Bangalore District CourtThe Senior Intelligence Office vs A1 Musakkar Nawas on 16 February, 2016IN THE COURT OF THE XXXIII ADDL.CITY CIVIL &
        SESSIONS JUDGE & SPL. JUDGE (NDPS),
                BANGALORE. CCH.33.
                           PRESENT:
          Sri. D.Y. BASAPUR, B.Com., LL.B. (Spl.)
                  XXXIII ACC & SJ & SPL.JUDGE (NDPS)
               BENGALURU.

    DATED: THIS THE 16th DAY OF FEBRUARY 2016

                      SPL.C.C. NO.09/2012


COMPLAINANT       :      The Senior Intelligence Office,
                         Directorate of Revenue Intelligence,
                         Bangalore Zonal Unit, Bangalore -
                         560 043.

                                    (By Spl. Public Prosecutor)

                         V/S.

ACCUSED       : A1       Musakkar Nawas, Split up -
                         Spl.CC.58/14

                A2        Mohamed Kasim Abdul Salam,
                         S/o.Mohamed Kasim, No.37, Chinna
                         Chetty Kulam Street,
                         Thuvarankurichi, Manaparai, Trichy
                         Rural - 621 314,
                         Tamil Nadu.

                                        (By Sri BNJ, Advocate)

1. Date of Commission of offence:           11.12.2011
                                         2



2. Date of report of offence:                     11.12.2011

3. Arrest of the accused :                        11.12.2011

4. Date of release of accused on                  18.4.2012
   bail:
5. Period undergone in custody:                4 months 7 days

6. Date of commencing of                           3.8.2015
   recording Evidence :
7. Date of closing of Evidence :                  20.1.2016

8. Name of the complainant:                 Sri Shivanand Prabhu

9. Offence complained of        :           U/s.9(A) R/w.Sec.25(A),28,29of NDPS Act

10. Opinion of the Judge            :          Offence proved

11. Order of sentence :                        As per final order


                           JUDGMENTThe Senior Intelligence Office, Directorate of Revenue

Intelligence, Bangalore Zonal Unit, Bangalore has lodged the

above complaint before Court against the accused U/s.9(A)

R/w.Sec.25(A),28,29of NDPS Act.CCH-33
                                3                    SPl.C.C.9/2012.2. Brief facts of the case are as under:On 11.12.2011 the complainant received information

that   at   International    Airport,   Bangalore   two   persons

transporting Pseudo Ephedrine drug and directed to conduct

the road. At 3.30 pm., he went along with his staff members.At Departure Immigration, C.W.3 brought two persons along

with bags to Customs Office. He informed to them that they

have legal right to be personally searched before Gazetted

officer or Magistrate.      They agreed to be conducted before

gazetted officer.   He issued notice as he being a gazetted

officer. On personal search no contraband found with them.In bag, 15 pairs of chappals were found. Inside the Heels of

30 chappals white powder was there. They seized the same.On preliminary tests they opined that it is an Ephedrine

substance controlled article and seized 5.985 Kgs., Ephedrine

out of which 3 samples of 25 grams each packed and sealed

separately.   They prepared panchanama Ex.P3 in between

4.30 to 11.30 pm., and also seized Malaysian currency,4mobile, bags.      He arrested the accused persons and issued

arrest memo. On interrogation, recorded the voluntary

statement of accused persons and produced them before the

jurisdictional Magistrate with a remand application and the

accused were remanded to judicial custody. Thereafter, the

investigation was continued and the sample was sent to the

laboratory for examination and obtained the laboratory

report. Statements of the witnesses were recorded and after

completion of the investigation, the complainant officers filed

complaint    for    the   offences       contravened    U/Sec.U/s.9(A)

R/w.Sec.25(A),28,29of NDPS Act.3. After taking cognizance registered the case. Copies of

the prosecution papers were supplied to accused U/Sec.207of Cr.P.C.   Later on, A1 remained absent and he was not

traced.      Hence,       case   against      A1   is    split   up   in

Spl.C.C.No.58/2014.         After hearing, Charge framed U/Sec.

