Chemansab S/O Khajasab Almel vs The State Of Karnataka
2021 Latest Caselaw 1522 Kant

                                                               R
                            1              Crl.A.200021/2017


          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

      DATED THIS THE 3RD DAY OF FEBRUARY, 2021

                        BEFORE

  THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY

          CRIMINAL APPEAL No.200021/2017
BETWEEN:

Chemansab S/o Khajasab Almel
AGed about 47 years
Occ: Nil, R/o Mundewadi Colony
Vijayapur.                              .. APPELLANT

(By Sri.R.S.Lagali and
Sri.Gopalkrishna B.Yadav, Advs.)

AND

The State of Karnataka
By Vijayapur Excise Police, Vijayapur
Now rep. by Addl.SPP
High Court of Karnataka
Kalaburagi Bench.                       .. RESPONDENT

(By Sri.Gururaj V.Hasilkar, HCGP)

     This Criminal Appeal is filed under Section 374(2) of
the Code praying to set aside the impugned judgment of
conviction and order of sentence dated 11.01.2017 passed
in Special (NDPS) Case No.9/2017 by the Special
Judge/Prl.Sessions Judge at Vijayapur, by allowing this
appeal consequently acquit the appellant/accused of the
charges levied against him for the offences under Section
                               2               Crl.A.200021/2017


8(c) punishable under Section 20(b)(ii)(C) of the NDPS Act,
in the interest of justice and equity.

      This Appeal having been heard and reserved for
judgment     on  18.01.2021   and    coming    on     for
Pronouncement of Judgment this day, this Court delivered
the following:

                       JUDGMENT

The accused No.1 in Special (NDPS) Case

No.09/2015, who has been convicted by the Court of

Special Judge/Principal Sessions Judge, Vijayapura vide

its judgment and order of conviction and sentence dated

11th January 2017 for the offence under Section 8(c)

which is punishable under Section 20(b)(ii)(C) of the

Narcotic Drugs and Psychotropic Substances Act, 1985

(for short, "the NDPS Act") and sentenced to undergo

rigorous imprisonment for a period of ten years and to pay

a fine of Rs.1,00,000/- and in default of payment of fine to

undergo simple imprisonment for one year, has

approached this court in this appeal with a prayer to set

aside the said judgment and order of conviction and

sentence.

3 Crl.A.200021/2017

2. Brief facts of the case are:

On 26.02.2015 the complainant/PW-1 on receipt of

a credible information that huge quantity of ganja was

stored in the house of appellant, after informing his higher

officers, at about 2.40 p.m. conducted a raid along with

his staff and panch witnesses on the house of the

appellant situated near Sadakibawadi and Secab School

at Vijayapur. On seeing the raiding party, the appellant,

who was allegedly present near the house and was loading

ganja bags in a car bearing No.KA-03/MB-4261 ran away

from the spot. From the car, seven blue colour carry bags

containing 2 kilograms of ganja each and a white colour

urea bag containing 15 kilograms of ganja was seized.

Inside the house, the raiding party found a concrete tank

in which 98 blue colour carry bags containing ganja was

found. All the contraband articles were seized by the

complainant under a panchanama and after returning to

the office with the seized articles, a case was registered on

the basis of his complaint, in Vijayapura Excise Police 4 Crl.A.200021/2017

Station in Crime No.32/2015 for the offences punishable

under Sections 8(b) and 8(c) read with Sections 20 and 25

of the NDPS Act. After investigation, charge sheet was

filed against two persons. The second accused/Rajesh

M.Pachchapur was allegedly the owner of the Tata Indica

car bearing No.KA-03/MB-4261. Since accused No.2 was

absconding, the case against him was split up.

3. During the course of investigation, the appellant

was arrested on 29.09.2015. Charges were framed

against him for the offences under Section 8(c) which is

punishable under Section 20(b)(ii)(C) and since the

accused did not plead guilty and claimed to be tried, the

case was posted for trial. During the course of trial, the

prosecution in order to establish the guilt of the accused

had examined 10 witnesses as PWs-1 to 10 and marked

25 documents as Exs.P1 to P25. In support of its case,

the prosecution haD also marked M.Os.1 to 20. After

completion of prosecution evidence, the statement of the 5 Crl.A.200021/2017

appellant/accused under Section 313 of the Code of

Criminal Procedure, 1973 (hereinafter referred to as "the

Code") was recorded. No defence evidence was led nor any

document was marked in support of the defence.

4. The trial court thereafterwards heard the

arguments of the learned counsel appearing on both sides

and by means of the impugned judgment and order has

convicted the appellant for the offences punishable under

Section 20(b)(ii)(C) of the NDPS Act.

5. Learned Counsel appearing for the

appellant/accused contends that the judgment and order

of conviction and sentence is highly illegal and the same is

passed without proper application of mind. He submits

that the learned Sessions Judge has failed to properly

appreciate the oral and documentary evidence available on

record. He also submits that the prosecution has failed to

examine any independent witnesses in the case. He

submits that complainant has not reduced the credible 6 Crl.A.200021/2017

information in writing nor has he informed his higher

officers and obtained any permission in writing and

therefore, there is complete non-compliance of Section 42

of the NDPS Act. The trial court, according to him, has

erred in relying upon the report - Ex.P16 as the same does

not comply the requirement of Section 42 of the NDPS Act.

He submits that admittedly the accused had escaped from

the spot and therefore, prior to conducting the search and

seizure, the complainant ought to have obtained a search

warrant from the jurisdictional Magistrate. He also

submits that the entire investigation in the case is

dishonest and tainted and the same has seriously

prejudiced the case of the appellant. He also submits that

none of the statements recorded under Section 161 of the

Code found along with the charge sheet are dated and

therefore, it is not known as to on what date, the said

statements have been recorded. He further submits that

statement of the complainant, who is the star witness of

the prosecution, under Section 161 of the Code has not 7 Crl.A.200021/2017

been recorded and accused is taken by surprise during

trial and this has seriously prejudiced the case of the

accused. He submits that Investigation Officer has

recorded statements under Section 161 of the Code

belatedly and admittedly the Investigating Officer has not

maintained the case diary. He also submits that panch

witness PW-2 is a stock witness of the prosecution and

there is material on record to show that he has been used

as a panch by the Department of Excise in other cases

also. He also submits that there is an inordinate delay of

two months in forwarding the sample contraband articles

to the FSL for examination and this again throws a serious

doubt with regard to the credibility of the case of the

prosecution.

