - Search - Pre search requirement of recording information received and sending it to superior officer-Demands exact and definite compliance as opposed to substantial compliance - So is requirement of S.50 - Compliance 18 with provisions of S.57 does not dispense compliance with requirements of Ss.42 and 50.
2014 Crl.L.J. 1756 in the case of State of Rajasthan Vs., Parmanan and another wherein it is held that:-
(c) Narcotic Drug and Psychotropic Substances Act (61 of 1985), S 50 - Search and seizure - Option to be searched before Gazetted officer or Magistrate -third option given to accused persons viz., to be searched before Superintendent who was part of raiding party-
Would frustrate provisions of S.50 (1) Search conducted therefore, is vitiated."
2002 Crl.L.J. 4502 in the case of Koyappakalathil Ahamed Koya Vs., A.S.Menon and another, wherein it is held that:-
(c) Narcotic Drug and Psychotropic Substances Act (61 of 1985), S 50 - Search an seizure-procedure-
Right given to accused to get searched in presence of Gazetted officer or Magistrate -fact that members of raiding party informed accused that Gazetted Officer is present in raiding party-It is allurement given to accused prompting him for expressing no objection for being searched in presence of said Gazetted officer - An not for asking to be searched in presence pf any other Gazetted officer or Magistrate -Sai CCH-33 19 SPl.C.C.840/2018 procedure is against safeguard provided by S.50 to accused.
AIR 2013 Supreme court 953 in the case of Sukhdev Singh Vs., State of Haryana wherein it is held that:-
(B) Narcotic Drug and Psychotropic Substances Act (61 of 1985), S 42 - Search an seizure - On receipt of secret information-Requirement to reduce information in writing and sent it forthwith to superior officer- Is mandatory-Needs strict compliance-Some delay in compliance is permissible only for special reasons but compliance should be prior to recovery.
(c) Narcotic Drug and Psychotropic Substances Act (61 of 1985), S 42, 15 - Search conducted hours after receipt of information-no effort was made by I.O to reduce information in writing and inform his higher authorities instantaneously or even after or reasonable delay-No evidence produced to show as to what prevented I.O from recording information and sending it to superior total non compliance with provisions of S.42 - Such defect is incurable -
Accused liable to be acquitted.
2009 Crl.L.J. 2407 in the case of UOI Vs., Bal Mukund and others wherein it is held that:-
20
(B) Narcotic Drug and Psychotropic Substances Act (61 of 1985), Ss.8, 18, 67 - Recovery of narcotics-
confessional statements by accused-Admissibility purported raid conducted early in morning-Large number of police officers including high ranking officers were present-accused were found to be in possession of 10 Kgs., of narcotics-Documents categorically show that accused were interrogated- Therefore, confessional statements cannot be said, in the back drop of aforementioned events, to be made by them although they had not been put under arrest-court while weighing evidentiary value of such statements cannot lose sight of ground realities- circumstances attendant to making of such statements should be taken into consideration. On careful reading of the above said decisions, the fact, circumstances and ratio is similar with case on hand.
2014(2) Crimes 234 (Kar) in Ravi and others Vs., State by Manna-E-Khelli Police, Bidar district wherein it is held that:-
"Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 20(b)(ii)(c) and 42 - Recovery of 5 bags of ganja weighing 45 kilograms from possession of appellants - Conviction by Trial Court - Appeal against conviction - Failure to comply with procedure under section 42 of Act - absence to record CCH-33 21 SPl.C.C.840/2018 in writing the information received in first instance - No emergent situation which warranted postponement of said Act of recording the information received in writing-Nor any such record in writing at a later point of time - Held entire proceedings Vitiated by virtue of failure to record circumstances in writing - Quantity of ganja indicated as having been in possession of appellants was also inaccurate as the weighment was of stalks, leaves seeds and possibly the flowering and fruiting tops - inaccurate weighment would have a telling effect on the degree of punishment that could be imposed-this was because NDPS Act provides for a schedule which prescribes the degree of punishment dependent on the weight of substance involved -m hence, held that there was a failure in the charges being framed accurately against accused - impugned judgment of court below set aside - Appeal allowed."
