Bangalore District Court
Ncb vs Sayed Nashath on 21 August, 2025
KABC010222382021
IN THE COURT OF THE XXXIII ADDL. CITY CIVIL &
SESSIONS JUDGE & SPL. JUDGE (NDPS),
BANGALORE. CCH.33.
: P R E S E N T:
SMT.LATHA,
XXXIII ACC & SJ & SPL. JUDGE (NDPS)
BENGALURU.
DATED: THIS THE 21st DAY OF AUGUST 2025
SPL.C.C. NO.1702/2021
COMPLAINANT : Union of India,
Narcotic Control Bureau,
Bangalore Zonal Unit.
(By Spl. Public Prosecutor)
V/S.
ACCUSED : 1. Sayed Nashath,
S/o.Koyamma Koya,
R/at Neha Villa, Padanakkad,
Hosdurg, Kasaragod,
Kerala 671 314.
2. Abdul Majeed Madathum Kuzhiyil,
S/o. Madathum Kzhiyil Pavir
Kutty, Building No.2, Street 912,
Zone No.37, A1 Hakam Bin Manee
St. Doha, Qatar.
2
3. Muhammed Raees M K } split up
4. Askar } in
5. Abdul Safwan } Spl.C.C.3/2023
(Rep. A1-Sri KSV., A2-Sri BM., Advs.)
1. Date of Commission of offence: 8.4.2021
2. Date of report of offence: 8.4.2021
3. Arrest of the accused : A1- 14.4.2021
A2-22.11.2022
4. Date of release of accused on A1- in judicial custody
bail: A2- 22.9.2023
5. Period undergone in custody:
A2- 10 Months
6. Date of commencing of 7.7.2023
recording Evidence :
7. Date of closing of Evidence : 29.1.2025
8. Name of the complainant: Sri Kamalesh Kumar
9. Offence complained of : U/Sec.8(c) R/w.Sec.
22(c), 23(c), 27, 28 & 29
of NDPS Act
10. Opinion of the Judge :
Charges not proved
11. Order of sentence : Acquitted
::JUDGMENT::
The Intelligence officer, NCB., BZU., Bengaluru filed Complaint/Addl. Complaint against the accused Nos.1 to 5 in NCB.F.No.48/1/06/2021/BZU for the offences CCH-33 3 Spl.C.C.1702/2021 punishable U/Sec.8(c) R/w.Sec. 22(c), 23(c), 27, 28 & 29 of NDPS Act.
2. The case of the prosecution in nutshell is as under:-
On 08.04.20221 at around 18.00 hours, Intelligence officer, NCB., had received credible information through telephone from Aramex Indian Pvt. Ltd., that one parcel bearing shipment airway bill No.(AWB) 30806899675 suspected to be narcotic drug, has been detained by them.
The said information has been reduced into writing and submitted to Superintendent of NCB., and obtained permission from him to conduct search. CW.1, IO., NCB had secured two panchas, staff members and went to the spot.
As per the instructions of his higher officers, CW.1 and his team with necessary equipment reached Aramex, India Pvt.
Ltd office situated at No.30/1 Indira Niwas, Parkview layout, Amruthalli Main Road Bangalore - 560092 at around 19.00 hours on 08.04.2021. A cartoon box bearing Airway bill No.30806899675 was opened in the presence of 4 independent witnesses. On opening the said box it was found to contain 2 of Cricket Thigh Guard (01 SG mark brand and 01 SS mark brand), 02 of Elbow Guard (01 SG mark brand). All the above items were thoroughly examined by cutting it with the help of cutter, in which two black coloured polythene cover were found concealed inside both the Cricket Thigh Guard. One of the black coloured polythene cover was cut opened and found containing off white coloured crystalline substance in it. A small pinch of said substance was taken and tested with the help of Drug detection Kit, which gave positive result for Amphetamine (a psychotropic substance under the provision of NDPS Act, 1985). Thereafter, the seized contraband was packed and sealed under a detailed mahazar.
During follow up action, issued notice to the consignor Syed Nashath who is the accused No.1 in the case, and recorded his voluntary statement. In his statement he revealed about the booking of parcel containing contraband. He has also stated that on the instructions of his uncle Abdul Majeed Madathum Kuzhiyil/accused No.2 who is CCH-33 5 Spl.C.C.1702/2021 working in Qatar he had booked the said parcel. He has identified, recognized and endorsed his signature on the photo copy of the parcel containing thigh guards in which drugs were concealed. He had the knowledge of drug concealed inside the parcel. He has also stated that he is consuming drugs. Incriminating substance was seized under a detailed mahazar. The accused was arrested and a detail report is submitted. Basing on the report, a case in NCB.Cr.No,48/1/06/2021 of BZU., registered for the offences punishable under Sec.8(c) R/w.Sec.22(c), 23(c), 27, 28 and 29 of NDPS Act.
3. On filing complaint, accused No.1 was secured from judicial custody. The learned Predecessor-in-office of this Court, took cognizance of the offences punishable under sections 8(c), R/w.Sec.22(c), 23(c), 27, 27A, 28 & 29 of NDPS Act, 1985. The copy of the complaint and annexed documents were furnished to the learned counsel appearing for the accused No.1 as provided under Sec. 207 of the Criminal Procedure Code, 1973. Since the offences accused 6 against the accused are cognizable in nature, the predecessor-in-office of this Court heard the learned counsel for the accused and Special Prosecutor before charge and framed Charges against the accused No.1 for the offences punishable under section 21(c) of the NDPS Act, 1985 on 15.9.2022, read-over and explained to the accused in the language known to him. He pleaded not guilty and claimed to be tried. Therefore, posted the case for recording the evidence for the prosecution. Further, on 24.11.2022, accused No.2 was arrested and produced before the Court. Charges were framed against accused No.2 on 15.3.2023, read-over and explained to accused No.2 in the language known to him. He pleaded not guilty and claimed to be tried.
