Bangalore District Court
The Inspector Of Customs, Ciu vs Herrera Valenzuela De Lopez Silvia ... on 26 November, 2025
KABC010183702020
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 26th DAY OF NOVEMBER 2025
SPL.C.C. No.753/2020
COMPLAINANT : Inspector of Customs,
Customs Intelligence Unit (CIU),
Principal Commissioner of
Customs, Air India Sats Air
Freight Station, Kempegowda
International Airport,
Devanahalli, Bengaluru.
(By Spl. Public Prosecutor)
V/S.
ACCUSED : Ms. Herrera Valenzuela De Lopez
Silvia Guadalupe,
Age 34 years, 2-7-40, Zone-5,
Villanucva.
(By Sri. TAB., Adv.)
1. Date of Commission of offence: 29.2.2020
2. Date of report of offence: 29.2.2020
2
3. Arrest of the accused : 6.3.2020
4. Date of release of accused on bail: Still in judicial custody
5. Period undergone in custody: -
6. Date of commencing of
30.1.2023
recording Evidence :
7. Date of closing of Evidence : 20.3.2025
8. Name of the complainant: Joint Commissioner,
Customs, GST.
Dr.K.P.Pradeep
9. Offence complained of : U/Sec.22, 23, 27A, 28,
29 & 30 of NDPS Act.
10. Opinion of the Judge : Charges not proved
11. Order of sentence : The accused is acquitted
::JUDGMENT::
The Inspector of Customs, Airport & Air Cargo Complex, Bangalore has filed Complaint against the accused in file C.No.VIII/10/74/2020 BACC (CIU) dated 6.3.2020 for the offences punishable U/Sec.8(c) R/w.Sec.22, 23, 27A, 28, 29 & 30 of NDPS Act.
CCH-33 3 Spl.C.C.753/2020
2. The case of the prosecution in nutshell is as under:-
On 29.2.2020 the Joint Commissioner, Customs GST received credible information that a female passenger by name Herrera Valenzuela De Lopez Silvia Guadalupe is scheduled to arrive from Addis Ababa by Ethiopian airlines flight at Kempegowda International Airport, Bangalore at around 8.00 hours on 2.3.2020 and the passenger was suspected of carrying contraband substance prohibited under NDPS Act. The said intelligence report was submitted by DC (CIU) to JC (CIU) on 29.2.2020 and as per further directions, the said female passenger was intercepted at 8.00 hours on 2.3.2020. On enquiry the accused revealed that she had swallowed some capsules. She was taken to ladies toilet and after 15 minutes, the lady officer came out of the toilet and showed a white cloth tube like pad which was kept by the accused in her vagina surface and the same was weighing 20 grams of white powder. Again after 15 minutes 34 capsules were removed. Again the accused revealed that she was having further contraband in her 4 rectum and after 15 minutes another 13 capsules were ejected. Thus, in all 150 capsules were seized in all weighing 1385.02 grams and when the same was tested through Test kit the powder is said to have been cocaine. After seizure of the narcotic substance and arrest of the accused, submitted detailed report before the Customs Inspector. Basing on the said report the afore said case is registered in File C No.VIII/10/74/2020 BACC CIU for the offences punishable U/s.8(c) R/w.Secs.22, 23, 27A, 28, 29 & 30 of NDPS Act.
3. The Investigating officer, after completing the investigation filed Complaint before the Court. The accused was is in judicial custody. The learned Predecessor-in-office of this Court, took cognizance of the offences punishable under Sec.8(c), 22, 23, 27A, 28, 29 & 30 of NDPS Act,1985. The copy of the Complaint and annexed documents were furnished to the learned counsel appearing for the accused as provided under Sec.207 of the Criminal Procedure Code, 1973. Since, the offences alleged against the accused is cognizable in nature, the predecessor-in-office of this Court CCH-33 5 Spl.C.C.753/2020 heard the learned counsel for the accused and Public Prosecutor before charge and framed the Charge against the accused for the offence punishable under section 21(c) & 23(c) of NDPS Act, 1985 on 5.11.2022, read-over and explained to the accused in the language known to her. She pleaded not guilty and claimed to be tried. Therefore, posted the case for recording the evidence on behalf of prosecution.
4. The prosecution in order to bring home the guilt of the accused, examined 07 witnesses as P.W.1 to P.W.7 and got 35 documents marked as Exs.P1 to P35 and got 8 material object marked as M.O.1 to 8. After conclusion of evidence of prosecution side, the accused was examined U/Sec.313 of Cr.P.C. She denied the incriminating statements made against her. However, she did not offer defence evidence.
5. Heard arguments of the learned Spl. Public Prosecutor and the learned Counsel for the accused and 6 perused the written arguments submitted by learned Spl.P.P., and the materials placed before the Court.
6. The Points that arise for the consideration of this Court are as under:-
Point No.1 : Whether the prosecution proves beyond reasonable doubt that on 2.3.2020 at Kempegowda International Airport, Devanahalli, Bangalore the accused who is a female Guatemalan National traveled in Ethiopian Airways from Addis Ababa to Bangalore and when the Inspector of Customs intercepted her at 8.00 hours was found in illegal possession of 1384.29 grams of Cocaine within her body without holding any licence or permission and thereby accused has committed the offence punishable U/s.21(c) of NDPS Act?
Point No.2: Whether the prosecution proves that the accused on the above said date, time and place being the Nationals of Guatemalan traveled from Addis Ababa to Bangalore in Ethiopian Airways have imported 1384.29 grams of cocaine without holding any CCH-33 7 Spl.C.C.753/2020 licence or permission and thereby accused has committed the offence punishable U/s.23(c) of NDPS Act?
Point No.3: What Order ?
7. My findings on the above points are as under:
Point No.1: In the Negative Point No.3: In the Negative Point No.3: As per the final order for the following:
::REASONS::
8. POINT No.1 & 2 :- These two points are taken up together for discussion to avoid repetition and for brevity.
9. The prosecution, in order to establish its case has examined in all 7 witnesses. CW.2 Sri.C.Venkatesh, Superintendent of Customs has been examined as PW.1. PW.1 deposed that on 2.3.2020, he along with his colleague officers including a lady Superintendent visited KIA, Bengaluru at around 7.00am., that on specific intelligence that, a foreign national by name Ms. Herrera Valenzuela De 8 Lopez Silvia Guadalupe will be arriving by Ethiopian Airlines flight No.ET690 from Addis Ababa to Bengaluru on 2.3.2020 at around 8.00 am., and she is suspected of carrying certain psychotropic substance banned under the NDPS Act, that the mahazar witnesses CW.12 and 13 were also called and the above facts were explained to them and they were requested to be witness to the proceedings.
9b. PW.1 further deposed that on the same day at around 7.30 a.m., on 2.3.2020, the Ethiopian Airlines flight No.ET690 arrived, that he and his team with independent witnesses waited near the Customs clearance area, that after completion of immigration formalities, he identified a particular lady with the help of her Passport which was carried by her and identified her as Ms.Herrera Valenzuela De Lopez Silvia Guadalupe, that she revealed that she knows only Spanish language and hence, initially, he conversed with her using the google translation App to speak, that she inform that, she is from Gautamala and has arrived from Sao Paulo to Bengaluru via Addis Ababa, that CCH-33 9 Spl.C.C.753/2020 she was carrying one hand baggage and she revealed that she was carrying one check-in baggage, that the check-in baggage was identified by her and on enquiry, she denied that she was carrying any psychotropic substance, that when they checked her hand baggage in the said hand baggage there were Airline tickets from Sao Paulo to Bengaluru along with the computer printout which indicated Hotel Reservation in her name at Fab Hotel, Mayuri Residency, Bengaluru with check-in on 2 nd March and check-out on 7th March along with return ticket on 8th March.
