Sri. Thipir Neni Aditya vs State Of Karnataka
2023 Latest Caselaw 6624 Kant

                               1




        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 20TH DAY OF SEPTEMBER, 2023

                           BEFORE

     THE HON'BLE Mr. JUSTICE SHIVASHANKAR AMARANNAVAR

              CRIMINAL APPEAL No.1059/2023

BETWEEN :


1.    Sri Thipir Neni Aditya
      S/o Thipir Neni Mahesh
      Aged about 24 years
      R/at. 8.3.318/11/12
      Jayaprakash Nagar
      Near Durga Enclave
      Ameerpet, Hyderabad - 500 073
      Telangana State.


2.    Sri Mogili Hemanth Reddy
      S/o. Mogili Srinivas Reddy
      Aged about 22 years
      R/at. 6-1-44/1 VDOS Colony
      Khanapura, Khamam Urban - 507 002.
      Telangana State.
                                               ... APPELLANTS

(By Sri Sandesh J Chouta, Senior Counsel for
 Sri Ajit P.B, Advocate )

AND :

State of Karnataka
(By Police Inspector)
CEN Police Station
                                2




Udupi- 576 101.
Rep by SPP High Court of Karnataka
Bengaluru -560 001.
                                              ... RESPONDENT

(By Sri Rangaswamy R, HCGP)

                              ---

      This Criminal Appeal is filed under Section 374(2) of
Cr.P.C praying to set aside the judgment of conviction dated
05.06.2023 and sentence dated 07.06.2023 passed by the
Principal Sessions Judge and Presiding Officer Special Court,
Udupi in Special case No. 98/2020 convicting the
appellant/accused Nos.1 and 2 for the offence punishable
under Sections 8(c), 20(b)(ii), (B)M of NDPS Act.


    This Criminal Appeal having been heard and reserved
for   judgment      this    day,     SHIVASHANKAR
AMARANNAVAR J, delivered the following;


                        JUDGMENT

This appeal is filed against the judgment of conviction

dated 05.06.2023 and order of sentence dated 07.06.2023

passed in Spl.C. No. 98/2020 convicting the appellants -

accused Nos. 1 and 2 for the offence under Sections 8(c)

and 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic

Substances Act (hereinafter for the sake of brevity referred

to as the `NDPS Act') and sentencing to undergo rigorous

imprisonment for a period of two years and to pay fine of

Rs.50,000/- each and in default to undergo simple

imprisonment for a period of six months.

2. Factual matrix of the prosecution case is that the

informant working as Sub-Inspector of Police, CEN Police

Station Udupi on 27.10.2019 received credible information

that appellants - accused Nos. 1 and 2 were engaged in

peddling Ganja near Shankaranarayan Temple at

Moddanidamburu village. Immediately he submitted

necessary written requisition to the Superintendent of

Police, Udupi seeking permission to conduct raid on the

appellants - accused persons in writing. On receipt of such

permission from the Superintendent of Police, Udupi the

informant had procured a Gazetted Officer from the Health

Department for assisting in investigation by submitting

requisition and also two panchas. Then along with the

Gazetted Officer, Panchas and staff he went near

Shankaranarayana Temple at Moodanidamburu village in

private vehicles and found that the appellants - accused

Nos. 1 and 2 were sitting in a car parked on the side of the

road. Then along with his staff, Gazetted Officer and the

panchas he had surrounded them. The informant had

found that accused No.1 was holding a black coloured

plastic bag. At the instructions of the informant the

appellants - accused Nos. 1 and 2 alighted the car with the

bag. On enquiry accused No.1 revealed that the bag

contained Ganja.

3. Then the Gazetted Officer enquired the appellants -

accused persons by issuing a notice in writing that whether

they wish to be searched by a Magistrate or by a Gazetted

Officer. As accused Nos. 1 and 2 consented to be searched

by a Gazetted Officer, he had obtained their signatures on

the notice. Then the Gazetted Officer had searched

accused Nos. 1 and 2 and found ganja weighing about 4.34

kgs in the bag found in possession of accused No. 1. The

same was seized by stitching in a white cloth and sealed the

same along with mobile phones of both the accused, with

the Innova car and scooter under panchanama at the spot

itself. Then the informant had arrested both the accused

persons, returned to the Police Station and lodged a

complaint on behalf of the State to CEN Police Station

Crime No. 116/2019 for the offences punishable under

Section 8(c) and 20(b)(ii)(B) of NDPS Act and investigation

was taken up. On conclusion of investigation charge-sheet

came to be filed against the appellants accused Nos. 1 and

2 for the offence punishable under Sections 8(c) and

20(b)(ii)(B) of NDPS Act.

