Bangalore District Court
Hsr Layout Ps vs A1 Pradeep on 2 April, 2026
KABC010116652021
THE COURT OF THE XXXIII ADDL. CITY CIVIL &
SESSIONS JUDGE & SPL. JUDGE (NDPS),
BANGALORE : CCH.33
: P R E S E N T:
SMT.LATHA,
XXXIII ACC & SJ & SPL. JUDGE (NDPS)
BENGALURU.
DATED: THIS THE 2nd DAY OF APRIL 2026
SPL.C.C. No.732/2021
COMPLAINANT : State by HSR Layout Police
Station
(By Public Prosecutor)
V/S.
ACCUSED: Pradeep,
S/o. Late Thimmegowda,
28 years, R/at. No.150/3,
Old No.339, 9th Cross,
22nd Main, I Sector,
HSR Layout, Bengaluru.
(By Sri.ABS., Adv.)
1. Date of Commission of offence: 19.8.2018
2. Date of report of offence: 19.8.2018
3. Arrest of the accused : 20.8.2018
4. Date of release of accused on bail: 11.9.2018
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5. Period undergone in custody: 21 days
6. Date of commencing of
27.6.2023
recording Evidence :
7. Date of closing of Evidence : 4.10.2024
8. Name of the complainant: PI., CCB., W&N Squad
Sri V.D.Shivaraju
9. Offence complained of : U/s.20(B)(ii)(b) & 20(A) of
NDPS Act
10. Opinion of the Judge: Charges not proved
11. Order of sentence: The accused is
acquitted
::JUDGMENT:
:
The Police Inspector of HSR Layout Police Station filed
charge sheet against the accused for the offence punishable
U/Sec.20(B(II)(b)) & 20(A) of N.D.P.S. Act.
2. The case of the prosecution in nutshell is as
under:-
On 19.8.2018 at about 3.00 pm., the Police Inspector of
CCB W&N Squad, Bangalore was in the office he received
credible information about a person had grown ganja and
selling the same to customers in house No.150, 5 th floor, HSR
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Spl.C.C.732/2021layout 2nd sector, 30th Main, 18th cross, behind NIFA Collage,
Parangipalya, Bangalore. He reduced the said information
into writing in the information book, informed the said
information to his superior in office, obtained permission to
conduct raid, secured two mahazar witnesses, staff members
and went to the spot and conducted raid on the said house.
Inside the house, the accused was present, on conducting
search of the accused, found 2 Kgs., 930 grams of ganja and
ganja plants in a pot weighing 2 Kgs., 600 grams. He seized
those articles under a seizure mahazar. Subsequently, he
took the accused along with seized articles to HSR Layout
police station, handed over the accused and seized articles
with a report to the Station House officer of HSR Layout
police station. On the basis of the said report, Station House
officer registered a case in Cr.No.294/2018 against the
accused for the offence punishable U/s.20(B)(ii)(b) & 20(a) of
NDPS Act. Consequently, the arrest procedure was followed
against the accused and produced him before the
jurisdictional Magistrate for further action.
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3. The Investigating officer, after completing the
investigation filed charge sheet against the accused before
the Court. The accused is on bail. The learned Predecessor-
in-office of this Court, took cognizance of the offence
punishable under Sec.20(a)(b)(II) of NDPS Act,1985. The copy
of the charge sheet and annexed documents were furnished
to the learned counsel appearing for the accused as provided
under Sec.207 of the Criminal Procedure Code, 1973. Since,
the offence alleged against the accused is cognizable in
nature, the predecessor-in-office of this Court heard the
learned counsel for the accused and Public Prosecutor before
charge and framed the Charge against the accused for the
offences punishable under section 20(b)(ii)(B) of NDPS Act,
1985 on 10.2.2022, read-over and explained to the accused
in the language known to him. He pleaded not guilty and
claimed to be tried. Therefore, posted the case for recording
the evidence on behalf of prosecution.
4. The prosecution in order to bring home the guilt of
the accused, in all examined six witnesses as P.W.1 to P.W.6
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and got 16 documents marked as Exs.P1 to P.16 and also got
12 material objects marked as M.O.1 to 9. After conclusion of
evidence of prosecution side, the accused was examined
U/Sec.313 of Cr.P.C. He denied the incriminating statements
made against him. However, he did not offer defence
evidence.
5. Having heard the learned Public Prosecutor, the
learned Counsel for the accused and on perusal of the above
records placed before the court, the Points that arise for
consideration of this Court are as under:-
Point No.1 : Whether the prosecution
proves beyond reasonable
doubt that on 19.8.2018 at
about 3.00 pm., within the
limits of HSR Layout police
station in house No.150, 5th
floor, HSR layout 2nd sector,
30th Main, 18th cross, behind
NIFA Collage, Parangipalya,
Bangalore, accused was found
in illegal possession of 2 Kgs.,
930 grams of ganja and had
also grown ganja plants in a
pot weighing 2 Kgs., 600
grams without having any
licence or permission to sell
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the same and thereby accused
has committed the offence
punishable U/s.20(b)(ii)(B) of
NDPS Act?
Point No.2: What Order ?