In support of his case, he has relied upon the

judgments in the following cases:

1. Rajinder Singh -vs- State of Haryana 1

(2011) 8 SCC 130 8 Crl.A.200021/2017

2. State of Rajasthan -vs- Jagraj Singh Alias Hansa2

3. Union of India -vs- Bal Mukund and Others 3

4. State of U.P. -vs- Kapil Deo Shukla 4

5. Subramanyam -vs- State of Karnataka 5

6. Per contra, learned High Court Government

Pleader arguing in support of the impugned judgment and

order of conviction and sentence contended that the trial

court has rightly convicted the appellant for the offence

punishable under Section 20(b)(ii)(C) of the NDPS Act and

the impugned judgment and order of conviction and

sentence does not suffer from any irregularity or illegality,

which calls for interference at the hands of this court. He

submits that there is no irregularity in compliance of the

requirement of Section 42 of the NDPS Act and having

regard to the fact that the complainant had an

apprehension that the appellant/accused was likely to

escape with the contraband goods from the spot, the

(2016) 11 SCC 687

(2009) 12 SCC 161

(1972) 3 SCC 504

2016(4) KCCR 3526 9 Crl.A.200021/2017

complainant without reducing the information into

writing, had hurried to the spot. He submits that the very

fact that the higher officers of the complainant were part

of the raiding party, would go to show that information

was given by the complainant to his higher officers and

therefore, there is sufficient compliance of Section 42 of

the NDPS Act. He submits that merely for the reason that

PW-2 has deposed in some other case also as a panch

witness, it does not mean that he is a stock witness and

his evidence cannot be relied upon. He submits that the

irregularity in the investigation, as pointed out by the

learned counsel for the appellant, does not prejudice the

case of the appellant in any manner and therefore, for

such an irregularity, the appellant cannot be acquitted.

He submits that huge quantity of about 171 kilograms of

ganja has been seized from the car and the house of the

appellant and there are sufficient materials on record to

show that the car and the house belonged to the

appellant. Since the possession is proved, there is a 10 Crl.A.200021/2017

presumption against accused under Section 54 of the

NDPS Act. He also submits that PW-1 is the complainant

and even though his statement under Section 161(3) of

the Code is not recorded, his complaint can be used for

the purpose of contradicting this witness. He submits

that statements under Section 161 of the Code are not

admissible in law and therefore, trial of the accused will

not be affected for not recording statement of the

witnesses under Section 161 of the Code. Under the

circumstances, he prays to dismiss the appeal.

7. I have carefully considered the arguments

advanced on both sides and also perused the entire oral

and documentary evidence available on record. The point

that arises for consideration in this appeal is:

"Whether the conviction of the appellant by the trial court for the offence under Section 8(c) which is punishable under Section 20(b)(ii)(C) of the NDPS Act is just and proper, having regard to the oral and documentary evidence available on record?"

11 Crl.A.200021/2017

8. The prosecution in all examined ten witnesses in

support of its case, but none of them can be said to be

independent witnesses, except PW-6 who is the wife of

accused and she was treated as a hostile witness.

9. PW-1/Abubakar, who was working as an Excise

Inspector, is the complainant in this case. He has also

conducted the investigation to a considerable extent before

handing over further investigation to PW-9. It is relevant

to mention here that statement of this witness under

Section 161(3) of the Code was not recorded in this case.

10. PW-1 has deposed that on 26.02.2015 when he

was in his office at Vijayapura, he had received a credible

information with regard to stock of ganja in the house of

accused. He has stated that he received the said

information at about 1.30 p.m. According to him, he

orally informed about this information to his higher

officers and thereafterwards at about 2.15 p.m. he along

with his higher officers, staff and panch witnesses went 12 Crl.A.200021/2017

near the house of the accused. On seeing the officers,

accused, who was loading his car with some plastic carry

bags, ran away from the spot and inspite of all the efforts

made by the officers to apprehend him, he managed to

escape. Thereafterwards, a search report was prepared by

him as per Ex.P1, which has been signed by his higher

officer/PW-10 and also by PW-5. After preparing Ex.P1,

he searched the car and found seven plastic carry bags

which contained ganja weighing 2 kilograms each. He

also recovered one Urea bag from the dickey of the car

which contained 15 kgs. of ganja. After that, the raiding

party entered the house and in a concrete tank inside the

house, they found 98 plastic carry bags containing ganja.

Out of 98 bags, 30 grams of sample ganja was removed

from 11 bags and they were packed separately and sealed

and these 11 bags are marked as M.Os.1 to 11 before the

trial court. 50 grams of sample ganja was removed from

the urea bag and the same was packed separately and

sealed. Said packet was marked as M.O.12. From the 7 13 Crl.A.200021/2017

carry bags, which were found in the car, 30 grams of

ganja for the purpose of sample was removed and packed

separately and sealed and these packets were marked as

M.Os.13 to 19.

