Bangalore District Court
Ncb/Bzu/Blr vs A1 Renjith R.S on 29 April, 2025
KABC010110292021
IN THE COURT OF THE XXXIII ADDL. CITY CIVIL
& SESSIONS JUDGE & SPL. JUDGE (NDPS),
BANGALORE. CCH-33
: : PRESENT : :
SRI. VIJAYA DEVARAJA URS, B.Com., LL.B.,
XXXIII A C C & S J & SPL. JUDGE (NDPS)
BENGALURU
DATED THIS THE 24th DAY OF APRIL 2025
: : SPL. C. C. No. 662/2021 : :
COMPLAINANT : UNION OF INDIA,
THROUGH I.O., NCB.,
BANGALORE ZONAL UNIT.
(BY SPECIAL PUBLIC PROSECUTOR)
V/s.
ACCUSED : 1. SRI. RENJITH R.S
SPLIT UP IN SPL. C.C.
NO.2543/2023
2. SRI. ANEESH P D,
S/O. DEVASIA,
AGED ABOUT 37 YEARS,
R/AT. PULICHAMAKKAL,
MADACKAL, PAYYAVOOR,
KANNUR,
KERALA - 670633.
3. SRI. SARANG K K -
DEAD AND CASE IS ABATED
AGAINST HIM.
JUDGMENT 2 CCH-33
SPL. C C No.662/2021
4. SRI. AKHIL GOPALAN
KUTTY KAKKUR,
S/O. KAKKUR
GOAPANKUTTY,
AGED ABOUT 35 YEARS,
R/AT FLAT NO 315 C,
HILITE METRO MAX,
THONDAYAD BYPASS
ROAD, KOZHIKODE,
KERALA.
5. SRI. DILIP KUMAR BHOI,
S/O. NICHI BHOI,
AGED ABOUT 37 YEARS,
R/AT HAKIMPUT,
KHILUA, NANDAPUR,
KORAPUT, ODISHA.
(BY PLEADER SRI. N.G.N. FOR A- 2, SRI. K.S.V.
FOR A-4 & SRI. S.A. FOR A-5)
Sl.
DESCRIPTION DATE/S
No.
Date of Commission of 09.11.2020
1 :
offence
2 Date of report of offence : 09.11.2020
3 Arrest of the accused No. 2 : 10.11.2020
No. 4 : 05.02.2021
No. 5 : 20.01.2022
4 Date of release of accused on A-2 is in
: Judicial
bail
Custody till
JUDGMENT 3 CCH-33
SPL. C C No.662/2021
date.
A-4 is released
on bail on
16.7.2021
A-5 is released
on bail on
27.10.2022
5 Period undergone in custody A-2 =4 YEARS,
5MONTHS, &
11 DAYS.
A-4=5
: MONTHS & 11
DAYS.
A-5=NINE
MONTHS & 7
DAYS.
6 Date On Framing Charges : 27.11.2023
Date of commencing of
7 : 25.01.2024
recording Evidence
8 Date of closing of Evidence : 28.01.2025
Date On Recording Statement
9 : 22.02.2025
U/Sec. 313 Of CR.P.C.
10 Name of the complainant Sri. Kamlesh
:
Kumar.
11 Offence complained of : U/Sec. 8(c)
R/w. Sec.
20(b) (ii)(c),
25, 27, 27A,
28 & 29 of
NDPS Act.
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12 Opinion of the Judge : Prosecution is
able to prove
its case in
respect of A-2
& failed prove
its case against
A-4 & 5.
13 Final Order/ Sentence A-2 is
convicted, A-4,
:
& A-5 are
acquitted.
(VIJAYA DEVARAJA URS)
XXXIII A C C & S J & SPL. JUDGE, (NDPS)
BENGALURU.
::JUDGEMENT::
This is a case in which accused Nos. 2, 4 & 5 have faced trail for the commission of the offence punishable under sections Sec. 20(b)(ii)(c), 25, 27, 27A, 28, & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 on the allegations that they found in possession of illegal drugs & psychotropic substances to sell the same i.e., 3 Kgs. of Hashish Oil(commercial quantity) JUDGMENT 5 CCH-33 SPL. C C No.662/2021 without any permit or licence in contravention of Section 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985.
2. The case of the prosecution as borne out from the charge sheet is as under :-
2(a). On 09-11-2020 at about 09.45 a.m. Mr. Kamlesh Kumar (Charge Sheet witness No. 1), Intelligence Officer, NCB, Bangalore Zonal Unit received a secret information that a person by name Sri. Renjith (A-1) aged about 30 years who was having beard would cross Devanahalli Toll Plaza, Bangalore with two persons in Hyundai Car bearing No. KL-01-AZ 77 around 1.00 p.m. to 2.00 p.m. & would be trafficking Hashish Oil(illegal drug). He reduced the same in writing and informed his immediate Superior Officer, Mr. Venugopal G Kurup (Charge Sheet witness No. 2) and obtained permission to take necessary legal action.
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2(b). On the basis of the information, C.W.1
formed a team formed, took necessary equipment like Laptop, portable printer, drug detection kit, sealing/packing materials, weighing machine, visited the spot, and approached the independent witnesses (Charge Sheet witness No. 5 & 6). The N C B Team introduced themselves to the independent witnesses by showing their identity cards, shared the information that they had, requested them to be part of the proceedings of raid & seizure mahazar. They mounted surveillance at the Devanahalli Toll Plaza, Bangalore.
When they were waiting near the said place, the vehicle/car bearing registration No. KL-01-AZ 77 crossed the toll plaza at around 1.30 p.m. The N C B team signaled the car driver to stop the vehicle. After the vehicle was stopped, the N C B team apprehended the inmates of the car. The driver of the car, on enquiry, disclosed his name as Renjith R.S.(A-1) & the JUDGMENT 7 CCH-33 SPL. C C No.662/2021 inmates of the car disclosed their names as Aneesh P.D. (A-2), Sarang K K(A-3).
2(c). When asked about the possession of narcotic drugs/contraband, the driver of the car (A-1) disclosed that, he was carrying 3 packets containing Hashish oil and same was kept under the driver's seat. On search being made, the N C B team found 3 packets which were wrapped with brown adhesive tapes under the driver's seat. On enquiry, A-1 disclosed it to be Hashish Oil. The N C B team took out a packet out of three packets and opened it. It contained two transparent plastic covers. In those plastic covers, they found dark brown colour viscous. A small quantity of the suspect material was tested with field drug detection kit and it gave positive for Hashish oil. Similar processes were done on the other two packets.
2(d). The N C B Team noticed that all the contents of the three packets looked similar in colour, JUDGMENT 8 CCH-33 SPL. C C No.662/2021 appearance, texture, and gave positive result for Hashish Oil. They poured all the materials in a plastic container and sealed with NCB Bangalore Seal No. 4. The contraband/suspected drug, the materials used for packaging the contraband, and the documents found in the car, car key were seized and a detailed Mahazar was drawn at the spot in the presence of the independent witnesses.
2(e). Thereafter, notices under section 67 of the Act were issued to A-1 to 3 to appear before the officers of the N C B at N C B office. All the accused appeared at the N C B office and gave voluntary statements. Those statements revealed that they were illegally trafficking Hashish Oil/drugs for monetary benefits. It also revealed that, they used to buy/procure contraband from A-5 and had illegal contraband transaction with A-4. The A-1 to 3 confessed their crime when they were interrogated and JUDGMENT 9 CCH-33 SPL. C C No.662/2021 then they were arrested and produced before this Court.
2(f). The C w-1 filed a requisition before the Hon'ble Magistrate, prepared the inventory, produced the seized article for drawing samples for sending the same to forensic analysis, & obtained the certificate,. Two samples i.e., S-1 and S-2 were received from the Hon'ble Magistrate Court and one part of samples was forwarded to the Central Revenues Control Laboratory, New Delhi (CRCL). Further, investigation was assigned to intelligence Officer, Mr. P. Siva Rao (Charge Sheet witness No. 3). During the further investigation, Statements of C w-5 & 6 were recorded. After analysis, a report was received from the CRCL to the effect the samples gave positive test for Hashish Oil. He recorded the voluntary statement of A-4 & 5, obtained the details of the car, bank account details. Letters were sent to mobile phone service provider to obtain copies of call detail records and customer application forms JUDGMENT 10 CCH-33 SPL. C C No.662/2021 relating to certain mobile numbers. The CDR analysis of the said mobile numbers indicates that the accused Nos. 4 & 5 were regularly corresponding with one another and are also involved in drug trafficking with A-1 to A-3. After completion of the investigation, the Intelligence Officer (Charge-sheet witness No. 3) filed charge sheet/complaint for the offences mentioned in it against all the accused persons.
2(g). The accused No.2 has been in judicial custody since the date of his arrest. This Court's learned Predecessor-in-office on perusing the contents of the charge sheet and the annexed documents, had taken cognizance for the offences punishable under Sections 20(b), 25, 27, 27(A), 28 & 29 of the NDPS Act, 1985 against A-1 to 5. The copy of the charge- sheet and annexed documents were furnished to the learned counsel appearing for the accused Nos. 1 to 5 as provided under Sec. 207 of the Criminal Procedure Code, 1973.
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3. Since the offences levelled against the accused Nos. 1 to 5 are cognizable in nature, this Court's learned Predecessor-in-office heard the learned counsel for the accused 1 to 5 and Public Prosecutor on the question of charges. The materials placed on record by the prosecution made out a case for trial against the accused Nos. 1 to 5. During the trial, Accused No. 3 is reported to be dead and case against him is abated and accused No.1 absconded and a separate charge sheet (split up charge sheet) has been filed against him. Thereafter, this Court's learned Predecessor-in-Office framed charges against the accused Nos. 2, 4, & 5 for the above offences on 27-11-2023. Then, the charges read-over, and explained to them in the language known to them. They, after understood the contents of the charges, pleaded not guilty and claimed to be tried. This Court recorded the plea and then posted the case for recording the evidence for the prosecution.
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4. In order to bring home the guilt of the accused, the prosecution has examined in all five (05) witnesses as P w-1 to 5, got marked fifty four (54) documents i.e., Ex. P-1 to 54, & M. Os. 1 to 3 got admitted during the course of evidence. After closure of the prosecution side evidence, accused Nos. 2, 4, & 5 were examined under section 313 of the Criminal Procedure Code, 1973 by explaining the incriminating circumstances available against them. The case of the accused Nos. 2, 4, & 5 is that of total denial.
5. On perusal of the evidence available on record and the statement of the accused Nos. 2, 4, & 5, this Court was of the considered opinion that the accused Nos. 2, 4, & 5 were not entitled for an order of acquittal under section 232 of Criminal Procedure Code, 1973. Thereafter, the accused Nos. 2, 4, & 5 were called upon to lead evidence, if any. The accused Nos. 2, 4, & 5 have submitted that they have no evidence to lead on their side.
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6. This Court has heard the arguments of the learned Special Public Prosecutor and also the learned counsel for the accused Nos. 2. 4, & 5. The learned counsel for the A-2 filed written synopsis & placed the following judgments/ citations -
Learned counsel for A-2
1. (2009) 8 S C C 539 in between Karnail Singh Vs. State of Haryana.
2. 2016 Crl. L. J 336 S C in between State of Rajasthan Vs. Rag Raj Singh alias Hansa.