9c. PW.1 has further deposed that he apprised her right of personal search in the presence of Gazetted Officer or Magistrate and issued notice U/s.50 of NDPS Act to her and translated the same to her in the language to her by using Google App, that CW.6 V. Chitra, the Superintendent of Customs being a Gazetted Officer opted her about the personal search that has to be conducted in the presence of a Gazetted Officer and Cw.6 conducted the personal search 10 of the said passenger in AIU room and nothing incriminatory was recovered, that on persistent enquiry, she stated that, she has swallowed 150 capsules and has concealed one tube in her vaginal cavity and agreed to remove the tube and the egest said items from her body.
9d. PW.1 further deposed that she along with the independent witnesses went to the Customs International Arrival hall where the ladies toilet is situated, CW.6 accompanied her and they were waited outside the toilet, that after 10 minutes, CW.6 came out along with accused and informed them that she has removed that white coloured polythene cover in a tube shape from her vaginal cavity in which the white substance were packed, that when he asked the accused, she admitted that, she removed the tube from her vaginal cavity, that they made arrangements for an official translator to be present during the proceedings ie., CW.8 arrived, that on weighing the tube it was around 200 grams, that they cut opened the said tube and inside the tube there was white powder like substance CCH-33 11 Spl.C.C.753/2020 and by using the field test kit it was tested it appeared to be cocaine which is a narcotic drug, that the net weight of the powder in the tube like substance is 197.81 grams.
9e. PW.1 further deposed that on persistent enquiry, the accused admitted that, she has concealed some items in rectum and agreed to egest it, that he along with the witnesses and the translator accompany the accused upto the ladies toilet, that accused along with CW.6 and 8 went into the ladies toilet, after about 15 minutes, CW.6 came out along with the accused and CW.8 and informed that the accused had removed 34 numbers of capsule shaped structures wrapped in polythene covers which were shown to us as well as the witnesses, that on enquiry through CW.8, the accused admitted that she had removed the said 34 capsules from her rectum, that the accused further agreed that she had concealed some more capsules in her rectum and offer to egest the same. Accordingly, the accused along with CW.6 and 8 went into the ladies toilet, after about 20 minutes, CW.6 came out along with the 12 accused and CW.8 and informed that, the accused had removed 13 numbers of capsule shaped structure wrapped in white polythene cover which were shown to the witnesses, that on enquiry through CW.8, the accused admitted that she had removed the said 13 capsules from her rectum, that the total weight of all the 47 capsules (34 +
13) was found to be 423.90 grams and all the said 47 capsules were weighed by him in the presence of the witnesses, accused and CW.8, that he along with his colleague opened all the 47 capsules and found white powdery substance, on conducting tests using the field test kit, it appeared that the powder is cocaine a narcotic drug.
9f. PW.1 further deposed that he along with his colleagues enquired from the accused through the translator as to how she had concealed the above items in her vagina and rectum, to which the accused informed through CW.8 that, she was asked by somebody in Gautamala to swallow the capsules as well as insert the tube in her vagina and carry the same to Bengaluru, where CCH-33 13 Spl.C.C.753/2020 she was informed that, she will be taken to the Hotel by name Fab Hotel Mayuri Residency, there some person will come and extract the same from her body.
9g. PW.1 further deposed that as per the procedures, he along with his colleague, drew representative samples from both tube like structure as well as the capsule structure and placed them in envelopes which were sealed with wax seal in the presence of the independent witnesses as well as the accused. The total quantity of white powder suspected to be cocaine were liable for seizure u/Sec. 43 of NDPS Act and the said consignment was attempted to be smuggled by the accused into India by concealing it in her body in contravention of Sec.8 of NDPS Act which was punishable u/Sec. 21, 23 and 28 of NDPS Act. Accordingly, the entire quantity of aforesaid white powder suspected to be cocaine totally weighing 484.27 grams (which included 79.26 grams representative samples) were taken into custody and seized by him under the provisions of NDPS Act under mahazar dtd 2.3.2020 drawn at KIA, Bengaluru. The 14 total value of the white coloured powder contained in the 47 capsules and one tube is 563.53 grams including the weight of the tube and its cost was approximately Rs. 3,38,00,000/-. PW.1 further deposed that he had also seized certain documents such as manifest of Airlines flight No. ET 690 dtd 1.3.2020, copy of the Passport of the accused, Boarding pass, Tourist E-Visa, E-tickets of the Airlines and reservation slips of the Hotel in the name of the accused along with her mobile phones.
9h. PW.1 further deposed that again the accused informed him that she had concealed few more capsules in her body and she is feeling tired and uncomfortable, that they called the Doctor from Aster Hospital, KIA and after examination, the doctor informed that, the accused needs immediate medical attention and should be shifted to the hospital, that he concluded the mahazar proceedings at KIA at around 6.00 pm., on 2.3.2020 and the accused was shifted to Bowring Hospital, Bengaluru, that the accused was accompanied by CW.6, 8 and other officers, that after CCH-33 15 Spl.C.C.753/2020 further medical treatment was given at Bowring Hospital and Victoria Hospital and after certification by the Doctors that the accused is fit, he issued the Summons under Section 67 of NDPS Act to the accused at around 4.15 p.m. on 4.3.2020 at Emergency Ward, Victoria Hospital directing her to appear before me on 5.3.2020 at 10.00 am., at Air- cargo Complex, ACC Bengaluru, that the same was communicated to the accused through CW.8 and the accused informed CW.8 that, she does not know anybody in Bengaluru and does not have any place to stay and requested him to provide her some accommodation, hence, he brought the accused to his office located at Air India, Sats Cargo Terminal, KIA, Devanahalli on 4.3.2020.
9i. PW.1 has further deposed that the accused appeared before him on 5.3.2020 and with the help of CW.8 recorded her voluntary statement in Spanish which has been translated to English by CW.8 and recorded her further statement on 6.3.2020, that mahazar was drawn. 16
10. CW.3 Sri V.G.Deshpande, Superintendent of GST., Bangalore has been examined as PW.2. He has deposed that on 2.3.2020, he along with his colleague officers including a lady Superintendent visited KIA, Bengaluru at around 7.00 a.m., on the specific intelligence dtd 29.2.2020 received at CIU that, a foreign national by name Ms. Herrera Valenzuela De Lopez Silvia Guadalupe will be arriving by Ethiopian Airlines from Addis Ababa to Bengaluru on 2.3.2020 at around 8.00 am., and she is suspected of carrying certain contraband substance banned under the NDPS Act, that at around 7.30 am., on 2.3.2020, the Ethiopian Airlines arrived and he along with other officials and the independent witnesses waited near the Customs clearance area, that after completion of immigration formalities, his colleague identified particular lady with the help of her Passport which is carried by her and identified her as Ms. Herrera Valenzuela De Lopez Silvia Guadalupe, that they understood that accused was speaking only Spanish language and hence, initially, his colleague CW.1 CCH-33 17 Spl.C.C.753/2020 conversed with her using the google translation App to speak, that she inform that she is from Gautamala and has arrived from Sao Paulo to Bengaluru via Addis Ababa, that she was carrying one hand baggage and one check-in baggage, that on enquiry, she denied that she was carrying any psychotropic substance.
