Akbar and Others vs State by Udayagiri Police

H. Billappa, J.—This appeal by the appellants/accused Nos. 1 and 2 is directed against the judgment and order dated 7th July, 2011 passed by the Principal District and Sessions Judge, Mysuru in Special Case No. 39/2010.

By the impugned judgment and order, the learned Sessions Judge, Mysuru, has convicted the appellants/accused Nos. 1 and 2 for the offence punishable under Section 20(2)(c) of Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced the appellants/accused Nos. 1 and 2 to undergo RI for a period of ten years and to pay fine of Rs. 1,00,000/- and in default of payment of fine amount, the accused to undergo R.I. for a period of two years.

Aggrieved by that, appellants/accused Nos. 1 and 2 have filed this appeal.

Briefly stated the case of the prosecution is;

"That on 9.4.2010 at about 4.00 p.m., PW.3 received a credible information that ganja is stored at house No. 653, 10th Cross, 2nd Stage, Rajeev Nagar, Mysuru. Thereafter, PW.3 informing the ACP of Devaraja Division and after obtaining oral permission along with panchas and staff went to the spot at about 4.45 p.m. and conducted a raid. They found a person in the house. On enquiry, the said person told that his name is Akbar. They made a search in his presence and found three plastic bags in the sajja of a room. Thereafter, the accused No. 1 revealed that accused No. 2 in order to sell the ganja stored the same in the said house. The bags containing ganja were weighed. Two bags weighed 10 kgs. 100 grams each and the third bag weighed 10 kgs. 250 gms. The ganja was worth Rs. 4 lakhs. Thereafter, they took 100 grams from each of the bags and separate packets were made. Thereafter, 40 grams of ganja was taken and four packets of 10 grams of each were made. One packet was given to the accused, two packets were given to the pachas and one was retained by the Investigating Officer. On enquiry, the accused No. 1 told that he is not having any license or permit to keep the ganja. Thereafter, the complainant i.e., PW.3 prepared a report and a case was registered in Crime No. 73/2010 of Udayagiri Police Station for the offence punishable under Section 20(2)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ''NDPS Act'')."

After investigation, charge sheet has been filed against accused Nos. 1 and 2 for the offence punishable under Section 20(2)(c) of the Act.

At the trial, the prosecution has examined in all seven witnesses i.e. PWs.1 to 7 and Exs.P1 to P4 and MOs.1 to 6 have been marked.

On behalf of the accused, two witnesses i.e. DWs. 1 and 2 have been examined and Exs.D1 and D2 have been marked.

The Trial Court on appreciation of the evidence on record has found the appellants/accused Nos. 1 and 2 guilty of the offence punishable under Section 20(2)(c) of the NDPS Act and sentenced them to undergo R.I. for a period of 10 years and to pay fine of Rs. 1,00,000/- and in default of payment of fine, to undergo R.I. for a period of two years.

Aggrieved by that, the appellants/accused Nos. 1 and 2 have filed this appeal.

The learned counsel for the appellants contended that the impugned judgment and order cannot be sustained in law. He also submitted that the trial Court has failed to consider the evidence on record in proper prospective. Further he submitted that there is non-compliance of statutory requirement under Section 42(1) and (2) of the NDPS Act. The information received by PW.3 has not been reduced into writing and it was not sent to the Superior Officer. PW.3 has not recorded any reason as to why search warrant was not obtained. The Trial Court has failed to consider that the statutory requirement was not complied with. The prosecution has not produced anything to show that the information was reduced into writing and it was sent to the superior officer as required under law. Therefore, the entire seizure is vitiated in law. Further, section 52(3) of the NDPS Act is not complied with. The case was registered on 9.4.2010 at 7.30 p.m. FIR has reached the Magistrate on 10.4.2010 at 1.00 p.m. The delay is not explained. Further, the PC who carried the FIR has not been examined. He also submitted that accused No. 1 is the resident of Mandya. He has examined DWs.1 and 2 and produced Exs.D1 and D2 to show that he was the resident of Mandya and he was brought from Mandya and he has been falsely implicated in the case. Further he submitted that panch witnesses PWs.3 and 4 have not supported the case of the prosecution. They are from Kyathamaranahalli and not the residents of the locality. Therefore, the seizure is not proved. Further, he submitted that Section 52A(2) of NDPS Act has not been followed. There is delay in sending the seized articles for chemical examination. The prosecution has failed to prove its case beyond all reasonable doubt and therefore, the accused are entitled for an order of acquittal. The impugned judgment and order cannot be sustained in law. He placed reliance on the decision of this Court in Crl.A. No. 579/2015 (DD 3.9.2015).

