Bangalore District Court
State By Central Police Station vs A1 K.N.Lalaj on 18 August, 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 18th DAY OF AUGUST, 2015.
SPL.C.C. NO.177/2011
COMPLAINANT : State by CENTRAL Police Station
(By Public Prosecutor)
V/S.
ACCUSED : A1 K.N.Lalaj,
S/o.Narayana,
Aged about 39 years,
R/a.Kaanjeer Erthingal, Rajakadu
village,
Yelakallu post, Hudumanchola,
Idukki District, Kerala State.
A2 Muralidhar,
S/o.Keshavan,
Aged about 39 years,
R/a.Vattakanni, Paarakudunchola
Taluk,
Idukki District, Kerala State.
(A1 & A2 By Sri RKM, Advocate)
2
A3 M.G.Nobi,
S/o.Gopalakrishna,
Aged about 24 years,
R/a.Mulakaseril, Honniyara village &
Post, Hudumanchola,
Idukki District, Kerala State.
(By Sri VK, Advocate)
Jayan,
A4 S/o.Narayana,
Aged about 42 years,
R/a.Thandhel House,
Muniyara Post,
Idukki District, Kerala State.
(By Sri KHA, Advocate)
A5 B.A.Kariyappa,
S/o.Annaiah,
Aged about 28 years,
R/a.Theraalu village & Post,
Hudakeri Hobli, Virajpete Taluk,
Kodagu District.
(By Sri RKM, Advocate)
1. Date of Commission of 30.6.2011
offence:
2. Date of report of offence: 30.6.2011
3. Arrest of the accused : A1 to A5 - 30.6.2011
4. Date of release of accused on A1 & A2- 3.2.2012
bail: A3 - 25.2.2012
A4 - 31.1.2012
A5 - 19.11.2011
5. Period undergone in custody: A1& A2 - 1 month 4 days
A3 - 7 months 25 days
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A4 - 7 months 1 day
A5 - 4 months 19 days
6. Date of commencing of 2.1.2015
recording Evidence :
7. Date of closing of Evidence : 1.8.2015
8. Name of the complainant: Sri Muralidhar PI
9. Offence complained of : U/s.20(B) of NDPS Act
10. Opinion of the Judge : Offence not proved
11. Order of sentence : As per final order
---
JUDGMENT
The Asst. Police Commissioner, Chamarajpet Sub Division, Bangalore filed charge sheet against accused Nos.1 to 5 in Cr.No.81/2011 of Central Police Station for the offence punishable U/Sec.20(B) of N.D.P.S. Act.
2. Brief facts of the case are as under:
On 30.6.2011, C.W.1 received credible information that certain persons are transporting 4 Ganja illegally in Indigo Car No.KL 07 AP 6054 from Kambam, Madurai towards Mysore road. Immediately he reduced into writing the said information and intimated his official superiors and proceeded to raid the same. He secured panch witnesses and issued notice to them. At about 12.30 pm., he left the station along with panch and staff members and came near Shivashankarappa circle, Chamarajpet, at about 1.35 pm., suspected car came from the same direction proceeding towards Satellite bus stand on Mysore road.
The said car was stopped at signal and on checking 5 persons were inside the car and there was smell of Ganja. He brought the accused along with car and property to the station. The accused persons did not give any explanation for its possession and produced permit or licence. They recovered 8 bags of Ganja consisting of 114 Kgs., 200 grams of Ganja and prepared panchanama. He filed complaint su-moto.
CCH-33 5 SPl.C.C.177/2011 Then registered the case in Cr.no.81/11 and dispatched FIR to the court. Then he subjected the seized articles to PF.No.39/11 and obtained permission of the court. Then followed the arrest formalities and recorded the voluntary statement. Then produced before court and remanded to judicial custody. He recorded the statements of witnesses. He sent the sample articles to FSL and obtained report. After completion of investigation 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. After hearing, charge framed U/Sec.20(B) of N.D.P.S. Act, read over and explained to them. Accused Nos.1 to 5 pleaded not guilty and claimed to be tried.
4. In support of the case, prosecution has examined P.Ws.1 to 9 and got marked Exs.P1 to P.23 6 and M.Os.1 to 83. During the cross examination of P.Ws.5 and 6, 2 documents were got marked on behalf of the accused Nos.1 to 5 as per Ex.D1 and D2. After closure, accused Nos.1 to 5 are examined U/Sec.313 of Cr.P.C., they denied the incriminating circumstances appeared against them and not chosen to adduce evidence for their defence.