3. Boota Singh v. State of Haryana [2021 SCC Online SC 324].
4. (2016) 3 S C C 379 in between Union of India Vs. Mohanlal and another.
5. (2008) 16 S C C 417 in between Noor Aga Vs. State of Punjab and another.
6. 2009(2) Crimes 171 (Union of India vs. Bal Mukund and Others).
7. Simarnjit Singh Vs. State of Punjab -
(2023) SCC Online SC 906.
8. Jitendra v. State of M.P., (2004) 10 SCC
562.
9. Gorakh Nath Prasad Vs. State of Bihar, (2018) 2 SCC 305.
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10. Mangilal Vs. State of Madhya
Pradesh 2023 SCC Online SC 862.
11. Tofan Singh vs. State of Tamil Nadu, (2021) 4 SCC 1.
7. Having heard the learned Public Prosecutor, the learned Counsel for the accused Nos. 2, 4, & 5 and on perusal of the above rulings, the following points that arise for consideration by this Court is as follows :-
Point No. 1 : Whether the prosecution has proved beyond all reasonable doubt that A-1 to 5 entered into criminal conspiracy procured Hashish Oil with an intention to illegally transport the same from one state to another state through a car for the purpose of sale, consumption, & to make monitory benefits and that the same was seized by the N C B officials on 09.11.2020 at Devanahalli Toll Plaza, JUDGMENT 15 CCH-33 SPL. C C No.662/2021 Bangalore, and thus they violated the provision of Sec. 8(c) and committed offences punishable under Sec. 21(c), 25, 27, 27A, 28, & 29 of the NDPS Act, 1985 ?
Point No. 2 : What Order or Sentence ?
8. The findings on the above points by this Court are as under :-
Point No. 1 : Partly in the Affirmative, Point No. 2 : As per the final order for the following....
::REASONS::
9. Point No. 1 :
Even in case punishable under the provisions of NDPS Act, 1985, the burden is upon the prosecution to prove the charges leveled against the accused. Since the punishment contemplated under the provisions of JUDGMENT 16 CCH-33 SPL. C C No.662/2021 this Act are severe, prosecution is expected to comply with all the mandatory provisions of the Act properly.
9(a). The case of the prosecution is that C w-1, Sri. Kamalesh Kumar, who was the then Intelligence Officer of N C B, Bangalore and while he was in his office at 9.45 a.m., on 09.11.2020, received a credible information to the effect that three persons were travelling to Bangalore in a car and were in possession of prohibited contraband.
9(b). The C w-1 noted the said information in the N C B form No. 1 and communicated the said information to his Assistant Director i.e., C w-
2(superior officer) and conducted the raid and seized the contraband.
9(c). The learned counsel for the accused No. 2 would submit that the C w-1 had not received any credible information, not reduced into writing and JUDGMENT 17 CCH-33 SPL. C C No.662/2021 not informed his higher/superior official and there is a violation of Sec. 42 of the N D P S Act. He has also submitted that except N C B Form No. 1, the C w-1 has not maintained any official diary, personal diary, or any other register to record the information. He has also contended that C w-1 has not made a separate report about the information that he had received and has not sent it in a sealed cover to his superior officer and as such, raid conducted by C w-1 is nothing but a pure non-compliance/violation of Section 42 of the N D P S Act. He has submitted that the C w-1 has not followed the guidelines mentioned in the Drug Law Enforcement Field Officers Hand Book. Hence on this ground only, the accused No. 2 has to be acquitted. In support of his contentions, he has relied on the following decisions rendered by the Hon'ble Apex Court in-
1. 2016 Crl. L. J 336 S C in between State of Rajasthan Vs. Rag Raj Singh alias Hansa.
2. Boota Singh v. State of Haryana [2021 SCC Online SC 324].
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3. (2009) 8 S C C 539 in between Karnail Singh Vs. State of Haryana.
9(d). On the other hand, the Learned Public Prosecutor appearing for the State/NCB submits that the entire procedure as prescribed under the N D P S Act has been followed in letter and spirit and there is no violation of Sec. 42 of the N D P S Act as contended by the learned counsel for the defence.
10. DISCCUSION ON THE POINT OF COMPLIANCE OF SECTION 42 OF THE N D P S ACT, 1985.
10(a). Now coming to the question whether there has been due compliance with the provision of Sections 42 of the NDPS Act. It has to be stated that in view of the nature of the punishment provided for the offence under the said Act, the legislature has deliberately made certain provisions to safeguard the innocent persons so that they are not harassed. If the Investigating Agency deliberately ignores the compliance with the provisions of the above said Act, JUDGMENT 19 CCH-33 SPL. C C No.662/2021 the Court will have to approach the omissions and lapses with reservations.
11. 10(b). Coming to the contention of the learned counsel for the accused No. 2 that there was no compliance of Section 42 of the NDPS Act, this Court would like to deal with the same now.
Section 42 of the Act runs as follows :-
42. Power of entry, search, seizure and arrest without warrant or authorization.--
(1) 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 JUDGMENT 20 CCH-33 SPL. C C No.662/2021 empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and 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 JUDGMENT 21 CCH-33 SPL. C C No.662/2021 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 22 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 there under, such power shall be exercised by an officer not below the rank of sub-inspector:
Provided further that if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an JUDGMENT 22 CCH-33 SPL. C C No.662/2021 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.
(Emphasis is made by this Court)
12.
13. 10(c). A close perusal of Section 42 of the Act means that if the empowered officer has any information out of his personal knowledge or information given by any person and taken down in writing about the storage of any narcotic drug or psychotropic substance in any house, enclosed place or in any conveyance, he may between sunrise and sunset enter into and search any building, conveyance or place and seize such contraband. The proviso of Section 42 reveals that such search can be conducted between JUDGMENT 23 CCH-33 SPL. C C No.662/2021 sunset and sunrise. When Section 42(1) contemplates search during day time, the proviso contemplates search during night time. According to Section 42(2) of the Act 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 72 hours send a copy thereof to his immediate official superior.
10(d). The Section 42(2) does not say that the information so received should be maintained in official diary, personal diary or any other registers. It also does not say that it should be sent it to the superior officer in a sealed cover. It only says that whenever an officer takes down any information in writing, he shall forward the same to his superior officer within prescribed time.
[
10(e). Guidelines in a handbook do not
typically become law. Handbooks are generally
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informational and provide guidance on procedures, policies, or practices, but they are not legally binding unless they are specifically incorporated into or mandated by a law, regulation, or contract. Laws are enacted by legislative bodies and enforced by Courts. Regulations are issued by administrative agencies under the authority of laws. Handbooks are usually created by an organization or department and do not have the same legal force as laws or regulations. Laws and regulations are enforced through various legal mechanisms, such as fines, penalties, or court orders. Handbooks, on the other hand, are generally not enforceable in the same way. While they may provide guidance or standards, they are not typically subject to legal action for non-compliance. Handbooks are designed to provide information, explain procedures, and offer guidance to employees or individuals. Their purpose is to help people understand and comply with the policies and procedures of an JUDGMENT 25 CCH-33 SPL. C C No.662/2021 organization, rather than to establish legally binding obligations. Therefore, the arguments of the learned defence counsel (A-2's counsel) that C w-1 did not take down the information and recorded the same in separate diary or register, and send it to his superior officer in a sealed cover, does not hold water in it.
10(f). C w-1, Mr. Kamalesh Kumar has been examined before the Court as P w-2 on 22-02-2024 & on 19-04-2024. He deposes that on 09-11-2022 at 09.45 a.m. received information that, a person by name Ranjith (A-1) would cross Devanahalli Toll Plaza, Bangalore with two persons (A-2 & 3) in his Hyundai Car bearing Registration No. KL-01 A Z -77 and they would be carrying substantial quantity of Hashish Oil and they could be apprehended. He further deposes that he has reduced the said information in writing in Form No. 1 and submitted the same to C w-2, Assistant Director, N C B, BZU for further direction. He identifies the Information Report as Ex. P-1 and his JUDGMENT 26 CCH-33 SPL. C C No.662/2021 signature as Ex. P-1(a). He also deposes that he has furnished copy of the information, Ex. P-1 to C w-2 seeking necessary direction in the matter.
10(g). The Ex. P-1 is a printed computerised format, ' Form - N C B-1'. Form No. 1 in the context of the Narcotics Control Bureau (NCB) likely refers to a specific form used by the N C B for reporting or documenting drug-related activities or cases, such as a case report.
10(h). Nowadays, Government of India/Government of State provides computers /
laptops and other IT resources to its employees to enhance efficiency and productivity, with the primary goal of facilitating government work. Computers are primarily used for transacting government work, accessing and processing information, and carrying out official duties.
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10(i). According to the learned Special Public
Prosecutor, the C w-1 has typed/computerized the information that he had received from the informer and sent to his superior. He also submits that the C w-2 has received the said information and directed the C w-1 to form a team and take necessary action as per law by endorsing on Ex. P-1.
10(j). The Spl. Public Prosecutor submits that the oral evidence deposed by the P Ws-1 & 2 and the information available on Ex. P-1 corroborate each other. The information so incorporated was communicated by the P.W.2 to the P.W.1 (immediate superior officer).
10(k). The P w-2 was cross examined by the learned defence counsel on 08-10-2024. During the course of cross examination, he deposes that, he received information while he was in his office. He denies the suggestion that his office timings is JUDGMENT 28 CCH-33 SPL. C C No.662/2021 10 a.m. to 6 p.m. He denies the suggestion he has not personally prepared N C B Form No. 1. He deposes that he received the information over landline phone. He admits the suggestion that he has not mentioned in Ex. P-1 that he had received the information through landline phone. He admits the suggestion that he received the information that accused had been travelling from Vishakapattanam to Bangalore with contraband. This suggestion goes to show that the P w-2 has received the information about trafficking of the contraband by the accused.
10(l). Though the P w-2 was cross examined, even remotely no suggestion was put to him that he had not received any credible information as per Ex. P-1 and he had not forwarded/shared the copy of Ex. P-1, the information to his superior officer, C w-2. Even remotely, no suggestion was put to him that copy of the information was not submitted by him to the C w-2. The Ex. P-1 is dated 09-11-2020.
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The signature of the C w-2 is found at the end of Ex. P-1 and there is date and time mentioned below his signature. It is mentioned as 09-11-2020 and 10.00 hrs. The learned defence counsel could not extract anything material in the cross examination of this witness to assail his version about the receipt of the credible information and passing on the said information to his superior officer within 72 hours.
10(m). Mr. Venugopal G, the then Assistant Director, NCB, BZU was examined as P w-1 on 25-01- 2024. He has deposed that C w-1 (P w-2) had submitted information note, N C B Form No.-1 and he gave necessary direction. He identifies the information Note as Ex. P-1 and his shara (endorsement/remarks) & signature as EX. P-1(b).
10(n). He was cross examined by the learned
defence counsel. He deposes during the course of
cross examination that he signed the Ex. P-1,
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information at around 10.10 a.m. He further deposes that he has not received any intelligence information and the same was received by C w-1. It is not the case of the prosecution that C w-2(P w-1) received the information rather it is its case that C w-1 (P.W.2) had received the credible information.
10(o). Though this witness was cross examined, even remotely, no suggestion was put to him that the " shara " (remarks/endorsement) was not written by him. Even remotely, no suggestion was put to him that he had not received the Ex. P-1 from C w-1. The learned defence counsel could not extract anything material in the cross examination of this witness to assail his version about receipt of the information from C w-1 on 09-11-2020. The testimony of the P w-1 has been duly supported by the P w-2 in respect of credible information sharing to the superior officer within 72 hours.
