Bangalore District Court
Suddaguntepalya Ps vs Kiran S L on 9 July, 2026
KABC010197342021
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 9th DAY OF JULY 2026
SPL.C.C. No.1395/2021
COMPLAINANT : State by S.G.Palya Police
Station
(By Public Prosecutor)
V/S.
ACCUSED : Kiran S.L.
S/o. Suresha Kumar P.S.
No.KGRA22A, Sopanam House,
KK Garden, Indiranagar,
Peroor Kada,
Thiruvanthanapuram,
Tamil Nadu,
(By Sri. KM., Adv.)
1. Date of Commission of offence: 29.11.2019
2. Date of report of offence: 29.11.2019
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3. Arrest of the accused : 30.11.2019
4. Date of release of accused on bail: 09.12.2019
5. Period undergone in custody: 9 days
6. Date of commencing of
21.9.2022
recording Evidence :
7. Date of closing of Evidence : 19.2.2024
8. Name of the complainant: Police Sub Inspector,
S.G.Palya Police Station
Smt.Laxmi Mendigeri
9. Offence complained of : U/Sec.20(b)(ii)(B) of
N.D.P.S. Act.
10. Opinion of the Judge : Charges not proved
11. Order of sentence : The accused is
Acquitted
::JUDGMENT:
:
The PSI., S.G.Palya Police, Bangalore filed charge sheet
against the accused for the offence punishable U/Sec.20(b)(ii)
(B) of NDPS Act.
2. The case of the prosecution in nutshell is as
under:-
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3 Spl.C.C.1395/2021
On 28.11.2019 at 8.00 pm., complainant received
credible information that one person by name Kiran would
come in between Christ and Dharmaram College, Hosur Main
road, Bangalore on 29.11.2019 at about 9.00 am., to sell
ganja to the customers and college students. He registered a
case in Cr.No.210/2019 for the offence punishable U/s.20(b)
(ii)(B) of NDPS Act against the accused. Thereafter, he
informed the said information to his superior in office, on
29.11.2019 he secured two mahazar witnesses, staff
members and went to the spot and saw a suspected person
in the said spot. He along with his staff surrounded the
suspect and apprehended him. On personal search of the
accused he found 1 Kg., 200 grams of ganja. He seized those
articles under seizure mahazar. Subsequently, he took the
accused along with seized articles to the police station,
handed over the accused and seized articles with a report to
the Station House officer. Consequently, the accused was
arrested and produced before the jurisdictional Magistrate for
further action.
4
3. The Investigating officer, after completing the
investigation filed charge sheet before the Court. The accused
was on bail and secured him before the court. The learned
Predecessor-in-office of this Court, took cognizance of the
offence punishable under Sec.20(b)(ii)(B) 27(b) 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 offence punishable under section
20(b)(ii)(B) of NDPS Act on 2.6.2022, 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 06 witnesses as P.W.1 to P.W.6
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5 Spl.C.C.1395/2021
and got 14 documents marked as Exs.P1 to P.14 and also got
5 material objects marked as M.O.1 to 5. 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, 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
29.11.2019 at about 9.00 am.,
within the limits of S.G.Palya
police station on the footpath
situated near Christ College and
Dharmaram College, Hosur Main
Road, S.G.Palya, Bangalore
accused was found in illegal
possession of 1 Kg., 200 grams of
ganja without having any licence
or permission to sell the same
and thereby accused has
committed the offence
punishable U/s.20(b)(ii)(B) of
NDPS Act?
Point No.2: What Order ?
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6. My findings 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 Smt. Laxmi Mendigeri
examined as PW1. PW1 is the then PSI of S.G.Palya Police
Station. She deposed that on 28.11.2019 when she was in
the police station she received a credible information at
around 08.00 pm., that on 29.11.2019 at around 09.00 am.,
on the footpath of Christ College and Dharmarao compound,
one Kiran is coming to sell the contraband to the students
that at around 8.15 pm., she prepared a report and
registered suo-motu case on the basis of the information
received by her in Crime No. 210/2019, that she submitted
the said records to CW9 for further investigation.