4. The prosecution in order to prove the Charges levelled against the accused Nos.1 and 2 examined 04 witnesses as P.W.1 to P.W.4 and got 55 documents marked as Exs.P1 to P.55 and got eight material objects marked as M.Os.1 to 8. The prosecution side evidence was taken as CCH-33 7 Spl.C.C.1702/2021 closed. The accused No.1 and 2 were examined U/Sec.313 of Cr.P.C. They denied the incriminating statements made against them. Accused No.1 has also filed written statement. However,did not offer defence evidence.
5. Heard the arguments of Spl.P.P., and the learned counsel for the accused Nos.1 and 2. Perused the citations referred by learned Spl. Public Prosecutor and the citations referred to by the learned counsel for the accused No.1 & 2.
6. Having heard the learned Special Public Prosecutor, the learned counsel for the accused and on perusal of the above rulings, the following points that arise for consideration is as follows :-
Point No.1 : Whether the prosecution has proved beyond all reasonable doubt that on 8.4.2021 accused No.1 illegally procured 515 grams of Amphetamine Narcotic Drugs and Psychotropic substance sent the same from Mangaluru via Sonu Enterprises, City Center Building, opposite to Roopa Hotel, Balmath road, Hampanakatte, Mangaluru through Aramex courier agent bearing Airway bill 8 No.30806899675 addressed to accused No.2 at Qatar by giving mobile numbers and tried to export the same to Qatar thus violated the provision of Sec. 8(c) and committed the offences punishable under Secs.22(C) of NDPS Act ?
Point No.2: What Order ?
7. My findings on the above points are as under:
Point No.1: In the Negative Point No.2: As per the final order for the following:
::REASONS::
8. POINT No.1:- The prosecution to bring home the guilt of the accused Nos.1 and 2 examined 4 witnesses out of 6 witnesses cited in the witness list. CW.1 Sri Kamalesh Kumar, the Intelligence officer, NCB has been examined as PW.1. He deposed that on 8.4.2021 he had received an information through phone call that from Aramex Private Ltd., Amruthahalli, Bangalore received a parcel bearing Airway bill No.30806899675 which is suspected to be containing narcotic and psychotropic substance, that the CCH-33 9 Spl.C.C.1702/2021 said parcel is lying in their office, that he received the said information at about 6.00 pm., and he reduced the said information into writing and submitted to CW.2 for further direction, that CW.2 directed to constitute a team and accordingly he constituted a team equipped with laptop printer, weighing machine, the DD Kit, NCB Bangalore Seal No.2 and other necessary equipments for seizure of the said article and that they left their office and reached Aramex India Pvt., ltd., Amruthahalli at around 7.00 pm. PW.1 further deposed that on reaching Aramex India Pvt Ltd., he introduced himself to one Santhosh Kumar who was the Manager at that time and showed the ID cards and requested one Damodharan and Elagovan to be independent witnesses for the seizure mahazar and issued witness summons to them, that, they opened the carton box bearing Airway Bill No. 30806899675, that the said Santhosh Kumar told that the parcel came from Mangaluru i.e., Sonu Enterprises, City Center Building, Opp. Roopa Hotel, Balmath Road, Hampanakatte, Mangaluru, that the name of 10 consignor is Syed Nashath, Neha Villa, Padanakkad, Hosadurga, Kasargodu, Mobile No. 7306001327, that the Consignee name is mentioned as Abdul Mazeed, Madathum, Kuzhiyal, Building No.2, Street 912, Zone No. 37, A1 Hakambin, Manee Street, Doha, Qatar, phone number mentioned as 97433819354, that they had also opened the said parcel in the presence of two independent witnesses and also in the presence of the said Santhosh Kumar and found two cricket thigh guards, two LO Guard and two hand batting gloves, that cutting the thigh guard opened they found one black colour polythene cover, it was containing half white coloured crystalline substances in it, that they took a small pinch of white coloured crystalline substance and tested with DD kit, it gave positive result for Amphetamine, that the other black coloured polythene cover was cut opened, in which also they found half white coloured crystalline substance and a small pinch of powder was taken and tested with DD kit, it has also given positive result for Amphetamine, that they seized, packed, sealed CCH-33 11 Spl.C.C.1702/2021 and marked it as P1. All the seized articles were packed and sealed with NCB Seal No.2 and drew a mahazar.
PW.1 further deposed that on 9.4.2021 at 06.00 pm., he got information that the consignor of the parcel bearing AWB No.30806899675 would be coming to Aramex Courier Office, Mangaluru to enquire about the said parcel, but the consignor did not appear at the parcel office for two days, that the PW.1 formed a team with the directions of CW.2 and had been to Mangaluru, that they waited for the consignor, that on 12.4.2021, the consignor visited the Aramex Courier Office, Mangaluru at about 3.00 p.m., on that day he was intercepted and brought to the office, that on 13.4.2021, he recorded the voluntary statement of accused No.1, that he revealed that, on the request of his uncle, Sri. Abdul Majeed Madathum Kuzhiyil, he went to Mumbai and collected parcel and booked the same at Mangaluru to Qatar, that the accused No.1 had been arrested on 13.4.2021 and on 9.4.2021 he submitted raid success report as per Sec. 57 of the NDPS Act. 12
This witness has also been subjected for cross examination extensively by learned counsel for accused No.1.