4. The prosecution examined seven witnesses as

P.W.1 to P.W.7 and got marked Ex.P.1 to Ex.P.26 and

M.O.1. Statements of the accused under Section 313 of

Cr.P.C. were recorded.

5. After hearing arguments on both sides, the Special

Court formulated points for consideration and convicted the

appellants - accused Nos.1 and 2 under Sections 8(c) and

20(b)(ii)(B) of NDPS Act. Said judgment of conviction and

order of sentence has been challenged in this appeal.

6. Heard arguments of learned Senior counsel for

appellants- accused Nos.1 and 2 and learned HCGP for

respondent - State.

7. Learned Senior counsel for appellants - accused

Nos.1 and 2 would contend that there are violations of

Sections 42, 50, 52, 53 and 55 of the NDPS Act. The

appellants - accused Nos.1 and 2 were parking their car at

MIT parking area and in that regard there was a quarrel

with two Police personnel (C.W.5 - Krishna Prasad and

C.W.9 - Jeevan) and therefore, a false case came to be

foisted against them to teach a lesson. Said quarrel was

captured on the CCTV and footage has been produced in a

pen-drive at the time of recording of statement of the

appellants - accused Nos.1 and 2 under Section 313 of

Cr.P.C. along with the written statement. P.W. 3 - PSI is

stated to have received credible information through C.W.5

and C.W.9 that these appellants - accused Nos. 1 and 2

were engaged in peddling ganja near Shankaranarayana

Temple at Moodanidamburu village. Said PSI - P.W.3 was

expected to take down the information in writing as

required under Section 42(1) of the NDPS Act and shall,

within 72 hours, send a copy thereon to his immediate

official superior. There is no document produced to disclose

that P.W.3 was an empowered officer or that credible

information received by him had been taken down in writing

and sent to a superior officer. Instead, P.W.3 has sought

and received permission from Superintendent of Police of

Udupi for the purpose of conducting search and seizure

which is contrary to Section 42 of the NDPS Act. P.W.2 has

arrested the appellants - accused Nos.1 and 2 and then

requested P.W.1 to conduct a physical search of appellants

- accused Nos.1 and 2. P.W.1 claiming to be a Gazetted

Officer informs the appellants - accused Nos.1 and 2 their

right to be searched before Tahsildar and thereafter, after

obtaining joint consent conducted physical search and

seizure and it is in violation of Section 50 of the NDPS Act.

Section 50(1) of the NDPS Act only permits the officer duly

authorized under Section 42 of the NDPS Act to conduct a

physical search and if the accused desires to be searched in

the presence of a Gazetted Officer or a Magistrate then the

authorized officer without any unnecessary delay shall take

the accused to the Gazetted Officer or Magistrate. P.W.1

who is stated to be Gazetted Officer is made part of the

search party. A joint declaration is taken in a language not

known to the appellants - accused Nos.1 and 2. The

personal search is not done by an empowered officer under

Section 42 of the NDPS Act and it is conducted by P.W.1 -

Gazetted Officer himself which is contrary to Section 50 of

the NDPS Act. Summoning of P.W.2 and P.W.6 to the Police

Station runs foul of the need to have independent witnesses

under Section 100(4) of Cr.P.C. Inventory of the seized

contraband (Ex.P.19) is dated 11.11.2019 whereas the date

of seizure is 27.10.2019. There is nothing on record to

disclose that during the intervening period of 14 days the

place where the contraband was kept which runs foul of

Section 52-A of the NDPS Act which necessitates the seized

article to be forwarded without unnecessary delay to either

the officer in-charge of Police Station or officer empowered

under Section 53 of the NDPS Act. Ex.P.19 is the inventory

drawn and is contrary to Sections 52(3) read with Sections

52-A(2) and Section 55 of the Act and it raises serious

doubt about the seized commodity. Application as required

under Section 52-A(2) of the NDPS Act has been filed on

11.11.2019 and the Magistrate has issued certificate as per

Ex.P.21. Ex.P.20 would disclose that the application made is

not for seeking certification as required under sub-section

(3) of Section 52-A of the NDPS Act. Therefore, certification

as required under sub-section (3) of Section 52-A of the

NDPS Act of the Magistrate is absent. Ex.P.20 and Ex.P.21

are only relatable to the application for disposal of the

contraband under sub-section (3) of Section 52-A of the

NDPS Act. This amounts to clear violation of the mandatory

requirement under sub-section (3) of Section 52-A of the

NDPS Act. Only sample of 100 gms has been taken out of

seizure of 4 kgs 34 gms and the same is contrary to the

mandate of taking samples as per the Standing Order No.