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10(p). From the testimonies of aforesaid
witnesses and documentary evidence at Ex. P-1, it is established on record that, credible information about the crime was received by P w-2 at about 9.45 a.m. on 09-11-2020, the same was mentioned in Ex. P-1 & the same was forwarded to his superior officer, P w-1(C w-
2) within the short span of time. It is, thus, held that compliance of Section 42 N D P S Act has been properly made in the present case.
10(q). It was the fervent contention of the learned defence counsel for the accused ( A-2) that the search and seizure proceedings are vitiated on account of non-compliance of the mandatory procedure provided under Section 42 of the NDPS Act. The said contention is on the fact of record is not tenable. The credible information which was received by C w-1 / P w-2 was to the effect that suspects would be trafficking of contraband in a car from Vishakapattanam JUDGMENT 32 CCH-33 SPL. C C No.662/2021 to Bangalore is to be accepted as true or proved from the suggestion.
10(r). There is no disagreement with regard to the dictum laid down by the Hon'ble Apex Court in the cases cited above. However, the same may not be made applicable to the present case as they are distinguishable on facts.
10(s). In case State of Rajasthan Vs. Jag Raj Singh @ Hansa reported in (2016)11 S C C 687, the search was carried out by the Investigating Officer himself without seeking any search / authorization and without procuring the presence of any empowered officer at the spot. Whereas, in this case the P w-2 was duly authorized vide written authorization (Shara / endorsement / remarks) at the foot of the Ex. P -1 by P w-1 to conduct raid.
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10(t). In the case of Boota Singh Vs. State
of Harayana reported in (2008) 2 SCC 370 held the lorry is not a public vehicle and it falls under the private vehicle and as such, Section 42 is applicable and the mandatory provisions has to be complied with. In that case, the police officer did not record the information at all, and did not inform the official superior and as such, the Hon'ble Apex held that it was a clear violation of Section 42 of the Act. In the present case, the car is a private vehicle and the Cw-1 reduced the information in writing and shared the same to his superior official and as such, the above ruling is not made applicable to the case on hand.
10(u).In the case of Karnail Singh Vs. State of Haryana, (2009) 8 SCC 539; Constitution Bench of the Hon'ble Apex Court considered the scope of Section 42 (1) and 42 (2) of the NDPS Act. It was held as under:
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17. In conclusion, what is to be noticed is Abdul Rashid did not require literal compliance with the requirements of Section 42 (1) and 42 (2) of the NDPS Act nor did Sajan Abraham hold that 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 Subsection (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 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 JUDGMENT 35 CCH-33 SPL. C C No.662/2021 (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 noncompliance of requirements of Subsections (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 the goods or evidence being destroyed or removed, not recording in writing the information received, before JUDGMENT 36 CCH-33 SPL. C C No.662/2021 initiating action, or nonsending 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. In this case(case on hand), P w-2 Intelligence Officer received information, recorded the information as per Ex. P-1 and placed it before his immediate superior, P w-1 who was the Assistant Director. This is JUDGMENT 37 CCH-33 SPL. C C No.662/2021 a clear case of search, based on prior information duly recorded and informed to his superior officer.
11. DISCUSSION ON THE POINT OF COMPLIANCE OF SECTION 50 OF NDPS ACT 11(a). The learned defence counsel contended that there is no compliance of Section 50 of the N D P S Act which is a mandatory provision. The said section deals with conditions under which search of persons should be conducted. Under this Section the person has a right to be taken to the nearest Gazetted Officer of any of the Departments mentioned in Sec. 42 or to the nearest Magistrate. According to him, this is an important safeguard given to the accused person by the Legislature keeping in view of our Criminal Jurisprudence. Therefore, after a person is apprehended and before a search is conducted, it is mandatory on the part of the officer to inform him that he has a right to be searched in the presence of a Gazetted Officer or JUDGMENT 38 CCH-33 SPL. C C No.662/2021 a Magistrate. According to the learned defence counsel, in the present case, the prosecution failed to establish that the mandatory provision was complied with.
11(b). Coming to the contention of the learned counsel for the accused No. 2 that there was no compliance of Section 50 of the NDPS Act, this Court would like to deal with the same now. Section 50 of the Act runs as follows :-
50. Conditions under which search of persons shall be conducted.--
(1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazette Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.
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(2) If such requisition is made, the
officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in subsection (1).
(3) The Gazette Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a female.
(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazette Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974).
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(6) After a search is conducted under
sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.
14. 11(c). The legal position in respect to the Section 50 NDPS Act has been laid down by the Hon'ble Supreme Court in the case of State vs Baldev Singh reported as (1999) 6 S C C 172 that the compliance of the provisions of section 50 NDPS Act is mandatory. It is also held in this case that the compliance of this provision is not necessary where recovery was effected without prior information and where it was the case of a chance recovery. It was held that the same provisions of Section 50 containing certain protection and safeguards implicitly make it imperative and obligatory and cast a duty on the investigating officer to ensure that search and seizure of the person concerned is conducted in a manner prescribed by Sec. 50.
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11(d). The Hon'ble Apex Court observed in
the reported judgment-(2014) 5 S C C 345 in between State of Rajasthan Vs. Parmanand and another that,-
"15. Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag is carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application. In this case, Respondent 1 Parmanand's bag was searched. From the bag, opium was recovered.
His personal search was also carried out. Personal search of Respondent 2 Surajmal was also conducted. Therefore, in the light of the judgments of this Court mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have application.
(Emphasis is made by this Court) 11(e). In Kalema Tumba v. State of Maharashtra reported in (1999) 8 SCC 257, 2 kgs of heroin was recovered from a bag belonging to the JUDGMENT 42 CCH-33 SPL. C C No.662/2021 accused. It was argued that as the requirements under Section 50 were not complied with, the contraband recovered in the course of the search would be inadmissible. The Hon'ble Apex Court, while rejecting such argument and relying upon Baldev Singh (supra), held that Section 50 would not apply to the search of a bag belonging to the accused. The relevant paragraph is as under:-
"4. As rightly pointed out by the High Court search of baggage of a person is not the same thing as search of the person himself. In State of Punjab v. Baldev Singh this Court has held that the requirement of informing the accused about his right under Section 50 comes into existence only when person of the accused is to be searched. The decision of this Court in State of Punjab v. Jasbir Singh, wherein it was held that though poppy straw was recovered from the bags of the accused, yet he was required to be informed about his right to be searched in presence of a Gazetted Officer or a Magistrate, now stands overruled by the decision in Baldev Singh's case (supra). If a JUDGMENT 43 CCH-33 SPL. C C No.662/2021 person is carrying a bag or some other article with him and narcotic drug or the psychotropic substance is found from it, it cannot be said that it was found from his "person". In this case heroin was found from a bag belonging to the appellant and not from his person and therefore it was not necessary to make an offer for search in presence of a Gazetted Officer or a Magistrate."
15.
11(f). In Sarjudas Vs. State of
Gujarat reported in (1999) 8 SCC 508, the
contraband was recovered from a bag which was hanging on the accuser's scooter, which he was riding. The Hon'ble Apex Court while holding the bag not to be included in the "search of the person" held as under:-
"4. What is contended by the learned Counsel for the appellant is that the appellants were not informed of their right under Section 50 of the NDPS Act that they were entitled to be examined in presence of a gazetted officer or a Magistrate and, therefore, the search of the appellants was illegal and the evidence JUDGMENT 44 CCH-33 SPL. C C No.662/2021 regarding recovery of charas from their possession could not have been relied upon.
5. We do not find any substance in this contention as the charas was not found on the person of the appellants but it was found kept in a bag which was hanging on the scooter on which they were riding. Therefore, this was not a case where the person of the accused was searched and from his person narcotic drug or psychotropic substance was found. The correct position of the law on this point has been stated by this Court in State of Punjab v. Baldev Singh ".
16. 11(g). In Birakishore Kar v. State of Orissa reported in (2000) 9 SCC 541, the contraband was recovered from a plastic bag on which the accused was sitting while travelling in a train. As the body of the accused was not searched, Section 50 was held to be inapplicable. The Hon'ble Apex Court held as under:-
"3. What is now contended by the learned counsel for the appellant is that the mandatory requirement of Section 50 of the NDPS Act, JUDGMENT 45 CCH-33 SPL. C C No.662/2021 1985, viz., that the person to be searched should be told about his right to be examined in the presence of a Magistrate or a gazetted officer was not complied with in this case. This contention is really misconceived. In this case it was not the person of the appellant which was searched. He was found sitting on a plastic bag which belonged to him and which contained poppy straw. As pointed out by this Court in State of Punjab v. Baldev Singh [(1999) 6 SCC 172], Section 50 would come into play only in the case of search of a person as distinguished from search of any premise etc. As we do not find any substance in this appeal, it is dismissed."
17. 11(h). In Kanhaiya Lal v. State of M.P. reported in (2000) 10 SCC 380, opium was recovered from the bag which was being carried by the accused. Section 50 was not made applicable as it was held that the recovery was made from the bag and not the person, and it was held by the Hon'ble Apex Court held as under:-
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"2. The only point raised in this appeal is that the mandatory requirement of Section 50 of the Act was not complied with in this case and therefore the conviction of the appellant is illegal. In our opinion, there is no substance in this contention because 1 kg of opium was not found from the person of the appellant but it was found from a bag which was being carried by the appellant. Therefore, this cannot be said to be a case where on search of the person of the accused, a narcotic drug or psychotropic substance was found. In our opinion, the courts below have correctly held that the appellant is guilty of committing the said offence. The appeal is, therefore, dismissed."
18. 11(i). Similarly, in Gurbax Singh v. State of Haryana reported in (2001) 3 SCC 28, the accused therein was apprehended while disembarking from a train carrying a gunny bag containing poppy straw weighing 7 kgs. The counsel for the State therein argued that the procedure under Section 50 was not required to be followed as nothing was recovered from the person. The Hon'ble Apex Court while accepting the JUDGMENT 47 CCH-33 SPL. C C No.662/2021 said argument and referring to Baldev Singh (supra) held that:-
"8. In view of the aforesaid decision of the Constitutional Bench, in our view, no further discussion is required on this aspect. However, we may mention that this right is extension of right conferred under Section 100(3) of the Criminal Procedure Code. Sub-Section (1) of Section 100 of the Code provides that whenever any place liable to search or inspection is closed, any person residing in, or being in charge of, such place, shall, on demand of the officer or other person executing the warrant, and on production of the warrant, allow him free ingress thereto, and afford all reasonable facilities for a search therein. Sub-Section (3) provides that where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched and if such person is a woman, the search shall be made by another woman with strict regard to decency. Sub-section (7) of Section 100 further provides that when any person is JUDGMENT 48 CCH-33 SPL. C C No.662/2021 searched under sub-section (3) a list of all things taken possession of shall be prepared and a copy thereof shall be delivered to such person. This would also be clear if we refer to search and seizure, procedure provided under Sections 42 and 43 of the building, conveyance or place. Hence, in our view, Section 50 of the NDPS Act would be applicable only in those cases where the search of the person is carried out."