6. The findings of this Court on the above points are as
under:
Point No.1: In the Negative
Point No.2: As per the final order for the following:
::REASONS::
7. POINT No.1:- The prosecution in order to
substantiate its case, got the CW1-Sri V.D.Shivaraju the then
PI of CCB, W&N Squad got examined as PW.5. PW5 in his
evidence, deposed that 19.08.2018 at about 3.00 pm., when
he was in the CCB Office received an information that in HSR
layout, II sector, in house No.150 a person is growing ganja,
that after receiving the said information he reduced the said
information in the information book and sent a requisition to
the Assistant Commissioner of Police seeking permission to
conduct raid to the said house, that after obtaining
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permission, he secured two mahazar witnesses as CW2 and
CW3 and issued notice to them as per Ex.P14, that along
with his staff namely CW5 to CW8 and mahazar witnesses he
had been to the said place at 5.30 pm., that at about 100
meter away from the said house they were waiting and the
informant came there and had shown the said house bearing
No.150, that he prepared record of reason on the spot as per
Ex.P15 and served it to the mahazar witnesses, that he
proceeded towards the said house which was situated in the
fifth floor of the said building and in two pots there were
ganja plants, that a person opened the door of the house,
that on enquiry he revealed his name as Pradeep, S/o.Timme
Gowda, that when asked about those plants, the said
Pradeep revealed that since 8 months he is growing those
plants and on further inquiry he revealed that at his house
he kept 2 Kgs., of ganja, that he apprised the right of the
accused to have search in the presence of Magistrate or
before the Gazetted officer, that the accused consented to
have personal search in the presence of Gazetted officer, that
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therefore CW4 the Gazetted officer namely the Assistant
Commissioner of Police came to the spot at 7.00 pm., that he
gave a requisition letter to the gazette officer as per Ex.P4,
that the gazetted officer, after apprising the right of the
accused to have personal search in the presence of Gazetted
officer or before the Magistrate, the accused consented to
have personal search in the presence of gazetted officer, that
therefore, he issued body search memo to the accused as per
Ex.P5, that in the presence of CW4 when personal search of
the accused was conducted in his house there was 1 Kg., 430
grams of ganja in a plastic cover, that they separated 100
grams from the said 1 Kg., 430 grams of ganja for sending it
to the FSL for chemical analysis, that on further search of his
house they had also recovered a plastic cover with 1 Kg., 500
grams of ganja, from the said 1 Kg., 500 grams of ganja, they
separated 100 grams for sending it for chemical analysis,
that they had also 8 medium sized and 35 brown colour
paper covers, that they had also seized one silver colour
Redmi mobile and Redmi Note 5Pro, that they had also
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recovered Rs.3,000/- from him. From the outside of the
house they recovered two plants measuring 1 kg 600 grams
and 1,000 grams of Ganja plants under Ex.P6 mahazar, that
after seizure proceedings he along with the accused and the
seized articles went to the police station and filed a complaint
as per Ex.P9, that on the basis of the said complaint, a case
in Crime No.294/2018 came to be registered and FIR was
filed as per Ex.P10 before the court and that he had also
submitted raid success report to his official superior as per
Ex.P8.
8. The prosecution has also examined Sri Mohan
Kumar, the then ACP of CCB, as PW2. PW2 in his evidence
has deposed that on 19.08.2018, CW1 had submitted a
requisition seeking permission to conduct a raid at HSR
Layout, in a house where the accused person planted ganja
and selling it to the public, that he accorded permission to
CW1 to conduct the raid, that he had received a phone call
from CW1 at about 5.00 pm., on the same day, that at about
5.30 pm., he had been to the said spot, that in the spot CW1
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had given a request letter to him as per Ex.P4, that in the
said house there was a person by name Pradeep, that he
admitted that he is in possession of ganja and also admitted
the growing of ganja plants in pot, that on apprising his right
to have personal search in the presence of gazetted officer or
before the Magistrate, the accused consented to have
personal search in the presence of gazetted officer, that
therefore, he had issued body search memo to the accused as
per Ex.P5, that after issuing the body search memo, on his
direction when the personal search of the accused was
conducted, they recovered two mobile phones, cash of
Rs.3,000/-, ganja packets containing 1 Kg., for 430 grams
and 1 Kg., 500 grams, 1 digital weighing machine, 8 small
plastic covers, 35 khaki colour paper covers, 2 ganja plants
weighing 1 kg., 800 grams and 1 Kg., 600 grams, that they
seized all those articles under Ex.P6 mahazar and directed
the CW1 to take action against the accused as per law and
that on the next day he received raid success report from
CW1 as per Ex.P8.
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9. Further, the prosecution has examined CW9, Dr.
Srinath B.S, the scientific officer as PW1. PW1 deposed that
on 07.02.2019, their office had received four sealed articles
in Crime No. 294/2019 of HSR layout police station, that he
conducted chemical analysis of those four articles and finally
came to the opinion that the said articles responded positive
for Cannabis and the cannabis contains psychoactive
constituents. Accordingly he had issued Ex.P1 report and
Ex.P2 is the sample seal.