U/s.9(A) R/w.Sec.25(A),28,29of NDPS Act, read over and
                                                              CCH-33
                                5                    SPl.C.C.9/2012.explained to accused No.2, he pleaded not guilty and claimed

to be tried.4. In support of the case, prosecution has examined

P.Ws.1 to 9 and got marked Exs.P1 to P30. and M.Os.1 to 08.

After closure, accused No.2 is examined U/Sec.313of Cr.P.C.,

he denied the incriminating circumstances appeared against

him and not chosen to adduce evidence for his defence.5. Heard the arguments on both sides.6. The points for consideration are as under:1.       Whether the prosecution proves that on
               11/12/2001 by 16-30 hours at Departure
               Hall of Bangalore International Airport,
               Devanahalli, Accused No.2 along with
               accused No.1 was found in possession of
               5.985 Kgs., of drug of pseudoephedrine
               without permission and licence and with
               dishonest     intention  of    manufacturing,
               transporting and selling it to the public and
               thereby accused No.2 has committed an
               offence punishable underSection 25(A)of
               N.D.P.S. Act?62.    Whether the prosecution proves that on
           11/12/2001 by 16-30 hours at Departure
           Hall of Bangalore International Airport,
           Devanahalli, Accused No.2 along with
           accused No.1 made attempt to transport the
           contraband to Kualalumpur and thereby
           committed offence punishable U/Sec.28of
           N.D.P.S. Act?3.    Whether the prosecution proves that on
           11/12/2001 by 16-30 hours at Departure
           Hall of Bangalore International Airport,
           Devanahalli, Accused No.2 along with
           accused No.1 made conspiracy to committed
           offence punishable U/Sec.29of N.D.P.S., Act?4.    What order?7. My findings on the above points are as under:Point No.1: In the Affirmative
           Point No.2: In the affirmative
           Point No.3: In the affirmative
           Point No.4: See the final order for the following:-REASONS8. POINT NOs1 to 3: These 3 issues are interlinked

with each other. Hence for the sake of convenience, they are

taken together for consideration.CCH-33
                              7                     SPl.C.C.9/2012.9. Learned Spl. P.P. argued that as per the evidence of

P.Ws.1 to 9, Exs.P.1 to P.30 and M.Os.1 to 8, prosecution has

proved the guilt. Learned counsel for accused argued that the

mandatory      provisions   are   not   complied,     so    many

contradictions and discrepancies found in their evidence.10. On careful perusal of material placed before the

Court, P.W.2 stated that on 11.12.2011 at 3.00 pm., C.W.1

called along with their staff members and informed about the

information.    he went along with P.W.1 and others to

Bangalore Airport along with DRI brass seal, wax sticks, kit.

They seized ephedrine out of 15 pairs of chappals and also

seized the chappals, mobile, carbon paper, plastic covers, bag

at MO 1to 8, air ticket and other documents and prepared

Ex.P3 panchanama and brought the accused along with

property to NCB office.     On 12.12.2011 he produced the

accused with remand and obtained acknowledgement Ex.P3

and also received letter Ex.P24 from laboratory.               On

20.12.2011 he received copy of F.S.L and memo.             In the8cross examination of P.W.2 stated that he has not issued

notice to C.Ws.6 and 7 panchas and also accused prior to

personal search. He has stated that he orally informed the

legal right of the accused persons.      Accused have given

consent to be searched by gazetted officer as per Ex.P1 and

P2.   In Ex.P2 accused No.2 specifically stated that he was

offered an option to conduct his personal search before

Gazetted officer or Magistrate and he preferred to be searched

before gazetted officer and not before Magistrate.      When

accused No.2 himself gave consent as per Ex.P2 that his

personal search to be conducted by gazetted officer, itself is

sufficient to believe that P.W.2 informed the existing legal

right of the accused persons.11.   The learned counsel for the accused relied on a

decision reported in 2013(1) SCC 550 inSuresh and others

Vs., State of Madhya Pradeshwherein it is held that

U/s.50(1) informing the suspect of his right to opt for

being searched before a Gazetted Officer of Magistrate.CCH-33
                                9                 SPl.C.C.9/2012.The said requirement U/s.50(1) is mandatory requiring