As against this, the learned Government Pleader submitted that the impugned judgment and order does not call for interference. He also submitted that the trial Court on proper consideration of the material on record has rightly convicted the appellants/accused Nos. 1 and 2 and therefore, the impugned judgment and order does not call for interference. He also submitted that PW3 has deposed that he orally informed the superior officer. Ex. P1 also shows that the superior officer was communicated orally. Therefore, there is substantial compliance of Section 42 of the NDPS Act by informing orally. Further he submitted that the official witnesses, i.e., PWs.1 to 3, 6 and 7 have fully supported the case of the prosecution and there is no reason to disbelieve their evidence. Their evidence clearly establishes the guilt of the accused. Further, huge quantity of ganja has been seized and it needs to be viewed very seriously. The material on record clearly establishes the guilt of the accused and therefore, the impugned judgment and order does not call for interference.

I have carefully considered the submission made by the learned counsel for the parties.

The point that arises for my consideration is;

"Whether the impugned judgment and order calls for interference?"

It is relevant to note, the prosecution relies upon the evidence of PWs.1 to 3, 6 and 7, Exs.P1 to P4 and MOs.1 to 6 to prove the guilt of the accused.

PWs.4 and 5 have not supported the case of prosecution and they have turned hostile.

PW.1 is the PSI of Udayagiri Police Station. PW2 is the ASI of Lakshmipura Police Station, Mysuru. PW3 is the Police Inspector of Udayagiri Police Station, Mysuru. PWs. 1 to 3 have deposed that on 9.4.2010, at about 4.00 p.m., when PW3 was in the police station, he received a credible information that ganja has been stored at House No. 653, 2nd phase, Rajeevnagar, Mysuru. Immediately, PW.3 informed the ACP of Devaraja Division and after obtaining oral permission, along with panchas and his staff went to the spot at about 4.45 p.m. in two vehicles. When they went inside the house, accused No. 1 was present there. He allowed them to search the house. In the shelf (sajja) of the room, there were three bags containing ganja. Two bags were weighing 10 kgs. 100 grams each and another bag was weighing 10 kgs. 250 grams. When accused No. 1 was enquired, he told them that he does not possess any license to keep the ganja and accused No. 2 told him to keep the ganja. Therefore, the ganja was kept in the said house. Thereafter, 100 grams from each bag was taken as sample and packed separately. Further, it is stated that 40 grams of ganja was taken and four packets of 10 grams each were made. One packet was given to the accused, two packets were given to panchas and one packet was retained with the police. They have stated that the ganja was seized under Ex. P1 mahazar. They have identified as MOs.1 to 6 which are ganja packets and sample packets. Further, PW.3 has stated that accused No. 1 was residing in the said house as a tenant. He did not obtain search warrant as there was possibility of destroying the ganja. Further he has stated that after seizing the article, he came to the Police Station and prepared the complaint as per Ex. P2 and registered a case. PW.3 has identified his signature as Ex. P2(a). Thereafter, the first information was sent to the Court and PW.3 handed over the investigation to PW.6 PSI, Puttannaiah. The accused No. 1 seized ganja and other documents were handed over to PW.6.

In the cross-examination, PW.1 has stated that the Inspector secured the panchas. He does not know through whom the panchas were secured. But, the panchas were from Kyathamaranahalli.

PW.2 in his cross-examination has stated that after coming to know that the bags contained ganja, mahazar and complaint were prepared. The complaint was not in the handwriting of the Inspector. The complaint were prepared in the computer. He has admitted that there was no computer in the said house. Further, he does not know whether the signature of Nazima Banu was taken or not. The three bags were stitched and not sealed.