8. CW9 Sri L.K.Ramesh the then Police Inspector of
S.G. Pallya Police Station has been examined as PW4. In his
evidence, he deposed that on 29.11.2019 at about 07.00 am.,
CCH-33
7 Spl.C.C.1395/2021he received the case file from CW1 for further investigation,
that on the basis of the information received by CW1 and on
the basis of the report submitted by her, he secured two
mahazar witnesses and his staff, that he issued notice to the
mahazar witnesses and at about 8.45 am., they went to the
said spot and mounted surveillance in the said spot, at that
that time, a person was standing there by holding a student
bag and was waiting for the arrival of customers, that the
informant had shown the said person as suspected person
who is selling ganja, that he along with his staff surrounded
him and apprehended him, that on enquiry he revealed his
name as Kiran and also revealed the possession of ganja in
his bag, that he had also apprised the right of the accused to
have personal search in the presence of Gazetted Officer or
before the Magistrate, that at that time the accused stated
that he doesn’t have contraband in the apparel worn by him,
that the contraband is in his bag, that the PW4 seized the
contraband which was there in the bag, which was weighing
1 Kg., 200 grams, that they packed it and sealed with ‘GP’
8seal under Ex.P5 mahazar, that after the seizure proceedings
he returned to the police station and followed arrest
procedure against the accused, that he recorded the
voluntary statement of the accused and produced him before
the court on the next day, that he listed the property in the
property list and submitted it before the court, that he had
also submitted raid success report to the concerned DCP as
per Ex.P7, that he had recorded the statements of CW2,
CW3, CW7 and CW8, that on 30.11.2019, the accused was
produced before the Court, after subjecting him for medical
examination. On 13.12.2019 he had submitted requisition to
the learned 8th ACMM for conducting inventory, that on
11.08.2020 the inventory was got done in the presence of the
learned Magistrate, that on 24.09.2020 he sent the
representative of sample to the FSL for chemical examination
and he secured FSL report and handed over the further
investigation to CW10.
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9 Spl.C.C.1395/2021
9. CW10 Sri.D.N.Nataraj, P.I. of S.G.Palya Police
Station has been examined as PW5. He deposed that on
07.04.2021 he received FSL report from the FSL., Madivala
and as there were sufficient material to file charge sheet
against accused, he filed charge sheet against accused before
the court.
10. CW.6 Dr.M.D.Gautam has been examined as PW2.
This witness is the scientific officer he deposed that on
24.09.2020 he received one sealed article in Crime
No.210/2019 of S. G. Palya Police Station through PC 15284,
that he opened the said article and subjected it for chemical
analysis that on subjecting it for chemical analysis he arrived
to the opinion that it responded positive for cannabis and
cannabis contains psychoactive constituents, accordingly he
had issued Ex.P3 Report and Ex.P4 is the sample seal of FSL.
11. CW2 Sri.Arif and CW3 Sri.Bacche Gowda have
been examined as PW6 and PW3 respectively. These two
witnesses are independent witnesses and according to the
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prosecution they were present at the time of mahazar
proceedings. However, these two witnesses except admitting
their signatures on Ex.P5, Notice and Ex.P6 mahazar did not
whisper anything about the contents of Ex.P6 mahazar. In
spite of the cross examination by learned Public Prosecutor,
they did not Disclose anything about the contents of Ex.P6
mahazar. Therefore, the evidence of these two witnesses did
not help the case of the prosecution.
12. The learned counsel for accused cross examined
PW.1 to PW.6 to test their credibility.
13. During the course of arguments, learned Public
Prosecutor submitted that the prosecution has examined 6
witnesses, got 14 documents marked along with 5 material
objects, that the witnesses examined on behalf of the
prosecution have 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.
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11 Spl.C.C.1395/2021
Accordingly, learned PP sought for convicting the accused
person.