strict compliance therewith.         Merely, asked as to

whether they would offer their personal search to police

officer concerned or to Gazetted Officer, appellants gave

their consent for their personal search by police officer

concerned. It is not complied with in respect of recovery

of contraband.     The facts and circumstances ofthe above

caseis not similar to the case on hand as accused were

appraised of their right to be searched before Gazetted Officer

or Magistrate.12.   Further P.W.2 stated that he has not issued in

writing to secure the check-in bag, but bag received after 5

minutes. They have not measured weight of the contraband

in each chappal and not seized separately from each chappal.

He has stated that as contents of all chappals are one and the

same they have mixed all and weighed together.         He has

specifically stated that they have tested the contraband from

field test kit and confirmed.1013.   P.W.1 had also accompanied P.W.2.         He has

supported the testimony of P.W.2. In his cross examination

he has stated that C.W.1 has not reduced the information in

writing and orally informed to him regarding the information

received by him and directed to conduct raid. He has stated

that P.W.2 prepared complaint but he lodged the complaint

as per his directions.    He denied that he obtained the

signature of accused forcibly on Ex.P1 and P2. P.W.1 stated

that check-in bag belongs to accused No.1.        Further he

denied that he was not personally present and submitted

Ex.P6 and P7 compliance report. He admits that in Ex.P10

name of customer is not mentioned and also no recital

regarding both the accused were residing in the said room.14.    P.W.3 has stated that he has recorded the

voluntary statement of accused No.2 who stated that he came

to Airport along with Nawas-accused No.1 and told that the

bag belongs to accused No.1 and do not know the contents of

the bag. In his cross examination stated that one Ivin George
                                                         CCH-33
                             11                 SPl.C.C.9/2012.brought accused No.2 to his office and accused No.2 is in

custody of George and denied that he has not recorded the

statement of accused No.2.15.   P.W.4 stated that he has recorded the voluntary

statement of accused No.1 who stated that the bag belongs to

one Jageer.     Accused No.2 and himself were going to

Kualalumpur and Jageer assured them that if they handed

over the bag he would pay Rs.2 lakhs.          In his cross

examination denied that he has not recorded the statement of

accused No.1.16.   P.W.5 stated that on 12.12.2011 at evening, DRI

Officials instructed to bring the check-in bag from Aircraft.

They seized the drugs from the said bag but he do not know

the nature of drugs and whether accused No.2 was present or

not. Prosecution treated this witness as hostile and nothing

is elicited in his cross examination to discard his evidence12except denial. P.W.9 has also stated that about 3 years back

at 3.40 pm., he furnished Ex.P18 Manifest to DRI officials

and he denied that he was not instructed by DRI officials to

produce the check-in bag from Aircraft and he do not know

about the drugs in the said bag. Prosecution has treated this

witness as hostile but nothing is elicited in his cross

examination.    Independent panch witnesses 5 and 9 have

specifically stated that on 12.12.2011 they produced the

check-in bag from Aircraft as per the request of DRI officials

and said bag contain drugs. Of course, they have denied that

contraband and articles seized in their presence and drawn

mahazar.    However, they admit the signature on mahazar.

They are working at Custom Service office, Aeronautics

department.    The presence of independent witnesses and

production of check-in bag from Aircraft is proved.    Merely

both panch witnesses have partly supported and partly

denied the case of the prosecution is not a ground to discard

their entire evidence.CCH-33
                                 13                    SPl.C.C.9/2012.17. P.W.7 stated that he went to Hindustan hotel and

obtained Ex.P30 records regarding accused persons staying

in the said hotel.      He denied the suggestions in the cross

examination.      P.W.8 stated that in the month of December

2011, accused No.2 came to Hindustan hotel and took Room

No.178, after paying advance amount.           After two days he

vacated the said room. In his cross examination by learned

S.P.P., he admitted that on 15.12.2013 P.W.1 came to his

hotel,     gave   requisition   Ex.P8   to   furnish   information.