10b. PW.2 further deposed that his colleague CW.1 apprised her about her personal search to be conducted under the provisions of NDPS Act before a Magistrate or a before a Gazetted Officer and issued issued a notice to her u/Sec. 50 of NDPS Act and translated the same to her using the google App., and the accused opted for the personal search by the Gazetted Officer, that one Smt. V. Chitra Superintendent of Customs conducted the personal search in the AIU room and nothing incriminatory was recovered, that on persistent enquiry, she has stated that, she has swallowed 150 capsules and has concealed one tube in her vaginal cavity and agreed to remove the tube and the egest said items from her body, that the accused was taken to 18 Bowring hospital along with CW.6 Chitra and CW.8 Translator, that thereafter on examination it was found that some more tablets were there inside her body and the same were egested and as the accused was weak she was admitted in victoria Hospital, that they seized in all 73 tablets and drew mahazar.
10c. PW.2 further deposed that at Victoria hospital also the accused had egested some more tablets, they seized 30 tablets and drew mahazar, that finally on 4.3.2020 the accused was discharged from the hospital, the accused was taken to their office and recorded her voluntary statement.
11. CW.1 Dr. K.P.Pradeep, Dy. Commissioner of CIU has been examined as PW.3. He has deposed that on 29.2.2020, he received intelligence that one Ms.Herrera Valenzuela De Lopez Silvia Guadalupe, Gautemalan National was about to arrive in Ethiopian Airlines Flight No. ET690 from Addi Sababa on 2.3.2020 at KIA, Bengaluru around 0800 hours carrying some contraband substance, CCH-33 19 Spl.C.C.753/2020 that he reduced the information to writing as per Ex.P.23 and signature as Ex.P.23(a), that he informed his immediate superior Joint Commissioner of Customs Intelligence Unit, ACC, Bengaluru and obtained the permission to act on the intelligence, he submitted the letter along with the intelligence report in the file, that after receiving the permission, he constituted the team of the officers to intercept the suspected passenger, that on the day of arrival of the suspect, the team of officers were present at the Airport and have carried out the interception.
12. CW.6 Smt.V.Chitra, Superintendent of Customs has been examined as PW.4. PW.4 has deposed that on 2.3.2020, she along with her colleague officers including CW-1 to 3 visited KIA, Bengaluru at around 7.00 a.m., on the specific intelligence that a foreign national by name Ms.Herrera Valenzuela De Lopez Silvia Guadalupe will be arriving by Ethiopian Airlines flight No.ET690 from Addis Ababa to Bengaluru on 2.3.2020 at around 8.00 am., and she is suspected of carrying certain psychotropic substance 20 banned under the NDPS Act, that CW.12 and 13 were also called and the above facts were explained to them and they were requested to be witness to the proceedings, that at around 7.30 am., on 2.3.2020, the Ethiopian Airlines flight No. ET690 arrived and myself along with other officials and the independent witnesses waited near the Customs clearance area, that she along with CW-2 identified a particular lady with the help of her Passport which is carried by her and identified her as Ms.Herrera Valenzuela De Lopez Silvia Guadalupe, that since the accused knew only Spanish language, she conversed with her using the google translation App to speak, that the accused informed that she is from Gautamala and has arrived from Sao Paulo to Bengaluru via Addis Ababa, she was carrying one hand baggage and a check-in baggage, that she denied that she was carrying any psychotropic substance, that they checked her hand baggage and they found Airline tickets from Sao Paulo to Bengaluru along with the computer printout which indicated Hotel Reservation in her name at Fab Hotel, CCH-33 21 Spl.C.C.753/2020 Mayuri Residency, Bengaluru with check-in on 2 nd March and check-out on 7th March along with return ticket on 8th march, no incriminatory article was found in her luggage.
12b. PW.4 further deposed that she along with CW-2 apprised her about the personal search to be conducted under the provisions of NDPS Act before a Magistrate or a before a Gazetted Officer, that CW-2 has issued a notice to her under Sec. 50 of NDPS Act and translated the same to her using the google App, the accused opted for the personal search through gazetted officer, that she being a gazetted officer conducted the personal search of accused in the AIU room and nothing incriminatory was recovered, that on persistent enquiry, she has stated that, she has swallowed 150 capsules and has concealed one tube in her vaginal cavity and agreed to remove the tube and the egest said items from her body, that she took her to the Customs International Arrival hall where the ladies toilet is situated, she accompanied her into the toilet while the other staff waited outside the toilet, that after 10 minutes, she 22 informed that the accused removed a white coloured polythene cover in a tube shape from her vaginal cavity in which the white substance was packed, that CW-2 made arrangements for an official translator to be present during the proceedings ie., CW.8, that CW.8 arrived and CW-2 has weighed the tube like substance, the weight came around 200 grams, that on cutting open the tube like substance, white powdery like substance came out and using the field test kit, the said powder, appeared to be cocaine which is a narcotic drug and that the net weight of the powder in the tube like substance is 197.81 grams.
12c. PW.4 further deposed that on further persistent enquiry, the accused admitted that she has concealed some items in rectum and agreed to egest the same, she along with the witnesses and the translator accompany the accused upto the ladies toilet, after about 15 minutes, accused had removed 34 numbers of capsule shaped structures wrapped in polythene covers which were shown to them as well as the witnesses, that again accused went CCH-33 23 Spl.C.C.753/2020 inside the toilet along with them and removed 13 numbers of capsule shaped structure wrapped in white polythene cover which were shown to the witnesses, that the total weight of all the 47 capsules (34 + 13) was found to be 423.90 grams and all the said 47 capsules were weighed by CW-2 in the presence of the witnesses, accused and CW.8, that CW.2 along with his colleagues opened all the 47 capsules and found white powdery substance, on conducting tests by using the field test kit, it appeared that the powder is cocaine a narcotic drug.
12d. PW.4 has further deposed that CW-2 along with his colleagues enquired from the accused through the translator as to how she had concealed the above items in her vagina and rectum, to which the accused informed through CW.8 that, she was asked by somebody in Gautamala to swallow the capsules as well as insert the tube in her vagina and carry the same to Bengaluru, where she was informed that, she will be taken to the Hotel by 24 name Fab Hotel Mayuri Residency, there some person will come and extract the same from her body.
12e. PW.4 further deposed that as per the procedures, CW-2 along with his colleagues, drew representative samples from both tube like structure as well as the capsule structure and placed them in envelopes which were sealed with wax seal in the presence of the independent witnesses as well as the accused, that the total quantity of white powder suspected to be cocaine were liable for seizure u/Sec.43 of NDPS Act and the said consignment was attempted to be smuggled by the accused to India by concealing it in her body in contravention of Sec. 8 of NDPS Act which was punishable u/Sec.21, 23 and 28 of NDPS Act. Accordingly, the entire quantity of aforesaid white powder suspected to be cocaine totally weighing 484.27 grams (which included 79.26 grams representative samples) were taken into custody and seized by CW-2 under the provisions of NDPS Act under mahazar dtd 2.3.2020 drawn at KIA, Bengaluru, that the total value of the white coloured CCH-33 25 Spl.C.C.753/2020 powder contained in the 47 capsules and one tube is 563.53 grams including the weight of the tube, that the total value of the cocaine is approximately Rs. 3,38,00,000/-, that CW- 2 had also seized certain documents such as manifest of Airlines flight No. ET 690 dated 1.3.2020, copy of the Passport of the accused, Boarding pass, Tourist E-Visa, E- tickets of the Airlines and reservation slips of the Hotel in the name of the accused along with her mobile phones.