5. Heard the arguments on both sides.
6. The points for consideration are as under:
1. Whether the prosecution proves that on 30.6.2011 at 1.35 p.m., near Shivashankarappa circle at Chamarajpet, near KIMS Hospital, in front of Lalbagh East Gate, in car bearing No.KL 07 AP 6054 accused Nos.1 to 5 were found in illegal possession of 114 Kgs., 200 grams of Ganja, valuing Rs.11,42,000/- which is a narcotic substance without license or permit for the purpose of selling, there by accused Nos.1 to 5 committed the offence U/s.2o(B) of NDPS Act?
2. What order?
CCH-33
7 SPl.C.C.177/2011
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:
REASONS 8 POINT NO.1 to 3 :- The learned P.P. vehemently argued that as per evidence of Pws.1 to 9 and Exs.P.1 to P.23 and M.Os.1 to 83, the prosecution proved the guilt. Learned counsel for accused persons argued that no mandatory provision complied and so many contradictions and discrepancies found in the prosecution witnesses.
9. Prosecution has mainly relied on the testimony of P.Ws.4 to 6 who are raiding parties. P.W.4 has stated that on 30.6.2011, he received information that a Car bearing No.KL 07 AP 6054 is transporting ganja from Tamil Nadu to Bangalore. He reduced 8 information in writing and informed to DCP and obtained permission to conduct the raid. He secured panchas and staff members and informed the said fact and issued notice to the panchas. They went to Shivashankarappa circle, at about 1.35 pm., they were watching, the said vehicle came and stopped in the signal. They detained the car. All accused persons were sitting in the car. He searched inside the car and found ganja bags. He brought the car along with the accused persons to station and seized the said packs.
P.W.3 has weighed the bulk. It was totally 114 kgs., 200 grams. They have taken some for sample and packed and sealed separately. He lodged complaint and submitted the F.I.R. He has recorded the statement of C.Ws.2 to 15 and submitted the report to DCP regarding success of raid. He has recorded the confession statement of the accused persons and sent the sample to F.S.L authority for chemical CCH-33 9 SPl.C.C.177/2011 examination. After receipt of F.S.L report and completion of investigation submitted the charge sheet.
In the cross examination of P.W.4, he has stated that he has not conducted the panchanama at the spot and secured the panch witness and recorded the statement of the persons who were present in the spot. He denied that there is a difference of hand writing in mahazar regarding subsequent instruction regarding sending of the information to the higher officer. Whereas, panchanama reveals that there is subsequent insertion. Further he has stated that accused tried to escape, but apprehended before they got down from the car. He has stated that he has not called the Gazetted Officer to conduct personal search as he conducted search of vehicle only not personal search. Further he admits that time is subsequently corrected in the complaint because it was typographical mistake, but he has not put any initial for the said correction. So, 10 the material documents complaint and mahazar have been subsequently, corrected by inserting important aspect. So the testimony of P.W.1 is quite inconsistent to the documentary evidence.
10. P.W.5-ASI and P.W.6-Police constable have also supported the testimony of P.W.4 stating that they went to spot along with panch witness and P.W.4 and other staff members and brought the vehicle along with accused to the station and seized the ganja.
In the cross examination of P.W.5 he has stated that P.W.4 was standing on northern side and he was standing on the southern side of the said circle, there is 50 feet distance. He has stated that P.W.4 stopped the vehicle. But he denied that he has not stopped the vehicle as per Ex.D1. In his statement he has specifically stated that he stopped the vehicle but he has denied the same in his cross examination. He has CCH-33 11 SPl.C.C.177/2011 stated that ganja was kept inside the seat cover. The same is not stated in his statement. He admits that they have not verified the same at spot.
11. P.W.6 in his cross examination stated that he was standing on eastern side of the circle. P.W.5 was standing behind him. P.W.4 and HC Muniyappa stopped the vehicle. Further he has stated three persons were sitting inside the car. He has not made attempts to know the names of the said three persons. He denied that he has stated the names of the accused persons in his statement as per Ex.D2. Further he stated that he came to know that the ganja kept inside the car. He saw the ganja inside the car in the police station. So the presumption of P.W.6 presence at the spot is doubtful as he did not know whether ganja is inside the car. First time he saw the ganja in the police station. The testimony of P.Ws.4 to 5 is quit contrary to each other. Even the independent panch witness 12 P.Ws.2 and 3 who weighed the ganja have supported the prosecution. Nothing is elicited to discard their evidence, except denial by learned PP in their cross examination. When P.W.4 went to spot an along with panch witnesses he ought to have seized the ganja on the spot and drew mahazar.