CW.2 Sri Venugopal G Kurup, the then Asst. director, NCB., Bangalore has been examined as PW.2. He deposed that on 8.4.2021 CW.1 submitted an information in Form NCB-1 regarding suspect parcel which is lying at Aramex India private ltd., Amruthahalli, that he gave necessary direction to CW.1 on 9.4.2021, that the CW.1 had submitted secret information regarding one Syed Nasath (accused No.1). The said secret information is got marked as Ex.P2. He further deposed that CW.1 submitted a forwarding memo regarding depositing the seized contraband and he issued a godown receipt for having received the seized contraband which is at Ex.P4. It is also deposed that he made entries in the Malkahana register regarding the deposit of seized contraband and the said register is at Ex.P5. He further deposed that he received report under Sec.57 of NDPS Act, same is at Ex.P6.
CCH-33 13 Spl.C.C.1702/2021 According to him he received a letter from Customs House Laboratory dated 30.4.2021 along with the chemical analysis report, the said letter is at Ex.P7 and report is at Ex.P8. This witness has also been cross examined in length by the learned counsel for accused.
Further, Cw.5 Sri Damodaran has been examined as PW.3 he is the screening executive working at Aramex India Pvt., ltd. According to him on 8.4.2021 in their office a parcel was received in Airway bill No.30806899675 that in the said parcel there were sports thigh guards, hand gloves were there, that the NCB officer namely CW.1 requested him to be a witness for seizure procedure that will be followed by him, that in his presence the NCB officials opened the said parcel and cut opened the thigh guards and hand gloves and inside the thigh guards there was white coloured crystal and on chemical examination they came to know that it is amphetamine and the officers seized the said article under Ex.P11 mahazar, that the said parcel was sent from Sonu Enterprises, Mangalore and it had to be sent to Qatar in the 14 name of Abdul Muzeed and the parcel was sent by one person by name Nishad i.e., accused No.1. This witness has also been subjected for cross examination by learned counsel for accused to test his veracity in the examination in chief.
CW.3 Sri Shivaram the Inspector NCB., Bangalore Zone has been examined as PW.4. This witness has identified the notices issued by him to CW.5, CW.6, accused No.3 to 5 and also a requested letter issued to SHO., Hosadurga police station, the request letter issued to Income Tax authority, the letter issued to Ban Managers of Federal Bank, Karnataka Bank, SBI Bank, Nodal Officer, Vodafone, letter issued to Swiss Tolls Software Product limited and this witness has also been cross examination by learned counsel for accused in length.
18. During the course of arguments the learned Spl. Public Prosecutor submitted about the compliance of mandatory statutory provisions of NDPS Act, which are CCH-33 15 Spl.C.C.1702/2021 followed by the officers while seizing the suspected contraband and also while apprehending the accused persons by relying on various decisions as under:-
1. (2015) 6 SCC 674 in the case of Kulwinder singh and anr
2. AIR 1998 SC 3328 in the case of Jagdish Budhroji Purohit Vs., State of Maharashtra
3. ILR 2021 Kar 3118 in the case of Sri Arjav Deepak Mehta Vs., State Jeevan Beemanagar PS
4. 2021 SAR (Cri) 94 in the case of Raveen Kumar Vs., State of Himachal Pradesh
5. 2021 SAR (Cri) 102 in the case of Rajesh Dhiman Vs., State of Himachal Pradesh
6. 2020 SAR (Cri) 199 in the case of Surinder Kumar Vs., State of Punjab
7. 2019 SAR (Criminal) 245 in the case of Varinder Kumar Vs., State of Himachal Pradesh
8. AIR 2020 SC 3255 in the case of Hira Singh and anr., Vs., Union of India and anr.
As could be seen from the records, initially the complaint was lodged against accused No.1 on 08.10.2021 and by way of filing Additional charge sheet on 07.04.2022 accused Nos.2 to 5 included and in this matter accused Nos.3 to 5 are absconding. According to the evidence of PW.1 and as per the contents of the complaint lodged by him, he had 16 received the information on 04.08.2021 about the suspected parcel received by Aramex Private Limited. In the examination in chief, PW.1 deposed that as soon as the information was received by him, he reduced the same into writing and forwarded to CW2 for further action. However, the learned counsel for accused No.1 cross examined him to establish that the provisions of Section 42(1) of NDPS Act has not been complied with by PW1. In the cross examination, it has been elicited from PW.1 as under ;
"I was a non gazetted officer during the year 2021. I have not maintained any records for my official duty. I have not maintained any records to show that I have handed over the reports to the superior officers. There is a record to show that information and documents. Other reports communicated between Junior Intelligence Officer and Senior Intelligence Officer. I have not maintained any records about receiving any intelligence or information. I received information on 08.04.2021 through phone call to our office phone number. Usually calls will be received by the Receptionist and thereafter, it will be forwarded to the officials concerned. I do not remember who was the Receptionist on 08.04.2021 who had received the call at the first instance. I have not taken down any information in my handwriting when I received the call. I have maintained CCH-33 17 Spl.C.C.1702/2021 only Form No.1 of NCB. It is false to suggest that NCB Form No.1 is a general format and that format must accompany original information reduced into writing. It is true to suggest that suspected name is not found in Ex.P1. It is true to suggest that in Ex.P1 at row No.6 or Sl.No.6 captioned as "Information recorded". We have to mention the gist of the information recorded. Except Ex.P1, I do not find any other written information. It is true that I have not made carbon copy of NCB No.1 Form. It is true to suggest that Superintendent. Is the superior to the Intelligence Officer."