14. 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.
15. The prosecution, apart from examining 6
witnesses, has also got 14 documents and 5 material objects
marked.
16. Before dwelling into the merits of the case, this
Court has to verify whether the prosecution has complied the
mandatory provisions of NDPS Act. Insofar as compliance of
the provisions of Section 42(1) is concerned, the prosecution
ought to have produced the document to show that the
information received by the CW1 had been immediately
reduced into writing in compliance of Section 42(1) of NDPS
Act and further the CW1 ought to have produced document
to show that soon after reducing the said information into
writing, copy of the said document had been sent to the
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immediate official superior seeking permission to conduct
raid. However, in the present case, the prosecution has not
produced any document to show that the information
received by the CW.1 had been reduced into writing and the
copy of the said document had been sent to the Assistant
Commissioner of Police while seeking permission to conduct
raid. Ex.P10 is the requisition letter sent by the CW1 to the
Assistant Commissioner of Police, Mico Layout Sub-Division.
Ex.P11 is the permission letter issued by the Assistant
Commissioner of Police in reply to Ex.P10 requisition letter.
As seen from Ex.P10, the Police Inspector had sent copy of
the FIR along with the requisition letter. However, there is no
whisper in Ex.P10 that the information received by the PI had
been reduced into writing in the Station House diary. When
such being the case, it cannot be said that the provisions of
Section 42(1) and 42(2) of NDPS Act have been complied
with. For better understanding, it is necessary to reproduce
Section 42(1) and 42(2) of NDPS Act.
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13 Spl.C.C.1395/2021
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
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
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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.]
For more understanding it is also necessary to rely on the
decision reported in Karnail Singh Vs., State of Haryana
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15 Spl.C.C.1395/2021
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
by mobile phone, or other means, and the
information calls for immediate action and any delay
would have resulted in the goods or evidence being
removed or destroyed, it would not be feasible or
practical to take down in writing the information
given to him, in such a situation, he could take action
as per clauses (a) to (d) of section 42(1) and
thereafter, as soon as it is practical, record the
information in writing and forthwith inform the same
to the official superior.
(c) In other words, the compliance with the
requirements of Sections 42 (1) and 42(2) in regard to
writing down the information received and sending a
copy thereof to the superior officer, should normally
16precede the entry, search and seizure by the officer.
But in special circumstances involving emergent
situations, the recording of the information in writing
and sending a copy thereof to the official superior
may get postponed by a reasonable period, that is
after the search, entry and seizure. The question is
one of urgency and expediency.
(d) While total non-compliance of requirements of sub-
sections (1) and (2) of section 42 is impermissible,
delayed compliance with satisfactory explanation
about the delay will be acceptable compliance of
section 42. To illustrate, if any delay may result in
the accused escaping or the goods or evidence being
destroyed or removed, not recording in writing the
information received, before initiating action, or non-
sending a copy of such information to the official
superior forthwith, may not be treated as violation of
section 42. But if the information was received when
the police officer was in the police station with
sufficient time to take action, and if the police officer
fails to record in writing the information received, or
fails to send a copy thereof, to the official superior,
then it will be a suspicious circumstance being a
clear violation of section 42 of the Act. Similarly,
where the police officer does not record the
information at all, and does not inform the official
superior at all, then also it will be a clear violation of
section 42 of the Act. Whether there is adequate or
substantial compliance with section 42 or not is a
question of fact to be decided in each case. The
above position got strengthened with the amendment
to section 42 by Act 9 of 2001.
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17 Spl.C.C.1395/2021
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.