11. In the house of the accused, complainant has

seized an electricity bill bearing R.R.No.66799 in which

the name of Smt.S.C.Alamela was found. The said bill

was marked as Ex.P2. According to him, all the samples

were taken by him and also sealed by him before taking

the same to the Police Station. The panchanama prepared

at the time of seizure is marked as Ex.P3 and the

certificate issued by the jurisdictional Magistrate with

regard to the sealed samples is marked as Ex.P4. The

notices issued to the panchas by him are marked as

Exs.P6 and P7. Subsequently along with the seized

articles, he returned to the Station and lodged the

complaint and copy of the complaint is marked as Ex.P8

and his signature is marked as Ex.P8(a). The FIR is 14 Crl.A.200021/2017

marked as Ex.P9. The P.F. report prepared by him is

marked as Ex.P10. Exs.P12 to P15 are also marked

through him to establish that the house from which ganja

was seized belonged to the wife of the accused. He has

also stated that on 29.09.2015 on credible information he

went to the house of the accused and had arrested him.

12. From the evidence of this witness, it is clear that

immediately after he received the credible information,

though he was in his office, he has not reduced such

information into writing. He has also not forwarded the

said information to his higher officers in writing and

obtained any permission from them. He has stated that

he has informed his higher officers, but no document is

produced before the court to show that the said

information was in writing. According to him, the accused

after seeing the raiding party, ran away from the spot.

Thereafterwards he has prepared Ex.P1/search report and

carried on the search and seizure in the car as well as 15 Crl.A.200021/2017

inside the house of the accused. Though in Ex.P1 he has

stated that since he had no sufficient time to obtain

search warrant from the court of jurisdictional Magistrate,

and therefore, as provided under Section 42 of the NDPS

Act he has proceeded to carry on the search of the car and

the house belonging to the accused, it has to be taken

note of here that admittedly accused had escaped before

Ex.P1 was prepared by the complainant/PW-1. Therefore,

there was no urgency in the matter so as to invoke the

powers provided under Section 42 of the NDPS Act and

proceed further to search the car and house of the

accused without obtaining a search warrant from the

jurisdictional Magistrate.

13. PW-1 has admitted in his cross-examination that

in Ex.P8/complaint, he has not mentioned anything about

the credible information received by him or about he

informing the same to his higher officers or about he

conducting raid along with his higher officers, staff and 16 Crl.A.200021/2017

panch witnesses and about seizure of carry bags from the

car and house of the accused after he running away from

the spot. Though in the cross-examination he has stated

that after receiving the credible information he has

reduced the same into writing in the raid register

maintained in the office, the said raid register is not

produced before the court. For a specific suggestion that

he had no authorization from his higher officers to

conduct the raid, he has answered that the higher officers

themselves have participated in the raid along with him.

Therefore, it is very clear that PW-1 had not reduced the

credible information allegedly received by him into writing

nor there is any material available on record to show that

he had informed the same to his higher officers in writing

and that they had authorized him to conduct the raid.

14. He has admitted in the cross-examination that

there was no case registered in their station against the

accused nor did they have any photo of the accused in 17 Crl.A.200021/2017

their station, but he has said that the accused was shown

to him by Baragani (PW-3) on an earlier date and

therefore, he knew the accused. During the course of his

cross-examination, he has stated that within 72 hours of

the raid, he had prepared the list of seized articles and

forwarded the same to his higher officers and the copy of

the communication under which the list of seized articles

was forwarded to his higher officers was marked as

Ex.P16 and his signature is marked as Ex.P16(a). He has

admitted that in Ex.P16, there is no mention about the

number of ganja bags seized and as to how many sample

bags were taken. He has stated that about 3-4 persons

had come near the house of the accused when the raid

was conducted but they had refused to be the panch

witnesses. But he has admitted that he has not issued

any notice to the said persons asking them to be panch

witnesses in the case.

18 Crl.A.200021/2017

15. The document issued by the Tahsildar to show

that in the khata extract of the house from where ganja

was seized, the name of the wife of the accused is not

mentioned, was marked through PW-1 as Ex.P17. He has

admitted that the khata of the said property does not

stand in the name of the wife of accused. He has stated

that the samples were forwarded to the Forensic Science

Laboratory, Bangalore, through PW-7 on 24.04.2015.

16. PW-2 is the panch witness who had

accompanied the raiding party on 26.02.2015. He has

stated that immediately after reaching near the house of

accused, one of the Excise Officers has prepared the

search report/Ex.P1 and his signature in the said search

report is marked as Ex.P1(d). After preparing the search

report, they all went near the house of the accused and on

seeing them, he ran away and escaped. He speaks about

subsequent seizure of ganja packets from the car and from

the house. According to him, 50 grams of ganja is taken 19 Crl.A.200021/2017

from all seven carry bags found in the car. He has spoken

to preparing of Ex.P3/spot panchanama and his signature

in the said document is marked as Ex.P3(b). He has also

admitted his signature in Ex.P5 which is a specimen seal

document and his signature in the said document is

marked as Ex.P5(b). He has stated that he does not know

as to how many samples were taken from the carry bags

seized from the concrete tank inside the house. He has

admitted that he often accompanies Excise officials when

raid is conducted by them and he has stated that he does

not know in how many cases he has accompanied or he

has gone along with the Excise officers for raid. According

to this witness, Ex.P1 was prepared immediately after

reaching the spot and before accused ran away from the

spot and this evidence contradicts the evidence of PW-1

insofar as preparation of Ex.P1 is concerned. In the

absence of any corroboration, it is not safe to rely upon

this witness.

20 Crl.A.200021/2017

17. PW-3 is the Excise Guard who had accompanied

the raiding party. He states that the panch witnesses

were brought to the office by him, to whom panch witness

notices were issued by PW-1. He also speaks with regard

to the seizure of contraband articles and Ex.P2/electricity

bill. He states that his statement was recorded by the

Investigating Officer on 28.2.2015, but admits that the

said statement does not bear any date. During the course

of cross-examination, he has stated that he has seen the

accused for the first time on the date of raid. The said

statement totally contradicts the statement of PW-1, who

has stated that he knew accused prior to the date of raid

and it is PW-3 who had shown him the accused earlier

when accused was sitting near his brother's shop in the

market.