Further learned counsel for accused No.1 has also cross examined PW.2 who is the then Assistant Director, Bangalore Zone. It has been elicited from him that in NCB office the hierarchy of the officers is firstly, the Zonal Director, next is the Assistant Director, then, the Superintendent, there after the Intelligence Officer and then the Joint Intelligence Officer. It is also elicited from him that he has not maintained any personal diary in respect of the communication made to him by any of the officers, that whenever a letter is addressed to his designation, it will be recorded in the official register, that they do not maintain any information registers, that whenever any official 18 correspondence is made to him, he will go through it and make necessary endorsement on the same document and submit it to the department concerned. From the cross examination of PW1 and PW2, it is clear that except NCB Form No.1, the PW1 has not recorded the information received by him in any other register maintained in their office and the PW2 has also deposed that he is not maintaining personal diary and not maintaining any information register in their office. From this evidence, it is clear that except NCB Form No.1, no information has been recorded in writing in the office of PW1 and PW2.
The counsel for Accused No.1 not only cross examined the PW1 and PW2 to show that the concerned officers have not complied the mandatory statutory provisions of Section 42(1) of the NDPS Act and also argued by referring the said provisions that if the empowered officer has a prior information from any person, should necessarily be taken the information down in writing, that if he has reason to believe from personal knowledge that offences under CCH-33 19 Spl.C.C.1702/2021 Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc., he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief, that under the proviso to Section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief. From the evidence of PW1 and PW2, it is clear that the PW.1 who received the information for the first time has not recorded the said information anywhere except in Form No.1. Therefore, it is clear that PW1 has not complied the mandatory statutory provision as contemplated under Section 42(1) of NDPS Act and it is fatal to the case of the prosecution.
PW1 further deposed in Paragraphs 4& 5 of his examination in Chief as under:
4. On reaching Aramex India Pvt Ltd., I introduced myself to one Mr. Santhosh Kumar who was the Manager at that time. We showed our ID cards. We requested one 20 Sri. Damodharan and Sri. Elagovan to be independent witnesses for the seizure mahazar. I have issued witness summons to these people.
5. Then, we opened the carton box bearing Airway Bill No. 30806899675. Mr. Santhosh Kumar told us that the parcel was came from Mangaluru i.e., Sonu Enterprises, City Centre Building, Opp. Roopa Hotel, Balmath Road, Hampanakatte, Mangaluru. The consignor name was mentioned as Syed Nashath, Neha Villa, Padanakkad, Hosadurga, Kasargodu, Mobile No. 7306001327. The Consignee name was mentioned as Abdul Mazeed, Madathum, Kuzhiyal, Building No.2, Street 912, Zone No. 37, A1 Hakambin, Manee Street, Doha, Qatar, phone number mentioned as 97433819354.
From the aforesaid evidence, it is clear that Sri.Santhoshkumar was the Manager of Aramex India Private Limited and the officers went to the said office and told him to produce the parcel which he received from Mangalore. The officers had secured two witnesses namely Damodaran and Elagovan.
The prosecution has examined the independent witness Damodaran as PW3. In the examination in chief, he supported the case of the prosecution. However, during cross examination, it has been elicited from him that he has CCH-33 21 Spl.C.C.1702/2021 not given any statement before the NCB officers, that he had given statement after 2 months from 08.04.2021 in NCB office. When PW3 specifically deposed that he had given his statement after 2 months from 08.04.2021 in NCB Office, the prosecution has not explained why the statement of PW.3 has been recorded in NCB Office instead of recording the statement at the time of seizure of the alleged contraband in Aramex Office. This portion of evidence creates doubt in the mind of the Court that whether actually the PW.3 was present at Aramex India Private Limited when the alleged seizure procedure followed by PW1. It is also significant to note here that according to PW.1 he collected the parcel from the Manager of the said office namely Santosh Kumar. However, the prosecution has not examined the said Santosh Kumar in support of its case and corroborate with the evidence of PW.1. There is no explanation by the prosecution why the important witness has not been examined before the court. The non examination of the vital witness before the court is also fatal to the case of the prosecution.
22
PW.3 in his cross examination has admitted that in Aramex office there is installation of CCTV and the proceedings recorded by PW.1 might have been recorded in the CCTV. But on perusal of the records, no such CCTV footage is forthcoming and the witnesses have also not deposed that they have secured the CCTV footage from the said office. If at all, there were seizure proceedings as deposed by PW.1, definitely, the PW1 would have collected the better evidence, namely the CCTV footage from the said office to establish the seizure procedure followed by him. The PW.1 failed to collect the material evidence from the said office and same is adversely affecting the case of the prosecution.
Further it is to be noted that PW1 in Para No.13 of his examination-in-chief has specifically deposed that on 09.04.2021 at about 06.00 hours he got a credible information that the consignor of the parcel would be coming to Aramex Courier Office, Mangalore to enquire about the said parcel. Therefore, he informed the said CCH-33 23 Spl.C.C.1702/2021 information to his higher officer and left to Mangalore on the same day to intercept the consignor, that the consignor did not appear at the parcel office for 2 days, that they waited there to intercept the consignor, that on 12.04.2021 the consignor visited the Aramex Courier Office, Mangalore at about 03.00 pm., that they intercepted and issued notice to him under Section 67 of NDPS Act to appear before the office of NCB, Bangalore Zonal Unit, that he voluntarily agreed to come with them.
