Bangalore District Court
State By R M Nagar Police vs A1 John Oko Kalu on 9 December, 2015
IN THE COURT OF THE XXXIII ADDL.CITY CIVIL &
SESSIONS JUDGE & SPL. JUDGE (NDPS),
BANGALORE. CCH.33.
PRESENT:
Sri. D.Y. BASAPUR, B.Com., LL.B. (Spl.)
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BENGALURU.
DATED: THIS THE 9th DAY OF DECEMBER, 2015.
SPL.C.C. NO.211/11
COMPLAINANT : State by R M Nagar Police
(By Public Prosecutor)
V/S.
ACCUSED : A1 John Oko Kalu,
S/o. Oko Kalu,
Aged about 29 years ,
Logo City, Nigeria,
C/o.D.Sampath Kumar,
No.344, behind Shree Anjaneya
Temple, Dodda Banasawadi,
Bangalore.
(By Sri KSV, Advocate)
A2 Mahama Albert - Split up in
Spl.CC.176/12
1. Date of Commission of offence: 30.9.2011
2. Date of report of offence: 30.9.2011
3. Arrest of the accused : 30.9.2011
2
4. Date of release of accused on 21.1.2012
bail:
5. Period undergone in custody: 3 months 21 days
6. Date of commencing of 16.10.2014
recording Evidence :
7. Date of closing of Evidence : 21.10.2015
8. Name of the complainant: Sri Munigowrisha, PI
9. Offence complained of : U/s.21(C) of NDPS Act
U/s.12(C) of I.P.Act & 14
of Foreigners Act
10. Opinion of the Judge : Offence not proved
11. Order of sentence : As per final order
---
JUDGMENT
The Police Inspector, R M Nagar Police Station, Bangalore filed charge sheet against accused Nos.1 and 2 in Cr. No.318/11 for the offences punishable U/Secs.21(C) N.D.P.S. Act, 12(C) of I.P.Act and 14 of Foreigners Act.
2. Brief facts of the case are as under:
That on 30.9.2011at about 10.00 am., informant came to the office of complainant and told that at OMBR layout, in front of St. George college of Banaswadi a person was indulged CCH-33
3 SPl.C.C.211/11 in selling Narcotic Drug, he informed the same to C.W.2 and reduced in writing and obtained permission. He secured C.Ws.3 and 4 and informed the same and issued notice. He informed to DCP through phone and obtained permission. He secured C.W.5 to 11 staff and informed the same. C.Ws.2 to 11 and himself conducted their personal search and confirmed that they are not having any drugs. They went to the spot, informant shown three persons and he left the spot. C.Ws.5, 7 and 9 caught hold accused No.1. he introduced himself and informed that he has legal right to be searched before Gazetted officer or Magistrate, who agreed to be searched by Gazetted Officer. He introduced C.W.2 as Gazetted Officer. Accused agreed to be searched by C.W.2. C.W.2 issued questioner to accused No.1. C.W.5 conducted personal search as per direction of C.W.2. they seized 114 grams cocaine, out of which 5 grams was separated and packed separately and also seized Rs.2,300/- cash and 2 mobiles and prepared mahazar as per the direction of C.W.2, he took the accused, mahazar and prepared and went to Ramamurthy Nagar police station and lodged complaint. Again he took up investigation and 4 came to CCB office, he arrested the accused and recorded voluntary statement. Accused stated that he purchased cocaine from Mahama Albert-accused No.2. He produced the accused No.1 before court and again taken back to police custody. He recorded the statement of CWs.2 to 11 and sent the report to DCP for success of the raid. Again produced the accused before court as he did not co-operate for further investigation. He sent the sample article to F.S.L through C.W.9 and obtained acknowledgement. He received F.S.L report and sample seal on 3.12.11. After completion of investigation submitted the charge sheet.
3. After taking cognizance registered the case. Copies of the prosecution papers were supplied to accused No.1 U/Sec.207 of Cr.P.C. After hearing, charge framed U/Sec.21(C) of N.D.P.S. Act, 12(C) of Indian Passport Act read over and explained to them. Accused No.1 pleaded not guilty and claimed to be tried. Case against A2 is split up in Spl.CC.No.176/12.