12f. PW.4 further deposed that again the accused informed CW-2 that she is concealing few more capsules in her body and she is feeling tired and uncomfortable. Accordingly, CW-2 called the Doctor from Aster Hospital, KIA and after examination, he informed that, the accused needs immediate medical attention and should be shifted to the hospital. Accordingly, CW-2 concluded the mahazar proceedings at KIA at around 6.00 p.m., on 2.3.2020 and the accused was shifted to Bowring Hospital, Bengaluru, that the accused was accompanied by her and CW-8 and her other colleagues, that after further medical treatment 26 done at Bowring Hospital and Victoria Hospital and after certification by the Doctors that the accused is fit, CW-2 had issued the S/S u/Sec. 67 of NDPS Act to the accused at around 4.15 pm., on 4.3.2020 at Emergency Ward, Victoria Hospital directing her to appear before him on 5.3.2020 at 10.00 am., at Air-cargo Complex, ACC Bengaluru, that since the accused knew any one CW-2 brought the accused to the office located at Air India, Sats Cargo Terminal, KIA, Devanahalli on 4.3.2020.
13. CW.8 Smt. Merita Shantharaj, Professor of Spanish, Bangalore University has been examined as PW.5. PW.5 has deposed that she had recorded/ typed the statement of accused on 23.10.2021, that on 24.10.2021, arrested the accused and produced before the Court, she has sent requisition to the Court for inventory, deposited the sample contraband to the CRCL, Chennai for Chemical Analysis, that after receiving the report from CRCL, she filed complaint before this Court against the accused.
CCH-33 27 Spl.C.C.753/2020
14. CW.10 Dr.Muralidara, the then Medical officer of Bowring lady Curzon Hospital has been examined as PW.6. According to him on 2.3.2020 at about 7.15 pm., the accused aged 34 years had been taken to the hospital with the complaint that she had swallowed contraband, that the medical officer of Emergency ward had taken her for treatment and the doctor from surgery section admitted her as inpatient and gave treatment to her that since they could not give higher treatment she had been referred to Victoria Hospital, Bangalore.
15. CW.11 Dr. K Ravi, Professor at Victoria hospital has been examined as PW.7. He has deposed that the accused herein had been referred to Victoria hospital from Bowring Lady Curzon hospital Bangalore for higher treatment that on examining her she revealed that she is having stomach ache, that on medical examination she found to be healthy therefore, she has been discharged from the hospital. PW.7 has also identified Ex.P33 and P34 issued by Victoria hospital.
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16. CW.14 Sri Srinivas V, Private Job has been examined as PW.8. He is an independent witness to Ex.P25 Mahazar. This witness has also been subjected for cross examination by learned counsel for the accused. In the cross examination it has been elicited from him that he had not been served with notice to participate in mahazar proceedings, that he does not know from where the tablets were brought, however, the foreign woman used to go to the toilet and the tablets were bring in a tray and also the learned counsel denied the contents of examination in chief of PW.8.
17. The prosecution apart from examining 8 witnesses has also got 35 documents marked as Ex.P1 to P35. Ex.P.1 is the Mahazar dated 2.3.2020, Ex.P.2 is the Mahazar translated to Spanish, Ex.P.3 is the Manifesto of Ethiopian Airlines, Ex.P.4 is a copy of passport of accused,
(a) sign., (b) original Passport, Ex.P.5 is the Boarding pass Ex.P.6 is the Baggage tags, Ex.P.7 is the ETA of accused, Ex.P.8 is the Ethiopian E-Ticket, Ex.P.9 is the Fab Hotel CCH-33 29 Spl.C.C.753/2020 Reservation letter, Ex.P.10 is the Test memo, Ex.P.11 is the SS to accused, Ex.P.12 is the Statement of accused, Ex.P.13 is the SS issued to accused, Ex.P.14 is the further statement of accused, Ex.P.14(a) is the translation, Ex.P.15 is the Travel details, Ex.P.16 is the Aster hospital report, Ex.P.17 is the Body search memo, Ex.P.18 is the translated letter, Ex.P.19 is the translated Letter to accused, Ex.P.20 is the letter to accused, Ex.P.21 is the X-ray report, Ex.P.22 is the Test Memo, Ex.P.23 is the Information, Ex.P.24 is the Letter to Joint Commissioner, Ex.P.25 is the Mahazar drawn at Bowring hospital, Ex.P.26 is the translation of mahazar, Ex.P.27 is the mahazar drawn at Victoria hospital, Ex.P.28 is the translation of Mahazar, Ex.P.29 is the MLC register copy, Ex.P.30 is the Inpatient record, Ex.P.31 is the Case sheet, Ex.P.32 is the Discharge summary, Ex.P.33 & 34 are the Inpatient records and Ex.P.35 is the photo of capsules.
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18. As could be seen from Ex.P1 mahazar, it was drawn on 02.03.2020. The Superintendent of Customs, CIU Section, Air Cargo Complex Bangalore had intercepted the accused Herrera Valenzuela De Lopez Silvia Guadalupe, on the same day, who arrived from Ethiopia in Flight No.ET-
690. She had one hand bag and a check-in luggage. On checking the baggage of the said passenger, it contained her personal things, such as clothes, undergarments, shampoo, soap, and hair straightener and the handbag and check-in baggage did not contain anything else than the said items. The Superintendent enquired with the accused by using an App to explain her in the Spanish language, the language known to her as there was suspicion on her, that she is carrying some suspicious Contraband. The Superintendent had offered her that a lady officer will conduct her body search, to which the accused replied in a Spanish language and agreed to have personal search through the lady officer. The said lady officer conducted the body search by using the metal detector and nothing suspicious was recovered.
CCH-33 31 Spl.C.C.753/2020 However, the accused had revealed that she concealed the items inside vagina and accordingly the Superintendent and his team members instructed the accused to go to the ladies' toilet situated at the Customs National Arrival Hall, Smt.Chitra Lady Superintendent waited outside the ladies toilet and after 10 minutes the accused came out and said with her that she(accused) removed a white coloured polythene cover of a tube shape from her vagina cavity in which a white substance was there and on handing it over to the officer, she on weighing it, it was 200 grams. On testing it with the help of DD kit, it gave result of possibility of cocaine. Again on persistent inquiry, the accused revealed that she has also concealed some items in her rectum and when she was taken to the toilet, after 15 minutes she came with 34 capsules which was wrapped in white polythene covers and again she produced 13 capsules which were also concealed in her rectum. In total, they recovered 47 capsules from her, which were weighing 423.90 grams. The officers had taken two representatives of samples of the said 32 capsules, weighing 22.25 grams and Remaining 323.42 grams of cocaine packed separately and the mahazar was drawn in the presence of independent witnesses namely, Neelesh Kumar Srivatsav and Aman Badgaiyan.
19. Ex.P2 is the Spanish translated copy of Ex.P1 mahazar. As explained by the officers this document is downloaded by using free Spanish translation app. This document is an electronic evidence. However, certificate required under the Evidence Act is not produced along with this document. The authenticity of the document has also not been placed before the court. Further, as could be seen from the evidence adduced on behalf of the prosecution, the prosecution has examined Sri.Venkatesh and Smt.Chaitra, the Superintendent. However, they did not examine the independent witnesses who signed Ex.P1 mahazar, namely Neeleshkumar Srivastav and Aman Badgaiyan. Only on the basis of the evidence of interested witnesses, the prosecution is intending to prove Ex.P1 mahazar. However, CCH-33 33 Spl.C.C.753/2020 it has to be proved by the prosecution in accordance with law.