2014 (1) Crime 324 (SC) State of Rajasthan Vs., Parmanand and another wherein it is held thus:
(a) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 50 - Provision is mandatory - but it applies to search of the person of the accused only -
does not apply to search of a bag carried by him - However, if the bag carried by him is searched and his person is also searched, Section 50 applies. 22
"(b) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 50 - Two accused persons - not informed of their rights individually - Joint notice communicated - one of the accused signing for both -
conviction vitiated."
On careful reading of above decisions, facts, circumstances and ratio is applicable to case on hand, as prosecution has not followed mandatory provisions.
23. For the above, in the absence of corroborated evidence the testimony of prosecution witnesses cannot be reliable to prove the guilt of the accused Nos.1 & 2. So many considerable contradictions and discrepancies found in the prosecution witnesses. There is no link of chain found in the circumstantial evidence. Serious doubt arises in the mind of the Court to believe that accused have committed the offence. So accused are entitled for the benefit of doubt. Hence prosecution has utterly failed to prove the guilt beyond reasonable doubt. Accordingly, I answer point No.1 in the 'Negative'.
CCH-33 23 SPl.C.C.840/2018
24. Point No.2: In the result, following:
ORDER Acting under Section 235(1) of Cr.P.C. accused Nos.1 & 2 are acquitted for the offence punishable under Section 8(C) R/w.Sec.20(C) of N.D.P.S. Act.
Accused Nos.1 & 2 are set at liberty if they are not required in any other case.
M.Os.1 to 8 samples is ordered to be returned to the complainant to produce before Drug Disposal Committee for disposal in accordance with law.
Accused Nos.1 & 2 are released U/Sec.437(A) of Cr.P.C., on execution of bond for Rs.50,000/- each with a surety for likesum, for the purpose of his/their appearance before Appellate Court, in the event of filing of any appeal by the State.
[Dictated to the Stenographer directly on the computer, typed by her, corrected, signed and then pronounced by me in Open Court on this the 7th day of February 2020) (G.M.SHEENAPPA) XXXIII ACC & SJ & SPL.JUDGE (NDPS) BANGALORE.24
ANNEXURE
1. List of witnesses examined for the:
(a) Prosecution:
P.W.1 : Sri Sabeer Ali
P.W.2 : Raja E
P.W.3 : K N Varshney
P.W.4 : Vivek Kumar Pandey
P.W.5 : Pankaj Kumar Dwivedi
P.W.6 : Smt.Brudula
(b) Defence :
NIL
2. List of documents exhibited for the:
(a) Prosecution:
Ex.P.1 : Request letter
Ex.P.2 : Panchanama
Ex.P.3 : Letter of CFSL
Ex.P.4 : CFSL report
Ex.P.5 : letter to Airtel
Ex.P.6 : Letter to Airtel
Ex.P.7 : Panchanama
Ex.P.8 : Test memo
Ex.P.9 : Summons
Ex.P.10 : Summons
Ex.P.11 : Voluntary statement
Ex.P.12 : Voluntary statement
Ex.P.13 : Arrest memo
Ex.P.14 : Arrest memo
Ex.P.15 : Acknowledgement of CFSL
Ex.P.16 : Information report
Ex.P.17 : Request letter to pancha
Ex.P.18 : Request letter to pancha
Ex.P.19 : Summons of pancha
CCH-33
25 SPl.C.C.840/2018
Ex.P.20 : Summons of pancha
Ex.P.21 : Statement of pancha
Ex.P.22 : Statement of pancha
Ex.P.23 : Forwarding letter
Ex.P.24 : Godown receipt
Ex.P.25 : Success report
Ex.P.26 : Arrest report
Ex.P.27 to 29 : Certificate U/s.52 A
Ex.P30 : 16 photos
(b) Defence:
NIL
3.List of Material Objects admitted in evidence:
M.O.1 to 4 : CFSL sample
M.O.5 to 8 : sample
(G.M.SHEENAPPA)
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BANGALORE.
CN/*