CCH-33 5 SPl.C.C.211/11
4. In support of the case, prosecution has examined P.Ws.1 to 6 and got marked Exs.P1 to P.17 and M.Os.1 to 08. After closure, accused No.1 is examined U/Sec.313 of Cr.P.C., he denied the incriminating circumstances appeared against him and not chosen to adduce evidence for his defence.
5. Heard the arguments on both sides.
6. The points for consideration are as under:
1. Whether the prosecution proves that on 30.9.2011 at about 12.15pm., in front of St.George College, 4th cross, OMBR Layout, within the limits of Ramamurthy Nagar police station A1 was found in illegal possession of 114 grams of cocaine, which was supplied by A2, which is a Narcotic Drug, without any license or permit for the purpose of selling the same, and thereby committed the offence punishable U/Sec.21(c) of the N.D.P.S. Act?
2. Whether the prosecution further proves that on the said date, time and place, A1 was found residing in India without valid passport issued by competent authority and did not produce the same before them on demand and thereby committed offence u/s.12(C) of Indian Passport Act?6
3. What order?
7. My findings on the above points are as under:
Point Nos.1: In the negative.
Point Nos.2: In the negative.
Point No.3: 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 6 and Exs.P.1 to P.17 and M.Os.1 to 8, the prosecution proved the guilt. Learned counsel for accused No.1 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 to
6. P.W.5 has stated that on 30.9.2011at about 10.00 am., informant came to his office and told that at OMBR layout, in CCH-33 7 SPl.C.C.211/11 front of St. George college of Banaswadi a person was indulged in selling Narcotic Drug, he informed the same to P.W.4 and reduced in writing and obtained permission. He secured C.Ws.3 and 4 and informed the same and issued notice Ex.P7 and P8. He informed to DCP through phone and obtained permission. He secured C.W.5 to 11 staff and informed the same. C.Ws.2 to 11 and himself conducted their personal search and confirmed that they are not having any drugs. They went to the spot, informant shown three persons and he left the spot. C.Ws.5, 7 and 9 caught hold accused No.1. he introduced himself and informed that he has legal right to be searched before Gazetted officer or Magistrate, who agreed to be searched by Gazetted Officer. He introduced P.W.4 as Gazetted Officer. accused agreed to be searched by P.W.4. P.W.4 issued questioner Ex.P6 to accused. C.W.5 conducted personal search as per direction of P.W.4. they seized 114 grams cocaine, out of which 5 grams was separated and packed separately and also seized Rs.2,300/- cash and 2 mobiles and prepared mahazar Ex.P5 as per the direction of P.W.4, he took the accused, mahazar and prepared and went 8 to Ramamurthy Nagar police station and lodged complaint Ex.p1. Again he took up investigation and came to CCB office, he arrested the accused and recorded voluntary statement Ex.P11. Accused stated that he purchased cocaine from Mahama Albert. He produced the accused before court and again taken back to police custody. He recorded the statement of CS.2 to 11 and sent the report Ex.P12 to DCP for success of the raid. Again produced the accused before court as he did not co-operate for further investigation. He sent the sample article to F.S.L through C.W.9 and obtained acknowledgement Ex.P15. He received F.S.L report Ex.P3 and sample seal Ex.P4 on 3.12.11. after completion of investigation submitted the charge sheet.
In the cross examination of P.W.5 he has stated that he has not reduced the information in writing immediately after receipt of information in the movement register. Ex.P17 is written by P.W.4 after he informed to him, but the same is written after completion of raid. so, P.W.5 being a Gazetted officer has not reduced the information in writing and same is not sent to higher officer and obtained permission. Even P.W.4 CCH-33 9 SPl.C.C.211/11 has also admitted that he has received oral information from P.W.5 and orally permitted for raid. So, Sec.41(2) of NDPS Act is not complied by the prosecution. PW.5 further stated that he went to the spot along with panchas, staff members and ACP. So, P.W.4, ACP is also one of the members of raiding party. P.W.5 stated that at the time of seizure, college staff and students were present, but he has not requested them to act as panchas and has not recorded their statements. He has not called any other independent Gazetted officer or he has not made any attempts to produce the accused No.1 before other independent Gazetted officer other than police department. He admits that he has not written specifically legal right of the accused No.1 in mahazar or complaint. P.W.5 further stated that he has written the chits on M.Os.1 to 5 and 7, but he do not know who wrote the chits on M.Os.6 and 8 and seal on M.Os.6 and 8 are not similar with seal on M.Os.1 to 5 and 7. if seal put on chits at spot they could have put the seal on mahazar, but no seal found on mahazar. Further, stated that panch witnesses came to his office after raid, but no signature obtained on PF.