The learned counsel for accused No.1 has also cross examined the PW.1 to discredit his evidence and elicited from him that, he do not remember on which mode the other officers of his office travelled to Mangalore, that he has not prepared any memorandum stating that how many of them are travelling to Mangalore, that if he used his official vehicle to go to Mangalore, he ought to have mentioned the vehicle number, that he has not given any notice to Sonu Enterprises enquiring about the parcel allegedly booked by the accused No.1, that he has not collected any document 24 from Sonu Enterprises regarding the so called booking of parcel by accused No.1.
During the course of arguments also the learned counsel for accused No.1 brought to the notice of the court that PW.1 while deposing before the court, did not give the required particulars about his visit to Mangalore, that according to him, he stayed in Mangalore for 3 days, that his evidence regarding his stay for 3 days in Mangalore is vague, that he did not give particulars about where actually he stayed in Mangalore, that where actually the said Sonu enterprises is situated in Mangalore and he has not cited any of the witnesses from that place at the time of the so called procedure followed by him when apprehending the accused No.1. Though the PW1 in his evidence deposed that on 12.04.2021 the accused came to the Sonu Enterprises at about 02.00 pm., he specifically admitted that he has not recorded the said information in any of the documents prepared by him, that means for the first time he deposed CCH-33 25 Spl.C.C.1702/2021 about it before the court during the course of his Cross examination.
Further in Para-28 of the cross examination of PW.1, it has been elicited that he has not mentioned the exact timings and location of the apprehension of the accused and he has also not mentioned the exact location of Sonu Enterprises, that he had issued Ex. P17 notice in the presence of officials of Sonu Enterprises, that he has not recorded the statements of any of the officials of the said Sonu Enterprises. Accordingly, the learned counsel for the accused elicited from PW.1 about the material lapses found during the course of follow up investigation by him. Since the PW.1 did not give proper explanation, his evidence does not inspire the confidence of the court to hold that as contended by him on 09.04.2021 he had been to Mangalore along with his officials, that he waited for 3 days in Mangalore, that on 12.04.2021 at about 02.00 pm., the accused came to Sonu Enterprises and he has issued notice to the accused under Section 67 of NDPS Act. If at all the 26 PW.1 had been to Mangalore along with his officials, he would have specifically deposed about the mode of journey to reach Mangalore along with his officials. He would have deposed about where actually they stayed in Mangalore and where actually the said Sonu Enterprises is situated in Mangalore. Further, they would have also recorded the statements of the officials of the said Sonu Enterprises. But except saying that the accused had came to Sonu Enterprises on 12.04.2021 and he issued notice under Section 67 of NDPS Act, no other material to accept the evidence of PW1. If at all, PW.1 had intercepted the accused in Sonu Enterprises and had issued notice under Section 67 of NDPS Act, the PW.1 would have recorded the statement of officials of the said Sonu Enterprises. Even there is no explanation by PW.1 why he did not record the statement of the staff of the said Sonu Enterprises. When PW.1 failed to give explanation to the effect that why he did not record the statement of the officials of Sonu Enterprises, it is hard to accept that the PW.1 and his officials had intercepted the accused in the said enterprises in Mangalore. Further, if at CCH-33 27 Spl.C.C.1702/2021 all, accused was intercepted in the said Enterprises in Mangalore, then PW.1 instead of issuing notice under Section 67 of the NDPS Act, would have enquired him about the parcel received in Aramex Office, Mangalore. Further, according to PW1, the accused No.1 voluntarily appeared before their office at Bangalore. When PW1 along with his team went to Mangalore to intercept the accused there, without apprehending him, only by issuing notice under Section 67 of NDPS Act, they returned to Bangalore by insisting the him to appear before Bangalore office, which cannot be accepted without placing any legal evidence.
During the course of cross examination of PW.4 the learned counsel for accused No.1 elicited from PW.4 that he had collected the IT returns of accused No.1 and Ayshath Sapriya and also the Bank Account particulars of accused and the said Ayshath Sapriya. However, from the cross examination of PW.4, either the accused No.1 or the said Ayshath Sapriya maintained much amount in their bank account. If at all, the accused No.1 involved in drug 28 trafficking, definitely in their bank account there would have been substantial amount. Therefore, by producing the IT Returns of accused No.1 and Ayshath Sapriya, as well as by producing their bank account particulars, could not establish anything by the prosecution against him.
It is also to be noted that the Investigating Officer namely PW.4 has specifically deposed that he had taken the CDR particular from the Nodal officer, Jio Mobile Company. However, except obtaining the CDR of the mobile, it is clear that he has not investigated further about the phone numbers found in the said CDR to know with whom the accused No.1 had contact. None of the witnesses have been examined to show that the accused has connection with some other persons in connection with drug trafficking.
Further, PW.4 has also admitted that at the time of taking mobile phone from the custody of accused no.1 no seizure mahazar was drawn. Further no seizure mahazar was drawn at the time of handing over the mobile to PW.4.
CCH-33 29 Spl.C.C.1702/2021 Therefore, no seizure was taken place in accordance with law.
It is also the argument of the learned counsel for accused that Ex.P2 dated 09.04.2021 is the second information said to be received by PW.1 and that there are no materials to show that the said information forwarded to his higher officer and therefore, there is non compliance of Section 42(2) of NDPS Act. The learned counsel has also pointed out that, at the time of receiving information as per Ex.P2, the crime had already been registered. However, in Ex.P2, no crime number is mentioned and therefore, the learned counsel submitted that Ex.P2 is a got up document in support of the false case got registered by the prosecution. It is true that on perusal of Ex.P2, no crime number is mentioned in the said document and there is no explanation by PW.1 why the crime number is not mentioned in the said document and what was the difficulty to him to mention the crime number in the said document. 30 When such being the case, the arguments advanced by learned counsel for accused appears to be true.