10. CW11 Sri. Paul Priya Kumar the then PSI of HS R
layout police station has also been examined as PW3. He
deposed that on 19.08.2018 at about 11.30 pm., the CCB
officers came to HSR layout police station along with the
accused and seized articles, that they filed a report as per
Ex.P9, that on the basis of the said report he registered a
case in Crime No.294 /2018 and filed FIR before the court as
per Ex.P10, that he had also listed the seized articles in the
property list and submitted it before the court, that he
followed the arrest procedure against the accused and
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recorded his voluntary statement, that he had also recorded
the statements of CW3, CW.5 to 8, that on 28.2018 he
produced the accused before the Court, that on 31.08.2018
he submitted the seized contraband for inventory before the
court and got done the inventory as per Ex.P11, that he had
also submitted the representative of samples to FSL Madivala
on 07.02.2019 for chemical analysis and forwarded the case
file to CW12.
11. CW3, Sri.S. R. Raghavendra, the then PI of HSR
layout has been examined as PW6. He deposed that on
15.03.2019 he had taken up the investigation of this case,
that he verified the case file and after verifying it, since there
were prima-facie material against the accused, filed charge
sheet against him before the court.
12. CW.3 Sri Srinivas, the mahazar witness has been
examined as PW4. This witness in his examination-in-chief
admitted that in his presence the CCB police had recovered
two ganja plants under Ex.P6 mahazar. Since he partly
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turned hostile, with the permission of the court, he has been
cross examined by learned Public Prosecutor. In the cross
examination, this witness has admitted the contents of Ex.P6
mahazar. This witness has also been cross examined by
learned counsel for accused.
13. The prosecution apart from examining 6 witnesses,
has also got 16 documents marked as Ex.P1 to 16 and 9
material objects marked as MO1 to M.O P9.
14. During the course of arguments, Learned Public
Prosecutor submitted that the prosecution has examined 6
witnesses, got 16 documents marked along with 9 material
objects, that the witnesses examined on behalf of the
prosecution have fully supported the case of the prosecution,
that the prosecution has also complied the mandatory
provisions of NDPS Act and proved its case beyond all
reasonable doubt. Accordingly, Learned PP sought for
convicting the accused person.
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15. On the other hand, the learned counsel for accused
highlighted the drawbacks found in the investigation and
also improper compliance of the provisions of NDPS Act.
16. During the course of cross-examination of PW.5,
the learned counsel for accused has also cross-examined on
Ex.P16 questioning its authenticity. Ex.p16 is the so-called
copy of the information book maintained in CCB. The
Learned counsel for accused suggested to PW.5 that Ex.P16
is prepared in a white sheet and there is no pagination and
continuous page numbers. It is true that as seen from
Ex.P16, except the entry made relating to this case, there are
no other entries in Ex.P16. Further, it is also clear from this
document that there is no pagination and continuous page
numbers on Ex.P16 and as argued by learned counsel for
accused this document may be a created document at the
time of filing final report before the court in order to suit the
case of the prosecution. Further, if at all the said document
had already been reduced into writing soon after the so called
information received by PW5, definitely he would have sent a
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copy of the said information book to the Assistant
Commissioner of Police while seeking permission to conduct
raid as per Ex.P3. As seen from Ex.P3 the requisition letter
sent by PW5 to the Assistant Commissioner of Police, it is
mentioned that he has received information that within the
limits of HSR police station in Parangipalya, in house No.150,
5th floor, HSR layout 2nd sector, 30th Main, 18th cross, behind
NIFA Collage a person has grown ganja plants and the said
information had been reduced into writing in the information
book. When so mentioning in Ex.P16, PW.5 ought to have
mentioned in it that the copy of the information book had
been sent to the Assistant Commissioner of Police along with
Ex.P3 requisition letter. At the same time, the Assistant
Commissioner of Police has also not made an endorsement
on Ex.P3 stating that he has received the copy of the
information book wherein the information had been reduced
into writing by PW5. Therefore, it is hard to accept the
contention of the prosecution that the information had been
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reduced into writing as soon as the so-called information
received by PW5.
17. Since, there is no material to show that the copy of
the information reduced into writing had been sent to the
Assistant Commissioner of Police along with the requisition
seeking permission to conduct raid as per Ex.P3, then it
amounts to violation of the provisions of Section 42(2) of
NDPS Act. At this stage, it is relevant to reproduce Section
42(1) and Section 42(2) of NDPS Act.
18. Section 42(1) and Section 42(2) reads as under;
42. Power of entry, search, seizure and arrest without
warrant or authorisation.–
(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 personal knowledge or information
given by any person and taken down in writing that any
narcotic drug, or psychotropic substance, or controlled
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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
18cannot 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.]
For more understanding it is also necessary to rely on the
decision reported in Karnail Singh Vs., State of Haryana
reported in (2009) 8 SCC 539. In the said decision in Para
No.35 it is held as under:-
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 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
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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.
(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
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fails to record in writing the information received, or
fails to send a copy thereof, to the official superior,
then it will be a suspicious circumstance being a
clear violation of section 42 of the Act. Similarly,
where the police officer does not record the
information at all, and does not inform the official
superior at all, then also it will be a clear violation of
section 42 of the Act. Whether there is adequate or
substantial compliance with section 42 or not is a
question of fact to be decided in each case. The
above position got strengthened with the amendment
to section 42 by Act 9 of 2001.