20. Ex.P3 is the final manifest of Ethiopian flight ET
690. Ex.P4 is the copy of the passport of the accused. Ex.P4
(b) is the original passport of accused and Ex.P5 is the boarding pass as well as well language tag. Ex.P7 is the Indian E-Visa. No doubt, on perusal of these documents, it is clear that the accused had come to India under E-Visa as seen from Ex.P7.
21. As seen from Ex.P7, on the basis of statement of accused, it is said to be that the accused was taken to Victoria Hospital as she revealed the concealment of some more suspicious article in her stomach. The officers recovered 30 capsules from her in Victoria Hospital also and representative of sample was taken by them and all the articles were packed and duly sealed in accordance with law and had drawn Ex.P27 mahazar. This mahazar is also signed by two independent witnesses namely Srinivas and 34 Kishore. The Superintendent V.G.Deshpande has been examined on behalf of the prosecution. However, out of two independent witnesses one witness by name Srinivas has been examined to prove the contents of Ex.P27 mahazar.
22. At this juncture, it is relevant to note here that any information received by the officers shall be reduced into writing and the said information has to be sent to the immediate superior in office as contemplated under Section 42 of NDPS Act. Section 42(1) and Section 42(2) reads as under;
42. Power of entry, search, seizure and arrest without warrant or authorisation.--
(l) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and CCH-33 35 Spl.C.C.753/2020 taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,-
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such entry;
(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and
(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:
[Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of sub-inspector:36
Provided further that] if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.
(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-
two hours send a copy thereof to his immediate official superior.] For more understanding it is also necessary to rely on the decision reported in. At this stage, it is relevant to rely on the decision of Karnail Singh Vs., State of Haryana reported in (2009) 8 SCC 539. In the said decision in Para No.35 it is held as under:-
35. In conclusion, what is to be noticed is Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Section 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows :
(a) The officer on receiving the information (of the nature referred to in Sub-section (1) of section 42) from any person had to record it in writing in the concerned Register and forthwith send a copy to his immediate official superior, before proceeding to CCH-33 37 Spl.C.C.753/2020 take action in terms of clauses (a) to (d) of section 42(1).
(b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.
(c) In other words, the compliance with the requirements of Sections 42 (1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency.
(d) While total non-compliance of requirements of sub-sections (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of section 42. To illustrate, if any delay may result in the accused escaping or 38 the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending a copy of such information to the official superior forthwith, may not be treated as violation of section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of section 42 of the Act. Whether there is adequate or substantial compliance with section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to section 42 by Act 9 of 2001.
23. Further, as seen from Ex.P1 mahazar, as pointed out by the learned counsel for accused, the prosecution has not apprised the right of the accused as contemplated under Section 50 of NDPS Act. As could be seen from the recitals of Ex.P1 mahazar, the Superintendent at his volition has the body of the accused was searched through the Superintendent and in fact, the officer ought to have given CCH-33 39 Spl.C.C.753/2020 an option to the accused to get her body searched in the presence of either gazetted officer or any Magistrate, as contemplated under Section 50 of NDPS Act. At this stage, it is relevant to rely on the decision of Ranjan Kumar Chadha vs., State of Himachal Pradesh reported in 2023 SCC OnLine SC 1262 wherein it is specifically observed that as under:
"Conducting a search under Section 50, without intimating to the suspect that he has a right to be searched before a gazetted officer or a Magistrate, would be violative of the "reasonable, fair and just procedure" and the safeguard contained in Section 50 would be rendered illusory, otiose and meaningless. Procedure based on systematic and unconscionable violation of law by the officials responsible for the enforcement of law, cannot be considered to be a "fair", just or reasonable procedure. We are not persuaded to agree that reading into Section 50, the existence of a duty on the part of the empowered officer, to intimate to the suspect, about the existence of his right to be searched in the presence of a gazetted officer or a Magistrate, if he so requires, would place any premium on ignorance of the law. The argument loses sight of a clear distinction between 40 ignorance of the law and ignorance of the right to a "reasonable, fair and just procedure".
xxxx
28. This Court cannot overlook the context in which the NDPS Act operates and particularly the factor of widespread illiteracy among persons subject to investigation for drug offences. It must be borne in mind that severer the punishment, greater has to be the care taken to see that all the safeguards provided in a statute are scrupulously followed. We are not able to find any reason as to why the empowered officer should shirk from affording a real opportunity to the suspect, by intimating to him that he has a right "that if he requires" to be searched in the presence of a gazetted officer or a Magistrate, he shall be searched only in that manner. As already observed the compliance with the procedural safeguards contained in Section 50 are intended to serve a dual purpose -- to protect a person against false accusation and frivolous charges as also to lend creditability to the search and seizure conducted by the empowered officer. The argument that keeping in view the growing drug menace, an insistence on compliance with all the safeguards contained in Section 50 may result in more acquittals does not appeal to us. If the empowered officer fails to comply with the requirements of Section 50 and an order or CCH-33 41 Spl.C.C.753/2020 acquittal is recorded on that ground, the prosecution must thank itself for its lapses. Indeed in every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of the judicial process may come under a cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for the law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted."
(Emphasis supplied)
47. As to what would be the consequences of a recovery made in violation of Section 50, it was observed in Baldev Singh (supra) that it would have the effect of rendering such incriminating material inadmissible in evidence and hence, cannot be relied upon to hold the accused guilty for being found to be in unlawful possession of any contraband. The Court further held that it would not impede the prosecution from relying upon recovery of any other incriminating article in any other independent proceedings. It was further held that the burden of proving that the conditions of Section 50 were complied with, would lie upon the prosecution to establish. The relevant observations are being reproduced hereunder:- 42
"32. However, the question whether the provisions of Section 50 are mandatory or directory and, if mandatory, to what extent and the consequences of non-compliance with it does not strictly speaking arise in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched. Therefore, without expressing any opinion as to whether the provisions of Section 50 are mandatory or not, but bearing in mind the purpose for which the safeguard has been made, we hold that the provisions of Section 50 of the Act implicitly make it imperative and obligatory and cast a duty of the investigating officer (empowered officer) to ensure that search of the person (suspect) concerned is conducted in the manner prescribed by Section 50, by intimating to the person concerned about the existence of his right, that if he so requires, he shall be searched before a gazetted officer or a Magistrate and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate would cause prejudice to the accused and render the recovery of the illicit article suspect and vitiate the conviction and sentence of the accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered CCH-33 43 Spl.C.C.753/2020 during a search conducted in violation of the provisions of Section 50 of the Act. The omission may not vitiate the trial as such, but because of the inherent prejudice which would be caused to an accused by the omission to be informed of the existence of his right, it would render his conviction and sentence unsustainable. The protection provided in the section to an accused to be intimated that he has the right to have his personal search conducted before a gazetted officer or a Magistrate, if he so requires, is sacrosanct and indefeasible -- it cannot be disregarded by the prosecution except at its own peril.
33. The question whether or not the safeguards provided in Section 50 were observed would have, however, to be determined by the court on the basis of the evidence led at the trial and the finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish at the trial that the provisions of Section 50 and, particularly, the safeguards provided in that section were complied with, it would not be advisable to cut short a criminal trial.
xxxx 44
45. ... Prosecution cannot be permitted to take advantage of its own wrong. Conducting a fair trial for those who are accused of a criminal offence is the cornerstone of our democratic society. A conviction resulting from an unfair trial is contrary to our concept of justice. Conducting a fair trial is both for the benefit of the society as well as for an accused and cannot be abandoned. While considering the aspect of fair trial, the nature of the evidence obtained and the nature of the safeguard violated are both relevant factors. Courts cannot allow admission of evidence against an accused, where the court is satisfied that the evidence had been obtained by a conduct of which the prosecution ought not to take advantage particularly when that conduct had caused prejudice to the accused."