19. 11(j). The P w-2 deposes in the examination- in-chief that he got information that a person by name Ranjith aged about 30 years would cross Devanahalli Toll Plaza, Bangalore in his Hyundai Car bearing No. KL--1 AZ77 along with two persons and they would be carrying substantial quantity of Hashish Oil, could be seized and the persons would be apprehended.
11(k). The P w-2 deposes that they intercepted the vehicle/car bearing No. KL-01-AZ 0077 around 1.30 p.m at Devanahalli Toll Plaza. They introduced themselves to the inmates of the car JUDGMENT 49 CCH-33 SPL. C C No.662/2021 and informed them about the purpose of stopping the car. The inmates of the car disclosed their names and identity. When they (NCB team) asked about the possession of narcotic drugs/contraband, the driver of the car (A-1) disclosed that, he was carrying 3 packets containing Hashish oil and same was kept under the driver's seat. Then the NCB official informed them that they would carry out search of the vehicle, for which, they consented.
11(l). Though, this witness was cross examined, even remotely, no suggestion was put to him that accused No. 1 had not informed them that they were carrying contraband and it was not kept under the driver's seat. The learned defence counsel (A-2) could not extract anything material in the cross examination of this witness to assail his version about the recovery of the contraband from the car. By looking into the evidence available on record, personal search of the accused Nos. 1 to 3 JUDGMENT 50 CCH-33 SPL. C C No.662/2021 (inmates of the car) was not conducted on the date of apprehending them.
20. 11(m). The learned Special Public Prosecutor argued that section 50 of the NDPS Act is not applicable at all in the present case. He submits that the personal search of the accused Nos. 1 to 3 was not searched by the N C B officials. According to him, the accused (1 to
3) themselves informed the N C B team that the contraband was kept under the driver's seat and as such, Sec. 50 of the NDPS Act is not applicable. The arguments of the learned Special Public Prosecutor hold good by looking at the evidence on record. The above cited decisions are aptly applicable to the case on hand as the personal search has not been done on the accused No. 1 to 3 and Sec. 50 of the N D P S Act is not applicable to the present case.
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12. DISCUSSION ON THE POINT OF COMPLIANCE OF SEARCH AND RECOVERY OF THE CONTRABAND 12(a). It is the specific case of the prosecution that on 09-11-2020 at about 09.45 a.m., C w-1 received credible information about the trafficking of psychotropic substances. Immediately, he reduced the same into writing and informed the superior officer and obtained permission to conduct raid. To substantiate these facts, C w-1/P w.2 examined before the Court has stated/deposed above. In his evidence he has deposed that he along with other N C B officials mounted surveillance at Devanahalli Toll Plaza. He further deposed that around 1.30 p.m. they intercepted the car and the A-1 to 3. He enquired with the suspected persons and came to know their names and identity. On being searched, they found 3 packets under the driver's seat. The same were wrapped with brown colour adhesive tape.
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12(b). He further deposes that on opening
one of the packets, he found dark brown colour viscous. A small quantity of viscous was tested with filed DD Kit which gave positive result for Hashish. Similar procedure was done on other two packets. He poured all the substance in a plastic container. The substance weighted around 3 kgs.(excluding the plastic container). The contraband was packed, sealed with NCB Bangalore Seal No. 4 and marked as P-1. The packing materials seized and sealed with N C B Bangalore Seal No.4, and marked as P-2.
12(c). P w-2 further deposed that he had found photocopy of the driving licence of A-1, RC Book, Insurance certificate, pollution under conrol(PUC) certificate, Toll plaza receipts i.e., Eethakota, Unguturu, Divawancheruvu, Simphapuri, and Devanahalli Toll plaza receipts. Heidentifies the seized articles before the Court as M.Os. 1 to 3.
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12(d). The learned defence Counsel(Counsel
for A-2) cross examined P w-2 at length on the point of search and recovery. The P w-2 denies the suggestions that the accused were apprehended at Tirupati and not at Devanahalli Toll-Plaza and the car was seized at Tirupati and they brought the same to Bangalore.
12(e). This Court has perused the order sheet of this case. The accused (A-1 to A-3) have not stated so when they produced before this Court through Video Conference on 10-11-2020 that they were arrested / apprehended at Tirupati and brought to Bangalore. This Court also perused the 313 statement of A-2. No where he has stated that he was arrested at Tirupati and brought to Bangalore on 09-11-2020. Therefore, the suggestion to P w-2 is only a mere suggestion that same has not been substantiated by any evidence.
12(f). The learned counsel for the A-2 relies on the deposition of the P w-2 and argues that there is JUDGMENT 54 CCH-33 SPL. C C No.662/2021 no allegation against the A-2 that he was in possession of the contraband and the allegation is only against the A-1 and as such, the prosecution has not able to prove the recovery from the A -2 and the charges leveled against the A-2 has to be held not proved. For better appreciation of the evidence, the said portion of chief examination is extracted below :-
Paragraph No. 7 of further chief examination of the P w-2 dated 19-04-2024.
" 7. When we have enquired about them whether they are carrying any narcotic drugs, driver i.e., A-1 o the vehicle has stated that he is having three packts containing Hashish Oil and the same are concealed underneath he driver seat of the car. Then the NCB officials informed them that the team will carry out search of the vehicle, for which, they consented."
(Emphasis is made by this Court) JUDGMENT 55 CCH-33 SPL. C C No.662/2021 12(g). It is the specific case of the prosecution that A-1 to A-3 were travelling from Vishkhapatnam to Bangalore in a car and they would be carrying a substantial quantity of Hashish Oil. It is their case that, A -2 and A-3 were also inmates of the car and they were also apprehended along with A- 1(driver of the car). During the cross examination also, the P w-2 deposes that he apprehended the accused (A-1 to 3) at Devanhalli Toll Plaza (paragraph No. 11 at page No. 14). Though, this witness was cross examined at length, even remotely, no suggestion was put to him that A-2 was not in the car or he was a gratuitous passenger. Even remotely, no suggestion was to him that A-2 had no knowledge about the contraband kept under the driver's seat in the car. Even from the above examination in chief of the P w-2, A-2 was very much present in the car and he has also consented fro search of the car. Admittedly, car is not a public Transportation Car/Yellow Board Car/Hired Car, Rather JUDGMENT 56 CCH-33 SPL. C C No.662/2021 It Is A Private Vehicle. The 313 statement of A-2 is an important one. A-2 states as false to the specific incriminating evidence that is -
Q. No. 3= He further deposes that Renjith would be accompanied with two more persons and they would be carry substantial quantity of Hashish Oil and same would be seized. What do you say?
Ans.: false.
Q. No. 29= Have you got any evidence for your defence ?
Ans.: no.
Q. No. 30= Have got anything to say?
Ans. : Nothing.
The A-2 in his examination under Section 313 of the code of Criminal Procedure, 1973, did not state that he was not in the car and he was not aware of the contraband kept in the car. He did not say that he had no connection with A -1. No explanation has been JUDGMENT 57 CCH-33 SPL. C C No.662/2021 offered by the A-2 as to on what account he used to be in conversation with A-1 over the mobile phone.
12(h). There was an opportunity to the A -2 to explain before the Court how he got into the Car and whether he had knowledge of concealing drugs in the car or not but he has not said anything before the Court. He has not stated that he was arrested at Tirupati and brought to Bangalore. From these material facts, the prosecution has able to prove the presence of the A-2 in the car at the time of apprehending and seizure of the contraband. When the A-2 travelling along with A-1 and A-3 in a car, they should be known to one another & it has not been explained or shown as to how they travelled together from the same destination in a car which is not a public vehicle or yellow board car/hired car.
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12(i). It is useful to refer to a judgment of
the Hon'ble Apex Court in the case of Madan Lal Vs. State of Himachal Pradesh reported in (2003) 7 SCC 465. In that case all the accused persons were travelling in a vehicle when they were nabbed and recoveries were made from them. The relevant extracts from the judgment are set ou8t below:-
18. ........The statement was made totally out of context and no credence can at all be attached to the statement. The accused Goyal Nath in his examination under Section 313 of the Code of Criminal Procedure, 1973 (in short the 'Code') did not state that he was alone in possession of the contraband articles.
On the contrary, he stated that he did not know anything about the alleged seizure.
19. Whether there was conscious possession has to be determined with reference to the factual backdrop. The facts which can be culled out from the evidence on record is that all the accused persons were traveling in a vehicle and as noted by the Trial JUDGMENT 59 CCH-33 SPL. C C No.662/2021 Court they were known to each other and it has not been explained or shown as to how they travelled together from the same destination in a vehicle which was not a public vehicle.
20. Section 20(b) makes possession of contraband articles an offence. Section 20 appears in chapter IV of the Act which relates to offence for possession of such articles. It is submitted that in order to make the possession illicit, there must be a conscious possession.
21. It is highlighted that unless the possession was coupled with requisite mental element, i.e. conscious possession and not mere custody without awareness of the nature of such possession, Section 20 is not attracted.
22. The expression 'possession' is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Superintendent & Remembrancer JUDGMENT 60 CCH-33 SPL. C C No.662/2021 of Legal Affairs, West Bengal v. Anil Kumar Bhunja and Ors. (AIR 1980 SC 52), to work out a completely logical and precise definition of "possession" uniformally applicable to all situations in the context of all statutes.
23. The word 'conscious' means awareness about a particular fact. It is a state of mind which is deliberate or intended.
24. As noted in Gunwantlal v. The State of M.P. (AIR 1972 SC 1756) possession in a given case need not be physical possession but can be constructive, having power and control over the article in case in question, while the person whom physical possession is given holds it subject to that power or control.
23. The word 'possession' means the legal right to possession (See Health v. Drown (1972) (2) All ER 561 (HL). In an interesting case it was observed that where a person keeps his fire arm in his mother's flat which is safer than his own home, he must be considered to be in possession of the same. (See Sullivan v. Earl of Caithness.) JUDGMENT 61 CCH-33 SPL. C C No.662/2021
26. Once possession is established the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles. The facts of the above case is almost all similar to facts of the present case. The law laid down by the Hon'ble Apex Court aptly applicable to the case on hand. Though the witness i.e., P w-2 was cross examined at length nothing useful has been extracted from his mouth to discredit his version with regard to seizure of contraband from A-1 to 3.
12(j). Further investigating officer Mr. P Sivarao has been examined before the Court as P w-5. He has deposed that he had received C D R details of the mobile phones of all the accused herein JUDGMENT 62 CCH-33 SPL. C C No.662/2021 and showed that they were in touch with one another. He denies the suggestion that there was no WhatsApp conversation/chat between A -1 and A-2. He deposes during the course of cross examination that A-2 travelled with A-1 and A-3 in the car and they all knew about contraband kept in the car. He further deposed that there were regular telephone correspondence between A -1 to A-3 and there were WhatsApp chats between them.
12(k). The testimony of P w-2 & 5 in respect of recovery makes it clear that they have stood firm on their deposition and very well withstood the test of cross examination and no material contradiction has surfaced in their cross examination to doubt their version regarding the search & recovery proceedings.
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13. DISCUSSION ON THE POINTS OF SEIZURE OF CONTRABAND, PROCEEDINGS REGARDING DRAWING OF SAMPLE AND COMPLIANCE OF SECTION 55 OF THE NDPS ACT.
13(a). P w-2 seized the articles under the mahazar. The P w-2 identifies the said mahazar as Ex. P-10 and his signature has been marked as Ex. P-10(a). He identifies the sample contraband before the Court and seized packing materials as M.Os. 1 to 3. He also identifies the A-2 before the Court.