Accordingly, he furnished Ex.P9 to P12 and also admits his

signature at Ex.P8(a) to P12(a). But denied that he has not

identified accused No.2. In his cross examination denied the

suggestions.      More over, Receptionist of Hindustan Hotel -

P.W.8 has specifically stated that in the month of December

2011 accused No.2 came to hotel and booked room No.178

and after two days he vacated the room.                In his cross

examination admitted that he issued Ex.P8 to P12 documents

from his hotel.      They reveal that accused No.2 booked the

said room and stayed there. Ex.P11 bill issued by Hindustan14hotel in favour of accused No.2 on 10.12.2011.              So the

testimony of P.W.8 who is independent witness working in the

hotel is corroborative to the case of the prosecution that prior

to the incident accused were staying at Hindustan Hotel.18.   P.W.6 stated that on 26.12.2011 he conducted

various tests on sample articles and issued report Ex.P27 and

opined that sample articles responded positive for Pseudo

Ephedrine       Hydrochloride    and     that   it   is   used   for

Methamphetamine synthesis.             In his cross examination

denied that he has not conducted tests personally and issued

false report.19.   Ex.P3 mahazar reveals that PW.s.1 and 2 seized

M.Os.1 to 8 at International Airport, Bangalore in the

presence of panch witnesses from the possession of accused

Nos.1 and 2. Ex.P4 and 5 arrest memos of both accused at

International Airport. Ex.P6 and P7 report submitted U/s.57
                                                              CCH-33
                               15                    SPl.C.C.9/2012.ofNDPS Act, after success of raid to superior officer. Ex.P13

and P14 reveal that seized articles deposited in customs

godown. Ex.P15 and P16 Boarding passes, Ex.P17 baggage

tag, Ex.P18 manifest regarding names of passengers. Ex.P19

and P20 Air tickets. Ex.P21 and P22 departure card reveal

that P.W.1 and 2 arrested the accused persons and seized the

above documents from their possession and also M.Os.1 to 8.

Ex.P23 acknowledgement for having produced the accused

before Central Jail.20. As per evidence of P.W.6 F.S.L officer and Ex.P27

report,   sample   articles   responded   positive   for   Pseudo

Ephedrine Hydrochloride, which is a controlled substance.

Even at the time of seizure said contraband tested with test

kit by P.W.1 and 2.      So prosecution proves that the said

contra band seized from the possession of the accused

persons is a controlled substance.1621.     So far as the arrest of the accused persons at

International Airport at particular point of time is concerned,

testimonies of PW.s.1 to 5 and 9 corroborate with each other.

So the       testimony of P.Ws.1 to 4 is corroborated by

independent mahazar witnesses P.W.5 and 9. Ex.P15 to P22

boarding passes, Manifest, tickets seized from the accused

persons. The said documents were not in the custody of DRI

officials.   The said documents will be issued from Aircraft

department to the concerned persons. The said documents

reveal that on the particular date both accused were booked

and made attempt to fly to Kualalumpur. Mean while, DRI

officials on reliable information apprehended them and seized

the contraband and documents. Ex.P15 to P22 are material

documents. It cannot be believed that DRI officials created

the said documents in the name of accused persons.         The

arrest of accused at particular point of time in Airport is not

disputed. It is simply denied the suggestion of prosecution

witnesses that they have not arrested the accused and seized

the articles from their possession. No explanation given by
                                                             CCH-33
                                17                  SPl.C.C.9/2012.accused No.2 in his statement recorded U/s.313 ofCr.P.C.

