Bangalore District Court
State By Kumbalagodu P.S vs Chethan Kumar on 10 March, 2020
THE COURT OF THE XXXIII ADDL.CITY CIVIL & SESSIONS
JUDGE & SPL. JUDGE (NDPS),
BANGALORE. CCH.33.
PRESENT:
Sri. G.M.SHEENAPPA, B.A., LL.B.,
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BENGALURU.
DATED: THIS THE 10th DAY OF MARCH 2020
SPL.C.C. NO.90/2016
COMPLAINANT : State by Kumbalagodu P.S.
(By Public Prosecutor)
V/S.
ACCUSED : Chethan Kumar, s/o.late
Krishnappa, 26 years, No.235A,
Siddaiajana, Koppalu Ellyuru post,
Kottat, Mandya Tq., Mandya,
Karnataka.
(By Sri CKN., Adv.)
1. Date of Commission of offence: 18.5.2015
2. Date of report of offence: 18.5.2015
3. Arrest of the accused : 18.5.2015
4. Date of release of accused on 3.8.2015
bail:
5. Period undergone in custody: 2 months 15 days
6. Date of commencing of
12.12.2019
recording Evidence :
2
7. Date of closing of Evidence : 2.3.2020
8. Name of the complainant: Sri Basavaraju B G, PI
9. Offence complained of : U/s.17(B) of NDPS Act
10. Opinion of the Judge : Offence not proved
11. Order of sentence : As per final order
JUDGMENT
The Police Inspector, Kumbalagodu Police Station, Bangalore filed charge sheet against accused in Cr.No.150/2015 for the offence punishable U/Sec.17(B) of N.D.P.S. Act.
2. Brief facts of the case are as under:
The case of the prosecution is that, on 18/05/2015 at about 1000 a.m. complainant has got information that in a room at second floor of the newly constructed building of Smt.Kempamma, in front of Don Bosco College situated at Kumbalagodu one person is selling Ganja to the public.
Therefore he along with panchanama witnesses and staff members went to the said place and found accused No.1 CCH33
3 SPl.C.C.90/16 selling Ganja. They apprehended accused No.1 who was possessing 2 kgs of Ganja without permission and licence. Therefore complainant in the presence of panchanama witnesses has recovered 2 kgs of Ganja along with cash of Rs.850/ and one mobile phone. Then panchanama is drawn on the spot. Accused No.1 was arrested and produced before Magistrate and he was remanded to judicial custody. Later all the accused are enlarged on bail.
3. After taking cognizance registered the case. Copies of the prosecution papers were supplied to accused U/Sec.207 of Cr.P.C. After hearing, charge framed U/Sec.20(B) of N.D.P.S. Act, read over and explained to him. Accused pleaded not guilty and claimed to be tried.
4. In support of the case, prosecution has examined P.Ws.1 to P.W.6 and got marked Exs.P1 to P.13 and M.Os.1 to
6. PP has given up C.W.2, 4, 5, 6 & 8. After closure, accused are examined U/Sec.313 of Cr.P.C., he denied the 4 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 18.5.2015 at about 11.20 am., near Kumbalagodu, Kengeri Hobli, Opposite Dan Bosco college, Newly constructed flat, 2 nd floor accused was in illegal possession of 2 Kgs., of ganja, which is a narcotic drug without license or permit, there by accused has committed the offence u/S.20(B) 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:
CCH33 5 SPl.C.C.90/16 REASONS
8. POINT NO.1 : The learned P.P. vehemently argued that as per evidence of PWs.1 to P.W.6 and Exs.P.1 to P.13 and M.Os.1 to 6, the prosecution proved the guilt. Learned counsel for accused argued that no mandatory provision complied and so many contradictions and discrepancies found in the prosecution witnesses.
9. On careful perusal of the materials placed on record, the prosecution mainly relied on the testimonies of P.Ws.1, 2, 4 to 6.