18. PW-4 is the Excise Guard, who had accompanied

PW-1 on 29.09.2015 to the house of the accused at the

time of his arrest. He says that they had credible

information that accused would come to his house to 21 Crl.A.200021/2017

celebrate Bakrid festival and therefore, on 29.09.2015

they had raided the house. During the course of his

cross-examination, he has stated that his statement was

recorded by the Investigating Officer on 29.9.2015 and he

has admitted that in the said statement, the date is not

mentioned.

19. PW-5 is the Excise Inspector, who had

participated along with PW-1 at the time of raid on

26.02.2015 and also at the time of arrest of the accused

on 29.9.2015. According to this witness, after the accused

escaped from the spot, the search report/Ex.P1 was

prepared. He speaks about the seizure of the ganja

packets and also with regard to the samples that were

collected from each bag and packed separately and

thereafterwards sealed with the office seal bearing No.540

and over the seal, paper with the signature of PW-1 and

the panch witnesses was sticked. This witness has stated

that his statement was recorded by the Investigating

Officer J.H.Muddebihala on 29.9.2015 and he has 22 Crl.A.200021/2017

admitted that his statement recorded by the Investigating

officer does not bear any date.

20. PW-6 is the wife of accused. She has not

supported the case of the prosecution and even during her

cross-examination, nothing material has been elicited

from her by the prosecution.

21. PW-7 is the Excise Inspector who has forwarded

the sample material objects to the Forensic Science

Laboratory at Bangalore through PW-8 on 24.4.2015.

22. PW-8 is the Excise guard who has stated that as

per the instructions of PW-7 on 24.4.2015, he has carried

19 sample material objects to the Forensic Science

Laboratory at Bangalore and obtained acknowledgement

from them and handed over the same to PW-7 on

26.4.2015. He also states that on 4.5.2015, on the

instructions from the Excise Inspector, he had gone to the

Forensic Science Laboratory, Bangalore and on 6.5.2015,

he has reached back to Vijayapura along with the reports 23 Crl.A.200021/2017

and the samples and handed over the same to the Excise

Inspector. The said sample report is marked as Ex.P20.

During the course of his cross-examination, he has stated

that his statement was recorded by the Investigating

Officer on 26.04.2015 and he admits that his statement

does not bear any date.

23. PW-9 is the Sub-Inspector of Excise and he has

carried on the further investigation in the case after taking

over the same from PW-1 on 6.9.2015. He has recorded

the statement of Basavaraj Sandeegwad, Sathish Kagale,

S.S.Vodeyar, Prakash Makonda, Ananda Nagoora and

B.S.Thadakal - Officers of the Excise Department on

9.6.2015. He has also stated that on 30.9.2015, PW-1

and PW-10 had produced the accused before him. He

thereafterwards has clarified that on 29.9.2015 the

accused was arrested by PW-1 and produced before the

court and on 30.9.2015 he has recorded the statement of

PW-10, PW-5, PW-3 and PW-4 and subsequently he has

filed the charge sheet on 28.12.2015. He has admitted in 24 Crl.A.200021/2017

the cross-examination that in column No.4 of FIR Ex.P9, it

is mentioned that the ownership of the car and the house

is yet to be found out. He has also admitted that no

documents are produced before the court to show that the

house from where the contraband articles were seized and

accused was arrested, belongs to Shamshad Begum, wife

of the accused. He has also admitted that in all the

statements of the Excise Officers recorded by him on

9.6.2015 and 30.9.2015, the date of recording of such

statement is not mentioned. He has also admitted that

even in the statement of PW-6 and in the statement of one

Sri.Mehaboob Sab, who is another panch witness not

examined by the prosecution, the date of recording the

statement is not mentioned. He has admitted in his

evidence that the delay caused in recording the statement

of PW-10/Jagadish Inamdaar and the delay caused in

forwarding the samples to the FSL are not explained. He

has also admitted that he has not recorded the statement

of PW-1, who is the complainant in this case. For a 25 Crl.A.200021/2017

specific question that Ex.P2/electricity bill does not bear

any number or name, he has replied that he is not in a

position to answer the same because he had not brought

his spectacle to the court. He has admitted that name of

Shamshad Begum, wife of accused is not found in

Ex.P17/khata extract of the house in question and more

importantly he has admitted during the course of cross-

examination that in respect of the investigations held by

him, he has not made any entries in the case diary, which

is a mandatory requirement under Section 161(3) of the

Code.

24. PW-10 is the Deputy Superintendent of Excise,

the higher officer who is said to have accompanied PW-1

and the raiding party on 26.2.2015. He has spoken with

regard to preparation of Ex.P1 after the accused escaped

from the spot and also about the subsequent seizure,

panchanama, etc. He has admitted that from the perusal

of Ex.P2, the entries made in the said document are not

visible. He has also stated that name of Shamshad 26 Crl.A.200021/2017

Begum is not found in the said document. According to

him, since the raiding party were in the uniform, number

of people had gathered there. Though this witness was the

higher officer, who had accompanied the raiding party

along with PW-1 on 26.2.2015, surprisingly his statement

has been recorded belatedly on 30.9.2015 as admitted by

PW-9 who has carried on further investigation in the

matter. This witness has not stated anything about receipt

of Ex.P-16 which prosecution relies upon heavily to

establish that requirements of Section 42 of the NDPS Act

is complied. This material witnesses statement has been

recorded after a delay of seven months which is totally not

explained and additionally the said statement does not

bear any date and admittedly no case diary is maintained

by the investigating officer, and therefore, Ex.P-16 cannot

be cooked into for the purpose of considering compliance

of Section 42 of the NDPS Act. This witness has also

stated that since the raiding party had gone in uniform,

many people had gathered near the house and the said 27 Crl.A.200021/2017

statement contradicts PW-1's statement, who has stated

that not many people had gathered near the house and

only 3-4 persons came there and even they refused to be

the panch witnesses in the case. Having regard to belated

recording of Section 161(3) statement of this witness and

the manner in which he has deposed before the court, a

serious doubt arises with regard to his participation in the

raid and it appears that only to get over the requirement of

Section 42 of NDPS Act, prosecution has shown him as a

participant in the raid.