13(b). P w-2 denies the suggestion that except the pancha(independent witnesses) witnesses, at the time of drawing the seizure mahazar, other public persons were also present. This suggestion indicates that at the spot/place of occurrence " Mahazar " was drawn and independent witnesses were also present. The P w-1 also deposed that he obtained signatures of the accused at the time of drawing mahazar. This assertion has not JUDGMENT 64 CCH-33 SPL. C C No.662/2021 been challenged during the course of cross examination in any manner. Though, this witnesses was cross examined, even remotely, no suggestion was put to him that he had not been to place of occurrence, not drawn the mahazar and not recovered any contraband/articles/documents. In the cross examination nothing is brought out to disbelieve his presence at the time of seizure.
13(c). INVESTIGATION :
According to the prosecution P w-2 recorded the statements of A-1 to A-3 and identified the statements at Ex. P-18 to 20. He further deposed that on 12-11- 2020 produced the seized property before the Learned Magistrate, Devanahalli along with requisition to prepare inventory and certification. It is further case of the prosecution that C w-3 i.e., P Sivarao was the further investigating officer and who was examined before the Court as P w-5. He deposes that he JUDGMENT 65 CCH-33 SPL. C C No.662/2021 recorded the statements of C w-5 & 6 as per Ex. P-30 & 31 respectively. He deposes that he received report from C R C L, New Delhi on 23-12-2020 and he identified the same as per Ex. P-34. He also came to know that a criminal case in Crime No. 46/2016 was pending against A-2 and he identifies that document as Ex. P-49.
13(d). On analysis of C D R data, he came to know that A-1 to 3 were/are in contact through Calls, WhatsApp chats. He obtained C A F form of the mobiles seized from A-1 to 3. He collected the bank details from the bank concerned and money transaction receipts. He also collected the documents in respect of vehicle from authority concerned.
13(e). On going through the entire cross examination of these witnesses, the learned defence counsel could not get any useful admission from this witness. No material surfaced in their cross JUDGMENT 66 CCH-33 SPL. C C No.662/2021 examination to doubt their version regarding investigation.
14. C F S L REPORT 14(a). The learned Special Public Prosecutor relies on Ex. P-34, Test Report and contends that as per the said report, the sample answered positive for Hashish Oil. The learned Special Prosecutor submits that the sample was sent to CRCL through Speed Post and relies on Ex. P-28.
14(b). This Court perused the Ex. P-34. It is dated 23-12-2020. One Sri. Ajay Kumar, Assistant Chemical Examiner and Dr. Purnima Mishra, Chemical Examiner Gr. I gave this report. There is a reference in respect of packing details. According to it, Article was sealed with seal impression which was intact and tallied with the specimen seal sent by the I O/ test memo. It refers that respective tests on the sample article was done. The F S L report at Ex. P-34 is admissible JUDGMENT 67 CCH-33 SPL. C C No.662/2021 under Sec. 293 of Cr. P. C to conclude that sample gave positive for Hashish Oil.
15. DISCUSSION ON THE POINT OF COMPLIANCE OF SECTION 52A OF THE NDPS ACT 15(a). The learned defence counsel contended that complaint stood vitiated because of the non- compliance of Section 52-A of the NDPS, Act. They submit that sample was not drawn in the presence of the learned Magistrate & there is a delay in sending the sample drawn article to the F S L for chemical analysis. The learned counsel appearing for the accused placed strong reliance on the following decisions of the Hon'ble Apex Court to make good their submission that non-compliance of Section 52A of NDPS Act along with the relevant rules would vitiate the entire trial.
1. State of Rajasthan Vs. Tara Singh.
2. Union of India Vs. Bal Mukund and others
3. (2016) 3 S C C 379 in between Union of India Vs. Mohanlal and another.
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4. (2008) 16 S C C 417 in between Noor Aga Vs. State of Punjab and another.
5. 2023 SCC Online S C 906 in between Simarnjit Singh Vs. State of Punjab. Most of these citations have been considered by the Hon'ble Apex Court in the following two decisions and laid down guidelines :-
1. 2024 S C C OnLine S C 3848 in between Narcotics Control Bureau Vs. Kashif.
2. 2025 S C C OnLine S C 110 in between Bharat Aambale Vs. State of Chhattisgarh.
15(b). The Hon'ble Apex Court, reported in 2024 S C C OnLine S C 3848 in between Narcotics Control Bureau Vs. Kashif, held that, any lapse or delay in compliance of Section 52A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) would not vitiate the trial. The Court will have to consider other circumstances and the other primary JUDGMENT 69 CCH-33 SPL. C C No.662/2021 evidence collected during the course of investigation, as also the statutory presumption permissible under Section 54 of the NDPS Act. The Hon'ble Apex also said that Section 52A NDPS Act was inserted for an early disposal of the seized narcotic drugs and psychotropic substances, having regard to the hazardous nature, vulnerability to theft, substitution, constraints of proper storage space, and other relevant considerations. The paragraphs Nos. 31 to 39 are very important and the same have been reproduced herewith for easy understanding-
31. From the above decisions, the position that emerges is that this Court in catena of decisions, has approved the procedure of spot searches and seizures in compliance with the Standing Orders and the Notifications issued by the NCB and the Central Government, and upheld the convictions on being satisfied about the search and seizure made by the officers as per the provisions of the Act and being satisfied about the scientific evidence of F.S.L. reports etc. Even otherwise, in view of the law JUDGMENT 70 CCH-33 SPL. C C No.662/2021 laid down by the Constitution Benches in case of Pooran Mal and in case of Baldev Singh, any procedural illegality in conducting the search and seizure by itself, would not make the entire evidence collected thereby inadmissible. The Court would have to decide the admissibility of evidence in the context and the manner in which the evidence was collected and was sought to be used during the course of trial. The evidence collected during the course of investigation in legal and proper manner and sought to be used in the course of trial with regard to the seized contraband substance could not be simply brushed aside, on the ground of procedural irregularity if any, committed by the concerned officer authorized in making application to the Magistrate as contemplated under Section 52A of the Act.
32. Significantly, the Authorized Officer can make the application under subsection (2) of Section 52A for three purposes - (a) for certifying the correctness of the inventory prepared by him; or (b) taking in presence of such magistrate, photographs of the seized drugs, substances and conveyances and JUDGMENT 71 CCH-33 SPL. C C No.662/2021 certifying such photographs as true; or (c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate, and certifying the correctness of any list of samples so drawn. The use of the conjunction "OR" made in between the three purposes mentioned therein, itself makes it explicitly clear that the purposes for which the application could be made under sub-section (2) are alternative and not cumulative in nature. Such provision specifying multiple alternative purposes could not be construed as a mandatory provision muchless its non- compliance fatal to the case of prosecution.
33. Though it is true that the inventory certified, photographs taken and the list of samples drawn under sub-section (2) has to be treated by the Court as primary evidence in view of sub-section (3), nonetheless the documents like Panchnama, seizure memo, arrest memo etc. prepared by the Investigating Officer on the spot or during the course of investigation are also primary evidence within the meaning of Section 62 of the Evidence Act, carrying the same JUDGMENT 72 CCH-33 SPL. C C No.662/2021 evidentiary value as any other primary evidence. Such primary evidence with regard to Search and Seizure of the contraband substance could not be overlooked merely because some lapse or non-compliance is found of Section 52A of the Act.
34. In our opinion reliance placed by the High Court on the decision of this Court in Union of India Vs. Mohanlal and Another, is thoroughly misplaced. In the said case, the issue of pilferage of contraband was the main issue. The Court after noticing the non-compliance of the procedure laid down in the Standing Order No. 1 of 89 dated 13.06.1989, and the possibility of the pilferage of contraband goods and their return to the market place for circulation, had appointed an amicus curiae for making a realistic review of the procedure for search, disposal or destruction of the narcotics and remedial steps that need to be taken to plug the loopholes, if any. The Court, thereafter, had raised the queries with regard to the seizure, storage, disposal/destruction and also with regard to the judicial supervision in respect of the seized narcotic drugs and JUDGMENT 73 CCH-33 SPL. C C No.662/2021 psychotropic substances. The prime focal in case of Mohanlal was the disposal of seized contraband goods as contemplated in Section 52A. Though it held that the process of drawing samples has to be done in presence of and under the supervision of the Magistrate, it nowhere held that non-compliance or delayed compliance of the procedure prescribed under Section 52A (2) would vitiate the trial or would entitle the accused to be released on bail.
35. None of the provisions in the Act prohibits sample to be taken on the spot at the time of seizure, much less Section 52A of the said Act. On the contrary, as per the procedure laid down in the Standing Orders and Notifications issued by the NCB and the Central Government before and after the insertion of Section 52A till the Rules of 2022 were framed, the concerned officer was required to take samples of the seized contraband substances on the spot of recovery in duplicate in presence of the Panch witnesses and the person in whose possession the drug or substance recovered, by drawing a Panchnama. It was only with regard to the remnant substance, the JUDGMENT 74 CCH-33 SPL. C C No.662/2021 procedure for disposal of the said substance was required to be followed as prescribed in Section 52A.
36. At this stage, we must deal with the recent judgments in case of Simarnjit vs. State of Punjab, (Criminal Appeal No.1443/2023), in case of Yusuf @ Asif vs. State (2023 SCC Online SC 1328), and in case of Mohammed Khalid and Another vs. State of Telangana ((2024) 5 SCC 393) in which the convictions have been set aside by this Court on finding non-compliance of Section 52A and relying upon the observations made in case of Mohanlal. Apart from the fact that the said cases have been decided on the facts of each case, none of the judgments has proposed to lay down any law either with regard to Section 52A or on the issue of admissibility of any other evidence collected during the course of trial under the NDPS Act. Therefore, we have considered the legislative history of Section 52A and other Statutory Standing Orders as also the judicial pronouncements, which clearly lead to an inevitable conclusion that delayed compliance or noncompliance of Section 52A JUDGMENT 75 CCH-33 SPL. C C No.662/2021 neither vitiates the trial affecting conviction nor can be a sole ground to seek bail. In our opinion, the decisions of Constitution Benches in case of Pooran Mal and Baldev Singh must take precedence over any observations made in the judgments made by the benches of lesser strength, which are made without considering the scheme, purport and object of the Act and also without considering the binding precedents.
37. It hardly needs to be reiterated that every law is designed to further ends of justice and not to frustrate it on mere technicalities. If the language of a Statute in its ordinary meaning and grammatical construction leads a manifest contradiction of the apparent purpose of the enactment, a construction may be put upon it which modifies the meaning of the words, or even the structure of the sentence. It is equally settled legal position that where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftsman's unskillfulness or ignorance of the law. In Maxwell on Interpretation of Statutes, JUDGMENT 76 CCH-33 SPL. C C No.662/2021 Tenth Edition at page 229, the following passage is found: -
"Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence. Where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftsman's unskilfulness or ignorance of the law, except in a case of necessity, or the absolute intractability of the language used."
38. As observed by this Court in K.P. Varghese vs. Income Tax Officer, Ernakulam and Another8, a statutory provision must be so construed, if it is possible, that absurdity and mischief may be avoided. Where the plain and literal interpretation of statutory provision produces a manifestly absurd and unjust JUDGMENT 77 CCH-33 SPL. C C No.662/2021 result, the Court may modify the language used by the Legislature or even do some violence to it, so as to achieve the obvious intention of the Legislature and produce a rational construction and just result.