P.W.1 has stated that on 18.5.2015 the complainant secured him and informed the information and requested to act as panch and issued notice as per Ex.P1. Complainant took him near Dan Bosco College at 2nd floor of newly constructed flat of one Kempamma. Along with him C.W.1 and police staff was present. Before entering the building the police prepared record of reasons as per Ex.P2. They went inside a flat from the back door and saw a student sitting with 6 a bag. complainant introduced himself to the student and explained the legal right of the accused to be searched before Gazetted officer or Magistrate. Accused agreed to be searched by Gazetted Officer. Police secured C.W.10 to the spot at 1.00 pm. C.W.10 searched the accused and found 80 packets of ganja weighing 2 Kgs., 200 grams. They took two packets for sample and packed separately. They further seized mobile and cash of Rs.850/. They drew mahazar at 2.00 pm., as per Ex.P3.
10. In the cross examination of P.W.1 he has stated that on 18.5.2015 he was working as PDO. He has not taken the permission from his superior officer to participate in the raid. At 10.30 am., police came to the office and gave notice and took his in the jeep. He has not signed in any other case. when they went to the spot the owner of the construction building Kempamma is not secured. The said building was consisting of 3 floors and the accused was in 2 nd floor. He do not know the measurement of the building. He do not know who were present in each floor. There were tours and travels CCH33 7 SPl.C.C.90/16 in the ground floor of the said building and doing business but police have not given them any notice. They went to the building at 10.45 am. he do not know all the police officials names who had accompanied him. he do not know the registration No., of the Jeep. He denied that there were lot of people present at the spot. Police had not secured the local people. He do not know how many rooms are there in 2 nd floor. The said rooms were fit for accommodation. He do not know the denominations of the currency. Police have not given the sample seal to him. he denied that he has not gone to the spot, not apprehended the accused and seized M.Os., and drew mahazar. he denied that Ex.P3 is written in the police station.
11. P.W.2 on 18.5.2015 C.W.11 secured him and told him to bring panchas. He secured CWs.1 and 2 to act as panch. C.W.11 informed the information that a person is selling ganja near Dan Bosco College, in Kempamma building. They all went to the spot in govt. jeep. In the 2 nd floor of the said building a student holding a bag was present. On enquiry 8 he admitted that he had ganja. They explained the legal right of the accused. Accused agreed to be searched before Gazetted Officer. C.W.11 called C.W.10 and requested him to come to the spot. C.W.10 came to spot at 12.30 noon. C.W.10 issued notice to the accused and searched the accused. They seized 80 packets of ganja weighing 2 Kgs., 200 grams. He took two packets for sample. They seized mobile and cash of Rs.850/ and drew mahazar Ex.P3. He gave his statement before I.O.
12. In the cross examination of P.W.2 has stated that he was on day duty. When panchas came to the station they have signed on notice. It is not mentioned in the SHD regarding securing of panchas by him. he denied that on 18.5.2015 he has not gone to the CWs.1 and 2 office and secured them as panchas. He do not remember the house no. it is two floored building. He do not know whether there are houses and shops running. He do not know the mobile No., and denominations of the currency notes. He denied that they have not raided the said building, apprehended the accused and seized M.Os. he denied that they have prepared mahazar at police station CCH33 9 SPl.C.C.90/16
13. P.W.4 on 18.5.2015 at about 2.15 pm., C.W.11 produced the accused, property and documents and lodged complaint Ex.P6. He registered the case and submitted FIR Ex.P7, he subjected the property to PF. He handed over the records to C.W.11 for further investigation. In the cross examination P.W.4 has denied that on 18.5.2015 C.W.11 did not produced the accused and property and that he has filed false case in order to harass the accused.