25. From the appreciation of the evidence of the

witnesses examined by the prosecution, it is found that

statements of all these witnesses under Section 161(3) of

the Code do not bear any date. Further, statement under

Section 161(3) of the Code of PW-1, who is the star

witness of the prosecution around whom the entire case of

the prosecution revolves, has not at all been recorded.

Statements of the witnesses under Section 161 of the

Code recorded by the Police during the course of 28 Crl.A.200021/2017

investigation plays a major role during the course of trial.

After lodging of the FIR and registering the case,

investigation commences with the Investigating Officer

visiting the scene of crime, drawing panchanama, seizing

any incriminating articles found at the spot, recording the

statements of the witnesses, arrest of accused, recovery,

etc., and this part of investigation is covered under

Sections 161 and 162 of the Code and the credibility of the

witnesses, who are examined before the court, depends

largely on this part of investigation. The charge sheet is

prepared by the Investigating Officer based on this

material and information collected by him during the

course of investigation. Sections 161 & 162 of Cr.PC read

as under:

"161. Examination of witnesses by police.- (1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the 29 Crl.A.200021/2017

requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case.

(2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.

(3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records:

Provided that statement made under this sub-section may also be recorded by audio-video electronic means:

Provided further that the statement of a woman against whom an offence under section 354, section 354-A, section 354-B, section 354-C, section 354-D, section 376, section 376-A, section 376-AB, section 376-B, section 376-C, section 376-D, section 376-DA, 30 Crl.A.200021/2017

section 376-DB, section 376-E or section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted shall be recorded, by a woman police officer or any woman officer.

162. Statements to police not to be signed: Use of statements in evidence.- (1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:

Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such 31 Crl.A.200021/2017

witness in the manner provided by section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.

(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of section 27 of that Act.

Explanation.- An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact."

32 Crl.A.200021/2017

26. Statement under Section 161 of the Code forms

a part of the charge sheet and this statement can be used

by the accused for the purpose of contradicting the

witnesses in the manner as provided under Section 145 of

the Evidence Act and the right of accused to cross-

examine the witness, who has made a statement under

Section 161(3) of the Code is a right guaranteed to the

accused under Section 162 of the Code. Even without

recording the statement of a witness under Section 161(3)

of the Code, the said witness can be examined before the

court, but the evidence of such a witness has to be

appreciated very carefully and evidence of such witness

shall carry less value and credibility.

27. In the case of Gopal Krishna -vs- State6 at

para-22 it is held as under:

"22. It is obvious that though the police are not bound to make a record of the statement of the witnesses under S.161 as a matter of obligation, it is their duty to do so when the witness is a material witness for unfolding the prosecution

AIR 1964 ALLAHABAD 481 33 Crl.A.200021/2017

story. It is also clear that a failure on their part to comply with the requirements of Section 161(3), though does not render the subsequent statement of the witness at the trial inadmissible, it does greatly impair the value of the evidence of that witness. I fully agree with this view. It is the duty of an Investigating Officer to record the statement of eye-witnesses and of other material witnesses. In a case like this where there is a solitary eye-witness there can be no justification whatsoever for not recording his statement and the conduct of the Investigating Officer in the absence of any plausible explanation must be viewed with suspicion."

28. The High Court of Madhya Paradesh in the case

reported in Panna Fodaliya -vs- The State of Madhya

Pradesh7 at para-10 has held as follows:

"10. By not recording the statement of Jagdish during investigation the appellant has been denied a very valuable opportunity of testing the veracity of the witness with reference to his earliest version, and, therefore, it is difficult to attach any weight or value to the statement of Jagdish in court."

    1970 Cri.l.J.1180
                                34                Crl.A.200021/2017

29. It is a settled principle of law that non-recording

of statement under Section 161(3) of the Code or delayed

recording of statement under Section 161(3) of the Code or

improper recording of statement under Section 161(3) of

the Code is a serious irregularity which is incurable. This

irregularity gives rise to infer that prosecution has

procured such statement to suit their case and therefore,

such statement loses its credibility. When delay in

recording statement under Section 161 of the Code itself

casts cloud of suspicion on the case of the prosecution,

non-recording of such statement or recording of such

statement without mentioning the date, totally discredits

the evidence of these witnesses. By not recording

statement under Section 161(3) of the Code, prosecution

takes the accused by surprise and his right to contradict

this witness is virtually lost. Material contradictions and

material omissions are fatal to the case of the prosecution.

Accused will be handicapped to this extent when a witness

is cross-examined by him whose statement under Section 35 Crl.A.200021/2017

161(3) of the Code is not recorded. A witness, who

contradicts his earlier statement and makes improvement

in his subsequent statement or when there are omissions

in his statement, such witness loses credibility.

30. The credibility of a witness in criminal

proceedings is tested before the court vis-à-vis the

statement made by him under Section 161(3) of the Code.

Statement under Section 161(3) of the Code is a vital

document in criminal prosecution and the court after

scrutinizing the same can even discharge the accused.

Section 162(1) of the Code contemplates that statement

under Section 161 of the Code should not be signed nor

the statement could be used for any inquiry or trial,

except for the purpose as provided under the said section.

Therefore, the accused has an indefeasible right to use the

statement under Section 161(3) of the Code to shake the

credibility of the witness.

36 Crl.A.200021/2017

31. The statement of a witness, who is not examined

under Section 161(3) of the Code, is likely to seriously

prejudice and affect the case of the accused and evidence

of such witness in the absence of valid reasons by the

Investigating Officer for not recording his statement must

be viewed with suspicion, otherwise it would result in

miscarriage of justice. In the case on hand, statement of

PW-1 under Section 161(3) of the Code is not at all

recorded. In the complaint lodged by him, the particulars

of the credible information, raid, compliance of Section 42,

procedure followed during search and seizure, etc., are not

found. Under the circumstances, the evidence of this

witness loses its credibility and unless it is corroborated

by an independent witness, the same cannot be based for

holding the accused guilty of the alleged offences.