He has not explained regarding incriminating circumstances

appearing against him.      Even no suggestion put to the

witnesses that why DRL officials impleaded accused No.2 in

this case. P.Ws.1 and 2 seized the chappals from the check-

in bag and cut open the heel of the chappal and found white

power inside the chappal is corroborated in the evidence of

P.W.1 and 2. It would be gathered that accused have made

conspiracy    and   attempted    to   transport   the    controlled

substance to Kualalumpur.22.     C.W.1 is not examined by prosecution in spite of

sufficient opportunity was given.       However, P.W.1 and 2

specifically stated that C.W.1 received the information that

two persons trying to transport the controlled substance. As

per the information and directions issued by C.W.1, P.W.2

conducted raid along with his team members and seized the

articles and arrested the accused persons.              Of course,18information is not reduced in writing. However, C.W.1 is the

Superior officer who himself received the information. Such

being the case, recording of information in writing does not

arise.     If P.W.1 and 2 received the information who are

subordinate officers to C.W.1, then only they have to reduce

the information in writing and send it to superior officer to

obtain permission to conduct raid. Such being the case not

reducing the information in writing by C.W1 himself does not

mean that prosecution has not complied the mandatory

provisions underSections 41and42of NDPS Act.23.   Learned counsel for accused relied on a decision

reported in SCC (2013) 2 SCC 212 in Sukdev Singh Vs.,

State of Harayana wherein it is held thatSec.42(1)& (2)

and (18) requirement of writing down and conveying

information to immediate superior officer mandatory

nature need for strict compliance.CCH-33
                                19                    SPl.C.C.9/2012.2007 Supreme Court Cases online AP 156 betweenPolamarasetti Naga Sreenivasarao Vs., State of APwherein it is held that the accused could discharge the

burden cast upon him U/s.35 of the Act that Accused

No.1 and A2 did not disclose to him about concealing of

contraband in the gunny bags. Unless it is shown by the

evidence that appellant conveyed with Accused No.1 and

A2 to transport the contraband, and has entered into a

criminal conspiracy with Accused No.1 and A2 to

transport the contraband.            It is unsafe to convict the

accused merely because he tried to over turn the auto on

seeing the police.     Facts and circumstances of the above

cases are not similar to the case on hand as information

conveyed to Superior officer.23. The learned SPP has relied on a decisions reported

in   2014(4) Crimes 266 (Karnt.)M.D.Kohiunddin @

Phohinuddin     Vs.,   State,    2015(4)     Crimes     153     (SC)

Kulwinder Singh and another Vs., State of Punjab. In the20above decisions Hon'ble Apex Court held thatSec.50does not

apply if recovery from truck or suitcase. It applies only in a

case of personal search of a person.Non-compliance ofsection 50does not vitiate the conviction,


     2015 SAR (Criminal) 597 in the case ofKulwinder

Singh and another Vs., State of Punjabwherein it is held

that once possession is found, the accused is presumed to be

conscious possession.(1997) 3 Supreme Court Cases 721 in the case of K I

Pavunny     Vs.,   Asst,   Collector   (HQ)    Central   Excise

Collectorate, Cochin, wherein it is held that a voluntary

confessional statement given by accused in pursuant to his

appearing against summons or on surrender held, cannot be

said to have been obtained by threat, inducement or promise,

hence, is admissible in evidence for prosecution U/s.135 ofCustoms Actor other relevant statutes.          The facts and

circumstances of the said decisions are similar to the case on
                                                           CCH-33
                             21                   SPl.C.C.9/2012.hand.   So, the statement of the accused is admissible and

also he is having a conscious possession.2015(2) Crimes 219 (SC) Yunus Zia Vs., State of

Karnataka and another wherein it is held that;(a)Cr.P.C., 1973Sec.2(d)and 154 - respondent 2
    an Inspector of Police, though          deputed to
    Lokayuktha - Empowered to act suo-motu on
    published reports against Appellant warranting
    registration of FIR and investigate the matter.(d) Administration of justice - Fair investigation- Inspector of Police deputed to Lokayuktha -
    Suo moto registering FIR and investigating the
    case - investigation transferred to Corps of
    Detectives (COD) of the State.Facts and circumstances of the above decision is applicable to

the case on hand as IO is empowered to act suo-motu on

information warranting registration of FIR and investigating

the matter in other law, when FIR discloses commission of

cognizable offences and trial case is made out.222004(3) Crimes 109 (SC) S Jeevanantham Vs., State