1/1988 dated 15.03.1988 and Notification dated

23.12.2022. The quantity which has been sent to FSL is

only to an extent of 99.82 gms and same was taken for

analysis only on 13.04.2020 which is after five months after

it was received in the FSL. It is only on the basis of the

report of FSL that a conclusion is arrived at that the

contraband was Ganja. There are inferences in Ex.P.2 -

seizure mahazar and Ex.P.8 - arrest mahazar and it is not

countersigned by the panchas and Investigating Officer.

Same has been admitted by P.W.3 in his cross-examination.

The sample is to be taken in duplicate as per the Standing

Order No. 1/1988 and the same has to be dispatched within

72 hours to the laboratory. In the present case the sample

has not been taken in duplicate. There is no record to show

that P.W.3 has taken the information in writing and that

there is an entry in the Station House Diary in that regard.

The panchas to the seizure mahazar - Ex.P.2 have turned

hostile and evidence of P.W.1 and P.W.3 cannot be relied

on as enmity has been pleaded against the Police since the

Police quarreled with the appellants - accused Nos. 1 and 2

with regard to parking of the vehicle on the same day

morning. On the points raised, learned Senior counsel has

placed reliance on the following decisions.

1. State of Rajasthan Vs. Parmanand and Another - 2014 (5) SCC 345

2. Union of India Vs. Mohanlal and Another - 2016 (3) SCC 79

3. Karnail Singh Vs. State of Haryana - 2009 (8) SCC

4. Simarnjit Singh Vs. State of Punjab - (2023) SCC Online SC 906

5. Noor Aga Vs. State of Punjab and Another -2008 (16) SCC 417

6. Boota Singh and Others Vs. State of Haryana - 2021 SCC Online SC 324

7. Sanjeet Kumar Singh @ Munna Kumar Singh Vs. State of Chhatisgarh - Crl.A No.871/2021 disposed on 30.08.2022

8. Mukesh Singh Vs. State, 2020 (10) SCC 120

On these grounds learned Senior counsel prays to allow the

appeal and acquit the appellants - accused Nos. 1 and 2.

8. Per contra, learned HCGP appearing for the

respondent - State would argue that the Special Court on

appreciation of the evidence on record has rightly convicted

the appellants - accused Nos. 1 and 2. He supports the

reasoning assigned by the trial Court. He placed reliance on

the decision of the coordinate Bench of this Court in Crl.A.

No. 570/2022 disposed off on 02.11.2022 stating that there

is a notification dated 11.09.1986 empowering the PSI to

investigate under Section 42 of the NDPS Act and the said

judgment is based on the judgment of the Hon'ble Apex

Court rendered in the case of Mukesh Singh Vs. State

reported in 2020 (10) SCC 120. P.W.1 is a Gazetted

Officer and he has made the personal search of the

appellants - accused Nos. 1 and 2. There is compliance of

Sections 42, 43, 50, 52-A and 53 of the NDPS Act. P.W.4 in

his report has stated that the contraband is Ganja.

Investigation done by the Police is proper. The offence

alleged against the appellants - accused Nos. 1 and 2 is a

heinous offence affecting the youngsters' life. No lenience

can be taken against the appellants - accused Nos. 1 and 2

since they have committed heinous offence. On these

grounds he prayed to dismiss the appeal.

9. Learned Senior counsel would contend that P.W.3 -

PSI is not empowered officer under Section 42 of the Act

and therefore, search and seizure made by him is bad in

law. Section 42 of the Act read thus:

"42. Power of entry, search, seizure and arrest without warrant or authorisaion.-(l) 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 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 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 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 thereunder, 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 authorisation 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.

(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."