32. The contention of the prosecution that though

statement of PW-1 under Section 161(3) of the Code is not

recorded, but his complaint is on record which can be

used for the purpose of contradicting the witness, is 37 Crl.A.200021/2017

without merit. The complaint or FIR is not a statement hit

by Section 162 of the Code because the same is not made

during the course of investigation. Therefore, it cannot be

considered as statement under Section 161(3) of the Code.

In addition to the same, the complaint in this case lacks

any material particulars and therefore, for any reason, the

complaint cannot be substituted for a statement of the

complainant under Section 161(3) of the Code.

33. In the case on hand, non-recording of statement

of PW-1 under Section 161(3) of the Code and non-

mentioning of the date of recording of statement under

Section 161(3) of the Code of all other witnesses is fatal to

the case of the prosecution. For an offence punishable

under the provisions of the NDPS Act, compliance of the

requirement of law has to be scrutinized in a higher

pedestal because the penalties imposed under this statute

are very severe. The manner in which the investigation

has been conducted in this case vitiates the entire

investigation and resultantly it also affects the trial of the 38 Crl.A.200021/2017

case. The order of conviction, therefore, cannot be

recorded on the basis of evidence adduced by these

witnesses. The investigation in the case appears to be

totally tainted and unreliable.

34. Insofar as the contention of the learned counsel

for the appellant that the mandatory requirement of

Section 42 of the NDPS Act is not complied, it is relevant

to note that the complainant/PW-1 had received the

credible information at about 1.30 p.m. when he was in

his office. He has left his office subsequently at about 2.15

p.m. Therefore, he had sufficient time to record the

information in writing and also send the same to his

higher officers. This mandatory requirement under Section

42(1) of the NDPS Act has not been complied in this case.

Further, though prosecution has tried to make out a case

that there is compliance of requirement of Section 42 of

the NDPS Act by stating that the complainant/PW-1 had

recorded Ex.P1/search report, wherein it is stated that

having regard to the urgency, a search warrant from the 39 Crl.A.200021/2017

jurisdictional Magistrate cannot be obtained, PW-

1/complainant as well as PW-3 have clearly stated that

Ex.P1 was prepared after the accused ran away from the

spot leaving behind the car. Therefore, before conducting

search and seizure in the car and the house allegedly

belonging to the accused, PW-1 could have complied the

requirement of Section 42 of the NDPS Act by obtaining

necessary search warrant from the jurisdictional

Magistrate.

35. The Hon'ble Supreme Court of India in the case

of State of Rajasthan -vs- Jagraj Singh alias Hansa8

has held as follows:

"13. The High Court has come to the conclusion that there is breach of mandatory provisions of Section 42(1) and Section 42(2) and further Section 43 which was relied by the Special Judge for holding that there was no necessity to comply Section 42 is not applicable. We thus proceed to first examine the question as to whether there is breach of provisions of Section 42(1) and Section 42(2). The breach of Section 42 has been found in two parts. The first part is that there is difference between the secret information recorded in Exh. P-14 and Ex.P-21 and the

(2016) 11 SCC 687 40 Crl.A.200021/2017

information sent to Circle Officer, Nohar by Exh. P-15.

It is useful to refer to the findings of the High Court in the above context, which is quoted below:

" From the above examination, it is not found that Exh. P-14 the information which is stated to be received from the informer under Section 42(2) of Act or Exh. P-21, the information given by the informer which is stated to be recorded in the Rozanamacha, copy whereof has been sent to C.O. Nohar, who was the then Senior Officer, Rather, Exh. P-15, the letter which was sent, it is not the copy of Exh. P-14, but it is the separate memo prepared of their own. From the above examination, it is not found in the present case that section 42 (2) of Act, 1985 is complied with."

14. What Section 42(2) requires is that where an officer takes down an information in writing under sub-Section (1) he shall sent a copy thereof to his immediate officer senior . The communication Exh. P- 15 which was sent to Circle Officer, Nohar was not as per the information recorded in Exh. P 14 and Exh. P 24. Thus, no error was committed by the High Court in coming to the conclusion that there was breach of Section 42(2).

15. Another aspect of non-compliance of Section 42(1) proviso, which has been found by the High Court needs to be adverted. Section 42 (1) indicates that any authorised officer can carry out search between sun rise and sun set without warrant or authorisation. The scheme indicates that in event the search has to be made between sun set and sun rise, the warrant would be necessary unless officer has reasons to believe that a search warrant or authorisation cannot be obtained without affording the opportunity for escape of offender which grounds of his belief has to be recorded. In the present case, 41 Crl.A.200021/2017

there is no case that any ground for belief as contemplated by proviso to sub-section (1) of Section 42 or Sub-section (2) of Section 42 was ever recorded by Station House Officer who proceeded to carry on search. Station House Officer has appeared as PD- 11 and in his statement also he has not come with any case that as required by the proviso to Sub- section (1), he recorded his grounds of belief anywhere. The High Court after considering the entire evidence has made following observations :

"Shishupal Singh PD-11 by whom search has been conducted, on reaching at the place of occurrence by him no reasons to believe have been recorded before conducting the search of jeep bearing HR 24 4057 under Section 42(1), nor any reasons in regard to not obtaining the search warrant have been recorded. He has also not stated any such facts in his statements that he has conducted any proceedings in regard to compliance of proviso of Section 42(1). Since reasons to believe have not been recorded, therefore, under Section 42(2) it is not found on record that copy thereof has been sent to the senior officials. Shishupal Singh could be the best witness in this regard, who has not stated any fact in his statement regarding compliance of proviso to Section 42(1) and Section 42(2), sending of copy of reasons to believe recorded by him to his senior officials."