through Inspector of Police, Tamil Nadu wherein it is held

that contention of P.W.8 Inspector who got FIR registered

after search and recovered being complainant himself

conducted investigation and that was illegal. Appellant

failing   to   point      out   any     circumstances    by    which

investigation caused prejudice or was biased against the

appellant.      P.W.8 was not in any way personally

interested     in   the    case.        Conviction   could    not   be

disturbed.     Facts and circumstances of the above decision is

applicable to the case on hand as accused failing to point out

any circumstances by which investigation caused prejudice or

biased against him and also IO was not in any way personally

interested in the case.2002 (3) Supreme 95Gopal Vs., State of MPwherein

it is held that contraband was recovered from a heap of Kadvi

lying on the boundary of agricultural fields Sy.Nos.1511 and

1517. Conscious possession of the accused was not proved.CCH-33
                                23                  SPl.C.C.9/2012.Facts and circumstances s ofthe above decisionis not similar

to the case on hand as prosecution seized in the presence of

the accused in his rented house.1996 (1) Crimes 358 (SC) Ummed Vs., State of

Rajasthan wherein it is held that complainant and I.O was

one and the same person.        Place was recovery in common

possession of the accused and his brother against whom also

search warrants were issued.         No action was taken against

brother of appellant.      Investigation suffers from basic

infirmity and conviction cannot be sustained.AIR    2002     SC   3658       between   Narayanaswamy

Ravishankar Vs., Asst. Director, Directorate of Revenue

Intelligence wherein it is held that search and seizure

taking    place at    Airport    which     is a public     place,

Provisions ofSec.43would be applicable but not ofSec.42.    Question of non-compliance of provisions ofSec.42would be wholly irrelevant.             Further held that

witness who made the seizure was examined.                   Non24examination of witness by whom mahazar was drawn

would be of no consequence.(2007) 6 SCC 410 betweenRavindran @ John Vs.

Superintendent of Customs& 2011 AIR SCW 3106 Ram

Singh Vs., Central Bureau of Narcotics wherein it is held

that merely     because officers of Central        Bureau of

Narcotics are invested with powers of an officer-in-

charge of police station shall not make them police

officers within meaning ofSec.25,26of Evidence Act.

They are not conferred with power to submit report

U/s.173 ofCr.P.C., which is necessary to make them

police officers. Confession recorded by these officers is

admissible in evidence.         Further, held that confession

recorded   by   officers   of    Narcotics   Bureau,   accused

produced before court on several dates not complaining

of any torture or harassment in recording confession,

confession is voluntary.         Retraction of confession for

first time in statement U/s.313 ofCr.P.C., irrelevant.CCH-33
                            25                     SPl.C.C.9/2012.Conviction for offence U/s.8, 18 ofNDPS Actcan be

maintained solely on basis of such confession.2011 (1) SCC (Cri) 1191 Jarnail Singh Vs., State of

Punjab wherein it is held thatSec.50can be invoked only

in cases where drug/narcotic substance is recovered as a

consequence of body search of accused. In case recovery

is made from container being carried by individual,

provisions ofSec.50would not be attracted.(1994) 3 SCC 299 in state ofPunjab Vs., Balbir

Singhwherein it is held that if empowered officer while

effecting search or arrest in accordance withSec.100,165of Cr.P.C., fails to record reasons such a failure will

not amount to an illegality vitiating the trial.ILR 2004 Kar. 3855 between The Intelligence

officer, Bangalore and others Vs., Arshad Saleem Khan

and others wherein it is held that the special procedure of

arrest, search and seizure U/s.50 becomes applicable

only to the officers named inSec.42of the Act.             The26provisions ofSec.50does not apply to first category of

empowered Gazetted Rank officers contemplated inSec.41(2).2000 SCC (Cri) 496 betweenAbdul Rashid Ibrahim

Mansuri Vs., State of Gujaratwherein it is held that

requirements U/s.42 of taking down in writing the

information received and sending a copy thereof to the

immediate official superior, non compliance with effect

action taken on unrecorded information, held would

become   suspect   and one       causing   prejudice to    the

accused but would not ipso-facto vitiate the trial.(2010) 4 SCC 445 betweenBahadur Singh Vs., State

of Haryanawherein it is held that with advancement of

technology and availability of high speed exchange of

information,   some   of   the    provisions   ofNDPS   ActincludingSec.42have to be read in the changed context.