24. Further, it is made clear that what the officer concerned is required to do is to convey about the choice the accused has. The accused has to be told in a way that he becomes aware that the choice is his and not of the officer concerned, even though there is no specific form the use of the word 'right' at relevant places in the decision of Baldev Singh case seems to be to lay effective emphasis that it is CCH-33 45 Spl.C.C.753/2020 not by the grace of the officer, the choice has to be given, but more, by way of a right in the suspect at that stage to be given such a choice and the inevitable consequences that have to follow by progressing it.
"11. ... What the officer concerned is required to do is to convey about the choice the accused has. The accused (suspect) has to be told in a way that he becomes aware that the choice is his and not of the officer concerned, even though there is no specific form. The use of the word "right" at relevant places in the decision of Baldev Singh case seems to be to lay effective emphasis that it is not by the grace of the officer the choice has to be given but more by way of a right in the "suspect" at that stage to be given such a choice and the inevitable consequences that have to follow by transgressing it."
60. Section 50 of the NDPS Act only goes so far as to prescribe an obligation onto the police officer to inform the suspect of his right to have his search conducted either in the presence of a Gazetted Officer or Magistrate. Whether or not the search should be conducted in the presence of a Gazetted Officer or Magistrate ultimately depends on the exercise of such right as provided under Section 50. In the event the suspect declines this right, there is no further 46 obligation to have his search conducted in the presence of a Gazetted Officer or Magistrate, and in such a situation the empowered police officer can proceed to conduct the search of the person himself. To read Section 50 otherwise would render the very purpose of informing the suspect of his right a redundant exercise. We are of the view that the decision of this Court in Arif Khan (supra) cannot be said to be an authority for the proposition that notwithstanding the person proposed to be searched has, after being duly apprised of his right to be searched before a Gazetted Officer or Magistrate, but has expressly waived this right in clear and unequivocal terms; it is still mandatory that his search be conducted only before a Gazetted Officer or Magistrate.
The Apex Court, in Para No. 64 of its Judgment, summarized the requirements envisaged under Section 50 of NDPS Act as under ;
64. From the aforesaid discussion, the requirements envisaged by Section 50 can be summarised as follows:-
(i) Section 50 provides both a right as well as an obligation.
The person about to be searched has the right to have his search conducted in the presence of a Gazetted Officer or Magistrate if he so desires, and it is the obligation of the police officer to inform such person of CCH-33 47 Spl.C.C.753/2020 this right before proceeding to search the person of the suspect.
(ii) Where, the person to be searched declines to exercise this right, the police officer shall be free to proceed with the search. However, if the suspect declines to exercise his right of being searched before a Gazetted Officer or Magistrate, the empowered officer should take it in writing from the suspect that he would not like to exercise his right of being searched before a Gazetted Officer or Magistrate and he may be searched by the empowered officer.
(iii) Before conducting a search, it must be communicated in clear terms though it need not be in writing and is permissible to convey orally, that the suspect has a right of being searched by a Gazetted Officer or Magistrate.
(iv) While informing the right, only two options of either being searched in presence of a Gazetted Officer or Magistrate must be given, who also must be independent and in no way connected to the raiding party.
(v) In case of multiple persons to be searched, each of them has to be individually communicated of their right, and each must exercise or waive the same in their own capacity. Any joint or common communication of this right would be in violation of Section 50. 48
(vi) Where the right under Section 50 has been exercised, it is the choice of the police officer to decide whether to take the suspect before a Gazetted Officer or Magistrate but an endeavour should be made to take him before the nearest Magistrate.
(vii) Section 50 is applicable only in case of search of person of the suspect under the provisions of the NDPS Act, and would have no application where a search was conducted under any other statute in respect of any offence.
(viii) Where during a search under any statute other than the NDPS Act, a contraband under the NDPS Act also happens to be recovered, the provisions relating to the NDPS Act shall forthwith start applying, although in such a situation Section 50 may not be required to be complied for the reason that search had already been conducted.
(ix) The burden is on the prosecution to establish that the obligation imposed by Section 50 was duly complied with before the search was conducted.
(x) Any incriminating contraband, possession of which is punishable under the NDPS Act and recovered in violation of Section 50 would be inadmissible and cannot be relied upon in the trial by the prosecution, however, it will not vitiate the trial in respect of the same. Any other article that has been recovered may be relied upon in any other independent proceedings.
CCH-33 49 Spl.C.C.753/2020 Accordingly, the provisions of Sec.50 has not been complied in this case and therefore, the seizure proceedings without proper compliance of the provisions vitiates the seizure.
25. It is also necessary to note here that the accused was intercepted in Kempegowda International Airport. In spite of that the officers did not venture to get the CCTV footage to show that the accused was intercepted in the said place. It is also settled the position of law that whenever the mahazar proceedings are conducted the concerned officers shall record videography and take photographs of the said proceedings. At this stage, it is relevant to rely on the decision rendered in the case of Kalu Sk. @ Kuran Vs., State in CRM (NDPS) 493/2022 dated 22.6.2022. In the said decision the Hon'ble Court has observed as under:-
"This Court takes judicial notice of the fact that all police officers are ordinarily equipped with smart phones and other electronic gadgets which would enable them to videograph recovery. When technology is available at the lay level we see no reason why it shall not be utilized to instill fairness, impartiality and confidence in 50 the investigative process. Videography as a modern tool of investigation has been well recognised in law. In fact, the Field Officers' Handbook issued by Narcotics Control Bureau, inter alia, directs the search team to carry video camera amongst other equipments for the purpose of search.1 In chapter 6 relating to "Recovery and Seizure"
video recording of seizure of narcotics has been mandated as under:-
"Video:- A lot of times the witnesses and suspect allege foul play by the search team during the trial proceedings See Chapter 3- Operation: Preparation, co-ordination and planning alleging that they were not present at the time of recovery. To avoid such a situation, all recovery and concealment methods should be videographed simultaneously if possible, recording the presence of the owner/occupant of the premises and the witnesses. This acts as a deterrent later during trial proceedings."
Unfortunately, even in cases conducted by NCB, such directives are mostly observed in the breach. It may also be apposite to note use of videography in investigation was examined by a Committee constituted by the Ministry of Home Affairs in 2017. The Committee observed videography of crime scene as "desirable and acceptable best practice". The Committee issued various directives for the purpose of preparation, capacity building and implementation of such procedure on a mandatory basis."
CCH-33 51 Spl.C.C.753/2020 As it is mandatory to take photograph and record videograph at the time of seizure proceedings, some how the officers did not follow the said procedure. If at all there was photograph or a video of the seizure proceedings, it would have thrown light on the court and the Court would have accepted the case of the prosecution if at all those documents are proved in accordance with law. But in this matter, the officers did not follow the mandatory procedure and it also goes to the root of the case.
26. It is also significant to note here that the prosecution relied much on the voluntary statement of accused recorded under Section 67 of NDPS Act, which is at Ex.P12 and the voluntary statement had been recorded by the prosecution which runs seven pages.
27. Ex.P12(b) is the translated copy of Ex.P12 statement. However, it is relevant to point out here the admissibility of the statement recorded under Section 67 of NDPS Act. As held in the case of Tofan Singh v. State of 52 Tamil Nadu., absolutely there is no evidentiary value to the statement of accused recorded under Section 67 of NDPS Act, which is incriminatory against the accused. The said decision is relied on here below.