36. In the case of Sarju alias Ramu -vs- State of

U.P.9 the Hon'ble Supreme Court at para-17 has observed

as follows:

AIR 2009 SC 3214 42 Crl.A.200021/2017

"17. We must, however, notice that recently a Constitution Bench of this Court in Karnail Singh v. State of Haryana [2009 (10) SCALE 255] in view of difference of opinion in Abdul Rashid Ibrahim Mansuri v. State of Gujarat [(2000) 2 SCC 513] opining that compliance of Section 42 of NDPS Act is mandatory in nature and in Sajan Abraham v. State of Kerala [(2001) 6 SCC 692] holding the said principle to be directory, opined as under:

"(a) The officer on receiving the information (of the nature referred to in Sub-section (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(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 43 Crl.A.200021/2017

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 non-compliance of requirements of sub-sections (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 initiating action, or non-sending 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."

44 Crl.A.200021/2017

Even, admittedly, Shrikant Mishra had no authority to make search. Nothing has been brought on record to show that the provisions of Section 42 of the NDPS Act were substantially complied with."

37. In a judgment in the case of Bal Mukund

(supra), the Hon'ble Supreme Court at para-28 has

observed thus:

"28. Where a statute confers such drastic powers and seeks to deprive a citizen of its liberty for not less than ten years, and making stringent provisions for grant of bail, scrupulous compliance of the statutory provisions must be insisted upon. While considering a case of present nature where two persons may barely read and write Hindi, are said to have been used as carrier containing material of only 1.68% of narcotics, a conviction, in our opinion, should not be based merely on the basis of a statement made under Section 67 of the Act without any independent corroboration particularly in view of the fact that such statements have been retracted.

38. In the case of Karnail Singh -vs- State of

Haryana10, the Hon'ble Supreme Court at para-35 has

observed as follows:

"35. In conclusion, what is to be noticed is Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Section

(2009) 3 SCC (Cri) 887 45 Crl.A.200021/2017

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 Sub-section (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(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.

46 Crl.A.200021/2017

(d) While total non-compliance of requirements of sub-sections (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 initiating action, or non-sending 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."

39. This High Court in the case of Subramanyam

(supra) in paragraphs-6, 7 and 21 has observed thus:

"6. Point No. 1: CW-18 - Rajanna was working as a PSI in Nandagudi Police Station from July 2011 to September 2012. He is stated to have received a credible information at about 7.30 a.m. when he was in police station to the effect that in one bus 47 Crl.A.200021/2017

'Madhusudhan' proceeding from Madanapalli to Bangalore, poppy straw (husk) was being illegally transported. He is stated to have reduced the same into writing. Ex.P12 is the copy of the Station House Diary relating to the receipt of information. Of course, Station House Officer has to maintain Station House Diary and credibility of Ex.P12 cannot be found fault with.

7. What is further deposed by him is that he informed the jurisdictional Circle Inspector of Police and Deputy Superintendent of Police over phone and obtained information. Specific suggestions have been put to him stating that he did not inform the Circle Inspector of Police or the Deputy Superintendent of Police, in any manner and therefore statutory provisions of Section 42(2) of the Act have not been complied with. Ex.P12 - copy of the Station House Diary speaks only about the receipt of credible information received by him in regard to the transportation of poppy straw (husk) on the top of a bus proceeding from Madanapalli to Bangalore. But Ex.P20 is a written information stated to have been sent by PW-14 to the Deputy Superintendent of Police requesting permission to continue with the investigation. It bears the signature of Deputy Superintendent of Police. But nothing is mentioned in the Station House Diary about the intimation being given to his immediate higher ups, after coming back to the police Station from the spot. Ex.P20 depicts that soon after the receipt of the information it was communicated to the Deputy Superintendent of Police, but Ex.P12 is silent to that effect.

xxxxxxxxx

21. Even the Circle Inspector of Police to whom the intimation is stated to have been given by PW-14 about the receipt of credible information is neither cited as witness in the charge sheet nor examined.

48 Crl.A.200021/2017

Therefore, it is very difficult to accept the contention of learned HCGP that the mandatory provision of Section 42 of the Act have been complied with. Therefore, mere production of letter - Ex.P20 stated to have been addressed to the Deputy Superintendent of Police and getting it marked as Ex.P20 would be insufficient. Mere marking of a document does not dispense with the proof of the requirement of Section 42 of the Act."

40. From the pronouncement of the Hon'ble

Supreme Court as well as by this court in the above

referred judgments, it is very clear that in the case on

hand, the prosecution has failed to establish that there is

compliance of the requirement of Section 42(1) and 42(2)

of the NDPS Act. Even delayed compliance as per Ex.P-16

cannot be considered because PW-10 has not stated he

has received Ex.P-16 and because of the delay of seven

months in recording this witnesses statement, his

evidence looses credentiality.

41. Learned counsel for the appellant has also made

a submission that delay in forwarding the sample has not

been explained. Though PW-1 has made an attempt to

explain the said delay on the ground that since he was in-

49 Crl.A.200021/2017

charge of another post, he could not send the sample

articles to the FSL within time, the said evidence cannot

be believed having regard to the evidence of PW-7, who

has stated that the sample articles were forwarded by him

through PW-8 to FSL for the purpose of obtaining report.

42. PW-9 is the person who has completed the

investigation and filed the charge sheet. He has clearly

stated that he has not shown any reason in the charge

sheet for having belatedly sent the samples to the FSL.

There is also no material available on record to show that

the seized articles and the sample articles were kept in a

safe place. The Hon'ble Supreme Court of India in the

case of State of Gujarat -vs- Ismail U.Haji Patel and

Another11 in paragraphs-5 and 6 has observed as follows:

"5. We find that there was really no material brought on record to show as to where the seized articles were kept. The High Court after analysing the evidence on record came to hold that the identity of the articles sent for analysis was not established and it was not established that the articles seized were in fact sent

(2003) 12 SCC 291 50 Crl.A.200021/2017

for chemical examination. In view of the judgment of this Court in Valsala v. State of Kerala 1993 Supp 3 SCC 665 the view of the High Court is in order. It is not the delay in sending the samples which is material. What has to be established is that the seized articles were in proper custody, in proper form and the samples sent to the Chemical Analyst related to the seized articles.

