Bangalore District Court
State By Upparpet Police vs A1 Shafiulla on 15 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 15th DAY OF DECEMBER, 2015.
SPL.C.C. NO.49/2010
COMPLAINANT : State by Upparpet Police
(By Public Prosecutor)
V/S.
ACCUSED : A1 Shafiulla, Split up - Spl.C.C.62/13
A2 Premachand benival, S/o.
Harichandra benival, Aged about 34
years,
Gulabghat, Saktavadi Guruvante
Property, R-1, Taradev Road,
MUMBAI.
(By Sri JAS, Advocate)
1. Date of Commission of offence: 7.12.2009
2. Date of report of offence: 7.12.2009
3. Arrest of the accused : A2 - 7.12.2009
4. Date of release of accused on A2 - 23.04.2010
bail:
2
5. Period undergone in custody: 4 months 16 days
6. Date of commencing of 6.8.2014
recording Evidence :
7. Date of closing of Evidence : 27.11.2015
8. Name of the complainant: Sri Nyamagowda BN, PI
9. Offence complained of : U/s.20(B),21 & 22 of
NDPS Act
10. Opinion of the Judge : Offence not proved
11. Order of sentence : As per final order
---
JUDGMENT
The Police Inspector, Upparpet Police Station, Bangalore filed charge sheet against accused persons in Cr. No.640/09 for the offence punishable U/Sec.20(B), 21 & 22 of N.D.P.S. Act.
2. Brief facts of the case are as under:
That the complainant B.N. Nyamagowda, ACP, CCB, Special Squad, N.T. Pete, Bangalore on 7/12/2009 at 5-00 p.m. when he was in the office received credible information stating that the two persons putting bags on their shoulders CCH-33
3 SPl.C.C.49/10.
and by keeping ganja and brown sugar are standing near Mayura Paradise Hotel, Gandhinagar and also near Gubbi Veeranna Kalamandira and they had come to sell the same for money. Thereby ACP called two panchas and along with his staff left office at 5-15 p.m. and came near the spot at about 5-30 p.m. and found these two persons by the side of the road on the spot and they were putting bags on their shoulder and they were waiting for somebody. ACP suspecting them and apprehended them and when he enquired accused No.1 told his name as Shafiulla, and another accused told his name as Premachandra Benival. ACP appraised them about Sec.50 of N.D.P.S. Act and told to the accused persons that he is a Gazetted Officer and that he can conduct the personal search and when the shoulder bag of accused No.1 is checked it contained a plastic cover containing 1 kg of ganja and from that he took 30 grams of ganja as sample and packed it and sealed it with 'BR' and even remaining ganja was also packed and sealed with 'BR'. Accused No.1 found with possession of one Mobile of TATA Indicom and Rs.1,300/-. When accused No.2 was checked, 4 his shoulder rexene bag contained a paper which was tied with tape contained 1 kg of brown sugar and from that he took 30 grams of brown sugar as sample and packed and sealed it and the remaining brown sugar was also packed and sealed. Accused No.2 found with possession of one Mobile of Reliance and Rs.1,100/-. In this regard ACP prepared panchanama. In this respect ACP lodged complaint before Upparpet police station and filed charge sheet.
3. After taking cognizance registered the case. Copies of the prosecution papers were supplied to accused persons U/Sec.207 of Cr.P.C. Later, accused No.1 who was on bail absconded. As such, the case was split up against A1 in Spl.C.C.No.62/13. After hearing, charge framed U/Sec.21 of N.D.P.S. Act, read over and explained to accused No.2. Accused No.2 pleaded not guilty and claimed to be tried.
4. In support of the case, prosecution has examined P.Ws.1 to 4 and got marked Exs.P1 to P.16 and M.Os.1 to 10.
CCH-33 5 SPl.C.C.49/10.
After closure, accused No.2 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
07.12.2009 at about 5.30 p.m., in front of Mayura Paradise Hotel, within the limits of Upparpet police station A1 was found in illegal possession of 1Kg of Ganja without any licence or permit for the purpose of selling the same, which is a Narcotic Drug and A2 was found in possession of 1Kg of Brown Sugar for selling without pass or permit, which is Narcotic Drug and thereby A2 committed the offence u/S.21 of NDPS Act?
2. What order?
7. My findings on the above points are as under:
Point No.1: In the negative.
Point No.2: See the final order for the following:6
REASONS
8 POINT NO.1 :- The learned P.P. vehemently argued that as per evidence of PWs.1 to 4 and Exs.P.1 to P.16 and M.Os.1 to 10, the prosecution proved the guilt. Learned counsel for accused No.2 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, 3 & 4.