In view of the principles laid down in the aforesaid decision,
it is clear that as soon as the information was received by the
officer in charge of the police station, it is his foremost duty
to reduce the said information into writing in the station
house diary. Not only that, but also the copy of the station
house diary so entered by the concerned officer shall be sent
to the Assistant Commissioner of Police or Official Superior
while seeking permission to conduct raid. The compliance of
Section 42(1) and 42(2) of NDPS Act is a mandatory provision
and if the said provision has not been complied in
accordance with law, it is fatal to the case of the prosecution
and thereby, the prosecution left room to doubt its case.
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19. The learned counsel for accused has also submitted
that the ACP who had granted permission to conduct raid,
has participated in raid proceedings and he is an interested
officer and he wouldn’t have participated in raid proceedings
when he himself accorded permission to conduct raid. In this
regard, in the case of State of Rajasthan v. Parmanand
AIR 2014 SC 1384 rendered in Criminal Appeal No.78 of
2005, the Hon’ble Supreme Court in Para No.15 has made
observation as under:-
15. We also notice that PW-10 SI Qureshi informed the
respondents that they could be searched before the nearest
Magistrate or before a nearest gazetted officer or before PW-5
J.S. Negi, the Superintendent, who was a part of the raiding
party. It is the prosecution case that the respondents
informed the officers that they would like to be searched
before PW-5 J.S. Negi by PW-10 SI Qureshi. This, in our
opinion, is again a breach of Section 50(1) of the NDPS Act.
The idea behind taking an accused to a nearest Magistrate or
a nearest gazetted officer, if he so requires, is to give him a
chance of being searched in the presence of an independent
officer. Therefore, it was improper for PW-10 SI Qureshi to tell
the respondents that a third alternative was available and
that they could be searched before PW-5 J.S. Negi, the
22
Superintendent, who was part of the raiding party. PW-5 J.S.
Negi cannot be called an independent officer. We are not
expressing any opinion on the question whether if the
respondents had voluntarily expressed that they wanted to
be searched before PW-5 J.S. Negi, the search would have
been vitiated or not. But PW-10 SI Qureshi could not have
given a third option to the respondents when Section 50(1) of
the NDPS Act does not provide for it and when such option
would frustrate the provisions of Section 50(1) of the NDPS
Act. On this ground also, in our opinion, the search conducted
by PW-10 SI Qureshi is vitiated. We have, therefore, no
hesitation in concluding that breach of Section 50(1) of the
NDPS Act has vitiated the search. The conviction of the
respondents was, therefore, illegal. The respondents have
rightly been acquitted by the High Court. It is not possible to
hold that the High Court’s view is perverse. The appeal is,
therefore, dismissed.”
The learned counsel for accused has also relied on the
decision rendered in Bail Application No.509/2024 by the
Hon’ble High Court of Delhi on 22.04.2024. In the said
decision, the Hon’ble High Court has also relied on the
decision of the Hon’ble Apex Court in the case of Mohd.
Jabir, wherein it is specifically held that the ACP was the
part of raiding team and it was on his direction the entire
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investigation was initiated, could not be called an independent
gazetted officer. He was after all the gazetted officer who had
proceeded to the place of occurrence after entertaining
reasonable belief that the accused may be carrying narcotic
substance and hence cannot be said to be an independent
person before whom the law contemplates a search under
NDPS Act. The sum and substance of the said decision is that
the gazetted officer must be an independent officer and
cannot be a superior officer to the raiding officer or
empowered officer. In the present case also the Assistant
Commissioner who had come to the spot for participation in
the seizure proceedings is the superior in office of the raiding
officer and he himself had given permission to the
empowered officer to conduct the raid. Therefore, it is the
considered view of this court that, as argued by learned
counsel for accused, the Assistant Commissioner of Police is
not an independent Gazetted officer. Therefore, there is no
proper compliance of Section 50 of NDPS Act.
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20. That apart, as could be seen from Ex.P6, the
Seizure mahazar, the PW5 who is said to be the raiding
officer after confirming the name and address of the accused,
got confirmed the possession of alleged contraband with the
accused and thereafter telephoned to the Assistant
Commissioner of Police at about 5.00 pm., to come to the
spot to participate in the seizure proceedings. It is to be
noted that the Assistant Commissioner of Police was not
called to the said place of incident on the option of the
accused person. From the recitals of Ex.P6 mahazar, it is
clear that it is as per the volition of the raiding officer, the
Assistant Commissioner was secured to the said place of
incident. That is not in compliance of the provisions of
Section 50 of NDPS Act.
Section 50 of NDPS Act reads as under:-
50. Conditions under which search of persons shall be
conducted.–
(1)When any officer duly authorised under section 42 is
about to search any person under the provisions of
section 41, section 42 or section 43, he shall, if such
person so requires, take such person without
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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 subsection (1).
(3)The Gazette Officer or the Magistrate before whom any
such person is brought shall, if he sees no reasonable
ground for search, forthwith discharge the person but
otherwise shall direct that search be made.
(4)No female shall be searched by anyone excepting a
female.