17. Insofar as compliance of the provisions of Section
50 is concerned, as could be seen from the recitals of Ex.P5
mahazar, the Police Inspector, CW1 along with his staff and
mahazar witnesses went near the spot namely near Christ
College, that in the said place, the accused found selling
ganja to the public and students. On enquiry, he revealed his
name as Kiran and also revealed about the possession of
18
ganja with him, that when his right to have personal search
in the presence of Gazetted Officer or before the Magistrate
had been approached, he declined to have personal search as
the alleged ganja was in the college bag. When the accused
refused to have Personal search in the presence of projected
officer or before the Magistrate, the police inspector, namely
the raiding officer himself proceeded with seizure of the said
narcotic drug. Though the raiding officer specifically stated
that a body such memo had been issued to the accused, no
such document is got marked through any of the witnesses.
However, as the counterfeit had been seized from the bag
which was in his possession in a public place, it is the
considered view of this Court that the compliance of
mandatory provisions of Section 50 is not required.
Therefore, it cannot be said that the seizure proceedings is
bad for non-compliance of Section 50 of NDPS Act.
18. Ex.P.7 is the report submitted by the raiding officer
to the Deputy Commissioner of Police through proper
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19 Spl.C.C.1395/2021
channel. This report said to be submitted in compliance of
Section 57 of NDPS Act. As seen from Ex.P5, the mahazar it
was drawn on 29.11.2019 and on the same day in
compliance of Section 57 of NDPS Act, the report is
submitted to the Deputy Commissioner of Police. Therefore,
there is compliance of Section 57 of NDPS Act.
19. As could be seen from Ex.P12, the Inventory report
on 11.08.2020, the inventory report was preferred in the
presence of VI Additional ACMM and the compliance of
Section 52(A) was in accordance with the law.
20. Ex.P3 is the FSL report dated 22.02.2021 and as
seen from the FSL report, the scientific officer namely PW2
specifically issued a report after the chemical analysis of the
representative of sample and opined that the article has
responded positive for cannabis and cannabis contains
psychoactive constituents. In his evidence also, PW2, the
scientific officer specifically reported about the method of
analysis conducted by him and after chemical analysis he
20
arrived to the conclusion that the representative of sample
produced in this case responded positive for cannabis.
21. It is true that the prosecution has successfully
established the compliance of Sec.50, 52A & 57 of NDPS Act.
However, the compliance of Sec.42(1) & 42(2) has not been
established by the prosecution and it is fatal to the case of
the prosecution.
22. Now, on merits if the facts and circumstances of
this case is gone through, the raiding officer specifically
deposed that in the presence of two mahazar witnesses
namely PW3 and PW6 seizure proceedings were conducted.
However, though the prosecution examined both the
independent witnesses, they did not support the case of the
prosecution. In spite of the cross-examination by learned PP,
the witnesses did not whisper about the contents of Ex.P5
mahazar. As contemplated under Section 100(4) of Cr.P.C.,
the raiding officer ought to have secured two independent
witnesses from the locality and they must be reputed
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21 Spl.C.C.1395/2021
persons. Section 100(4) of Code of Criminal Procedure reads
as under:-
Section 100(4) of the Code of Criminal Procedure (Cr.P.C)
in India mandates that before a search is conducted, the
officer executing the search must call upon two or more
independent and respectable inhabitants of the locality to
attend and witness the search. This provision ensures
transparency and fairness during searches and requires
that a list of all seized items is prepared in the presence
of these witnesses and delivered to the occupant of the
place.
However, in the present case the raiding officer did not
attempt to secure the independent witnesses from the place
of incident. Evidently the raid was conducted at about 10.00
am., to 12.00 noon, the raiding officer would have easily
secured the independent witnesses from the so-called place
of incident. However, he did not venture to get independent
witnesses from the locality. This is one of the drawbacks in
the investigation conducted by the raiding officer.
23. It is also significant to note here that during the
course of raiding proceedings, the raiding officer shall take
22photographs and record videography of seizure proceedings.
However, in the present case, no such procedure is followed
by the raiding officer during the course of seizure proceedings
and it is fatal to the case of the prosecution. At this stage it is
relevant to rely on the decision rendered in 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:-
“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
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23 Spl.C.C.1395/2021
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.”