The learned counsel for accused No.1 has also cross examined PW.3 and elicited from him that at the time of alleged proceedings conducted in Aramex Office, Bangalore no photography or videography recorded. During the course of arguments also, the learned counsel for accused highlighted about the said fact and submitted that if at all the photograph was taken and videography was recorded, the truth would have been come to light. But the investigating officers, without any reason, have not done so. Therefore, it is one of the ground to suspect the case of the prosecution. At this stage, it is relevant to rely on the decision Of Shafhi Mohammad v. State of Himachal Pradesh reported in (2018) 5 SCC 311, wherein the Hon'ble Apex Court has laid down the guidelines and held as under:
In Shafhi Mohammad Vs. State of Himachal Pradesh, the Apex Court noted the aforesaid report and observed as follows;
CCH-33 31 Spl.C.C.1702/2021 "9. We are in agreement with the Report of the Committee of Experts that videography of crime scene during investigation is of immense value in improving administration of criminal justice. A Constitution Bench of this Court in Karnail Singh v. State of Haryana3, SCC para 34 noted that technology is an important part in the system of police administration. It has also been noted in the decisions quoted in the earlier part of this order that new techniques and devices have evidentiary advantages, subject to the safeguards to be adopted. Such techniques and devices are the order of the day. Technology is a great tool in investigation. By the videography, crucial evidence can be captured and presented in a credible manner."
The Court further held time was ripe to introduce videography in investigation particularly for crime scene as a desirable and acceptable "best practice" as suggested by the Committee to strengthen the rule of law. It approved the Centrally Driven Plan of Action prepared by the Committee and the timelines mentioned therein. The observations made in Shafhi Mohammad (supra) as well as the guidelines in the Field Officers' Handbook issued by the Narcotics Control Bureau reinforce our view regarding mandatory videography of recovery proceedings under NDPS Act. Technology has advanced considerably and equipments like smartphones and other electronic devices enabling videography are ordinarily available with 32 seizing officers. Hence, lack of availability of technology or awareness is a non-issue.
Accordingly, we direct as follows:-
(i) In all cases involving recovery of narcotic substance particularly recovery of narcotic above commercial quantity, seizing officers shall make a video recording of the entire procedure unless for reasons beyond the control of seizing officers, they are unable to do so;
(ii) Reasons for failing to videograph the recovery proceeding must be specifically recorded in the investigation records particularly contemporaneous documents including seizure/inventory list;
(iii) Superior Police Officer not lower than the rank of Additional Superintendent of Police shall monitor recovery of narcotic substance above commercial quantity within their territorial jurisdiction and ensure due compliance of statutory provisions regarding search and seizure including compliance of the directives (i) and (ii) relating to videography of recovery and/or recording of adequate reasons for departure from such procedure;
(iv) Non-compliance of the directives (i) and (ii) relating to videography of recovery and/or failure to record just reasons in contemporaneous documents for its non-
compliance would attract departmental proceeding so far as the seizing officer is concerned;
CCH-33 33 Spl.C.C.1702/2021
(v) Director General of Police shall issue necessary directions for due compliance with the aforesaid directives;
(vi) Superintendent of Police/Commissioner of Police in each district/commissionerate shall undertake training programmes to spread awareness and capacity building of officers regarding compliance of statutory requirements in the matter of search and seizure of narcotic substance under NDPS Act and compliance of the aforesaid directives relating to videograph of recovery including collection, preservation and production of such electronic evidence in Court.
As seen from the guidelines issued by the Apex Court, in all cases involving recovery of narcotic substance particularly recovery of narcotic above commercial quantity, seizing officers shall make a video recording of the entire procedure unless for reasons beyond the control of seizing officers, they are unable to do so. They shall also mark reasons for failing to v ideograph the recovery proceedings.
32. However, in the present matter, no such procedure is followed and no photography or videography was recorded during the recovery proceedings. Though the 34 directions issued in the year 2018 itself by Hon'ble Apex Court, in the present case, neither the photographs were take or video was recorded nor reasons for not taking videography recorded during the course of investigation. The said aspect is also fatal to the case of the prosecution. Therefore, it is the firm opinion of this Court that for want of placing material evidence the case of the prosecution shall fall.
As could be seen from the records, had on 20.4.2021 the IO in compliance of sec.52A of NDPS Act taken the sample of so called contraband in the presence of VII ACMM., Bangalore. Ex.P1 is the test memo submitted by CW.1. The IO had obtained report from the expert on 30.4.2021 and it is the say of complainant that on chemical analysis the alleged contraband tested positive for Methamphetamine hydrochloride. However, the expert is not witness before the Court and he has not been examined by the prosecution. Though the prosecution has cited 6 witnesses examined only 4 witnesses before the Court.
CCH-33 35 Spl.C.C.1702/2021 Unless and until the expert is examined the report of the expert cannot be accepted. Mere marking of documents cannot be considered as proof of the said document.