(5)When an officer duly authorised under section 42 has
reason to believe that it is not possible to take the person
to be searched to the nearest Gazetted Officer or
Magistrate without the possibility of the person to be
searched parting with possession of any narcotic drug or
psychotropic substance, or controlled substance or article
or document, he may, instead of taking such person to the
nearest Gazette Officer or Magistrate, proceed to search
the person as provided under section 100 of the Code of
Criminal Procedure, 1973 (2 of 1974).(6)After a search is
conducted under sub-section (5), the officer shall record
the reasons for such belief which necessitated such
26search and within seventy-two hours send a copy thereof
to his immediate official superior.
The learned counsel for accused has also drawn the attention
of this Court regarding improper compliance of Section 50 of
NDPS Act. The learned counsel submitted that the
empowered officer, namely PW5, had to apprise the right of
the accused as envisaged under Section 50 of NDPS Act, the
right of body search in the presence of gazetted officer or in
the presence the Magistrate shall be opted by the accused
and according to his desire, the empowered officer has to
take the accused before the gazetted officer or before any
Magistrate, that here the empowered officer according to his
volition secured the then Asst. Commissioner of Police
namely Sri Mohan Kumar as gazetted officer and the gazetted
officer after coming to the spot, apprised the right of the
accused. Thus, the object of Section 50 has not been properly
met with because it was the duty of the empowered officer,
namely PW5, to apprise the right of the accused to have his
body searched in the presence of a gazetted officer or before
CCH-33
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Spl.C.C.732/2021
any magistrate. As argued by learned counsel for the
accused, this aspect is made clear in the case of Baldev
Singh v. State of Punjab, reported in (1999) 6 SCC 172.
In this decision, it is also explained the purpose behind the
safeguards engraved under Section 50 and the reason as to
why the right of the suspect to have his search conducted
before a gazetted officer or magistrate ought to be zealously
guarded by the courts. It was held as under:-
“25. To be searched before a gazetted officer or a
Magistrate, if the suspect so requires, is an extremely
valuable right which the legislature has given to the
person concerned having regard to the grave
consequences that may entail the possession of illicit
articles under the NDPS Act. It appears to have been
incorporated in the Act keeping in view the severity of the
punishment. The rationale behind the provision is even
otherwise manifest. The search before a gazetted officer
or a Magistrate would impart much more authenticity and
creditworthiness to the search and seizure proceeding. It
would also verily strengthen the prosecution case. There
is, thus, no justification for the empowered officer, who
goes to search the person, on prior information, to effect
the search, of not informing the person concerned of the
existence of his right to have his search conducted before
a gazetted officer or a Magistrate, so as to enable him to
avail of that right. It is, however, not necessary to give the
information to the person to be searched about his right
in writing. It is sufficient if such information is
communicated to the person concerned orally and as far
28as possible in the presence of some independent and
respectable persons witnessing the arrest and search.
The prosecution must, however, at the trial, establish that
the empowered officer had conveyed the information to
the person concerned of his right of being searched in the
presence of a Magistrate or a gazetted officer, at the time
of the intended search. Courts have to be satisfied at the
trial of the case about due compliance with the
requirements provided in Section 50. No presumption
under Section 54 of the Act can be raised against an
accused, unless the prosecution establishes it to the
satisfaction of the court, that the requirements of Section
50 were duly complied with.
26. The safeguard or protection to be searched in the
presence of a gazetted officer or a Magistrate has been
incorporated in Section 50 to ensure that persons are only
searched with a good cause and also with a view to
maintain the veracity of evidence derived from such
search. We have already noticed that severe punishments
have been provided under the Act for mere possession of
illicit drugs and narcotic substances. Personal search,
more particularly for offences under the NDPS Act, are
critical means of obtaining evidence of possession and it
is, therefore, necessary that the safeguards provided in
Section 50 of the Act are observed scrupulously. The duty
to inform the suspect of his right to be searched in the
presence of a gazetted officer or a Magistrate is a
necessary sequence for enabling the person concerned to
exercise that right under Section 50 because after
Maneka Gandhi v. Union of India it is no longer
permissible to contend that the right to personal liberty
can be curtailed even temporarily, by a procedure which
is not “reasonable, fair and just” and when a statute
itself provides for a “just” procedure, it must be honoured.
CCH-33
29
Spl.C.C.732/2021Conducting a search under Section 50, without intimating
to the suspect that he has a right to be searched before a
gazetted officer or a Magistrate, would be violative of the
“reasonable, fair and just procedure” and the safeguard
contained in Section 50 would be rendered illusory, otiose
and meaningless. Procedure based on systematic and
unconscionable violation of law by the officials
responsible for the enforcement of law, cannot be
considered to be a “fair”, just or reasonable procedure.
We are not persuaded to agree that reading into Section
50, the existence of a duty on the part of the empowered
officer, to intimate to the suspect, about the existence of
his right to be searched in the presence of a gazetted
officer or a Magistrate, if he so requires, would place any
premium on ignorance of the law. The argument loses
sight of a clear distinction between ignorance of the law
and ignorance of the right to a “reasonable, fair and just
procedure”.
xxxx
28. This Court cannot overlook the context in which the
NDPS Act operates and particularly the factor of
widespread illiteracy among persons subject to
investigation for drug offences. It must be borne in mind
that severer the punishment, greater has to be the care
taken to see that all the safeguards provided in a
statute are scrupulously followed. We are not able to
find any reason as to why the empowered officer should
shirk from affording a real opportunity to the suspect, by
intimating to him that he has a right “that if he requires”
to be searched in the presence of a gazetted officer or a
Magistrate, he shall be searched only in that manner.