12. P.W.1 and 7 scientific officers have stated regarding conducing various tests on sample packs and issued opinion Ex.P1 that all samples contain positive of ganja. In their cross examination stated that they have not separated seeds, flowers, fruits, stem and leaves in all the packs. As per the testimony of P.Ws.1 and 7, contents of all the samples may be ganja, but the said samples and bulk ganja is seized on the spot from the possession of accused persons is not proved. In the absence of corroborative independent panch witness P.W.2, who has weighed the ganja as CCH-33 13 SPl.C.C.177/2011 stated by PW4, the testimony of police witnesses are not reliable and credit worthy.
13. P.W.8 police constable stated regarding the sample articles produced before F.S.L and obtained acknowledgement. P.W.9 stated regarding receiving original mahazar from F.S.L authority and submitted the charge sheet. Almost 90% of investigation conducted by P.W.4 himself. So his testimony cannot be relied as he being the complainant, he is an interested witness. Delay in sending the sample articles to F.S.L is also not properly explained by the prosecution, articles seized on 30.6.2011. P.W.1 examined on 30.7.2011 after a month stated that he conducted various tests. Ex.P1 F.S.L report reveals the weight of each articles and examination of various tests and issued opinion. But as there is delay, his opinion cannot be relied. Ex.P3 and P9 notices issued to panch witnesses reveal that only signature of panch 14 witnesses is obtained, but endorsement regarding they have agreed to conduct the search. Ex.P8 copy of SHD extract reveals regarding information reduced in writing. Original of Ex.P8 is not produced and whether copy of Ex.P8 sent to higher officer is not specifically stated. Ex.p14 is a xerox copy sent by P.W.4 regarding seeking permission to raid. Ex.P14 not containing the copy of Ex.P8 information reduced in writing. So I.O has not complied the mandatory provisions of 42(2) of NDPS Act. Ex.P13 report submitted by P.W.4 after seizure of the articles. All documents regarding seeking permission and final report were prepared on the same day. Even in Ex.P14 no endorsement is made by DCP regarding permission given to P.W.4. The voluntary statement of accused persons Ex.P15 to P19 are not admissible in evidence as after seizure of alleged ganja, I.O recorded their statements, no CCH-33 15 SPl.C.C.177/2011 recovery is made on the basis of their confession statement.
14. No doubt, compliance of provisions of Sec.50 of NDPS Act does not arise as no personal search of the accused persons conducted by P.W.4. He seized ganja only from the car. However, remaining mandatory provisions are not complied by the I.O to believe that the said ganja seized from the conscious possession. Even owner of the said vehicle is not examined by the prosecution. I.O has not made attempts to know who is the owner of the said car and how the accused obtained the said vehicle for their transportation is not explained. Subsequently, owner of the vehicle got released the said vehicle for his interim custody through court. Admittedly, accused are not the owners of the said vehicle. Further there is no material to know that the persons traveling in the car were having the knowledge of ganja kept inside the car. The 16 conscious possession of the ganja is material aspect but absolutely there is no reliable evidence placed by the prosecution.
15. The learned counsel for the accused relied on the decision reported in 2013 Crl.L.J., 474(1) Suresh a others Vs., State of MP and another decision reported in 2013 Crl.L.J. 723(1) Kishan Chand Vs., State of Harayana. The said decisions in respect of non compliance of Sec.50 of NDPS Act as stated above there is no personal search conducted by the I.O. Hence, the ratio laid down in the above said decisions is not helpful to the accused.
16. As per the decisions reported in:-
AIR 2013 Supreme Court 357 in the case of Krishan Chand Vs., State of Haryana wherein it is held that:-
CCH-33
17 SPl.C.C.177/2011 (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 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."18
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 -Said 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 CCH-33 19 SPl.C.C.177/2011 an seizure - On receipt of secret information-Requirement to reduce information in writing and sent it forthwith to superior officer- Is mandatory-Needs strict compliance-Some delay in compliance is permissible only for special reasons but compliance should be prior to recovery.