Delay caused in complying with provisions ofSec.42could result in escape of offender or even removal of
                                                         CCH-33
                             27                 SPl.C.C.9/2012.contraband. Hence, substantial compliance is sufficient,

if the information received were subsequently sent to the

superior officer.AIR 2000 SCC 403 inSarjudas and another Vs.

State of Gujaratwherein it is held that Charas was not

found on person of accused, but it was found kept in a

bag which was hanging on scooter on which they were

riding.    Said search cannot be said to be illegal on

ground that accused were not informed of their right

U/s.50 to be examined in presence of Gazetted Officer or

Magistrate. Facts and circumstances of the above decisions

are similar to the case on hand.24.    Merely, some minor discrepancies found in the

prosecution witnesses, is not a ground to discard their

reliable corroborative evidence.   Some minor contradictions

and discrepancies bound to be happen, while witnesses

depose before court after many years.    So the testimony of28P.Ws.1 to 5 and 9 are corroborative and consistent to each

other.       Their testimony is supported by documentary

evidence. So there is no reason to disbelieve the evidence of

prosecution.    For the above, prosecution has complied the

mandatory provisions U/s.41, 42, 50 and 57 ofNDPS Actand

also proved that the seizure          of contraband from the

possession of accused persons at the spot.          Hence, the

prosecution has proved the guilt of the accused No.2 beyond

reasonable doubt. Accordingly, I answer Point Nos.1 to 3 in

the affirmative.25. POINT NO.4:- In the result, I proceed to pass the

following:ORDER

                Acting underSection 235(2)Cr.P.C
         accused     No.2   is    convicted   for   the
         offence punishable U/Sec.25(A),28,29of N.D.P.S. Act.CCH-33
                                 29                     SPl.C.C.9/2012.To hear before Sentence.[Dictated to the Stenographer directly on computer, typed and
    computerised by her, corrected, signed and then pronounced by me in
    Open Court on this the 16th day of February 2016.)




                                  (D.Y.BASAPUR)
                        XXXIII ACC & SJ & SPL.JUDGE (NDPS)
                                   BANGALORE.HEAR BEFORE SENTENCE


     Accused No.2 is present.         He submits that he is sole

earning member of his family having aged mother and three

school going children. He is innocent and poor person. He is

not involved in any offence, previously.          Hence, prays for

taking lenient view.The learned SPP argued that he has committed heinous

offence.   It is punishable upto 10 years R.I., and fine of

Rs.1,00,000/-. So he is not entitled for any lenient view.30On perusal of order sheet, after enlarge on bail accused

is attending the court regularly.    Taking into consideration

the nature of offence, social and economic status of accused

No.2 and the reasons for which he appeared to have

committed the offence, conduct and dependency of the family

members, and he is carrier only, prime accused No.1 is

absconded, I feel it is a fit case to take lenient view in the

interest of justice. The learned counsel for the accused relied

on    the     judgment      and      sentence       passed    in

Crl.Appeal.No.1311/14 & Crl.M.A.No.14713/2014 on the file

of Hon'ble High Court of New Delhi dated 24.2.2015 between

NCB Vs., Nthadiseng Josephina Bulaya and another. In the

said case trial court convicted and passed sentence one year

RI and fine of Rs.75,000/- each to both accused who were

women and foreign nationality for the offence punishable

U/s.25(A) of NDPS Act.          In the Appeal filed by the

complainant   Hon'ble    High    Court   disposed   the   Appeal

directing the accused to pay fine of Rs.75,000/- only.       The
                                                             CCH-33
                               31                   SPl.C.C.9/2012.facts and circumstances of the above case is similar with the