As it is mandatory to take photograph and record videograph
at the time of seizure proceedings, some how 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. Though the raiding officer given evidence in
his examination in chief in support of the case of the
prosecution he has been subjected to cross examination in
length. His evidence has not been corroborated by any of
independent witnesses. In view of the reasons discussed in
the forgoing paragraphs, the very seizure of the ganja from
24
the custody of the accused persons is not established beyond
doubt.
24. When the independent witnesses have completely
turned hostile and as the raiding officer did not record the
seized proceedings in videography or had taken photographs,
Then this Court has to depend only on the evidence of only
the raiding officer who is an official witness and He is an
interested witness. Only on the basis of the evidence of an
interested official witness, if it is held that the prosecution
has proved its case beyond all reasonable doubt, then it may
lead to miscarriage of justice. If at all such a Seizure
proceedings had been conducted by the raiding officer,
definitely the independent witnesses would have supported
the case of the prosecution and there was no hurdle to the
raiding officer to take photographs or record videography
during seizure proceedings. When such procedures are not
followed, definitely, it leads to doubt the case of the
prosecution. The said doubt has not been properly explained
by the prosecution and on the sole ground the case of the
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25 Spl.C.C.1395/2021
prosecution shall fail. Therefore it is the considered view of
this Court that the prosecution failed to prove the conscious
possession of the so-called Contraband with the accused.
25. When the initial burden is on the prosecution to
establish the conscious possession of the contraband with
the accused and when it failed to prove it, then where is the
question of proving reverse burden as contemplated under
Sections 35 and 54 of NDPS Act.
26. Accordingly, 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”.
26
Further, it is also observed in the said decision that Section
54 of the Act, places the burden of proof on the accused as
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.
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27 Spl.C.C.1395/2021With 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
operative, 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 Public Prosecutor 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 for 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
28
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 the 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.
27. Point No.3: In the result, this Court proceeds to
pass the following:
CCH-33
29 Spl.C.C.1395/2021::ORDER::
Acting under Section 235(1) of Cr.P.C., accused
– Kiran S.L., is acquitted for the offence
punishable under Sections 20(b)(ii)(B) of NDPS Act.
Accused is directed to comply Sec.437-A of
Cr.P.C., within a week from this date.
M.O.1 sample contraband is ordered to be
returned to complainant for producing before the
Drug Disposal committee for disposal, M.O.2
weighing machine and M.O.4 mobile phone shall
be confiscated to State, M.O.3 plastic covers and
M.O.5 bag 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 him in Open Court
on this the 9th day of July 2026)(LATHA)
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BANGALORE.
30
ANNEXURE
1. List of witnesses examined for the:
(a) Prosecution:
P.W.1 : Smt.Laxmi Mendigeri P.W.2 : Dr.M.D.Gowtham P.W.3 : Sri Bacchegowda P.W.4 : Sri.L.K.Ramesh P.W.5 : Sri.D.N.Nataraj P.W.6 : Sri.Arif (b) Defence : - NIL -
2. List of documents Exhibited for the:
(a) Prosecution:
Ex.P.1 : Complaint
Ex.P.2 : FIR
Ex.P.3 : FSL report
Ex.P.4 : Sample seal
Ex.P.5 : Panchanama
Ex.P.6 : Panch notice
Ex.P.7 : Raid success report
Ex.P.8 : Sample seal
Ex.P.9 : Medical report
Ex.P.10 : Request letter
Ex.P.11 : Permission letter
Ex.P.12 : Inventory report
Ex.P.13 : Acknowledgment of FSL
Ex.P.14 : Statement of PW.6
CCH-33
31 Spl.C.C.1395/2021
(b) Defence:
-Nil-
3.List of Material Objects admitted in evidence:
M.O.1 : Sample
M.O.2 : Weighing machine
M.O.3 : 15 plastic covers
M.O.4 : Mobile phone
M.O.5 : bag
(LATHA)
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BANGALORE.
CN/*