(c) Narcotic Drug and Psychotropic Substances Act (61 of 1985), S 42, 15 - Search conducted hours after receipt of information-no effort was made by I.O to reduce information in writing and inform his higher authorities instantaneously or even after or reasonable delay-No evidence produced to show as to what prevented I.O from recording information and sending it to superior total non compliance with provisions of S.42 - Such defect is incurable
-Accused liable to be acquitted.
2009 Crl.L.J. 2407 in the case of UOI Vs., Bal Mukund and others wherein it is held that:-
(B) Narcotic Drug and Psychotropic Substances Act (61 of 1985), Ss.8, 18, 67 -
Recovery of narcotics-confessional 20 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.
17. Further, in 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) -
CCH-33 21 SPl.C.C.177/2011 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.
18. 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 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'. 22
19. Point No.2: In the result, following:
ORDER Acting under Section 235(1) of Cr.P.C. accused Nos.1 to 5 are acquitted for the offences punishable under Sections 20(B) of N.D.P.S. Act.
Interim custody of the vehicle bearing No.KL 07 AP 6054 is made absolute.
M.Os.1 to 83 are ordered to be returned to P.I, Central police station with direction to destroy as per law after appeal period.
Bail bond of the accused Nos.1 to 5 shall stands cancelled.
Accused No.1 to 5 are released U/Sec.437(A) of Cr.P.C., on execution of bond for Rs.50,000/- each 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. [Dictated to the Stenographer, transcribed and computerised by her, corrected, signed and then pronounced by me in Open Court on this the 18th day of August, 2015.] (D.Y. BASAPUR) XXXIII ACC & SJ & SPL.JUDGE (NDPS) BANGALORE.
CCH-33 23 SPl.C.C.177/2011 ANNEXURE
1. List of witnesses examined for the:
(a) Prosecution:
P.W.1 : P.R.Jayaram
P.W.2 : Ishaaq Beig
P.W.3 : Raju
P.W.4 : Muralidhara P K
P.W.5 : G Gangarajaiah
P.W.6 : Raju K
P.W.7 : Manjappa
P.W.8 : Adrush
P.W.9 : Hussain
(b) Defence :
NIL
2. List of documents exhibited for the:
(a) Prosecution:
Ex.P.1 : F.S.L certificate
(a) & (b) Sig. of P.W.1 & P.W.7
Ex.P.2 : Sample seal
Sig. of P.W.7
Ex.P.3 : Notice to P.W.2 (a) sig.
Ex.P.4 : Panchanama (a)(b) sig.-P.W.2 and P.W.4
Ex.P.5 : Specimen seal (a)(b) sig.PW.2& P.W.4
Ex.P.6 : Statement of P.W.2
Ex.P.7 : Statement of P.W.3
Ex.P.8 : Written information
Ex.P.9 : Notice served to Saadique Pasha
Ex.P.10 : Complaint (a) sig.
24
Ex.P.11 : F.I.R (a) sig.
Ex.P.12 : PF
Ex.P.13 : Intimation to DCP (a) sig.(b) ack.
Ex.P.14 : Copy of letter to ACP (a) sig.(b) endorsement
Ex.P.15-19 : Confession statements of A1 to A5
(a) sig. of P.W.4 (b) sig. of accused persons Ex.P20 : Report (a)(b) sig.
Ex.P21 : Copy of the letter to F.S.L Ex.p22 : Passport Ex.p23 : F.S.L acknowledgement (b) Defence: Ex.D1 : Statement of P.W.5 Ex.D2 : Statement of P.W.6
3.List of Material Objects admitted in evidence:
M.O.1 : Samples to FSL
to 75
M.O.76 : 1st bag weighed 16kg 800 gms,
M.O.77 2nd bag weighed 20 kg 100 gms,
M.O.78 3rd bag weighed 14kg 900 gms,
M.O.79 4th bag weighed 14 kg 500 gms.
M.O.80 5th bag weighed 14 kg 700 gms.
M.O.81 6th bag weighed 12 kg 250 gms.
M.O.82 7th bag weighed 18 kg 800 gms.
M.O.83 8th bag weighed 12 kg 100 gms.
(D.Y. BASAPUR)
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BANGALORE.
CCH-33
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