In his cross-examination, PW3 has stated that he received the information through phone at 4.00 p.m. At that time, he was alone in his chamber. He has recorded the information in the SHD. He has reported the information received to the ACP in writing before he went for raid. He has not annexed the report to the complaint. Further, he has not mentioned in the report and mahazar about the recording of the information in the SHD. Further, he has stated that the panchas were from Kyathamaranahalli village. In the panchanama, he has mentioned that the information was sent to the ACP in writing and an endorsement was given. He has denied the suggestion that he has not sent information to the ACP. He has admitted that accused No. 1 is from Mandya. The family members are staying at Mandya. He has denied the suggestion that there is no relationship and accused No. 1 has nothing to do with the house in which the search was made. Further he stated that FIR was sent through Marisiddaiah. It was handed over to him at 8.15 p.m.

PW.4-Lokesha and PW.5-Harisha are the panch witnesses. They have not supported the prosecution case. They have stated that they never went with the police and the police never took them to Rajeevnagar. They have signed Ex. P2-Mahazar in the police station. They do not know the contents of the mahazar.

PW.6 is PSI Puttannaiah. He has deposed that he took further investigation from PW.3. At that time, the ganja was seized and accused No. 1 was handed over to him. He arrested accused No. 1. Thereafter, accused No. 1 volunteered to show the accused No. 2. They searched for accused No. 2. But, accused No. 2 was not traced. PW.6 has stated that he has recorded the statement of some witnesses and collected the rent deed and possession document of the premises where the accused No. 1 was residing. They are not original documents. Thereafter, he submitted the charge sheet.

PW.7-Tabsum Banu has deposed that she conducted examination on the article sent and her examination revealed that the article found in the packet sent for examination was ganja.

The accused No. 1 has examined DWs.1 and 2 to show that he was staying at Mandya. He has nothing to do with the case. DW.1 has deposed that accused No. 1 was working with him and he was staying at Mandya with his mother. DW.2 has deposed that she is the mother of the accused No. 1. Accused No. 1 was staying with her at Mandya. One day when accused No. 1 was sleeping in the house, the police took him from Mandya. Exs.D1 and D2 are the voters ID cards of DW2 and accused No. 1 Akbar.

Before considering the evidence on record, it is appropriate to refer to relevant provisions of the NDPS Act.

"Section 41 of the Act provides that; (1) A Metropolitan Magistrate or a Magistrate of the first class or any Magistrate of the second class specially empowered by the State Government in this behalf may issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under this Act, or for the search, whether by day or by night, of any building, conveyance or place in which he has reason to believe any narcotic drug or psychotropic substance or controlled substance in respect of which an offence punishable under this Act has been committed.

Section 41(2) of the Act provides any such officer of gazetted rank of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including the para-military forces or the armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government if he has reason to believe from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under this Act or that any narcotic drug or psychotropic substance or controlled substance in respect of which any offence 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 place, may authorize any officer subordinate to him but superior in rank to a peon, sepoy, or a constable to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest such a person or search a building, conveyance or place.

Section 42(1) of the Act provides that any officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and 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 building, conveyance or place;

(b) ***********

(c) **********

(d) **********

provided that *************

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 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."

Section 42(2) of the Act provides that where an officer takes down any information in writing under subsection (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.

It is clear from Section 42(1) of the Act that an empowered officer, if he has reason to believe from his personal knowledge or information given by any person and taken down in writing that any narcotic drug or psychotrophic substance, or controlled substance in respect of which an offence punishable under this Act has been committed, he can conduct search of such building, conveyance or place. In case, where the empowered 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 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.

It is clear from second proviso to Section 42(1) that whenever officer wants to search a premises without obtaining warrant or authorization, he must record the ground for his belief. Further Section 42(2) of the Act provides that when 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. Section 42(2) of the Act provides that an officer concerned is bound to send a copy of the information which he has taken down in writing or the grounds for his belief under the proviso.

In the present case, PW3 has not obtained any warrant. Though he has deposed that he did not obtain search warrant as the stored ganja would have been destroyed, he has not recorded the information given to him in writing and also he has not recorded the reasons for not obtaining the warrant in Ex. P1 mahazar or Ex. P2 complaint. The mandatory requirement of Section 42(1) and 42(2) of the Act has not been complied with.