As already observed the compliance with the procedural
safeguards contained in Section 50 are intended to
30serve a dual purpose — to protect a person against false
accusation and frivolous charges as also to lend
creditability to the search and seizure conducted by the
empowered officer. The argument that keeping in view
the growing drug menace, an insistence on compliance
with all the safeguards contained in Section 50 may
result in more acquittals does not appeal to us. If the
empowered officer fails to comply with the requirements
of Section 50 and an order or acquittal is recorded on
that ground, the prosecution must thank itself for its
lapses. Indeed in every case the end result is important
but the means to achieve it must remain above board.
The remedy cannot be worse than the disease itself. The
legitimacy of the judicial process may come under a
cloud if the court is seen to condone acts of lawlessness
conducted by the investigating agency during search
operations and may also undermine respect for the law
and may have the effect of unconscionably
compromising the administration of justice. That cannot
be permitted.”
(Emphasis supplied)
Similarly, in Ranjan Kumar Chadha vs., State of
Himachal Pradesh reported in 2023 SCC OnLine SC
1262 it is summarized the requirements envisaged under
Section 50 as under;
From the aforesaid discussion, the requirements envisaged
by Section 50 can be summarised as follows:-
(i) Section 50 provides both a right as well as an
obligation. The person about to be searched has the
right to have his search conducted in the presence of a
CCH-33
31
Spl.C.C.732/2021Gazetted Officer or Magistrate if he so desires, and it is
the obligation of the police officer to inform such person
of this right before proceeding to search the person of
the suspect.
(ii) Where, the person to be searched declines to exercise
this right, the police officer shall be free to proceed with
the search. However, if the suspect declines to exercise
his right of being searched before a Gazetted Officer or
Magistrate, the empowered officer should take it in
writing from the suspect that he would not like to
exercise his right of being searched before a Gazetted
Officer or Magistrate and he may be searched by the
empowered officer.
(iii) Before conducting a search, it must be
communicated in clear terms though it need not be in
writing and is permissible to convey orally, that the
suspect has a right of being searched by a Gazetted
Officer or Magistrate.
(iv) While informing the right, only two options of either
being searched in presence of a Gazetted Officer or
Magistrate must be given, who also must be
independent and in no way connected to the raiding
party.
(v) In case of multiple persons to be searched, each of
them has to be individually communicated of their right,
and each must exercise or waive the same in their own
32capacity. Any joint or common communication of this
right would be in violation of Section 50.
(vi) Where the right under Section 50 has been
exercised, it is the choice of the police officer to decide
whether to take the suspect before a Gazetted Officer or
Magistrate but an endeavour should be made to take
him before the nearest Magistrate.
(vii) Section 50 is applicable only in case of search of
person of the suspect under the provisions of the NDPS
Act, and would have no application where a search was
conducted under any other statute in respect of any
offence.
(viii) Where during a search under any statute other
than the NDPS Act, a contraband under the NDPS Act
also happens to be recovered, the provisions relating to
the NDPS Act shall forthwith start applying, although in
such a situation Section 50 may not be required to be
complied for the reason that search had already been
conducted.
(ix) The burden is on the prosecution to establish that
the obligation imposed by Section 50 was duly complied
with before the search was conducted.
(x) Any incriminating contraband, possession of which is
punishable under the NDPS Act and recovered in
violation of Section 50 would be inadmissible and
cannot be relied upon in the trial by the prosecution,
however, it will not vitiate the trial in respect of the
CCH-33
33
Spl.C.C.732/2021same. Any other article that has been recovered may be
relied upon in any other independent proceedings.
If the aforesaid decisions are gone through, one can
understand the importance of the compliance of Section 50 of
NDPS Act in order to safeguard the interest of accused
person. However, in the present case, no proper compliance
of Section 50 of NDPS Act. The so called raid was conducted
as per the whims and fancy of the so called raiding officer,
which goes against the provisions of Section 50 of the Act.
Therefore, The entire search proceedings shall be vitiated.
21. Further, during the seizure proceedings the raiding
officer would have taken photographs as well as recorded
videography. It is mandatory in a case like this nature to take
photographs as well as record videography during seizure
proceedings. The said aspect made clear in the case of Kalu
Sk. @ Kuran Vs., State in CRM (NDPS) 493/2022 dated
22.6.2022. In the said decision the Hon’ble Court has
observed as under:-
34
“This Court takes judicial notice of the fact that all police
officers are ordinarily equipped with smart phones and
other electronic gadgets which would enable them to
videograph recovery. When technology is available at the
lay level we see no reason why it shall not be utilized to
instill fairness, impartiality and confidence in the
investigative process. Videography as a modern tool of
investigation has been well recognised in law. In fact, the
Field Officers’ Handbook issued by Narcotics Control
Bureau, inter alia, directs the search team to carry video
camera amongst other equipments for the purpose of
search.1 In chapter 6 relating to “Recovery and Seizure”
video recording of seizure of narcotics has been mandated
as under:-
“Video:- A lot of times the witnesses and suspect
allege foul play by the search team during the trial
proceedings See Chapter 3- Operation: Preparation,
co-ordination and planning alleging that they were
not present at the time of recovery. To avoid such a
situation, all recovery and concealment methods
should be videographed simultaneously if possible,
recording the presence of the owner/occupant of the
premises and the witnesses. This acts as a deterrent
later during trial proceedings.”