14. P.W.5 has stated that on 18.5.2015 at about 9.30 am., he received credible information that behind Dan Bosco college in a old building of Kempamma a person is selling ganja to the college students. After confirmation he secured two persons to station to act as panch and issued notice as per Ex.P1. he reduced the information to the SHD as per Ex.P8. he secured staff members and informed the information and they searched themselves and confirmed that they have no drugs and then went in office vehicle to the spot along with DD 10 kit. They prepared record of reasons Ex.P2 as the accused would abscond. They apprehended a person and explained the legal right of the accused persons to be searched before Gazetted officer or Magistrate. accused agreed to be searched before Gazetted Officer. He called C.W.10 and requested to come to the spot to act as Gazetted Officer. C.W.10 came to the spot at 11.40 am. He issued a request letter as per Ex.P9. on search of the accused they seized 80 packet of ganja weighing 2 Kgs., 200 grams. They took two samples and packed separately. They further seized mobile and cash of Rs.850/ and drew mahazar Ex.P3. C.W.10 handed over the accused and M.Os., to him and he gave complaint Ex.P6 to C.W.9. Then he took the record from C.W.9 for further investigation. he recorded the statement of the witnesses. He produced the accused before court with remand. On 28.5.2016 he sent samples to FSL and obtained acknowledgement. On 1.10.2016 he received the FSL report Ex.P4. After completion of investigation he filed charge sheet against accused No.1 only as accused Nos.2 and 3 were not traced.
CCH33 11 SPl.C.C.90/16
15. In the cross examination of P.W.5 he has stated that he received the information through phone. He do not know the measurement of Kempamma's building and that he has not obtained he same. they have not mentioned the name of Kempamma as witness. The said building is of two floor and no one is residing there. There are shops adjacent to the building and he has not issued notice to them to act as panchas. He denied that he did not go to the spot, apprehended the accused, explained the legal right and seized M.Os. he denied that he has not recorded the statements of witnesses. He denied that accused was detained at Ramanagar PS., for 8 days and then filed this false case. it is true that he is complainant and I.O. he denied that accused did not give his voluntary statement.
16. PW.6 ACP has stated that on 18.5..2015, a about 11.00 am., C.W.11 called him through phone and informed the information and requested him to come to spot to act as 12 Gazetted Officer. On the request he went to the spot at 12.30 noon. CWs.1 and 2 agreed to act as panchas, he issued notice to them. In the present of panchas he explained the legal right of the accused. accused agreed to be searched before Gazetted Officer. He issued notice to the accused as per Ex.P12. he instructed C.W.11 to conduct the search of the accused. On personal search of the accused they seized M.Os.1 to 6 and drew mahazar ExP3. C.W.11 sent success report Ex.P13 to him. he handed over the accused and property to C.W.11.
17. In the cross examination P.W.6 has stated that when he received phone call from C.W.11 he was in his office. he went to the spot at 12.30 noon. By the time he went to the spot C.W.11 and panchas were present. He denied that they have not conducted personal search of themselves. He denied that they have not issued notice to the accused and they have not conducted personal search of the accused and seized M.Os., and drew mahazar Ex.p3 at spot and that he is deposing falsely.
CCH33 13 SPl.C.C.90/16
18. P.W.3 F.S.L officer stated that she conducted in all 5 tests on the sample articles and issued report Ex.P4 and opined that the sample articles responded positive for ganja. In her cross examination denied the suggestion that she has not personally conducted tests on the sample articles and issued false report. Of course as per the evidence of P.W.3, the sample article may respond positive for ganja, but the said sample articles are seized from the possession of the accused is not proved.