10
10. P.W.3-HC, P.W.4-ACP, P.W.6 another HC who are members of raiding party along with P.W.5 have supported the testimony of P.W.5. In the cross examination of P.W.4 stated that P.W.5 has not shown the information received by him in writing. Even he has stated that there is no need to observe the said information by him. it is mandatory U/s.41 of NDPS Act regarding Gazetted Officer reduce the information in writing and sent to superior officer. so the testimony of P.W.4 is contrary to the mandatory provisions. Even P.W.4 has also admitted that in Ex.P5 and P6 legal right of the accused No.1 regarding personal search before Gazetted officer is not mentioned. P.W.4 and 5 stated that mahazar written inside the vehicle. But P.W.3, who is also a member of the raiding party specifically stated that mahazar written on footpath. P.W.5 stated that he has not handed over the copy of panchanama to panchas and accused No.1. But P.W.4 stated that they have given the same, but no endorsement obtained by them. P.W.4 stated that he do not know the handwriting on the chits affixed on M.Os.1 to 5 and 7. so the testimony of P.Ws.4 and 5 is quite inconsistent to each other.
CCH-33 11 SPl.C.C.211/11
11. P.W.3 in his cross examination stated that no inventory prepared at spot. He denied that on 29.9.2011 at mid night accused No.1 produced to the police station and kept in illegal possession and on next day falsely registered the case.
In the cross examination of P.W.6 he has stated the panchanama written on the side of the road. He denied that he has not produced the sample articles to F.S.L. P.W.1 stated that P.W.5 produced the accused No.1, documents and properties and lodged complaint Ex.P1. He has registered the case and submitted F.I.R. Immediately he handed over the investigation to P.W.5. P.W.1 admitted that P.W.5 Siddaraju has not produced the properties and other documents before him. he denied that accused No.1 was also not produced before him and admits that he has not noted the production of the accused No.1 in Ex.P1. according to P.W.1 no properties and documents produced before him at the time of registering the F.I.R. so, in the complaint lodged by P.W.5 as per Ex.P1 and production of accused No.1 only, P.W.1 registered the case without perusing the mahazar or property seized by them. So, 12 the testimony of P.W.5 is contrary regarding production of documents and accused No.1 before P.W.1.
12. P.W.2 F.S.L officer has stated that he opened one sealed sample packet on 26.11.2011 and conducted various tests and opined that contents of the sealed packet responded positive for cocaine and Paracetamol and issued Ex.P3. the percentage of cocaine is 4% only. In his cross examination admitted that to determine the drug to find out RF value is important factor. He denied that he has not personally conducted the various tests of the sample articles and falsely issued report. Of course, the testimony of P.W.5 may be believed that sample articles contain positive for cocaine and Paracetamol but the said sample articles is seized from the possession of the accused No.1 is not proved by the prosecution. Independent panch witnesses are not examined by the prosecution in spite of sufficient time was granted. In the absence of corroborative independent panch witnesses, the testimony of official witnesses cannot be relied and are not credit worthy.