case on hand. Hence, I proceed to pass the following:-ORDER


           Accused No.2 is sentenced to undergo 3 years
    R.I., and he shall pay fine of Rs.25,000/- in default,
    he shall undergo 3 months SI for the offence
    punishable U/s.25(A) of NDPS Act.Accused No.2 is sentenced to undergo 3 years
    R.I., and he shall pay fine of Rs.25,000/- in default,
    he shall undergo 3 months SI for the offence
    punishable U/s.28 ofNDPS Act.Accused No.2 is sentenced to undergo 3 years
    R.I., and he shall pay fine of Rs.25,000/- in default,
    he shall undergo 3 months SI for the offence
    punishable U/s.29 ofNDPS Act.All   sustentative        sentences   shall    run
    concurrently.Further, JC period of accused No.2 is given set
    up.32The bail bond of the accused No.2 shall stands
    cancelled.The entire records and property shall be
        kept in Spl.C.C.58/2014 for trial of accused No.1.(D.Y.BASAPUR)
                   XXXIII ACC & SJ & SPL.JUDGE (NDPS)
                              BANGALORE.ANNEXURE1. List of witnesses examined for the:(a)   Prosecution:P.W.1     : Sri Ivin K George
P.W.2     : Shivananda Prabhu
P.W.3     : Sundar Raman
P.W.4     : Nanda kumar B G
P.W.5     : Ajeesh
P.W.6     : P R Jayaramu
P.W.7     : Somanath M R
P.W.8     : Vikkur Ahmed
P.W.9     : Rooman Sajad

  (b) Defence :

        NIL
                                                                CCH-33
                                33                     SPl.C.C.9/2012.2. List of documents exhibited for the:(a)     Prosecution:

Ex.P.1        :   Body search memo
Ex.P.2        :   Body search memo
Ex.P.3        :   Mahazar
Ex.P.4        :   Arrest memo
Ex.P.5        :   Arrest memo (a) (b) sig.
Ex.P.6        :   U/s.57 NDP S Act report (a) sig.
Ex.P.7        :   Report (a) sig.
Ex.P.8        :   Letter of Hotel (a) sig.
Ex.P.9        :   Arrival register extract of Hotel (a) sig.
Ex.P.10       :   Receipt of hotel (a) sig.
Ex.P.11       :   Bill of hotel (a) sig.
Ex.P.12       :   Bill of hotel (a) sig.
Ex.P.13       :   Deposit of seized goods (a) (b) sig.
Ex.P.14       :   Deposit of seized goods (a) (b) sig.
Ex.P.15       :   Boarding pass (a)(b) (c)(d) sig.
Ex.P.16       :   Boarding pass (a)(b) (c)(d) sig.
Ex.P.17       :   Baggage tag (a)(b) (c)(d) sig.
Ex.P.18       :   Manifest
Ex.P.19       :   Air ticket (a)(b) (c)(d) sig.
Ex.P.20       :   Air ticket (a)(b) (c)(d) sig.
Ex.P.21       :   Departure card (a)(b) (c)(d) sig.
Ex.P.22       :   Departure card (a)(b) (c)(d) sig.
Ex.P.23       :   Acknowledgement of jail authorities
Ex.P.24       :   Letter to F.S.L
Ex.P.25       :   Statement of P.W.3 (a)(b) (c)sig.
Ex.P.26       :   Statement of accused (a)(b) sig.
Ex.P.27       :   F.S.L report (a) sig.
Ex.P.28       :   Specimen seal (a) sig.
Ex.P.29       :   Letter (a) sig.
Ex.P30        :   Letter (a) sig.34(b) Defence:

        NIL3.List of Material Objects admitted in evidence:M.O.1     :   Box 'A' (a) (e) sig.(f) black box
M.O.2     :   Bulk - white power (a) (d) sig.M.O.3     :   Sample (a) (e) sig.
M.O.4     :   Sample (a) (e) sig.
M.O.5     :   Box (a) (e) sig. (f) box
M.O.6     :   Plastic cover (a) (e) sig.
M.O.7     :   Trolley Bag (black)
M.O.8     :   15 pairs of chappals




                                 (D.Y. BASAPUR)
                       XXXIII ACC & SJ & SPL.JUDGE (NDPS)
                                  BANGALORE.


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