In the case of Tofan Singh Vs., State of Tamil Nadu reported in AIR 2020 SC 5592. In the said decision, it is observed as under:
"155. We answer the reference by stating:
.................
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 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."
CCH-33 53 Spl.C.C.753/2020 In view of the principles laid down in the aforesaid decision, there is no confusion to hold that the DRI officers are also considered as police officers for the purpose of recording statement under Section 67 of NDPS Act and the statements of accused persons recorded by the DRI officers or the NCB officers under Section 67 of NDPS Act are inadmissible in evidence if it is not led to discovery of property involved in the case. Therefore, the statements recorded under Section 67 of NDPS Act by the DRI officers, at any stretch of moment, cannot be considered as a piece of evidence and the said evidence shall be kept aside while considering the material on record while considering that whether the accused persons committed the alleged offences.
28. During the course of arguments, the learned counsel for accused vehemently submitted that the investigating officers have not complied the mandatory provisions of Section 52A of NDPS Act. The learned counsel for Accused in support of his arguments relied on the 54 decisions of Mohanlal case, Mangilal v. State of M.P. & Ors., the case of Mohammed Khalid and others, and the case of Mohamed Arif. In the case of Mohanlal reported in 2016 SCC 379 it is observed in para-9 as under:-
"9. From the above proceedings, it is crystal clear that the remaining seized stuff was not disposed of by the Executive Magistrate. The contraband stuff as also the samples sealed as usual were handed over physically to the Investigating Officer Harvinder Singh (PW 6). Also the trial court in its judgment specifically passed instructions to preserve the seized property and record of the case in safe custody, as the co-accused Bhanwarlal was absconding. The trial court more specifically instructed to put a note with red ink on the front page of the record for its safe custody. In such a situation, it assumes importance that there was nothing on record to show as to what happened to the remaining bulk quantity of contraband. The absence of proper explanation from the prosecution significantly undermines its case and reduces the evidentiary value of the statements made by the witnesses.
10. Omission on the part of the prosecution to produce the bulk quantity of seized opium would create a doubt in the mind of the Court on the genuineness of the samples drawn and marked as A, B, C, D, E, F from the allegedly CCH-33 55 Spl.C.C.753/2020 seized contraband. However, the simple argument that the same had been destroyed, cannot be accepted as it is not clear that on what authority it was done. Law requires that such an authority must flow from an order passed by the Magistrate. On a bare perusal of the record, it is apparent that at no point of time any prayer had been made by the prosecution for destruction of the said opium or disposal thereof otherwise. The only course of action the prosecution should have resorted to is for its disposal is to obtain an order from the competent court of Magistrate as envisaged under Section 52-A of the Act. It is explicitly made under the Act that as and when such an application is made, the Magistrate may, as soon as may be, allow the application (see also Noor Aga v. State of Punjab, (2008) 16 SCC 417 : (2010) 3 SCC (Cri) 748).
11. There is no denial of the fact that the prosecution has not filed any such application for disposal/destruction of the allegedly seized bulk quantity of contraband material nor was any such order passed by the Magistrate. Even no notice has been given to the accused before such alleged destruction/disposal. It is also pertinent here to mention that the trial court appears to have believed the prosecution story in a haste and awarded conviction to the respondent without warranting the production of bulk quantity of contraband. But, the High Court committed no error in dealing with this aspect of the case and disbelieving the prosecution story by arriving at the 56 conclusion that at the trial, the bulk quantities of contraband were not exhibited to the witnesses at the time of adducing evidence."
Accordingly, in the present case also the investigating officer did not comply the mandatory provisions of Sec.52A of NDPS Act. The prosecution should have resorted the procedure contemplated U/s.52A of NDPS Act and in the presence of jurisdictional Magistrate and on the order of the concerned Court the alleged contraband ought to have disposed off and the sample drawn in the presence of magistrate ought to have chemical analysis, but no such procedure is followed in this matter, therefore, absolutely there are no material to show that there was seizure of prohibited narcotic drug in this case and same had been disposed off after drawing sample for chemical examination. Though the prosecution has produced report for having taken report from the Customs House Laboratory regarding chemical analysis of the contraband, absolutely there are no material to show that the very same contraband which was CCH-33 57 Spl.C.C.753/2020 allegedly seized from the custody of accused persons sent for chemical analysis. When such being the case, where is the material to show that there was seizure of prohibited narcotic drug and the representative sample of it had been sent for chemical analysis and the scientific officer analyzed the very same sample and filed report. In this matter even though a chemical analysis report is obtained by the prosecution, for want of compliance of Section 52A of NDPS Act, the report submitted by the chemical analyst has no evidentiary value. Here there is no material before the court to show that the prosecution has complied the provisions of Section 52A of NDPS Act. In view of that, there is no evidentiary value to the FSL report submitted by the Investigating Officer.
29. The learned counsel for accused has also relied on the decision recorded in (2017) 15 SCC 684 in the case of Naresh Kumar @ Nitu Vs., State of Himachal Pradesh. As observed in this decision, an initial burden exists upon the 58 prosecution and only when it stands satisfied, would the legal burden shift. Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution.
30. The learned counsel for accused has also relied on the decision rendered in Criminal Appeal No.1053/2016, 27.7.2017. The Hon'ble Apex Court in Para No.9 of the said decision has held that the presumption against the accused of culpable under culpability Under Section 35 and under Section 54 of the Act to explain possession satisfactorily, are rebuttable. It does not dispense the obligation of the prosecution to prove the charge beyond all reasonable doubt. The presumptive provision with reverse burden of proof, does not sanction.
If the Principles laid down in the aforesaid two decisions are taken into consideration along with the facts of this case, the initial burden is on the prosecution to establish its case with legal evidence that the Investigating Officer, namely the CCH-33 59 Spl.C.C.753/2020 Superintendent of Customs, intercepted the accused on 03.02.2020, that on persistent enquiry, the accused revealed about the concealment of suspicious article in her body, that the officers concerned recovered the suspicious cocaine from the accused by following the procedure and had also drawn Ex.P1 mahazar. Though the official witnesses deposed about the drawing of mahazar, it is evident that the independent witnesses who signed the first mahazar have not been examined before the court. There is no corroborative evidence to the evidence of official witnesses to show that there is a mahazar which was drawn at the time of intercepting the accused. At least the officers could have obtained photographs as well as could have recorded videography regarding the said process. For the reasons best known to the officers the said process has also not been followed by the Offices. The offices could have produced the CCTV footage from the airport to show the said procedure followed by the Investigating Officer. But the said document has also not been produced before the court 60 to establish that there was really interception of accused on 03.02.2020 in Air cargo Complex Bangalore.
31. The officers have also deposed before the court to show that the accused had been taken to Aster Hospital and with reference to the hospital, she had been taken to Bowring Lady Curzon Hospital as well as Victoria Hospital. Though the prosecution has produced certain documents to show that the accused had been subjected for general examination, no other legally admissible documents have been produced to show that some prohibited narcotic drug had been seized from the accused in the said hospital. Though there is a mahazar as per Ex.P27 there is no sufficient evidence to establish the drawing of this mahazar. In respect of Ex.P27 also, though there was possibility of getting videography as well as taking photographs, at the time of following the said mahazar proceedings, the officers somehow did not venture to take photographs and record videography at the time of drawing mahazar. In view of that CCH-33 61 Spl.C.C.753/2020 the Ex.P1 as well as Ex.P27 mahazars are not proved in accordance with the law. Therefore, when the initial burden of proof has not been discharged by the prosecution, then where is the question of proving reverse burden by the accused under Sections 35 and 54 of NDPS Act. At this stage, it is relevant to rely on the decision of Noor Aga Vs., State of Punjab reported in 2010 (96) AIC 176 (SC) Wherein in at page-12 it is held as under:
"Section 35 of the Act provides for presumption of culpable mental state. It also provides that an accused may prove that he had no such mental state with respect to the act charged as an offence under the prosecution".