CCH-33 13 SPl.C.C.211/11
13. Ex.P1 complaint, Ex.P5 mahazar reveal that no recital regarding information reduced in writing and sent to superior officer and obtained permission and also legal right of the accused No.1 is not explained to the accused No.1 prior to his personal search. Ex.P7 and P8 notices issued to panchas reveal that one person selling the drugs at St. George College. But P.W.5 stated that informant specifically informed that one black colour foreigner was selling the ganja. Whether panchas gave consent for participating in raid is not mentioned in Ex.P7 and P8. Ex.P6 body search memo issued by P.W.5 ACP. Infact P.W.5 received the information and he himself is the search and seizure officer. the personal search has to be conducted U/s.50 of NDPS Act before Gazetted Officer. but P.W.4 being a Gazetted officer himself issued Ex.P6 and searched by him. personal search conducted by Gazetted officer is immaterial, but personal search before Gazetted officer is material aspect. Even in Ex.P6 simply stated that he has received information regarding possession of Narcotic Drug and required to be searched by jurisdictional magistrate or Gazetted Officer and he himself is a Gazetted officer and required to be searched by 14 him or other Gazetted Officer. the answer given by accused No.1 is that any Gazetted Officer. so, P.W.4 carried on the search. so accused No.1 was not produced before any other independent Gazetted officer and not explained his legal right in Ex.P6. so, the mandatory provisions U/s.50 of NDPS Act is also not complied.
14. Ex.P11 voluntary statement of accused No.1 is not helpful to the prosecution as no other property seized on the basis of confession statement. Ex.p11 recorded after search and seizure. So, Ex.P11 is not having any presumptive value to believe the offence committed by the accused No.1. Ex.P12 letter written to DCP after success of raid. without complying Secs.41, 42 and 50 of NDPS Act, the compliance U/s.57 do not rectify the mistake committed by the I.O. Ex.P17 is a copy of movement register written by P.W.4. Contents mentioned on 30.9.11 disclose that it is written after completion of search and seizure. So, the testimony of P.Ws.3 to 6 raiding parties regarding seizure of contraband from the possession of the accused No.1 is not corroborated by independent panch CCH-33 15 SPl.C.C.211/11 witnesses. Even if their testimonies are believed, it cannot be accepted in evidence without complying the mandatory provisions.
15. In view of decisions reported 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 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 -16
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 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:-
CCH-33 17 SPl.C.C.211/11 (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:-
(B) Narcotic Drug and Psychotropic
Substances Act (61 of 1985), Ss.8, 18, 67 -
Recovery of narcotics-confessional statements 18 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(4) Crimes 304 (P&H) - Ram Lubhaya vs. State of Punjab, 2011 (3) Crimes 210 (SC) - Rajendra Singh vs. State of Haryana, 2013 (1) Crimes 51 (SC) - Suresh and others vs. State of Madhya Pradesh, 2011 (4) Crimes 26 (SC) - State of Delhi vs. Ram Avtar @ Rama, 2011(1) CCH-33 19 SPl.C.C.211/11 Crimes 508 (Karnataka) - K.K. Rejji and others vs. State by Murdeshwar Police Station, Karwar.
On careful reading of above decisions, facts, circumstances and ratio is applicable to case on hand, as prosecution has not followed mandatory provisions.
2014 Crl.L.J.1756 in State of Rajasthan Vs., Paramananda and another wherein it is held that accused bag was searched and opium was recovered. His personal search was also carried out. Provisions of Sec.50 applicable. Further, accused must be individually informed that he has right to be searched before a nearest Gazetted Officer or before nearest Magistrate. I.O not only seized ganja from house of accused but also seized cash on his personal search. However, accused has specifically informed that he has a right to be searched before Gazetted Officer or Magistrate. So, as per the ratio of the above decision, I.O has complied the provisions U/s.50 of NDPS Act.
AIR 2013 SC 357 in Kishan Chand Vs., State of Harayana and 2008 Crl.L.J. 2454 Mukhtiar Singh Vs., 20 State of Harayana wherein it is held that free search requirement of recording information received and sending it to superior officer. Demands exact and definite compliance as oppose to substantial compliance. Compliance with provisions of Sec.57 does not dispense compliance with requirements of Sec.42 and 50. Facts and circumstances of the above decisions are not applicable to the case on hand, as I.O reduced the information in SHD and sent the information to Superior officer, prior to search and seizure.
2013(1) Crimes 51(SC) Suresh and others Vs., State of Madhya Pradesh wherein it is held that simply seeking consent of the accused for apprising the suspect of his arrest to be searched before Gazetted Officer or Magistrate is essential. Facts and circumstances of the above decision is applicable to the case on hand as I.O has conducted the personal search before Gazetted Officer -ACP. Moreover, on personal search no contraband seized.