6. Further, there was nothing brought on record to show as to under whose directions the samples were sent for chemical examination. The High Court relied on Section 55 of the Act to hold that the absence of such information also vitiates the proceedings. Section 55 of the Act provides that the officer in charge of the police station has to take charge of and keep in safe custody the seized articles pending orders of the Magistrate. Since there is no material to show that there was any order of the Magistrate as to where the seized articles were to be kept, and there was no material to show that there was safe custody as is required under Section 55 of the Act, the view of the High Court is in order. Judgment of the High Court does not warrant any interference in our hands and the appeal is dismissed."

43. The Hon'ble Supreme Court in the case of Bal

Mukund (supra), at paragraphs-36 and 37 has observed

thus:

"36. There is another aspect of the matter which cannot also be lost sight of. Standing Instruction No. 51 Crl.A.200021/2017

1/88, which had been issued under the Act, lays down the procedure for taking samples. The High Court has noticed that PW-7 had taken samples of 25 grams each from all the five bags and then mixed them and sent to the laboratory. There is nothing to show that adequate quantity from each bag had been taken. It was a requirement in law.

37. There is another infirmity in the prosecution case. Section 55 of the Act reads as under:

"55 - Police to take charge of articles seized and delivered An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station."

PW-7 did not testify as to which of the bags seized had been sent for analysis. No statement had been made by him that the bags produced were the bags in question which were seized or the contraband was found in them."

44. In the case on hand, the prosecution has failed

to show that the materials were kept in safe custody as

required under Section 55 of the NDPS Act and they have

also failed to explain the inordinate delay of nearly two 52 Crl.A.200021/2017

months in sending the sample articles to the FSL. Having

regard to the manner in which investigation is conducted

in the case, foul play cannot be completely ruled out.

45. The contention of the learned counsel for the

appellant that the evidence of PW-2 should not be believed

because he is a stock witness cannot be accepted having

regard to the material available on record. The mere fact

that PW-2 has accompanied the Excise officials on certain

occasions during raid and that he has deposed as a panch

witness in one case is not sufficient to term this witness

as a "stock witness". However, this witness has made

contradictory statement with regard to time of preparation

of Ex.P1. In the absence of any corroborative evidence, it

would not be safe to entirely believe this witness.

46. On overall appreciation of the oral and

documentary evidence available on record, it is evident

that for the reasons stated hereinabove, the investigation

in the case is vitiated for improper recording and non-

53 Crl.A.200021/2017

recording of statement of the witnesses under Section

161(3) of the Code, who have been examined in the court.

The Investigation Officer has admittedly not maintained a

case diary, wherein such statements are required to be

recorded which is a mandatory requirement of law under

Section 161(3) of the Code. Such an irregularity seriously

prejudices the case of the accused and if the order of

conviction is required to be based on the evidence of these

witnesses, it will result in miscarriage of justice. There is

also total non-compliance of mandatory requirements of

Section 42 of the NDPS Act and there is an unexplained

delay in forwarding the samples to the FSL. Though PW-1

has stated that within 72 hours Ex.P16 was prepared and

forwarded to his higher officer, PW-10 does not state that

he has received Ex.P16. Further, in view of inordinate

delay in recording the statement of this witness, who is a

senior officer, under Section 161(3) of the Code, a serious

doubt arises with regard to credibility of this witness. The

Investigating Officer has further admitted that he has not 54 Crl.A.200021/2017

maintained the case diary. This further vitiates the entire

investigation. Because of these serious infirmities, a

serious doubt arises whether PW-10 had really

accompanied the raiding squad or whether an attempt is

made by prosecution to get over compliance of the

mandatory requirement of Section 42 of the NDPS Act.

47. The prosecution has failed to establish that the

car and the house from where the contraband articles

were seized either belonged to the accused or his wife. It

has come on record that the car belonged to accused No.2

and the prosecution has admitted that they have no

record to prove that the house stands in the name of wife

of the accused. The contraband articles were seized in the

absence of the accused. A presumption under Section 54

of the NDPS Act can only be raised after the prosecution

has established that the accused was found in possession

of the contraband articles in a search conducted in

accordance with the mandate of law and illegal search

does not entitle the prosecution to raise such a 55 Crl.A.200021/2017

presumption under Section 54 of the NDPS Act. The

prosecution has neither conducted the raid in accordance

with law nor have they proved the contraband articles

were seized from the possession of the accused.

48. On re-appreciation of the entire evidence on

record, this Court is of the considered opinion that the

trial court was not justified in convicting the appellant for

the offence under Section 8(c) which is punishable under

Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic

Substances Act, 1985. Suffice to say in view of the legal

irregularities, infirmities and factual inconsistencies, the

prosecution has not been able to prove the guilt of the

accused beyond all reasonable doubt. Accordingly, the

point for consideration is answered in the negative. In

view of the same, the appeal has to be allowed and the

judgment and order of conviction and sentence will have

to be set aside.

49. In the result, the following order is passed:

                                 56                Crl.A.200021/2017


                            ORDER

       (i) The appeal is allowed.

(ii) The impugned judgment and order of conviction

and sentence dated 11th January 2017 in Special (NDPS)

Case No.09/2015 passed by the Court of Special

Judge/Principal Sessions Judge, Vijayapura, is hereby set

aside;

(iii) The appellant is acquitted of the charges leveled

against him. The bail bonds, if any, executed by the

appellant shall stand cancelled and fine amount, if any,

deposited by him shall be refunded to him after expiry of

the appeal period.

Sd/-

JUDGE

KNM/-