Unfortunately, even in cases conducted by NCB, such
directives are mostly observed in the breach. It may also be
apposite to note use of videography in investigation was
examined by a Committee constituted by the Ministry of
Home Affairs in 2017. The Committee observed videography
of crime scene as “desirable and acceptable best practice”.
CCH-33
35
Spl.C.C.732/2021
The Committee issued various directives for the purpose of
preparation, capacity building and implementation of such
procedure on a mandatory basis.”
As it is mandatory to take photograph and record videograph
at the time of seizure proceedings, somehow the officers did
not follow the said procedure, if at all there was photograph
or a video of the seizure proceedings, it would have thrown
light on the court and the Court would have accepted the
case of the prosecution if at all those documents are proved
in accordance with law. But in this matter, the officers did
not follow the mandatory procedure and it also goes to the
root of the case.
22. As could be seen from Ex.P12 the IO., after listing
the seized contraband has taken before the learned
Magistrate for inventory, the inventory has been got done in
the presence of learned Magistrate. Accordingly, the
prosecution has complied the provisions of Sec.52A of NDPS
Act.
36
23. As seen from Ex.P8 as soon as the completion of
seizure proceedings the raiding officer had submitted a report
to official superior as contemplated under Sec.57 of NDPS
Act. The said report is signed by the raiding officer as well as
the Asst. Commissioner of Police. In view of that the
prosecution has complied the provisions of Sec.57 of NDPS
Act also.
24. In the present case, the prosecution has also cited
two mahazar witnesses as CW.2 and CW.3. The prosecution
has examined one of those witnesses namely CW.3 Srinivas.
He partly turned hostile and did not completely supported
the case of the prosecution. The learned counsel for the
accused cross examined him an he was not firm while
deposing before the Court. In view of the shaky evidence of
mahazar witness, it is hard to accept his evidence. In the
absence of evidence of trustworthy evidence of mahazar
witness, the evidence of PW.5, as well as the evidence of
Assistant Commissioner of Police, cannot be accepted as
there is improper compliance of the mandatory provisions of
CCH-33
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Spl.C.C.732/2021
NDPS Act. For the said reasons only on the basis of the
evidence of interested official witnesses the case of the
prosecution cannot be accepted.
25. The accused during the course of their examination
under Section 313 of Cr.P.C., denied the incriminating
statement made against him. Since, the prosecution failed to
place convincing evidence in order to prove the guilt of the
accused, the total denial of the case of the prosecution by the
accused appears to be appropriate defence on their behalf.
26. Further, at this juncture, this Court feels it
appropriate to rely on the decision of Hon’ble Supreme Court
rendered in AIR 2013 SC 3150 in the case of Raj Kumar
Singh Vs., State of Rajasthan wherein it is held as under:-
21. Suspicion, however grave it may be, cannot take the
place of proof, and there is a large difference between
something that “may be” proved and “will be proved”. In a
criminal trial, suspicion no matter how strong, cannot and
must not be permitted to take place of proof. This is for the
reason that the mental distance between “may be” and
“must be” is quite large and divides vague conjectures from
sure conclusions. In a criminal case, the court has a duty to
38ensure that mere conjectures or suspicion do not take the
place of legal proof. The large distance between “may be”
true and “must be” true, must be covered by way of clear,
cogent and unimpeachable evidence produced by the
prosecution, before an accused is condemned as a convict,
and the basic and golden rule must be applied. In such
cases, while keeping in mind the distance between “may be”
true and “must be” true, the court must maintain the vital
distance between conjectures and sure conclusions to be
arrived at, on the touchstone of dispassionate judicial
scrutiny based upon a complete and comprehensive
appreciation of all features of the case, as well as the
quality and credibility of the evidence brought on record.
The court must ensure that miscarriage of justice is avoided
and if the facts and circumstances of a case so demand,
then the benefit of doubt must be given to the accused,
keeping in mind that a reasonable doubt is not an
imaginary, trivial or a merely probable doubt, but a fair
doubt that is based upon reason and common sense.
It is well entrenched principle of criminal jurisprudence that
a charge can be said to be proved only when there is certain
and explicit evidence to warrant legal conviction and that no
person can be held guilty on pure moral conviction.
Howsoever grave the alleged offence may be, otherwise
CCH-33
39
Spl.C.C.732/2021
stirring the conscience of any court, suspicion alone cannot
take the place of legal proof. The well established cannon of
criminal justice is “fouler the crime higher the proof”. In
unmistakable terms, it is the mandate of law that the
prosecution in order to succeed in a criminal trial, has to
prove the charge(s) beyond all reasonable doubt.
27. Accordingly, in the present case when the initial
burden of proof has not been discharged by the prosecution,
then where is the question of proving reverse burden by the
accused under Sections 35 and 54 of NDPS Act. At this
stage, it is relevant to rely on the decision of Noor Aga Vs.,
State of Punjab reported in 2010 (96) AIC 176 (SC)
Wherein in at page-12 it is held as under:
“Section 35 of the Act provides for presumption of
culpable mental state. It also provides that an accused
may prove that he had no such mental state with respect
to the act charged as an offence under the prosecution”.