Under sub-section (1) of Section 42 of the NDPS Act any

officer being an officer superior in ranking to peon, sepoy or

constable of the departments of Revenue, Drugs Control,

Excise, Police or any other department of State Government

empowered by general or special order of the State

Government has power to enter into and search, seize and

arrest without arrest warrant or authorization. P.W. 3 who

conducted raid and seizure is a PSI of CEN Police Station,

Udupi. In furtherance of sub-section (1) of Section 42 of the

NDPS Act the State Government has issued notification. The

notification reads thus:

Notification No. HD 214 EDC 85 (II) Bangalore, dated 11th September, 1986 In exercise of the powers conferred by sub- section (2) of Section 41 and sub-section (1) of Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (Act 61 of 1985) the Government of Karnataka hereby empower the officers of and above the rank of Sub-Inspector of Excise, Excise Department, the Drug Inspector, Drugs Control Department and the Sub-Inspector of Police to exercise the powers and perform the duties specified in sub-section (2) of Section 41 and sub- section (1) of Section 42 of the said act within the area of their respective jurisdiction.

Therefore notification as required under Section 42 of the

NDPS Act is in place which depicts that Sub-Inspector is

empowered to enter into and search, seize and arrest

without arrest warrant or authorization.

10. Learned Senior counsel has argued that there is

non-compliance of sub-section (1) of Section 50 of the

NDPS Act. Section 50 of the NDPS Act reads thus:

"50. Conditions under which search of person shall be conducted.- (l) When any officer duly authorized 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 Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.

(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 sub- section (1).

(3) The Gazetted 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 authorized 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 Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure 1973 (2 of 1974). (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."

As per the mandate under sub-section (1) of Section 50 of

the NDPS Act, P.W.3 who is the authorized officer under

Section 42 of the NDPS Act prior to search, shall, if such

person so requires, take such person without unnecessary

delay to the nearest Gazetted Officer of any of the

departments mentioned in Section 42 of the NDPS Act or to

the nearest Magistrate. P.W.1 - Gazetted Officer was also

present with P.W.3 at the time of raid. P.W.1 in his

evidence has stated that P.W.3 asked him to search

accused Nos. 1 and 2 and he asked accused Nos. 1 and 2

as a Gazetted Officer whether can he make search or

whether they want to be searched by Tahsildar and for that

accused Nos.1 and 2 told him that he can make search and

he gave notice - Ex.P.1 in that regard to accused Nos. 1

and 2. Thereafter, P.W.1 made search of himself and he did

not possess any contraband articles. Thereafter, he made

search of accused Nos.1 and 2 and accused No.1 was

having a black colour plastic carry bag and it contained

Ganja.

11. Accused Nos. 1 and 2 are residents of Telengana

State and notice - Ex.P.1 given to them is in Kannada

language and it is a joint notice to accused Nos.1 and 2.

What is the answer given by accused Nos.1 and 2 to the

said notice - Ex.P.1 is not mentioned in it. There is no

endorsement by accused Nos.1 and 2 that they consented

for search by P.W.1. As per the mandate under sub-section

(1) of Section 50, the authorized officer prior to search has

to ask those persons whether he can make search or they

intend to be searched by a Gazetted Officer or Magistrate.

Said notice - Ex.P.1 has been issued by P.W.1 - Gazetted

Officer. The provisions contained under sub-section (1) of

Section 50 of the NDPS Act does not authorize the Gazetted

Officer to take consent of the accused persons whether they

intend to be searched by him or by a Magistrate. Therefore,

issue of notice by P.W.1 to accused Nos.1 and 2 as per

Ex.P.1 is not as per the provisions contained under sub-

section (1) of Section 50 of the NDPS Act. P.W.1 in the

cross-examination has stated that first the Police did the

search of the accused and after five minutes of search by

the Police he made a search of the accused persons. Even

P.W.1 in his cross-examination has stated that after making

search and after 10 minutes of search he gave Ex.P.1 -

notice to accused persons. P.W.1 has admitted that in

Ex.P.1 there is no mention that he is a Gazetted Officer.

Considering the said aspects, there is violation of sub-

section (1) of Section 50 of the NDPS Act.

12. A common notice has been given to accused No. 1

by P.W.1 prior to their search on which accused Nos.1 and 2

affixed their signatures. The Hon'ble Apex Court in the case

of State of Rajasthan Vs. Parmanand and another

reported in (2014) 5 SCC 345 has observed thus:

"17. In our opinion, a joint communication of the right available under Section 50(1) of the NDPS Act to the accused would frustrate the very purport of Section 50. Communication of the said right to the person who is about to be searched is not an empty formality. It has a purpose. Most of the offences under the NDPS Act carry stringent punishment and, therefore, the prescribed procedure has to be meticulously followed. These are minimum safeguards available to an accused against the possibility of false involvement. The communication of the right has to be clear, unambiguous and individual. The accused must be made aware of the existence of such a right.