39. The upshot of the above discussion may be summarized as under:
(i) The provisions of NDPS Act are required to be interpreted keeping in mind the scheme, object and purpose of the Act; as also the impact on the society as a whole. It has to be interpreted literally and not liberally, which may ultimately frustrate the object, purpose and Preamble of the Act.
(ii) While considering the application for bail, the Court must bear in mind the provisions of Section 37 of the NDPS Act which are mandatory in nature. Recording of findings as mandated in Section 37 is sine qua non is known for granting bail to the accused involved in the offences under the NDPS Act.
(iii) The purpose of insertion of Section 52A laying down the procedure for disposal of JUDGMENT 78 CCH-33 SPL. C C No.662/2021 seized Narcotic Drugs and Psychotropic Substances, was to ensure the early disposal of the seized contraband drugs and substances. It was inserted in 1989 as one of the measures to implement and to give effect to the International Conventions on the Narcotic drugs and psychotropic substances.
(iv) Sub-section (2) of Section 52A lays down the procedure as contemplated in sub-section (1) thereof, and any lapse or delayed compliance thereof would be merely a procedural irregularity which would neither entitle the accused to be released on bail nor would vitiate the trial on that ground alone.
(v) Any procedural irregularity or illegality found to have been committed in conducting the search and seizure during the course of investigation or thereafter, would by itself not make the entire evidence collected during the course of investigation, inadmissible. The Court would have to consider all the circumstances and find out whether any serious prejudice has been caused to the accused.
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(vi) Any lapse or delay in compliance of Section 52A by itself would neither vitiate the trial nor would entitle the accused to be released on bail. The Court will have to consider other circumstances and the other primary evidence collected during the course of investigation, as also the statutory presumption permissible under Section 54 of the NDPS Act.
15(c). The Hon'ble Apex Court, reported in 2025 S C C OnLine S C 110 in between Bharat Aambale Vs. State of Chhattisgarh, held that, mere non-compliance of the procedure under Section 52A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) will not be fatal to the trial unless there are discrepancies in the physical evidence. The Hon'ble Apex Court has observed, "Mere non- compliance of the procedure under Section 52A or the Standing Order(s) / Rules thereunder will not be fatal to the trial unless there are discrepancies in the physical evidence rendering the prosecution's case JUDGMENT 80 CCH-33 SPL. C C No.662/2021 doubtful, which may not have been there had such compliance been done. Courts should take a holistic and cumulative view of the discrepancies that may exist in the evidence adduced by the prosecution and appreciate the same more carefully keeping in mind the procedural lapses."
15(d). The Honb'le Apex Court held further that although Section 52A of NDPS Act is primarily for the disposal and destruction of seized contraband in a safe manner yet it extends beyond the immediate context of drug disposal, as it serves a broader purpose of also introducing procedural safeguards in the treatment of narcotics substance after seizure inasmuch as it provides for the preparation of inventories, taking of photographs of the seized substances and drawing samples therefrom in the presence and with the certification of a Magistrate.
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15(e). The Hon'ble Apex Court added that
where there has been lapse on the part of the police in either following the procedure laid down in Section 52A of the NDPS Act or the prosecution in adequately proving compliance of the same, it would not be appropriate for the Courts to resort to the statutory presumption of commission of an offence from the possession of illicit material under Section 54 of the NDPS Act, unless the Court is otherwise satisfied as regards the seizure or recovery of such material from the accused persons from the other material on record. Similarly, irrespective of any failure to follow the procedure laid under Section 52A of the NDPS Act, if the other material on record adduced by the prosecution inspires confidence and satisfies the Court regarding both the recovery and possession of the contraband from the accused, then even in such cases, the Courts can without hesitation proceed for conviction JUDGMENT 82 CCH-33 SPL. C C No.662/2021 notwithstanding any procedural defect in terms of Section 52A of the NDPS Act.
15(f). In paragraph No. 47 it has been held as-
Wherever any non-compliance or contravention of either the provision or the Rules / Standing Order(s) thereunder is alleged, the same must be something tangible and not a mere bald assertion or superficial claim. The accused must impute something palpable to make good its case that there has been non-compliance of the mandate of the said provision.
The Hon'ble Apex Court observed that mere assertion by the accused that there has been non-compliance of the said provision may not be sufficient and the initial burden will always be on the accused to lay down the foundational facts for establishing that there has been a non-compliance of Section 52A of the NDPS Act, either by leading evidence of their own or by relying upon the evidence of the prosecution itself such as by putting JUDGMENT 83 CCH-33 SPL. C C No.662/2021 direct and specific questions to the police officers and key witnesses.
The Hon'ble Apex Court, therefore, summarized the following points -
(I) Although Section 52A is primarily for the disposal and destruction of seized contraband in a safe manner yet it extends beyond the immediate context of drug disposal. Mere drawing of samples in presence of a gazetted officer would not constitute sufficient compliance of the mandate under Section 52A sub-section (2) of the NDPS Act.
(II) Although, there is no mandate that the drawing of samples from the seized substance must take place at the time of seizure, yet the process of inventorying, photographing and drawing samples of the seized substance shall as far as possible, take place in the presence of the accused, though the same may not be done at the very spot of seizure.
(III) Any inventory, photographs or samples of seized substance prepared in substantial JUDGMENT 84 CCH-33 SPL. C C No.662/2021 compliance of the procedure prescribed under Section 52A of the NDPS Act and the Rules / Standing Order(s) thereunder would have to be mandatorily treated as primary evidence as per Section 52A sub-section (4) of the NDPS Act, irrespective of whether the substance in original is actually produced before the court or not.
(IV) The procedure prescribed by the Standing Order(s) / Rules in terms of Section 52A of the NDPS Act is only intended to guide the officers and to see that a fair procedure is adopted by the officer in-charge of the investigation, and as such what is required is substantial compliance of the procedure laid therein. (V) Mere non-compliance of the procedure under Section 52A or the Standing Order(s) / Rules thereunder will not be fatal to the trial unless there are discrepancies in the physical evidence.
(VI) If the other material on record adduced by the prosecution, oral or documentary inspires confidence and satisfies the Court as regards the recovery as-well as conscious possession of JUDGMENT 85 CCH-33 SPL. C C No.662/2021 the contraband from the accused persons, then even in such cases, the Courts can without hesitation proceed to hold the accused guilty notwithstanding any procedural defect in terms of Section 52A of the NDPS Act.
(VII) Non-compliance or delayed compliance of the said provision or rules thereunder may lead the Court to drawing an adverse inference against the prosecution, however no hard and fast rule can be laid down as to when such inference may be drawn, and it would all depend on the peculiar facts and circumstances of each case.
(VIII) Where there has been lapse on the part of the police in either following the procedure laid down in Section 52A of the NDPS Act or the prosecution in proving the same, it will not be appropriate for the Court to resort to the statutory presumption of commission of an offence from the possession of illicit material under Section 54 of the NDPS Act, unless the Court is otherwise satisfied as regards the seizure or recovery of such material from the accused persons from the other material on record.
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(IX) The initial burden will lie on the accused to first lay the foundational facts to show that there was non-compliance of Section 52A, either by leading evidence of its own or by relying upon the evidence of the prosecution, and the standard required would only be preponderance of probabilities.
(X) Once the foundational facts laid indicate non-compliance of Section 52A of the NDPS Act, the onus would thereafter be on the prosecution to prove by cogent evidence that either (i) there was substantial compliance with the mandate of Section 52A of the NDPS Act OR (ii) satisfy the Court that such non- compliance does not affect its case against the accused, and the standard of proof required would be beyond a reasonable doubt. 15(g). As per the prosecution case, the P w-2 recovered and seized the contraband from the car of the accused A-1 to 3 i.e., 3 kgs., of Hashish Oil on 09- 11-2020. He put the said contraband in a plastic container, wrapped with brown adhesive tape and it JUDGMENT 87 CCH-33 SPL. C C No.662/2021 was wrapped with markin clothe and it was sealed with Bangalore NCB Seal No. 4. On the same day he handed over the seized contraband to Malkaha in charge official with forwarding memo and received the godown receipt. He identifies the forwarding memo, godown receipt, and Malkana Register Extract at Ex. P-2, 3, and 5 respectively. He further deposes that he prepared inventory and sent the seized articles to the Learned Magistrate, Devanahalli on 12-11-2020 and obtained the certificate and sample for chemical analysis. He sent the sample to Chemical Examiner, CRCL, New Delhi on 13-11-2020. He identifies the inventory certificate, photographs at Ex. P-20 & 21. These things/facts have not been disputed during the course of cross examination by the learned counsel for A-2 in any manner.
15(h). The P w-2 admits the suggestion that one packet of Hashish Oil was produced before the Learned Magistrate for drawing sample. He volunteers JUDGMENT 88 CCH-33 SPL. C C No.662/2021 that all the Hashish Oil from the three packets were put in one plastic container and the said plastic container was produced before the Learned Magistrate for drawing sample. This fact has not been controverted in any manner. Thus, it can be said that there has been no procedural lapse in terms of the Sec. 52A of NDPS Act, rather it appears that P w-2 has followed the process prescribed thereunder that was in force at the time of seizure and sampling.
16. DISCUSSION ON THE POINT OF COMPLIANCE OF SECTION 57 OF THE NDPS ACT 16(a). The defence counsel argued that, there is non- compliance of Section 57 of the Act. They submit under it, an obligation is cast on the prosecution while making an arrest or seizure, the officer should make full report of all particulars of such arrest or seizure and send it to his immediate superior officer within 48 hours of such arrest or seizure. The argument JUDGMENT 89 CCH-33 SPL. C C No.662/2021 is, this has not been done. Hence the entire case vitiates.
16(b). The learned Special Public Prosecutor placed reliance on Ex. P-6, raid success report and contended that Sec. 57 of the N D P S Act has been complied with. The Ex. P-6 is dated 10.11.2020. It is received by Assistant Director, NCB BZU. P w-2 & 1 deposed before the Court to that effect. P w-2 deposes that on the date of arrest itself, he has sent Ex. P-7, arrest report, Ex. P-14 to 17, Arrest Memo dated 10- 11-2020. Though, this witness was cross examined, there is no focus on Ex. P-6, 7, & 14 to 17. Even remotely, no suggestion was put to him that he had not sent the Ex. P-6, 7, & 14 to 17 to his higher officer.
16(c). The section 57 is not mandatory in nature. When substantial compliance has been made, as in the present case it would not vitiate the prosecution case. Thus this Court does not find any violation of Section 57 of the Act.
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16(d). The Hon'ble Supreme Court in Mohan
Lal Vs. State of Rajasthan reported in AIR 2015 S C 2098 in paragraph 34, relying upon its earlier decisions in the matters of State of Punjab v. Balbir Singh, has held that Section 57 is not mandatory in nature and when substantial compliance is made, it would not vitiate the prosecution case.
16(e). In the instant case, the prosecution has been able to demonstrate as per Ex. P-6, 7, & 14 to 17 that substantial compliance of the provision contained in Section 57 of the NDPS Act has been made. Therefore, the argument raised on the basis of Section 57 is rejected.