2002 Crl.L.J.4502 Koyappa Kalathil Ahmed Koya Vs., A S Menon and another wherein it is held that members of raiding party informed accused that Gazetted Officer is CCH-33 21 SPl.C.C.211/11 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 and not for asking to be searched in presence of any other Gazetted Officer or Magistrate. Said procedure against safeguard provided by Sec.50 to accused. Facts and circumstances of the above decision is not similar with the case on hand as ACP is not a member of raiding party who came to spot on the request of I.O to conduct personal search. The facts and circumstances of the above decisions are aptly applicable to the case on hand.
16. For the above, in the absence of corroborated evidence the testimony of official witnesses cannot be reliable to prove the guilt of the accused No.1. So many considerable contradictions and discrepancies found in the prosecution witnesses. There is no link of chain found in the circumstantial evidence. Serious doubt arise in the mind of the Court to believe that accused No.1 has committed the offence. So accused No.1 is entitled for the benefit of doubt. Hence prosecution has utterly failed to prove the guilt beyond 22 reasonable doubt. Accordingly, I answer point No.1 in the 'Negative'.
17. Point No.2: P.W.5 stated that he has not obtained any document to show whether accused No.1 is having valid passport and visa. Except oral allegation against the accused No.1 regarding offence alleged to be committed U/s.12(C) of I.P.Act, no material placed by prosecution. Infact, at the time of granting of bail, accused No.1 produced the Passport and Visa which are kept in safe custody. As per passport at the time of alleged incident accused No.1 was having a valid passport and visa. So the prosecution has failed to prove that accused No.1 has violated the provisions U/s.12(C) of I.P.Act. Accordingly, I answer Point No.2 in the negative.
18. Point No.3: In the result, following:
ORDER Acting under Section 235(1) of Cr.P.C. accused No.1 is acquitted for the offences CCH-33 23 SPl.C.C.211/11 punishable under Section 21(C) of N.D.P.S. Act and 12(C) of I.P.Act.
Bail bond of the accused No.1 shall stands cancelled.
Accused No.1 is released U/Sec.437(A) of Cr.P.C., on execution of bond for Rs.50,000/- with a surety for likesum, for the purpose of his appearance before Appellate Court, in the event of filing of any appeal by the State.
The entire records and property shall be kept in Spl.C.C.176/2012 for trial of accused No.2.
[Dictated to the Stenographer, transcribed and computerised by her, corrected, signed and then pronounced by me in Open Court on this the 9th day of December, 2015.] (D.Y. BASAPUR) XXXIII ACC & SJ & SPL.JUDGE (NDPS) BANGALORE.
24ANNEXURE
1. List of witnesses examined for the:
(a) Prosecution:
P.W.1 : Munigowreesha
P.W.2 : P R Jayaram
P.W.3 : Puttanarasaiah
P.W.4 : SV Guleda
P.W.5 : Siddaraju
P.W.6 : Balakrishna
(b) Defence :
NIL
2. List of documents exhibited for the:
(a) Prosecution:
Ex.P.1 : Complaint
Ex.P.2 : F.I.R
Ex.P.3 : F.S.L certificate
Ex.P.4 : Sample seal
Ex.P.5 : Panchanama
Ex.P.6 : Body search notice
Ex.P.7 : Notice to pancha
Ex.P.8 : Notice to pancha
x.P.9 : Specimen seal
Ex.P.10 : PF
Ex.P.11 : Voluntary statement
Ex.P.12 : Report to DCP
Ex.P.13 : Passport
Ex.P.14 : Acknowledgement of F.S.L
Ex.P.15 : Report
Ex.P.16 : Report
Ex.P17 : report
(b) Defence:
NIL
CCH-33
25 SPl.C.C.211/11
3.List of Material Objects admitted in evidence:
M.O.1 : F.S.L sample seal
M.O.2 : Sample
M.O.3 : Bulk
M.O.4 : Empty plastic cover
M.O.5 : Cash of Rs.2300/-
M.O.6 : Weighing machine
M.O.7 : 15 empty plastic cover
M.O.8 : Nokia mobile
(D.Y. BASAPUR)
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BANGALORE.
CN/*