PW.3 has deposed that he has recorded the information in the SHD. But SHD has not been produced before Court. Therefore, what is recorded in the SHD is not known. Therefore, it is clear, there is violation of Sections 42(1) and 42(2) of the Act. The non-compliance of Sections 42(1) and 42(2) of the Act has been considered by the Hon''ble Supreme Court in the case of Karnail Singh Vs. State of Haryana, , wherein it has been held that 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 officer superior, then it will be suspicious circumstance being a clear violation of Section 42 of the Act.

In the present case, PW.3 was in the police station when he received the information. Nothing is produced to show that information received by PW.3 was recorded in the SHD. PW3 himself has stated that he did not obtain search warrant. He has not recorded reasons for not obtaining the search warrant. Therefore, there is clear violation of Sections 42(1) and 42(2) of the Act.

It is relevant to note, Section 52(2) and (3) of the Act provide as follows:

"(2) Every person arrested and article seized under warrant issued under sub-section (1) of section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.

(3) Every person arrested and article seized under sub-section (2) of section 41 , section 42 , section 43 or section 44 shall be forwarded without unnecessary delay to:

(a) the officer-in-charge of the nearest police station or

(b) the officer empower under section 53 ."

Section 52A(2) of the Act provides that where any narcotic drugs, psychotropic substances, controlled substances or conveyances has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53 , the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs, psychotropic substances, controlled substances or conveyance containing such details relating to their description, quality, quantity mode of packing, etc. and make an application to any Magistrate for the purpose of certifying the correctness of the inventory so prepared or taking, in the presence of such Magistrate, photographs of such drugs, substances or conveyances and certifying such photographs as true; or allowing to draw representative samples of such drugs or substances, in the resence of such Magistrate and certifying the correctness of any list of samples so drawn.

In the present case, PW3 after seizing the ganja has prepared the complaint himself and registered the case. Thereafter, PW.3 has handed over the investigation and seized articles to PW.6. PW.6 has taken over the investigation from PW.3. They have not complied with the requirement of Section 52A(2) of the Act. They have not prepared any inventory or followed the procedure under Section 52A(2) of the Act. Therefore, there is clear violation of Section 52A(2) of the Act. Therefore, the seizure is vitiated in law.

Accused No. 1 contends that he is from Mandya and he was brought from Mandya by the police. He has examined two witnesses i.e., DWs.1 and 2. DW.1 has deposed that accused No. 1 was working under him and staying with his mother DW.2. DW.2 is the mother of accused No. 1. She has deposed, accused No. 1 was staying with her at Mandya. One day when accused No. 1 returned from his work and had food and was sleeping in the house, the police took him from Mandya. PW.3 has deposed that accused No. 1 was residing in the premises as a tenant. PW.6 has deposed that he collected the rent deed and possession document regarding the stay of the accused No. 1. Neither the document nor any other evidence has been produced to show that accused No. 1 was staying at No. 653, 10th Cross, 2nd Phase, Rajeev Nagar, Mysuru. Therefore, the defence of accused No. 1 is probable. Nothing is recovered from accused No. 2. There is clear violation of the provisions of Sections 42 and 52A(2) of the Act. The Trial Court has failed to consider this. Therefore, the Trial Court was not justified in convicting the appellant/accused Nos. 1 and 2. The impugned judgment and order cannot be sustained in law.

Accordingly, the criminal appeal is allowed and the conviction and sentence passed by the Principal District and Sessions Judge, Mysuru, in Spl. Case No. 39/2010 for the offence punishable under Section 20(2)(c) of Narcotic Drugs and Psychotropic Substances Act, 1985 is hereby set aside. The appellants/accused Nos. 1 and 2 are acquitted of the charge levelled against them.

The appellant/accused No. 1 shall be released forthwith, if he is not required in any other case.

It is stated, appellant/accused No. 2 is on bail. His bail bond stands cancelled.

Office is directed to communicate the operative portion of the judgment to the concerned Jail Authority for necessary action.

I.A. No. 1/2015 does not survive for consideration and accordingly, it is dismissed.