The prosecution has also produced the TDS returns submitted by Ayshath Sapriya, D/o. Syed Thangal, same is marked with the covering letter as Ex.P40. The Federal bank account particulars said to be of accused No.1 Syed Nashath same is marked along with covering letter as Ex.P43. Ex.P44 is a request letter issued to the Karnataka Bank, Someshwara of Mangalore to suspend the withdrawal of the amount from the account bearing No.6072700610425931. Ex.P45 is the request letter to freeze the account Ayshath Supriya. Ex.P46 is the request letter issued to the Bank Manager SBI., Neelashwara Branch to furnish the CAF, KYC of Account of Ayshath Supriya. Ex.P47 is the account details of Ayshath supriya furnished by SBI along with covering letter. Ex.P48 is the letter written by the Intelligence officer PW.4 to Nodal Officer, Vodafone, Bangalore. Ex.P49 is the certificate issued 36 U/s.65B of Indian Evidence Act by Nodal officer, Vodafone India, along with the related documents. Ex.P49 is the CAF/CDR data, Ex.P50 is the forwarding letter to M/s.Sistools Software pvt., ltd., dated 27.5.2021 for providing digital forensic services. Ex.P51 to Ex.P53 is the copies of Whats app chats , Ex.P54 is the voluntary statement of accused No.2 and Ex.P55 is the Notice U/s.67(c) of NDPS Act.
All these documents are evidently obtained through electronic mode, no doubt the concerned officers provided the certificate U/s.65B of Indian evidence Act, however, none of the witnesses are cited in the witness list and also not examined before the Court. The Sec.65B certificate shall be get marked through the person who issued the certificate and it is also required under law to explain under which circumstances he generated the electronic documents and shall also depose about the authenticity of those documents along with the authenticity of the certificate CCH-33 37 Spl.C.C.1702/2021 issued U/s.65B of Indian Evidence Act. However, here through the investigating officer who has been examined as PW.4 got all those documents marked without examining the competent witness to depose on those documents. It is settled position of law that mere marking of document does not amount to proof of those documents. The documents produced before the Court shall be proved in accordance with law. But here the prosecution failed to prove the relevancy of those documents. It is certain that those documents are not proved in accordance with law. In view of that, it is the considered view of this Court that without a vision for crime investigation, mechanically the investigation officers collected materials and dumped into the Court. During trial no material witnesses are examined and did not prove the relevancy of those documents. When the accused Nos.1 and 2 denied the incriminating statements made by the prosecution witnesses during the Court of examining them under Sec.313 of Cr.P.C., and when the accused No.1 filed statement in writing denying 38 the case of the prosecution, on meticulous perusal of evidence placed by the prosecution it is certain that the prosecution failed to link the said parcel with accused Nos.1 and 2.
At this stage it is relevant to rely on the decision reported in 1992 Crl.L.J.3206 in the case of Soorajmal Vs., The State of Madhya Pradesh in support of his arguments which is as under:-
7. The trial Court vide its order dated 29-6-91 has framed a charge against Surajmal only on the ground that the contraband opium was found in possession of Surajmal as the field belonged to him. The trial Court has solely relied on Section 54 of the N.D.P.S. Act. It has failed to notice that possession for the purpose of Section 54 of the N.D.P.S. Act has to be a conscious possession and not a constructive possession alone. It is true that it is not necessary that the contraband must be found on the person of an accused person or in his house alone. A person could be held responsible for something which was found on the premises, which are in his control but in such a case there should be something in the circumstances that it was not likely that the accused-person had no knowledge of the existence of the contraband on the premises. In the present case, there is absolutely no evidence collected by the police, which could show that Surajmal had any knowledge of the contraband being concealed in his field. The circumstances do not indicate that the contraband could not have been kept on the field of Surajmal without his having knowledge of it. It is after all; an open field, to which anyone could have had an access in the absence of the owner and especially when the owner had engaged a servant for CCH-33 39 Spl.C.C.1702/2021 looking after the field, the possibility of a servant engaging himself in illegal activities without the knowledge of his master cannot be ruled out. As no evidence to connect the master with the contraband has been collected, it appears that the police have implicated Surajmal solely because he is the owner of the field from which contraband opium was recovered.
Therefore, as held in the said decision the 'possession' is not a legal concept but also a matter of fact i.e., as a relationship between a person and a thing. The test for determining whether a person is in possession of any thing is that whether he is in general control of it.
40. If the principles laid down in the aforesaid decision is taken into consideration, as already noted herein above the investigating agency did not ascertain whether actually the accused with conscious ordered for the questioned parcel. Except the so called voluntary statement of accused No.1 there is no iota of evidence to come to the conclusion that the accused with an intention to get contraband ordered for it. The investigating agency failed to collect relevant documents to show that there is nexus between the accused Nos.1 and 2 and the so called contraband. 40
Evidently, this case is depending on the whats app chat said to be made by the accused No.1 to accused Nos.3 to 5 and other persons, but the prosecution failed to prove the authenticity of the said whats app chats. Its admissibility is not proved. When the documents are not proved in accordance with law, the Court cannot look into it and if those documents are taken out from records, the remaining document is voluntary statement of the accused Nos.1 and 2. However, how much reliance can be given on the voluntary statement of the accused and what is the evidential value of the statement of the accused can be gathered from Thofan Singh's case. The learned counsel for accused No.1 also placed the reliance of the said decision reported in the AIR 2020 page 5592 in the case of case of Thofan Singh vs. State of Tamil Nadu, wherein it is held as under:-
158.1. That the officers who are invested with powers under Section 53 of the NDPS Act are "police officers"
within the meaning of Section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of Section CCH-33
41 Spl.C.C.1702/2021 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act.
158.2. That a statement recorded under Section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act." In view of the ratio laid down in the afore mentioned decision, when there is no recovery of material object from the accused on the basis of voluntary statement, the said statement is not admissible under law. If the said statement is taken out from the records there are no materials to connect the accused with the so called seized contraband.