This right would be of little significance if the beneficiary thereof is not able to exercise it for want of knowledge about its existence. A joint communication of the right may not be clear or unequivocal. It may create confusion. It may result in diluting the right. We are, therefore, of the view that the accused must be individually informed that under Section 50(1) of the NDPS Act, he has a right to be searched before the nearest gazetted officer or before the nearest Magistrate. Similar view taken by the Punjab and Haryana High Court in Paramjit Singh and the Bombay High Court in Dahramaveer Lekhram Sharma meets with our approval."

13. Contraband has been seized on 27.10.2019 under

mahazar Ex.P.2. P.W.1 filed complaint as per Ex.P.13,

produced accused Nos. 1 and 2, seized the contraband,

seizure mahazar and arrest mahazar and other articles

before the Station House Officer - P.W.5. P.W. 5 registered

the said complaint and sent FIR - Ex.P.15 to the

jurisdictional Magistrate and retained the contraband

seized, seizure mahazar, other documents and articles. Said

contraband is produced before P.W.5 on 27.10.2019. P.W.5

handed over further investigation to P.W.7. P.W.7 took up

further investigation on 27.10.2019 from P.W.5 along with

the seized contraband and other articles and documents.

P.W.7 has produced the seized contraband before the

Magistrate on 11.11.2019 by making an application as per

Ex.P.20. The Officer empowered under Section 53 of the

NDPS Act shall prepare an inventory of such contraband

containing details relating to description, quantity, quality,

mode of packing, marks, numbers or such other identifying

particulars of the contraband and make an application to

any Magistrate for the following purposes:

i. certifying the correctness of the inventory so prepared; or ii. taking, in the presence of such Magistrate, photographs of such drugs, substances or conveyances and certifying such photographs as true; or

iii. 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.

14. P.W.7 has prepared the inventory of the seized

contraband as required under Section 52-(A)(2) of the

NDPS Act as per Ex.P.19 and it is dated 11.11.2019. In the

said inventory there is mention that date of seizure is

27.10.2019. There is no evidence adduced why the said

inventory was not prepared immediately after the date of

seizure i.e., 27.10.2019. P.W.7 sent a requisition to the

Principal District and Sessions Judge, Udupi, on 27.10.2019

seeking permission to produce the seized contraband before

the Tahsildar and Taluka Executive Magistrate, Udupi taluk,

for the purpose of drawing sample. Said requisition is at

Ex.P.18. On the said requisition there is an endorsement of

the Principal District and Sessions Judge, Udupi, as

`permitted' and below the signature date is mentioned as

`27.10.'. Inspite of grant of permission by the Principal

District and Sessions Judge, Udupi, on 27.10.2019, P.W.7

did not produce the seized contraband before the Tahsildar

and Taluka Executive Magistrate, Udupi till 11.11.2019.

Where the seized contraband was stored and what was its

condition is not forthcoming in the prosecution records.

15. The Hon'ble Apex Court in the case of Union of

India Vs. Mohanlal and another reported in 2016 (3)

SCC 379 has observed thus:

19. xxxxx There is in our opinion no manner of doubt that the seizure of the contraband must be followed by an application for drawing of samples and certification as contemplated under the Act. There is equally no doubt that the process of making any such application and resultant sampling and certification cannot be left to the whims of the officers concerned. The scheme of the Act in general and Sections 52-A in particular, does not brook any delay in the matter of making of an application or the drawing of samples and certification. While we see no room for

prescribing or reading a time-frame into the provision, we are of the view that an application for sampling and certification ought to be made without undue delay and the Magistrate on receipt of any such application will be expected to attend to the application and do the needful, within a reasonable period and without any undue delay or procrastination as is mandated by sub-section (3) of Section 52-A (supra)."

16. Even though the Special Court has granted

permission on 27.10.2019 to produce the seized contraband

before the Tahsildar and Taluka Executive Magistrate,

Udupi, P.W.7 did not produce the seized contraband

immediately and produced the same after 14 days. Said

delay is not explained. Therefore, there is undue delay in

producing the seized contraband before the Magistrate.