Further, it is also observed in the said decision that Section 54 of the Act, places the burden of proof on the accused as regards to possession of the contraband to account for the same satisfactorily. you. Further in page No. 36 it is held as under:
Sections 35 and 54 of the Act, no doubt, raise presumptions with regard to the culpable mental state 62 on the part of the accused as also place burden of proof in this behalf on the accused; but a bare perusal the said provision would clearly show that presumption would operate in the trial of the accused only in the event the circumstances contained therein are fully satisfied. An initial burden exists upon the prosecution and only when it stands satisfied, the legal burden would shift. Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of accused on the prosecution is "beyond all reasonable doubt" but it is `preponderance of probability on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigors of Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established.
With a view to bring within its purview the requirements of Section 54 of the Act, element of possession of the contraband was essential so as to shift the burden on the accused. The provisions being exceptions to the general rule, the generality thereof would continue to be operative, namely, the element of possession will have to be proved beyond reasonable doubt.
CCH-33 63 Spl.C.C.753/2020 If this principle of law is taken into consideration, the prosecution shall initially discharge its burden of proof. The reasons assigned herein above, the prosecution failed to discharge its burden of proof beyond reasonable doubt.
Therefore, no question of drawing presumption U/s.54 of NDPS Act on behalf of prosecution and the onus did not shift on accused.
32. It is also significant to note here that the officers who investigated the matter are duty-bound to submit raid success report to the immediate superior in office. As contemplated under Section 57 of NDPS Act. Section 57 of NDPS Act reads as under:
57. Report of arrest and seizure.--
Whenever any person makes any arrest or seizure, under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior.
64As could be seen from the documents produced on behalf of the prosecution there is no evidence to show that raid success report is submitted to the superior officer and the non compliance of Section 57 of NDPS Act is also a defect found in the investigation and it goes to the root of the case of prosecution.
33. As seen from the written arguments submitted by learned Spl.P.P., the learned Spl.P.P., reproduced the contents of complaint in the written arguments and also referred to the decisions which are earlier decisions than the decisions relied on by the learned counsel for accused. Therefore, the said decision do not help the case of the prosecution. The learned Spl.P.P., has also referred Sec.106 of Evidence Act, no doubt is on the person who ascertaining the fact and as contemplated under the provisions of Sec.35 & 54 of NDPS Act, when the initial burden of proof is discharged by the prosecution, the onus shifts on the accused to prove that she was not in conscious possession CCH-33 65 Spl.C.C.753/2020 of the contraband and the mental status of possession shall be reversed by placing evidence on preponderance of probabilities. However, the burden of proof on the prosecution is beyond all reasonable doubt. The prosecution should establish the guilt of the accused beyond all reasonable doubt. By keeping in mind the said settled preposition of law, facts and circumstances of this case as discussed herein above, the prosecution failed to prove the mandatory compliance of section 42(1) & 42(2) of NDPS Act. The Investigating Officers did not follow the mandatory provisions of Section 50 of NDPS Act and also failed to follow Sections 50, 52A and 57 of NDPS Act. Since, these provisions are mandatory provisions, the non compliance of these provisions goes to the root of the case. It is also well settled that, since stringent punishment is contemplated under the provisions of NDPS Act, if the mandatory provisions are not followed, the court shall not prejudice on the basis of quantum of contraband seized in the case. Accordingly, this Court holds that the prosecution utterly 66 failed to establish beyond all reasonable doubt that the accused has committed the offences punishable under Sections 21(c) and 23(c) of NDPS Act. Therefore, the accused is entitled to be acquitted for the offences punishable U/s.21(c) & 23(c) of NDPS Act. Accordingly, Point No.1 & 2 are answered in the Negative.
34. Point No.3: In the result, following:
::ORDER::
Acting under Section 235(1) of Cr.P.C., accused Herrera Valenzuela De Lopez Silvia Guadalupe is acquitted for the offences punishable under Sections 21(c) & 23(c) of NDPS Act.
Accused shall be set at liberty if she is not required in any other case subject to the compliance of Sec.437A of Cr.P.C.
M.O.1 to 8 contraband is ordered to be returned to complainant for producing before the Drug Disposal committee for disposal after the expiry of appeal period.
Accused shall be sent to detention Center and the concerned authority is hereby directed CCH-33 67 Spl.C.C.753/2020 to depot the accused from India after the expiry of appeal period, if she is not required in any other legal proceedings.
[Dictated to the Stenographer, directly on the computer, typed by her, corrected, signed and then pronounced by me in Open Court on this the 26th day of November 2025) (LATHA) XXXIII ACC & SJ & SPL.JUDGE (NDPS) BANGALORE.
ANNEXURE
1. List of witnesses examined for the:
(a) Prosecution:
P.W.1 : Sri C Venkatesh
P.W.2 : Sri. V.G.Deshpande
P.W.3 : Dr. K.P.Pradeep
P.W.4 : Smt. V Chitra
P.W.5 : Smt.Merita Shantharaj
P.W.6 : Dr.Muralidhar
P.W.7 : Dr.K Ravi
P.W.8 : Sri.Srinivasa V
(b) Defence :
- NIL -
68
2. List of documents Exhibited for the:
(a) Prosecution:
Ex.P.1 : Mahazar dated 2.3.2020
Ex.P.2 : Mahazar translated to Spanish
Ex.P.3 : Manifesto of Ethiopian Airlines
Ex.P.4 : Copy of passport of accused, (a)
sign., (b) original Passport
Ex.P.5 : Boarding pass
Ex.P.6 : Baggage tags
Ex.P.7 : ETA of accused
Ex.P.8 : Ethiopian E-Ticket
Ex.P.9 : Fab Hotel Reservation letter
Ex.P.10 : Test memo
Ex.P.11 : SS to accused
Ex.P.12 : Statement of accused
Ex.P.13 : SS issued to accused
Ex.P.14 : Further statement f accused
Ex.P.14(a) : translation
Ex.P.15 : Travel details
Ex.P.16 : Aster hospital report
Ex.P.17 : Body search memo
Ex.P.18 : Translated letter
Ex.P.19 : Translated Letter to accused
Ex.P.20 : Letter to accused
Ex.P.21 : X-ray report
Ex.P.22 : Test Memo
Ex.P.23 : Information
Ex.P.24 : Letter to Joint Commissioner
Ex.P.25 : Mahazar of Bowring hospital
Ex.P.26 : Translation of mahazar
Ex.P.27 : Mahazar of Victoria hospital
Ex.P.28 : Translation of Mahazar
Ex.P.29 : MLC register copy
Ex.P.30 : Inpatient record
Ex.P.31 : Case sheet
CCH-33
69 Spl.C.C.753/2020
Ex.P.32 : Discharge summary
Ex.P.33 & 34 : Inpatient records
Ex.P.35 : Photo of capsules
(b) Defence:
-Nil-
3.List of Material Objects admitted in evidence:
M.O.1 to 8 : Remnant contraband
(LATHA)
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BANGALORE.
CN/*