19. Ex.P1 notices to panchas. Single notice is issued both the panchas. Ex.P2 record of reasons, Ex.P.3 mahazar is not proved as the signature of accused is not forth coming. Ex.P4 FSL report, Ex.P5 specimen seal, Ex.p6 complaint lodged by P.W.1 wherein existing legal right of the accused is not mentioned. Ex.P7 FIR, Ex.P8 SHD, Ex.P9 is request letter given to ACP to act as Gazetted Officer. Ex.P10 voluntary statements of accused has no presumptive value and it is not admissible in evidence as it is recorded after search, seizure 14 and arrest. No further contraband seized on the basis of his statement. Ex.P11 panch notice, Ex.P12 body search notice issued to accused wherein ACP has put questions to the accused wherein 3rd option is given to the accused. Sec.50 Part 1 of the NDPS Act does not provide for it and when such option is given it would frustrate the provisions. Ex.P13 report submitted to DCP for success of raid. In the absence of complying mandatory provisions U/s.42 and 50 of NDPS Act, compliance U/s.57 is not a valid compliance.
20. It is pertinent to note that the prosecution has not produced the permission sought by superior officer to conduct raid and the copy of the information reduced in writing is also not sent to the superior officer. Thus the mandatory provisions U/s.42 and 50 of NDPS Act is not complied by the prosecution.
21. In view of the decisions reported in 2009 Crl.L.J. 4299 in Karnal Singh Vs., State of Haryana, (2007) 1 Supreme Court Cases (Cri) 744 in Ritesh Chakarvarti Vs., CCH33 15 SPl.C.C.90/16 State of MP, (1999) 7 SCC 280 in State of HP Vs., Jailal and others and in AIR 2013 Supreme Court 357 in the case of Krishan Chand Vs., State of Haryana wherein it is held that: (A) Narcotic Drugs and Psychotropic Substances Act (61 of 1985), Ss 42, 50, 57 - Search - Pre search requirement of recording information received and sending it to superior officerDemands 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 or Magistrate -third option given to accused persons viz., to be searched before Superintendent who was part of raiding partyWould frustrate provisions of S.50 (1) Search conducted therefore, is vitiated."
162002 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 seizureprocedure 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 partyIt is allurement given to accused prompting him for expressing no objection for being searched in presence of said Gazetted officer - An not for asking to be searched in presence pf any other Gazetted officer or Magistrate
-Sai procedure is against safeguard provided by S.50 to accused.
AIR 2013 Supreme court 953 in the case of Sukhdev Singh Vs., State of Haryana wherein it is held that: (B) Narcotic Drug and Psychotropic Substances Act (61 of 1985), S 42 - Search an seizure - On receipt of secret informationRequirement to reduce information in writing and sent it forthwith to superior officer Is mandatoryNeeds strict CCH33 17 SPl.C.C.90/16 complianceSome 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 informationno effort was made by I.O to reduce information in writing and inform his higher authorities instantaneously or even after or reasonable delayNo evidence produced to show as to what prevented I.O from recording information and sending it to superior total non compliance with provisions of S.42 - Such defect is incurable - Accused liable to be acquitted.
2009 Crl.L.J. 2407 in the case of UOI Vs., Bal Mukund and others wherein it is held that: (B) Narcotic Drug and Psychotropic Substances Act (61 of 1985), Ss.8, 18, 67 - Recovery of narcotics confessional statements by accusedAdmissibility purported raid conducted early in morningLarge number of police officers including high ranking officers were presentaccused were found to be in possession of 10 Kgs., of narcoticsDocuments categorically show that accused were interrogated 18 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 arrestcourt while weighing evidentiary value of such statements cannot lose sight of ground realities circumstances attendant to making of such statements should be taken into consideration. On careful reading of the above said decisions, the fact, circumstances and ratio is similar with case on hand.
2014(4) Crimes 304 (P&H) - Ram Lubhaya vs. State of Punjab, 2011 (3) Crimes 210 (SC) - Rajendra Singh vs. State of Haryana, 2013 (1) Crimes 51 (SC) Suresh and others vs. State of Madhya Pradesh, 2011 (4) Crimes 26 (SC) - State of Delhi vs. Ram Avtar @ Rama, 2011(1) Crimes 508 (Karnataka) - K.K. Rejji and others vs. State by Murdeshwar Police Station, Karwar.