Thus, in view of the discussion made in the foregoing paragraphs this Court is of the considered view that the accused No.1 has been apprehended only on suspicious circumstances and on the basis of his voluntary statement which is not admissible under law. Likewise, the accused No.2 has also been apprehended only on the basis of inadmissible voluntary statement of accused No.1. This Court has gone through the decisions relied on by the 42 learned Spl.P.P., which are noted herein above. As submitted by learned Spl.P.P., this Court has to accept the principles laid down in the said decisions. This Court also agree that mere non examination of independent witnesses does not take away the case of prosecution. It is also to be considered that the evidence of official witnesses cannot be discharded only for the reason that they are official witnesses. However, their evidence shall inspire the confidence of Court and since it is required that the prosecution shall prove its case beyond reasonable doubt, the prosecution shall place relevant material which includes examination of independent witnesses. Without it the arguments advanced by the learned Spl.P.P. do not strengthen the case of the prosecution. The prosecution failed to prove the guilt of the accused Nos.1 and 2 beyond the reasonable doubt. The said benefit of doubt shall be extended to the accused. Hence, the accused 1 and 2 are entitled to be acquitted for the offences U/Sec.8(c) CCH-33 43 Spl.C.C.1702/2021 R/w.Sec.22(c) of NDPS Act. Accordingly, I answer Point Nos.1 and 2 in the Negative.
41. Point No.2: In the result, following:
::ORDER::
Acting under Section 235(1) of Cr.P.C. accused No.1 Sayed Nashath and accused No.2 Abdul Majeed Madathum Kuzhiyil are acquitted for the offence punishable under Sections 8(c), 22(c) of NDPS Act.
Accused No.1 shall be set at liberty if he is not required in any other case subject to the compliance of Sec.437A of Cr.P.C.
The entire record and properties are ordered to be preserved and kept in the split up case in Spl.C.C.No.03/2023 registered against accused No.3 to 5.
Accused No.2 is also directed to comply Sec.437-A of Cr.P.C.
[Dictated to the Stenographer, directly on the computer, typed by her, corrected, signed and then pronounced by me in Open Court on this the 21st day of August 2025) 44 (LATHA) XXXIII ACC & SJ & SPL.JUDGE (NDPS) BANGALORE.
ANNEXURE
1. List of witnesses examined for the:
(a) Prosecution:
P.W.1 : Sri. Kamlesh Kumar
P.W.2 : Sri. Venugopal G Kurup
P.W.3 : Sri. Damodharan
P.W.4 : Sri. Sivarao
(b) Defence :
NIL
2. List of documents Exhibited for the:
(a) Prosecution:
Ex.P.1 : Information (a) (b) signs.
Ex.P.2 : Secret information (a) sign.
Ex.P.3 : Forwarding Memo (a) (b) signs.
Ex.P.4 : Godown receipt (a) (b) signs.
Ex.P.5 : Malkahana register (a) sign.
Ex.P.6 : Success report (a) (b) signs.
Ex.P.7 : Letter to Customs House Labortory
Ex.P.8 : Test Report
Ex.P.9 : Notice to witness
Ex.P.10 : Notice to witness
Ex.P.11 : Mahazar
Ex.P.12 : Airway bill
Ex.P.13 : Invoice
Ex.P.14 : Aadhaar card
CCH-33
45 Spl.C.C.1702/2021
Ex.P.15 : Passport
Ex.P.16 : Arrest Memo (a) sign.
Ex.P.17 : Notice (a) sign.
Ex.P.18 : Voluntary statement (a) sign.
Ex.P.19 : Report U/s.57 of NDPS Act (a) sign. Ex.P.20 : Permission to draw samples Ex.P.21 : Annexures of Ex.P20 Ex.P.22 : Office communications Ex.P.23 : Letter Ex.P.24 : Notice (a) sign.
Ex.P.25 : Statement (a) sign.
Ex.P.26 : Notice (a) sign.
Ex.P.27 : Statement (a) sign.
Ex.P.28 : Notice (a) sign.
Ex.P.29 : Notice (a) sign.
Ex.P.30 : Notice (a) sign.
Ex.P.31 : Notice to A4 father Ex.P.32 : Notice to A4 father Ex.P.33 : Notice to A4 father Ex.P.34 : Notice to A5 Ex.P.35 : Notice to A5 Ex.P.36 : Notice to A5 Ex.P.37 : Letter to Hosadurga police station Ex.P.38 : reply Ex.P.39 : Letter (a) sign.
Ex.P.40 : Letter (a) sign.
Ex.P.41 : Letter (a) sign.
Ex.P.42 : letter(a) sign.
Ex.P.43 : reply Ex.P.44 : Letter (a) sign.
Ex.P.45 : reply Ex.P.46 : Letter (a) sign.
Ex.P.47 : reply Ex.P.48 : Letter (a) sign.
Ex.P.49 : Report Ex.P.50 : Letter (a) sign.
Ex.P.51 : Forensic report Ex.P.52 : Certificate issued by DD committee 46 Ex.P.53 : Documents confromted to A1 Ex.P.54 : Statement Ex.P.55 : Notice
(b) Defence:
- NIL -
3.List of Material Objects admitted in evidence:
M.O.1 : Sample
M.O.2 : Sample
M.O.3 : Thigh Pad (2)
M.O.4 : S.G.Thigh Pad
M.O.5 : Batting hand gloves
M.O.6 : Elbow gloves
M.O.7 : Sealed two covers in which contraband
concealed
M.O.8 : Kora cloth
(LATHA)
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BANGALORE.
CN/*