Further, it is also observed in the said decision that Section
54 of the Act, places the burden of proof on the accused as
40
regards to possession of the contraband to account for the
same satisfactorily. Further in page No.36 it is held as under:
Sections 35 and 54 of the Act, no doubt, raise
presumptions with regard to the culpable mental state on
the part of the accused as also place burden of proof in
this behalf on the accused; but a bare perusal the said
provision would clearly show that presumption would
operate in the trial of the accused only in the event the
circumstances contained therein are fully satisfied. An
initial burden exists upon the prosecution and only when
it stands satisfied, the legal burden would shift. Even
then, the standard of proof required for the accused to
prove his innocence is not as high as that of the
prosecution. Whereas the standard of proof required to
prove the guilt of accused on the prosecution is “beyond
all reasonable doubt” but it is `preponderance of
probability on the accused. If the prosecution fails to
prove the foundational facts so as to attract the rigors of
Section 35 of the Act, the actus reus which is possession
of contraband by the accused cannot be said to have
been established.
With a view to bring within its purview the requirements
of Section 54 of the Act, element of possession of the
contraband was essential so as to shift the burden on
the accused. The provisions being exceptions to the
general rule, the generality thereof would continue to be
CCH-33
41
Spl.C.C.732/2021operative, namely, the element of possession will have to
be proved beyond reasonable doubt.
If this principle of law is taken into consideration, the
prosecution shall initially discharge its burden of proof.
Though the learned PP argued much about the compliance of
the mandatory provisions of NDPS Act and also submitted
that the prosecution proves its case beyond all reasonable
doubt against the accused, the reasons assigned herein
above, the prosecution failed to discharge its burden of proof
beyond reasonable doubt. Therefore, no question of drawing
presumption U/s.54 of NDPS Act on behalf of prosecution
and the onus did not shift on accused. In the light of the
above discussion, it is the considered view of this Court that
the prosecution failed to establish the commission of offence
by the accused beyond all reasonable doubt. The evidence is
scanty and lacking support to establish that the contraband
was really recovered from the possession of the accused in
the manner alleged by the prosecution. It is imperative that
the Court should follow for awarding conviction under the
provisions of NDPS Act is ‘stringent the punishment stricter
42the proof’. In such cases, the prosecution evidence has to be
examined very zealously so as to exclude every chance of
false implication. In the case on hand, under the above
explained circumstances, the prosecution evidence does not
inspire the confidence of the Court to believe it and award
conviction to the accused. Thus, the benefit of doubt shall be
extended to the accused. Accordingly, the accused is entitled
to be acquitted for the offence punishable under Section
20(b)(ii)(B) of NDPS Act. Accordingly, the Point for
consideration is answered in the Negative.
28. Point No.2: In the result, this Court proceeds to
pass the following:
::ORDER::
Acting under Section 235(1) of Cr.P.C., accused
Pradeep is acquitted for the offence punishable
under Sections 20(b)(ii)(B) of NDPS Act.
The accused is directed to comply Sec.437-A
of Cr.P.C., within a week from this date.
M.Os.1 to 4 contraband is ordered to be
returned to complainant for producing before the
Drug Disposal committee for disposal, M.O.5
CCH-33
43
Spl.C.C.732/2021cash, M.O.7 Mobile and M.O.8 weighing machine
shall be confiscated to State and M.O.9 plastic
covers is ordered to be destroyed as worthless,
after the expiry of Appeal period.
[Dictated to the Stenographer, directly on the computer, typed by
her, corrected, signed and then pronounced by me in Open Court on
this the 2nd day of April 2026)(LATHA)
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BANGALORE.
ANNEXURE
1. List of witnesses examined for the:
(a) Prosecution:
P.W.1 : Sri Srinath
P.W.2 : Sri Mohan Kumar
P.W.3 : Sri Pal Priyakumar
P.W.4 : Sri Srinivas
P.W.5 : Sri V.D.Shivaraju
P.W.6 : Sri S.R.Raghavendra
(b) Defence :
- NIL -
2. List of documents Exhibited for the:
(a) Prosecution:
44
Ex.P.1 : FSL report
Ex.P.2 : Sample seal
Ex.P.3 : Request letter
Ex.P.4 : Request letter
Ex.P.5 : Body search memo
Ex.P.6 : Panchanama
Ex.P.7 : Sample seal
Ex.P.8 : Raid success report
Ex.P.9 : Complaint
Ex.P.10 : FIR
Ex.P.11 : Request letter
Ex.P.12 : Inventory report
Ex.P.13 : Acknowledgment of FSL
Ex.P.14 : Panch notice
Ex.P.15 : Record of reasons
Ex.P.16 : Station House Diary
(b) Defence:
-Nil-
3.List of Material Objects admitted in evidence:
M.O.1 to 4 : Contraband
M.O.5 : Cash
M.O.6 & 7 : Mobiles
M.O.8 : Weighing machine
M.O.9 : Plastic covers
(LATHA)
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BANGALORE.
CN/*