2014(2) Crimes 234 (Kar) in Ravi and others Vs., State by MannaEKhelli Police, Bidar district wherein it is held that: CCH33 19 SPl.C.C.90/16 "Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 20(b)(ii)(c) and 42 - Recovery of 5 bags of ganja weighing 45 kilograms from possession of appellants - Conviction by Trial Court - Appeal against conviction - Failure to comply with procedure under section 42 of Act - absence to record in writing the information received in first instance - No emergent situation which warranted postponement of said Act of recording the information received in writingNor any such record in writing at a later point of time - Held entire proceedings Vitiated by virtue of failure to record circumstances in writing - Quantity of ganja indicated as having been in possession of appellants was also inaccurate as the weighment was of stalks, leaves seeds and possibly the flowering and fruiting tops - inaccurate weighment would have a telling effect on the degree of punishment that could be imposedthis was because NDPS Act provides for a schedule which prescribes the degree of punishment dependent on the weight of substance involved -m hence, held that there was a failure in the charges being framed accurately against accused - impugned judgment of court below set aside - Appeal allowed." 20
2014 (1) Crime 324 (SC) State of Rajasthan Vs., Parmanand and another wherein it is held thus:
(a) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 50 - Provision is mandatory - but it applies to search of the person of the accused only -
does not apply to search of a bag carried by him - However, if the bag carried by him is searched and his person is also searched, Section 50 applies.
"(b) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 50 - Two accused persons - not informed of their rights individually - Joint notice communicated - one of the accused signing for both -
conviction vitiated."
On careful reading of above decisions, facts, circumstances and ratio is applicable to case on hand, as prosecution has not followed mandatory provisions.
22. 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 CCH33 21 SPl.C.C.90/16 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 has committed the offence. So accused 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'.
23. Point No.2: In the result, following:
ORDER Acting under Section 235(1) of Cr.P.C. accused is acquitted for the offence punishable under Section 20(B) of N.D.P.S. Act.
Bail bond of the accused shall stands cancelled.
M.O.2 and 3 mobile and cash is ordered to be confiscated to State after appeal period is over.
M.Os.1, 4 and 6 sample 7 bulk are ordered to be returned to the complainant to produce 22 before Drug Disposal Committee for disposal in accordance with law.
M.O.5 bag is ordered to be destroyed.
Accused 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/their appearance before Appellate Court, in the event of filing of any appeal by the State.
[Dictated to the Stenographer directly on the computer, typed by her, corrected, signed and then pronounced by me in Open Court on this the 10th day of March 2020) (G.M.SHEENAPPA) XXXIII ACC & SJ & SPL.JUDGE (NDPS) BANGALORE.
ANNEXURE
1. List of witnesses examined for the:
(a) Prosecution:
P.W.1 : Sri Basavaraju B G
P.W.2 : Srinivas C D
CCH33
23 SPl.C.C.90/16
P.W.3 : Smt.Suma
P.W.4 : Mahalinga Gowd M P
P.W.5 : Mahadeva T
P.W.6 : Lakshmi Ganesh K
(b) Defence :
NIL
2. List of documents exhibited for the:
(a) Prosecution:
Ex.P.1 : Notice to panch
Ex.P.2 : Record of reasons
Ex.P.3 : Panchanama
Ex.P.4 : FSL report
Ex.P.5 : Sample seal
Ex.P.6 : complaint
Ex.P.7 : FIR
Ex.P.8 : SHD
Ex.P.9 : Request letter
Ex.P.10 : Voluntary statement
Ex.P.11 : Notice to panch
Ex.P.12 : Body search notice
Ex.P.13 : Success report
(b) Defence:
NIL
3.List of Material Objects admitted in evidence:
M.O.1 : Sample
M.O.2 : Mobile
M.O.3 : Cash
M.O.4 : Bulk
M.O.5 : Bag
M.O.6 : Bulk
24
(G.M.SHEENAPPA)
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BANGALORE.
CN/*