10. P.W.4 has stated that on 7.10.2009 at about 5.00 pm., he received information that near Gubbi Veeranna Kala Mandira at Mayura Paradise Hotel, 2 persons were engaged in selling Brown sugar. He secured panch witnesses and staff members and informed the same. He issued notice to panchas and reduced in writing in the Movement register and diary. He sent information Ex.P7 to DCP and obtained permission. He went to the spot and apprehended accused CCH-33 7 SPl.C.C.49/10.
Nos.1 and 2. On enquiry they stated that they are selling ganja and brown sugar. He informed to them regarding legal right of their personal search before Gazetted officer or Magistrate. They agreed to be searched by himself as he being a Gazetted Officer. they seized 1 kg ganja, Rs.1,300/- and Samsung Mobile from accused No.1 and 1 Kg brown sugar, Rs,.1,100/- Reliance mobile from accused No.2. They prepared mahazar Ex.P1 and also prepared sample seal Ex.P12. He prepared Ex.P7 complaint and directed C.W.7 to lodge the complaint. Again took up investigation and submitted report Ex.P13 to DCP about the success of raid. He has recorded the statement of C.Ws.2, 3, 6 to 12. He sent the sample articles to F.S.L through C.W.13 and obtained acknowledgement. He has recorded the confession statement of the accused as per Ex.P17 and P18. On 7.2.2010 he received F.S.L Ex.P2 after completion of investigation and submitted the chare sheet.
11. In the cross examination, P.W.4 has stated that he do not know the number of govt., jeep and private vehicle. 8 Informant did not show the accused personally. He further stated that informant had given the identification of the accused. But the same is not written in diary or complaint. He has not mentioned in complaint regarding C.W.7 conducted personal search. Even he has not mentioned in complaint regarding how much of quantity seized from the possession of the accused persons. No evidence traced out against Nazer bai and Ibrahim, as accused had stated that they brought the said contraband to hand over to the said persons. P.W.4 stated that he reduced the information in movement book but no document produced to show that immediately after receipt of information he reduced in writing and informed to DCP and obtained permission. He started investigation by securing panch witnesses and staff members, then only he sent information as per Ex.P7 to DCP.
12. P.W.1 member of the raiding party has also supported the testimony of P.W.4. In his cross examination he has stated that he is unable to say the number of the CCH-33 9 SPl.C.C.49/10.
vehicles and who called the panchas, whether information was reached to ACP.
13. P.W.3 has stated that C.W.1 produced the accused, mahazar and lodged complaint Ex.P4. He registered the case and submitted F.I.R Ex.P5. Immediately he handed over the investigation to C.W.1 as per the order of the Commissioner. In his cross examination denied that C.W.1 has not personally came to the police station and lodged complaint and produced the accused.
14. P.W.2 has stated that on 6.1.2010 he opened two sample articles and conducted various tests and opined that article No.1 contain ganja and 2nd article contain diacetyl morphine (brown sugar) Paracetamol and caffeine. Diacetyl morphine is a Narcotic Drug and issued report as per Ex.P2. In his cross examination denied the suggestion that he has not personally conducted the tests. Of course, as per the testimony of P.W.2 sample articles contain ganja and brown 10 sugar but the said sample articles were seized from the possession of accused persons is not proved. Prosecution has not examined the independent seizure panch witnesses in spite of sufficient opportunity was given. In the absence of corroborative independent panch witness, testimony of P.Ws.1 and 4 is not reliable.
15. Ex.P6 notice issued to panchas reveal that signature of panchas obtained, but there is no endorsement to show that they agreed are not. Ex.P8 and P9 notice issued to accused persons wherein it is mentioned that P.W.4 himself is a Gazetted Officer, whether personal search may be conducted by him or Magistrate, no endorsement on Ex.P8 by accused regarding whether they have given consent or not. Even legal right of the accused persons regarding prior existence right of personal search is not specifically mentioned. Of course, in Ex.P10 and P11, consent letters reveal that P.W.4 may conduct personal search as he is a Gazetted officer. But the consent is given when the accused are in the custody of I.O, it cannot be treated as valid consent CCH-33 11 SPl.C.C.49/10.
or free consent. Ex.P7 intimation sent to DCP reveals that prior to the permission, P.W.4 went to the spot along with panchas and staff members. So it is crystal clear that P.W.4 started investigation prior to the intimation sent to DCP and obtained permission.