17. DISCUSSION ON THE POINT OF INDEPENDENT WITNESSES.
17(a). During the course of arguments, learned defence counsel submitted that the prosecution case is highly doubtful as no public witness has been joined during the entire investigation and the so called JUDGMENT 91 CCH-33 SPL. C C No.662/2021 independent witnesses i.e., C w-5 & 6 have not supported the prosecution case. He also submitted that the prosecution case solely rests on the testimonies of N C B officials who are not reliable and creditworthy being interested witnesses.
17(b). According to the prosecution, Cw-5, Murali B.M. was one of the independent witnesses to the raid and seizure procedure. He was examined before the Court on 28-12-2024 as P w-3. He deposes that he has been working in Toll Plaza near Devanhalli Air-Port. He deposes that NCB officers visited him on 9-11-2020 at around 12.00 p.m. He further deposes that they had shown their identity cards and obtained his signatures. He identifies his signatures on Ex. P- 10(Mahazar), & 30(statement). The prosecution has treated this witness as hostile and cross examined. Though this witness was cross examined, nothing elicited from his mouth in respect of search and seizure.
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17(c). According to the prosecution, Cw-6, M.
Pavan Kumar was an independent witness to the raid and seizure procedure. He was examined before the Court on 10-01-2025 as P w-4. He deposes that he has been working in Toll Plaza near Devanhalli Air-Port. He deposes that NCB officers visited him on 9-11-2020 at around 12.00 p.m. He further deposes that they had shown their identity cards and obtained his signatures. He identifies his signatures on Ex. P-10(Mahazar), & 31(statement). The prosecution has treated this witness as hostile and cross examined. Though this witness was cross examined, nothing elicited from his mouth in respect of search and seizure.
17(d). Admittedly, these two witnesses have not been cross examined by the learned defence counsel. According to these witnesses, the N C B officials visited the Toll Plaza on 9-11-2020 around 12.00 p.m. is proved. P w-2 denied the suggestion that except the pancha witnesses at the time of JUDGMENT 93 CCH-33 SPL. C C No.662/2021 drawing the mahazar, other public persons were also present. It means that these independent witnesses were present at the time of drawing up of mahazar at Ex. P-10. Admittedly, these two witnesses were educated persons and working in Toll Plaza. Their signatures on Ex. P-10 and statements have been admitted by them. They did not offer any convincing explanation for affixing their signatures on Ex. P-10 and statements. No ordinary educated person would simply sign on any document without going through its contents. An inference that can be drawn is that these two witnesses have affixed their signatures only after coming to know its contents and they are not supporting the case of the prosecution. It is also not uncommon that these days general public are generally reluctant to become part of the investigation.
17(e). Hostility of independent witnesses itself is not a reason to disbelieve the reliable evidence of official witnesses. It is well settled law that the JUDGMENT 94 CCH-33 SPL. C C No.662/2021 evidence of NCB officials cannot be doubted unless previous enmity between accused and the NCB officials is shown. In the absence of any animosity between the accused and official witnesses, there is nothing wrong in relying upon their testimonies and accepting the documents placed for basing conviction. After taking into account the entire material relied upon by the prosecution there is no animosity established on the part of the official witnesses by the A-2 in defence and this Court did not find any infirmity in the present case.
17(f). On scanning the testimony of the material witnesses i.e., P.W.1, 2, & 5, it reveals that crucial facts deposed by them in the examination in chief have remained unchallenged and uncontroverted. Mere suggestions were put in the cross examination denying the A-2; apprehension and recovery from A-1 to A-3's conscious possession, no ulterior motive whatsoever was assigned to the PW.2 and 5 for falsely implicating the A-2 along with A-1 & A-3. Admittedly, JUDGMENT 95 CCH-33 SPL. C C No.662/2021 A-2 is not from Bangalore / Karnataka. He is a resident of Kerala. In the absence of any prayer animosity or ill-will, the P.W.2 & 5 who had no familiarity with any of the accused, was not expected to falsely implicate them in this serious case. No material infirmity have been extracted in the cross examination of these witnesses to suspect the version given by them. In 'Ramjee Rai Vs., State of Bihar reported in (2006) 13 SCC 229 the Hon'ble Apex Court has opined as follows:-
"it is now well settled that what is necessary for proving the prosecution case is not the quantity but quality of the evidence. The Court cannot over look the changes in the value system in the society. When an offence is committed in a village owing to land dispute, the independent witness may not come forward".
17(g). According to the learned counsel for A- 2 there were general public near the Devanahalli Toll Plaza and no one was examined or could have made as JUDGMENT 96 CCH-33 SPL. C C No.662/2021 an independent witnesses. As we know that Devanahalli Toll Plaza is near the Airport. Most of the passengers are commuters would be having their own business and they would be busy reaching the Airport or to their destiny. They would not have patience to come and witness the search and seizure mahazar and expecting them to come to the court and depose is highly impossible. In such a circumstances this court cannot find fault with the investigation officer for not securing the independent witness at the spot.
18. PRESUMPTION UNDER SECTION 35 & 54 OF THE NDPS ACT The learned Special Public Prosecutor sought to rely on the legal presumption envisaged in Sec. 35 & 54 of the Act. Section 35 reads thus.
35. Presumption of culpable mental state.--
(1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the JUDGMENT 97 CCH-33 SPL. C C No.662/2021 existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.
Explanation: In this section "culpable mental state" includes intention, motive knowledge of a fact and belief in, or reason to believe, a fact.
(2) For the purpose of this section, a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability.
Section 54 reads thus.
54. Presumption from possession of illicit articles.--
In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of--
(a) any narcotic drug or psychotropic substance or controlled substance;
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(b) any opium poppy, cannabis plant or
coca plant growing on any land which he has cultivated;
(c) any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance or controlled substance; or
(d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured, for the possession of which he fails to account satisfactorily.
18(a). Now, it is relevant to refer herein certain presumption as contemplated under Section 35 of the NDPS Act. According to Section 35 of the Act, in any prosecution for an offence under this Act which requires a culpable mental state of the accused, the JUDGMENT 99 CCH-33 SPL. C C No.662/2021 Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. The explanation of the above shows that "culpable mental state‟ includes intention, motive knowledge of a fact and belief in, or reason to believe a fact. The Hon‟ble Supreme Court in catena of decision held that once possession is established, then the person who claims that it was not a conscious possession has to establish it because how he came to be in possession is within his special knowledge. Bashir Ahmed Zaroo Vs. State of J & K 2013 (3) SriLj 877 is useful decision on this point.
18(b). According to Section 54 of the NDPS Act, it contemplates certain presumptions. According to the said section in trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused committed the offence under this Act in JUDGMENT 100 CCH-33 SPL. C C No.662/2021 respect of any narcotic drug or psychotropic substance or controlled substance for the possession of which he fails to account satisfactorily.
18(c). It is no doubt true that the presumption under Section 54 of the NDPS Act and the presumption under Section 35 would arise after the prosecution discharged its burden to prove the recovery of the contraband from the accused.
18(d). This Court has recorded statement under section 313 of Cr.P.C. In the said statement accused (A-2) did not give plausible explanation to the incriminating circumstances proved against him. The Hon'ble Apex Court in Ganesh lal Vs., State of Rajasthan reported in 2002 (1) SCC 731 had convincingly clarified the hesitation when it held that :-
If an accused fails to offer any explanation for his possession of the stolen property in a case built solely on circumstantial evidence that JUDGMENT 101 CCH-33 SPL. C C No.662/2021 would held the trial court to draw an inference against the accused in the case, the fact omitted by him to answer being one within his exclusive knowledge. Therefore, a dual purpose is contemplated by the examination of the accused U/s.313 (1)(b) of Cr.P.C., rather than offering an opportunity to the accused to explain incriminatory circumstances against him, it would also help the court in the matter of appreciation of the entire evidence adduced during trial, on the basis of the answer furnished. (Rathan Singh Vs., HP, AIR 1997 SC 768) Here in the present case, during the course of recording 313 statement, accused (A-2) herein has failed to give plausible explanation as to how he was in possession of the contraband. Except denial of incriminatory statement made against him there is no explanation by him in regard to his false implication in the case.
18(e). It is pertinent to note that as provided U/s. 54 of the NDPS Act which lays down a rule of statutory presumption and rule of evidence which JUDGMENT 102 CCH-33 SPL. C C No.662/2021 empowers the court to raise a presumption against the accused that until and unless contrary is proved that the accused has committed an offence under Chapter IV of the said Act in respect of possession of any Narcotic Drugs and Psychotropic Substances, possession of which he fails to account satisfactorily. The object of Sec. 54 is to lighten the burden less on the prosecution to prove every ingredients of the offence under Chapter IV by calling in aid the presumption under Sec. 54 of the said Act. The object behind this provision is to subordinate the interest of an ordinary citizen to the wider social and economic interest of the community and the needs of the law enforcement agencies. The stage for raising the presumption arises when the prosecution proves that the accused had dealt with or had physical possession of the contraband drug. If the accused is found to be in possession of the narcotic drug, it is for him to account for such possession satisfactorily JUDGMENT 103 CCH-33 SPL. C C No.662/2021 otherwise the presumption under section 54 comes into play. N D P S Act provides for a reverse burden of proof upon accused, contrary to normal rule of criminal jurisprudence for presumption of innocence unless proved guilty. This however does not dispense with requirement of prosecution to have first establish a prima facie case, only where after, burden will shift to accused. Mere registration of a case under N D P S Act will not ipso facto shift burden on to accused from the very inception. Compliance with statutory requirements and procedures shall have to be strict and scrutiny stringent. If there is any iota of doubt, benefit shall have to be given to accused.
18(f). The accused No.2 has not able to disprove the material facts brought out by the prosecution in the form of evidence. The prosecution is able to prove that the accused No.2 was in conscious possession of illegal drugs & psychotropic substances i.e., 3 Kgs., of Hashish Oil without any permit or licence JUDGMENT 104 CCH-33 SPL. C C No.662/2021 by placing cogent and convicting evidence before the Court.
18(g). This Court has gone through the testimony of four material prosecution witnesses ( Pw- 2, 3, 5 & 6) and finds that the seizure of contraband narcotic drug, i.e., Hashish Oil weighing 3 Kgs., from the accused No.2 conscious possession has been established by these witnesses in their own testimony and is corroborated by documents which were exhibited by them and so also the material object. These witnesses have faithfully deposed about the whole process beginning from the receipt of the credible information, summoning of the panchas, raid at Devanahalli Toll Plaza, followed by search of car, the seizure effected and the panchanama proceedings, followed by the transmission of the sample to the CFSL in sealed condition. The search and seizure procedure is free from all doubts. In these circumstances, this Court is of the view that the prosecution has duly JUDGMENT 105 CCH-33 SPL. C C No.662/2021 proved guilt of the accused No.2 beyond all manner of doubt by leading convincing and satisfactory evidence. This Court is of the considered view, that, the prosecution discharged its burden about the recovery of contraband from the conscious possession of the accused No.2. In such circumstances, it is for the accused No.2 to prove the contrary. The accused No.2 had no semblance of say much less probable say to prove contrary. Therefore, the presumption available by application of logic flowing from Sections 35 & 54 of the NDPS Act clearly applies to the facts of the present case.
18(h). The learned Special Prosecuted stated that there was ample evidence brought on record by the NCB officers for indicting A-4 & 5. He asserted that none of the witnesses produced by the NCB officers were planted, as alleged by the learned counsel for the accused Nos. 4 & 5. That police/prosecution has successfully established a prima facie case against the JUDGMENT 106 CCH-33 SPL. C C No.662/2021 A-4 & 5 whereafter the burden has shifted on them to prove their innocence and that they have miserably failed to discharge the said burden; that the prosecution has amply proved the foundational facts to attract the rigors of the Act.