17. A plain reading of Section 52-A of the NDPS Act

shows that the manner and procedure of sampling is not

specifically provided in it and rather by sub-section (1), the

Central Government has been empowered to prescribe by

notification the procedure to be followed for seizure, search

and disposal of drugs and psychotropic substances. The

Central Government has, in exercise of that power, issued

standing order bearing No. 1/1989 which prescribes the

procedure to be followed while conducting seizure of the

contraband. Said order No. 1/1989 supersedes the previous

standing order No.1/1988. What is quantity of sample to be

drawn is provided clause 1.6 of the said standing order

which reads thus:

"1.6 Quantity of different drugs required in the sample - The quantity to be drawn in each sample for chemical test should be 5 grams in respect of all narcotic drugs and psychotropic substances except in the cases of Opium, Ganja and Charas/Hashish where a quantity of 24 grams in each case is required for chemical test. The same quantities should be taken for the duplicate sample also. The seized drugs in the packages/containers should be well mixed to

make it homogeneous and representative before the sample in duplicate is drawn."

Number of samples to be drawn in each seizure case

has been provided in clause 1.7 which reads thus:

"1.7 Number of samples to be drawn in each seizure case - (a) In the case of seizure of single package/container one sample in duplicate is to be drawn. Normally it is advisable to draw one sample in duplicate from each package/container in case of seizure of more than one package/container.

(b) However, when the package/container seized together are of identical size and weight, bearing identical markings and the contents of each package give identical results on colour test by U.N. kit, conclusively indicating that the Page 6 of 18 packages are identical in all respect/the packages/container may be carefully bunched in lots of 10 packages/containers may be bunched in lots of 40 such packages such packages/containers. For each such lot of packages/containers, one sample in duplicate may be drawn.

(c) Where after making such lots, in the case of Hashish and Ganja, less than 20 packages/containers remains, and in case of other drugs less than 5 packages/containers remain, no bunching would be necessary and no samples need be drawn.

(d) If it is 5 or more in case of other drugs and substances and 20 or more in case of Ganja and Hashish, one more sample in duplicate may be drawn for such remainder package/containers.

(e) While drawing one sample in duplicate from a particular lot, it must be ensured that representative drug in equal quantity is taken from each package/container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot."

Custody of duplicate sample is provided in clause 1.21

which reads thus:

"1.21. Custody of duplicate sample: Duplicate sample of all seized narcotic drugs and psychotropic substances must be preserved and kept safely in the custody of the investigating officer along with the case property. Normally

duplicate sample may not be used but in case of loss of original sample in transit or otherwise or on account of trial court passing an order for a second test, the duplicate sample will be utilized."

18. In pari materia with the standing order No.

1/1988 is the standing order No. 1/1989 dated 13.06.1989

issued under sub-section (1) of Section 52-A of the NDPS

Act by the Department of Revenue, Ministry of Finance,

Government of India. Section (II) of the said order of 1989

provides for the general procedure for sampling and

storage. Relevant provisions reads thus:

"2.2. All the packages/containers shall be serially numbered and kept in lots for sampling.

Samples from the narcotic drugs and psychotropic substances seized shall be drawn on the spot of recovery, in duplicate, in the presence of search witnesses (Panchas) and the person from whose possession the drug is recovered, and a mention to this effect should

invariably be made in the panchanama drawn on the spot.

2.3. The quantity to be drawn in each sample for chemical test shall not be less than 5 grams in respect of all narcotic drugs and psychotropic substances save in the cases of opium, ganja and charas (hashish) where a quantity of 24 grams in each case is required for chemical test. The same quantities shall be taken for the duplicate sample also. The seized drugs in the packages/containers shall be well mixed to make it homogeneous and representative before the sample (in duplicate) is drawn.

2.4. In the case of seizure of a single package/container, one sample in duplicate shall be drawn. Normally, it is advisable to draw one sample (in duplicate) from each package/container in case of seizure of more than one package/container.

2.9. The sample in duplicate should be kept in heat-sealed plastic bags as it is convenient and safe. The plastic bag container should be kept in a paper envelope which may be sealed properly. Such sealed envelope may be marked as original

and duplicate. Both the envelopes should also bear the No. of the package(s)/container(s) from which the sample has been drawn. The duplicate envelope containing the sample will also have a reference of the test memo. The seals should be legible. This envelope along with test memos should be kept in another envelope which should also be sealed and marked "Secret - Drug sample/Test memo", to be sent to the chemical laboratory concerned."