16. Ex.P13 intimation sent by P.W.4 after success of raid. But P.W.4 has not complied the provisions U/s.41, 42 and 50 of NDPS Act. Of course, no contra band seized on personal search. However, seized cash M.O.8. Once, proceed to conduct the personal search, mandatory compliance of Sec.50 of NDPS Act is to be followed.
17. Ex.P18 and 19 confession statement of the accused persons is not helpful to the prosecution, as no property seized on their confession statement. After seizure of articles they have recorded the voluntary statement of the accused persons. So the testimony of P.Ws.1 and 4 is inconsistent to 12 the documentary evidence and other testimonies are not corroborated by independent panch witnesses.
18. In view of the 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 -
Option to be searched before Gazetted officer CCH-33 13 SPl.C.C.49/10.
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.
14AIR 2013 Supreme court 953 in the case of Sukhdev Singh Vs., State of Haryana wherein it is held that:-
(B) Narcotic Drug and Psychotropic Substances Act (61 of 1985), S 42 - Search an seizure - On receipt of secret information-
Requirement to reduce information in writing and sent it forthwith to superior officer- Is mandatory-Needs strict compliance-Some delay in compliance is permissible only for special reasons but compliance should be prior to recovery.
(c) Narcotic Drug and Psychotropic Substances Act (61 of 1985), S 42, 15 - Search conducted hours after receipt of information-no effort was made by I.O to reduce information in writing and inform his higher authorities instantaneously or even after or reasonable delay-No evidence produced to show as to what prevented I.O from recording information and sending it to superior total non compliance with provisions of S.42 - Such defect is incurable -Accused liable to be acquitted.
CCH-33 15 SPl.C.C.49/10.
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 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. 16
19. As per the decisions reported in 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) 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.
20. For the above, in the absence of corroborated evidence the testimony of prosecution witnesses cannot be reliable to prove the guilt of the accused. 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.2 has committed the CCH-33 17 SPl.C.C.49/10.
offence. So accused No.2 is entitled for the benefit of doubt. Hence prosecution has utterly failed to prove the guilt beyond reasonable doubt. Accordingly, I answer point No.1 in the 'Negative'.
21. Point No.2: In the result, following:
ORDER Acting under Section 235(1) of Cr.P.C. accused No.2 is acquitted for the offence punishable under Section 21 of N.D.P.S. Act.
Bail bond of the accused No.2 shall stands cancelled.
Accused No.2 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.18
The entire record and property shall be kept in Spl.C.C.62/2013 for trial of accused No.1.
[Dictated to the Stenographer, transcribed and computerised by her, corrected, signed and then pronounced by me in Open Court on this the 15th day of December, 2015.] (D.Y. BASAPUR) XXXIII ACC & SJ & SPL.JUDGE (NDPS) BANGALORE.
ANNEXURE
1. List of witnesses examined for the:
(a) Prosecution:
P.W.1 : Jayanna
P.W.2 : C Manjappa
P.W.3 : Satish Kumar T D
P.W.4 : Nyamagowda B N
(b) Defence :
NIL
2. List of documents exhibited for the:
(a) Prosecution:
Ex.P.1 : Panchanama (a) - (d) sigs.
Ex.P.2 : F.S.L report (a) sig.
Ex.P.3 : Sample seal (a) (b) sig.
Ex.P.4 : Complaint (a) sig.
Ex.P.5 : F.I.R (a) sig.
CCH-33
19 SPl.C.C.49/10.
Ex.P.6 : Notice to panchas (a) - (c) sig.
Ex.P.7 : Letter to DCP (a) sig. (b) endorsement
Ex.P.8 : Notice (a) - (d) sigs.
Ex.P.9 : Notice (a) - (d) sigs.
Ex.P.10 : Letter of A1 (a) - (d) sigs.
Ex.P.11 : Latter of A2 (a) - (d) sigs.
Ex.P.12 : Specimen seal
Ex.P.13 : Report to DCP
Ex.P.14 : Order of DCP
Ex.P.15 : PF
Ex.P.16 : Samples sent to F.S.L
Ex.P.17 : Voluntary statement
Ex.P.18 : Voluntary statement
Ex.P.19 : SHD
(b) Defence:
NIL
3.List of Material Objects admitted in evidence:
M.O.1 : Sample
M.O.2 : Rexene bag
M.O.3 : Bulk
M.O.4 : Mobile
M.O.5 : Rs.1300/-
M.O.6 : Bulk
M.O.7 : Sample
M.O.8 : Rs.1,100/-
M.O.9 : Mobile
M.O.10 : Empty bag
(D.Y. BASAPUR)
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BANGALORE.
CN/*