18(i). The prosecution has to establish beyond reasonable doubt by adducing convincing and acceptable evidence the charges leveled against the accused 4 & 5. The evidence of the investigating officials can be accepted if there are no flaws in their evidence or if there is evidence conclusively to prove the guilt of the accused No. 4 & 5 for the charged offences, beyond reasonable doubt.
18(j). A perusal at the charge- sheet/complaint materials and the evidence of
prosecution would indicate that no recovery of illegal drugs was made from the hands of the accused No. 4 & 5.
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18(k). The Learned counsel for the Accused
Nos. 4 & 5, argued that case has been registered
against A-4 & 5 solely on the basis of the purported statements of alleged confession made by the co- accused, A-1 to 3 which is no longer admissible in law, in the light of the decision of the Hon'ble Apex Court in the case of TOFAN SINGH Vs. STATE OF TAMIL NADU.
18(l). It becomes necessary to refer to the judgment relied on by the learned Counsel for accused No. 4 & 5 of the Hon'ble Apex Court in the case of TOFAN SINGH Vs. STATE OF TAMIL NADU reported in (2021) 4 SCC 1 wherein the Hon'ble Apex Court holds as follows :-
.... .... ....
158. 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 JUDGMENT 108 CCH-33 SPL. C C No.662/2021 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."
The Apex Court has held that a voluntary or a confession statement made under Section 67 of the NDPS Act cannot be used to pin the accused down for the offences under the NDPS Act.
18(m). The Hon'ble Apex Court in the above decision re-examined the ratio of Kanhaiyalal Vs. Union of India reported in (2008) 4 SCC 668 and Raj Kumnar Karwal Vs. Unior of India reported in (1990) 2 SCC 409 to decide as to whether the officer investigating a matter under the N D P S Act would JUDGMENT 109 CCH-33 SPL. C C No.662/2021 qualify as a 'police officer' or not. The other related issue which was examined by the Hon'ble Apex Court is whether the statement recorded by the investigating officer under Section 67 of the NDPS Act can be treated as a confessional statement or not even if the officer is not treated as a "police officer".
18(n). After a detailed examination of the legal position in the light of the provisions of the NDPS Act, vis-a-vis revenue Statutes like the Customs Act, 1962 and the Central Excise Act, 1944 as also the Cr.P.C and Section 25 of the Evidence Act, arrived at the following conclusion:
.....
155. Thus, to arrive at the conclusion that a confessional statement made before an officer designated under Section 42 or Section 53 can be the basis to convict a person under the NDPS Act, without any non obstante clause doing away with Section 25 of the Evidence Act, and without any safeguards, would be a direct infringement of the JUDGMENT 110 CCH-33 SPL. C C No.662/2021 constitutional guarantees contained in Articles 14, 20(3) and 21 of the Constitution of India.
156. The judgment in Kanhaiyalal [Kanhaiyalal v. Union of India, (2008) 4 SCC 668 :(2008) 2 SCC (Cri) 474] then goes on to follow Raj Kumar Karwal [Raj Kumar Karwal v. Union of India, (1990) 2 SCC 409 : 1990 SCC (Cri) 330] in paras 44 and 45. For the reasons stated by us hereinabove, both these judgments do not state the law correctly, and are thus overruled by us. Other judgments that expressly refer to and rely upon these judgments, or upon the principles laid down by these judgments, also stand overruled for the reasons given by us.
157. On the other hand, for the reasons given by us in this judgment, the judgments of Noor Aga [Noor Aga v. State of Punjab, (2008) 16 SCC 417 : (2010) 3 SCC (Cri) 748] and Nirmal Singh Pehlwan v. Inspector, Customs [Nirmal Singh Pehlwan v. Inspector, Customs, (2011) 12 SCC 298 : (2012) 1 SCC (Cri) 555] are correct in law.
.......
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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."
In view of the aforesaid decision that declares that any confessional statement made by an accused to an officer invested/vested with the powers under Section 53 of the NDPS Act, is barred for the reason that such officers are " police officers " within the meaning of Section 25 of the Evidence Act, a statement made by an accused and recorded under Section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the Act.
18(o). Now that it has been declared by the Hon'ble Apex Court in Tofan Singh's case that the judgments in the case of Kanahiyalal and Raj Kumar Karwal did not state the correct legal position and they stand overruled, the entire case set up by the prosecution against A-4 & 5, collapses like a House of JUDGMENT 112 CCH-33 SPL. C C No.662/2021 cards. It is not in dispute that A-4 & 5 were not apprehended by the NCB officials from the spot where the vigilance was mounted i.e., near the Devanhalli Toll Plaza, Bangalore. The version of the prosecution is that after A-1 to 3 were arrested, their statements were recorded under Section 67 of the NDPS Act wherein they subscribed a specific role of the co- accused A-4 & 5. The NCB officers claimed that they were on the lookout for A-4 & 5 .
18(p). Once the confessional statement of the co-accused, A-1 to 3 recorded by the NCB officers under Section 67 of the NDPS Act, who had attributed a role to A-4 & 5 and the subsequently recorded statements of A-4 & 5 itself under Section 67 of the NDPS Act are rejected in the light of the law laid down by the Hon'ble Apex Court, there is no other independent incriminating evidence that has been brought to the fore by the prosecution for convicting JUDGMENT 113 CCH-33 SPL. C C No.662/2021 A-4 & 5 under the Act. And as such, this point is answered in partly affirmative.
19. Point No. 2 :
In view of the Affirmative finding on Point Nos. 1, & 2, this Court proceeds to pass the following order...
::ORDER::
Acting under section 235(1) of the Criminal Procedure Code, 1973, the accused Nos. 4 & 5 are acquitted for the offences punishable under sections Sec.22(C), 27(a), & 27(b) of NDPS Act, 1985.
Acting under section 235(2) of the Criminal Procedure Code, 1973, the accused No. 2 is convicted for the offences punishable under sections Sec. Sec. 21(c) of NDPS Act, 1985.
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Office is directed to keep the entire records, documents and MOs in Split Up case i.e., Spl C C No. 2543/2023.
Office is directed to furnish copy of this judgment to the A-2 free of costs forthwith.
(Typed and computerized by me, corrected, signed and then pronounced by me in Open Court on this the 24th day of April 2025) (VIJAYA DEVARAJA URS) XXXIII ACC & SJ & SPL.JUDGE, (NDPS) BENGALURU.
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::ANNEXURE::
1. LIST OF THE WITNESS/ES EXAMINED FOR THE PROSECUTION :-
P-w.-1 C.W.-2 Sri. Venugopal G,
P-w.-2 C.W.-1 Sri. Kamlesh Kumar,
P-w.-3 C.W.-5 Sri. Murali B. M,
P-w.-4 C.W.-6 Sri. M. Pavan Kumar,
P-w.-5 C.W.-3 Sri. P. Sivarao.
2. LIST OF THE WITNESS/ES EXAMINED FOR THE DEFENCE :-
-NIL-
3. LIST OF THE DOCUMENTS EXHIBITED FOR THE PROSECUTION :-
Ex. P-1 : Information Report,
Ex. P-1(a) & : Signatures,
(b)
Ex. P-2 : Forwarding memo for
deposit of seized narcotic
drugs & psychotropic
substances,
Ex. P-2(a) & : Signatures,
(b)
Ex.P-3 : Godown Receipt
dt.9.11.2020,
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Ex.P-3(a) : Signature,
Ex.P-4 : Seal Movement register,
Ex.P-4(a) : Signature,
Ex.P-5 : Malkhana Register,
Ex.P-5(a) : Signature,
Ex.P-6 : Seizure report in
compliance of Section 57
of NDPS Act,
Ex.P-6(a) & : Signatures,
(b)
Ex.P-7 : Arrest Report in
compliance of Section 57
of NDPS Act,
Ex.P-7(a) & : Signatures,
(b)
Ex.P-8 : Authorisation to Search,
Ex.P-8(a) : Signature,
Ex.P-9 : Inter-office
communication,
Ex.P-9(a) : Signature,
Ex.P-10 : Panchanama,
Ex.P-10(a) : Signature,
Ex.P-11 : Notice U/s.67 of NDPS Act,
Ex.P-11(a) : Signature,
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Ex.P-12 : Notice U/s.67 of NDPS Act,
Ex. P-12(a) : Signature,
Ex. P- 13 : Notice U/s.67 of NDPS Act,
Ex.P-13(a) : Signature,
Ex.P-14 Sample seal,
Ex.P-14(a) : Signature,
Ex.P-15 : Arrest Memo dated
10.11.2020
Ex.P-15(a) : Signature,
Ex.P-16 Arrest Memo dated
10.11.2020
Ex.P-16(a) : Signature,
Ex.P-17 : Application for disposal of
seized narcotic drugs
Ex.P-17(a) : Signature,
Ex.P-18 : Voluntary statement of A-
1,
Ex.P-19 : Voluntary statement of A-
2,
Ex.P-20 : Voluntary statement of A-
3,
Ex.P-21 : Sec.52A Certificate,
Ex.P-21(a) : Photos,
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Ex.P-22 : Notice to independent
witness
Ex.P-22(a) : Signature,
Ex.P-23 : Notice to independent
witness
Ex.P-23(a) : Signature,
Ex.P-24 : Certificate of destruction,
Ex.P-25 : Photo,
Ex.P-26 : Photo,
Ex.P-27 : Photo,
Ex.P-28 : Acknowledgement of post,
Ex.P-29 : House search report of
A-1,
Ex.P-29(a) : Signature,
Ex.P-30 : Voluntary statement,
Ex.P-31 : Notice U/s.67 of NDPS Act,
Ex.P- : Signatures,
31(a)(b)
Ex.P-32 : Notice U/s.67 of NDPS Act,
Ex.P- : Signatures,
32(a)(b)
Ex.P-33 : Notice U/s.67 of NDPS Act,
Ex.P-33 : Signatures,
(a)(b)
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Ex.P-34 : Test report,
Ex.P-35-P-41 : Statements,
Ex.P-35a) to : Signatures,
P41(a)
Ex.P-41 : Copy of the Driving
Licence
Ex.P-42 to : Statements,
P-44
Ex.P-45 : letter to RTO dated
7.12.2020,
Ex.P-46 : Copy of RC stand in the
name of A-1,
Ex.P-47 : Letter to Income Tax
department dated
20.11.2020,
Ex.P-48 : Reply letter from I.T.
Department,
Ex.P-49 : Request letter to SHO
MICO Layout Police Station
dated 18.1.2021,
Ex.P-50 : letter dated 12.11.2020
addressed to Branch
Manager, Axis Bank,
Bangalore,
Ex.P-51 & 53 : CDR,
Ex.P-52 : letter addressed to service
Provider,
Ex.P-54 : Bank Statement.
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4. LIST OF THE WITNESS/ES EXAMINED FOR THE DEFENCE :-
- NIL-
5. LIST OF MATERIAL OBJECTS ADMITTED IN EVIDENCE :-
M.O. 1 : Sample Contraband
M.O. 2 : Sample contraband
M.O. 3 : Packing materials
(VIJAYA DEVARAJA URS)
XXXIII A C C & S J & SPL. JUDGE,
(NDPS) BENGALURU.