19. On a conjoint reading of both the standing order

Nos. 1/1988 and 1/1989, in case of Ganja, quantity of

sample to be taken is 24 gms for chemical testing. The said

sample is to be drawn in duplicate. Said duplicate sample

must be preserved and kept in safe custody of the

Investigating Officer along with the case property. The

Hon'ble Apex Court in the case of Simarnjit Singh Vs.

State of Punjab, reported in 2023 SCC Online SC 906

has held that procedure for sampling prescribed under the

standing orders must be substantially complied with.

20. Ex.P.20 is an application made by P.W.7 for

disposal of the seized contraband under Section 52-A(2) of

the NDPS Act to the Tahsildar and Taluka Executive

Magistrate, Udupi taluk. In the said application P.W.7 has

sought for certification of correctness of inventory,

photographs and samples of the seized contraband and

issue of certificate under Section 52-A of the Act and

thereafter for destruction of the seized contraband. Ex.P.21

is the certificate issued by the Magistrate under sub-section

(3) of Section 52-A of the NDPS Act wherein it is stated that

the Magistrate has allowed the application under sub-

section (3) of Section 52-A of the NDPS Act and drawn

sample of 100 gms and marked it as A-1. Total seized

contraband is 4.084 kgs, sample drawn is 100 gms and

remaining contraband is 3.934 kgs. On considering said

Ex.P.21 it is clear that the sample is not drawn in duplicate

as per the provisions contained under standing order Nos.

1/1988 and 1/1989. There is delay in drawing the sample

from the date of seizure of the contraband.

21. Even though in the application they sought for

permission for destruction of the seized contraband, there is

no order forthcoming of the Tahsildar and Taluka Executive

Magistrate. In Ex.P.26 - letter of P.W.7 to the Principal

District and Sessions Judge, Udupi, there is mention that

after Court's permission seized contraband has been sent to

District Drug Disposal Committee and the seized

contraband has been destroyed by the Drug Disposal

Committee on 02.03.2020 which is enclosed with the said

document. On perusal of the said enclosed document the

seized contraband pertaining to this case CEN crime No.

116/2019 is at Sl.No. 10 and the quantity of seized

contraband destroyed is 4.34 kgs. The total quantity of

contraband seized is 4.34 gms and as per Ex.P.21 after

drawing sample of 100 gms quantity remaining is 3.934

kgs. When the remaining quantity is 3.934 kg how the Drug

Disposal Committee has destroyed 4.34 kgs is not

forthcoming. On perusal of the said documents it appears

that the entire seized contraband has been destroyed.

22. P.W.3 - PSI received credible information and by

his letter Ex.P.10 he sought permission of the

Superintendent of Police, Udupi, to conduct the raid etc. In

Ex.P.10 it is mentioned that he received credible

information at 02.00 pm on 27.10.2019. In response to the

said letter - Ex.P.10, the Superintendent of Police, Udupi

permitted P.W.3 for raid etc., by his order dated

27.10.2019 which is at Ex.P.11. As per sub-section (1) of

Section 42 of the NDPS Act the empowered officer on

receiving the information has to take down the same in

writing and as per sub-section (2) of Section 42 of the

NDPS Act he shall, within 72 hours, send a copy thereon to

his immediate official superior. There is nothing on record

to show that the empowered officer - P.W.3 has taken

down the information received by him in writing. Any

information received by the empowered officer will normally

be entered in the station house diary. Copy of the station

house diary of the relevant date is not produced by the

prosecution. Considering Ex.P.10 and Ex.P.11 what can be

gathered is that he has intimated the receipt of credible

information to his official superior immediately prior to the

raid and complied sub-section (2) of Section 42 of the NDPS

Act. But, there is no compliance of sub-section (1) of

Section 42 of the NDPS Act regarding taking down the

information in writing. The Hon'ble Apex Court in the case

of Karnail Singh Vs. State of Haryana, reported in 2009

(8) SCC 539 has held that taking down any information in

writing and sending a copy thereof to his immediate official

superior is mandatory and total non-compliance of Section

42 of the NDPS Act would adversely affect the case of the

prosecution.

23. Accused Nos. 1 and 2, at the time of recording the

statement under Section 313 of Cr.P.C., have filed their

statements in writing and accused No. 2 has enclosed a

pen-drive stating to be containing the CCTV footages. In

their statements in writing accused Nos.1 and 2 have stated

that on 27.10.2019 they had parked the car at MIT parking

area at about 11.00 am, at that time two police people

came and quarreled with them regarding parking issues and

threatened them not to park the car in the said parking

area as vehicle of some VIP is coming to that parking area.

Then immediately said Police took the key from the vehicle

forcibly and pulled them from the car and threatened them,

took the car after making accused Nos.1 and 2 to sit in the

car and registered false case against them. In paragraph

No. 6 of the impugned judgment the trial Judge has stated

that he had watched the pen-drive submitted by the

accused persons by connecting to the computer of the

Court and opened the files stored in the cloud or drive and

in paragraph No. 41 the trial Court has observed that said

CCTV footage does not disclose any such incidence as

contended by the accused persons and accused have not

produced certificate under Section 65-B of the Indian

Evidence Act. In the light of the said aspect this Court has

watched the pen-drive submitted by the accused which is

available in the file enclosed to the statement of the

accused and the said CCTV footage contained in the said

pen-drive discloses that when an Innova car was parked in

the parking area two persons came and took the key of the

car and made the person who was on the driver's seat to sit

on the backseat and out of those persons one drove the

vehicle and another sat in the rear seat with those two

persons and it was recorded at about 11.21 am. On close

scrutiny of the said CCTV footage those two persons who

were earlier in the car appears to be accused Nos. 1 and 2

if that is compared with the photographs Ex.P.2 to Ex.P.7

taken at the alleged time of seizure of the contraband. Even

the said two persons who came and took those two persons

and car are also seen in the photographs at Ex.P.4 to Ex.P.7

and they appear to be the Police personnel in civil dress.

24. In Ex.P.10 - letter sent by P.W.3 to

Superintendent of Police, Udupi, names of the accused

persons is not mentioned and only their dress and

appearance is mentioned. But, on perusal of the requisition

sent by P.W.3 to District Health and Family Officer, Udupi

(Ex.P.12) to secure the Gazetted Officer there is a mention

of the names of accused Nos. 1 and 2. This Ex.P.12 has

been issued prior to conducting raid and by virtue of

Ex.P.12, P.W.1 has been sent to CEN Police station prior to

the raid. P.W.1 - Gazetted Officer has accompanied the raid

team to the spot. Ex.P.12 itself show that P.W.3 was aware

of the names of the accused persons prior to the raid. But,

in Ex.P.10 letter sent to the Superintendent of Police,

Udupi, there is no mention of the names of the accused

persons. How this P.W.3 while sending Ex.P.12 to secure

Gazetted Officer came to know about the names of the

accused persons? At this stage the defence of the accused

persons appears to be probable as they have been secured

by the two Police constables on that day, i.e., 27.10.2019

around 11.30 am. P.W.6 - one of the panchas to the

mahazar - Ex.P.2 has not supported the case of the

prosecution. P.W.2 another panch to the mahazar even

though supported the case of the prosecution, but, in his

cross-examination has admitted that till that day he had

acted as panch in 10 cases and as an auto driver he has the

pressure to obey the words of the Police. In view of the said

aspects seizure of contraband under mahazar - Ex.P.2

appears to be doubtful.

25. Considering the above aspects, seizure of the

contraband from the possession of accused Nos.1 and 2 is

doubtful. There is no compliance of Section 42 and 50 of

the NDPS Act. In view of the same, prosecution has failed

to prove the guilt of the accused Nos.1 and 2 beyond doubt.

The trial Court erred in convicting the appellant - accused

Nos.1 and 2 for offence under Sections 8(c) and 20(b)(ii) of

the NDPS Act and therefore, the judgment of conviction and

order of sentence requires to be set aside.

In the result, the following;

ORDER

i. Appeal is allowed.

ii. Impugned judgment of conviction and order of sentence passed in Spl.C.No. 98/2020 by the Principal District and Sessions Judge/Special Court at Udupi is hereby set aside.

iii. The appellants - accused Nos. 1 and 2 are acquitted for the offence under Sections 8(c) and 20(b)(ii) of the NDPS Act.

iv. The appellants - accused Nos.1 and 2 are entitled for refund of fine amount, if any, deposited by them.

Sd/-

JUDGE LRS.

Ct.sm