Bangalore District Court
Superintendent Of Customs vs Annet Nanfuka on 8 July, 2026
KABC010130942023
IN 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 8th DAY OF JULY 2026
SPL.C.C. NO.911/2023
COMPLAINANT : The Superintendent of Customs,
Air Intelligence Unit-B,
Office of the Principal
Commissioner of Customs,
Airport and Air Cargo Complex,
Kempegowda International
Airport, Bengaluru.
(By Spl. Public Prosecutor)
V/S. V/S.
ACCUSED : Ms. Annet Nanfuka,
D/o. James Kabuye,
Aged about 48 years,
D.O.B-11.03.1976
Passport No.-A00732792
R/at. William Street,
Kampala, Uganda - 759125.
(By Sri.TAB., Adv.)
2
1. Date of Commission of offence: 18.11.2022
2. Date of report of offence: 18.11.2022
3. Arrest of the accused : 18.11.2022
4. Date of release of accused on bail: Not released
in judicial custody
5. Period undergone in custody: In judicial custody
6. Date of commencing of
7.3.2024
recording Evidence :
7. Date of closing of Evidence : 21.8.2025
8. Name of the complainant: Smt. S.Pushpamma
Superintendent, AIU, ACC
9. Offence complained of : U/Sec.8(c), 22(c), 23(c), 28
& 29 of N.D.P.S. Act.
10. Opinion of the Judge : Charges not proved
11. Order of sentence : The accused is Acquitted
::JUDGMENT:
:
The Superintendent of Customs, Bangalore filed
complaint against the accused for the offences punishable in
U/Section 8(c) R/w. Sections 22(c), 23(c), 28 & 29 of
N.D.P.S. Act.
2. The case of the prosecution in nutshell is as
under:-
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3 Spl.C.C.911/2023
The complainant received credible information that a
large quantity of narcotic substance would be attempted to
be smuggled into the country through one Ugandan National
namely Ms. Annet Nanfuka who is scheduled to arrive in
Bengaluru from Addis Ababa in Ethiopian Airways Flight
No.ET690 at 8.00 hours on 18.11.2022. The officers of Air
Intelligence Unit intercepted the said passenger and on
enquiry about the smuggling of contraband she replied in
Negative. On searching the trolley bag a carton box was
found on checking the same tea bags, artificial hairs and food
items were found, after removing them the box was still
heavy. On X-ray scanning the box it indicated the presence
of some concealed substance in the inner layer of the carton
box. On cut opening the bottom layer cream coloured
powder like substance was found in polythene bags. On
conducting field test from Drug Detection kit, it tested
positive for heroin and it weighed 1926.71 grams. The said
heroin was seized in the presence of panchas under a detail
mahazar. Thereafter, basing on the seizure effected in the
4
case, the accused was arrested and a case in
F.No.VII/48/59/2022-23 AIU-B Cus is registered against the
accused for the offences punishable U/Sec.8(c) R/w. Sec.22,
23, 27, 28 & 29 of N.D.P.S. Act.
3. The Investigating officer, after completing the
investigation filed complaint before the Court. The accused
is in judicial custody. The learned Predecessor-in-office of
this Court, took cognizance of the offences punishable under
Sec.8(c) R/w.Sec.22(c), 23(c), 28 & 29 of NDPS Act,1985
against accused. The copy of the complaint 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
22(c) & 23(c) of NDPS Act on 6.12.2023, read-over and
explained to the accused in the language known to her. He
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5 Spl.C.C.911/2023
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 03 witnesses as P.W.1, P.W.2 &
P.W.4 and got 4 documents marked as Exs.P1 to P.4. After
conclusion of evidence of prosecution side, the accused was
examined U/Sec.313 of Cr.P.C. She denied the incriminating
statements made against her. However, did not offer defence
evidence, but got marked one document as per Ex.D1.
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 18.11.2022 at
about 8.10 hours at
Kempegowda International
Airport, Devanahalli, Bangalore
accused herein who is a
Ugandan National traveled in
Ethiopian Airways flight No.ET
690 from Addis Ababa to
6
Bangalore and when the IO.,
intercepted her, she was found
in illegal possession of 1938
grams of Heroin in her trolley
bag without holding any
licence or permission and
thereby accused has
committed the offence
punishable U/s.21(c) of NDPS
Act?
Whether the prosecution
proves that the accused on the
above said date, time and place
being a Ugandan National
traveled in Ethiopian Airways
flight No.ET 690 from Addis
Ababa to Bangalore has
imported 1938 grams of Heroin
without holding any licence or
permission and indulged in
illicit drug trafficking, thereby
accused has committed the
offences punishable U/s.23(c)
of NDPS Act?
Point No.3: What Order ?
6. My findings on the above points are as under:
Point No.1: In the Negative
Point No.2: In the Negative
Point No.3: As per the final order for the following:
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7 Spl.C.C.911/2023
::REASONS::
7. POINT Nos.1 & 2: These two points are taken up
together for discussion to avoid repetition and for brevity.
8. The prosecution in order to substantiate its case got
the CW1 Smt.Pushpamma examined as PW2.
Smt.Pushpamma was the then Superintendent of AIU, ACC
Bangalore. She deposed that on 18.11.2022 she received
intelligence from CW2, the Deputy Commissioner of AIU, that
at around 07.30 am., a passenger by name Ms.Annet
Nanfuka, an Uganda National is arriving to Bangalore in
Ethiopian Airway in Flight No. ET690 from Adidas Ababa
scheduled to arrive at Bangalore in between 08.00 to 08.10
am., that he formed a team and directed them to intercept
the passenger, that when they were waiting in immigration
area, the flight landed at 08.10 am., that the said passenger
arrived at customs area, that when they checked her
passport bearing No.A00732792, the passenger by name
Annet Nanfuka is identified and on enquiry she revealed that
she visited India on business purpose, that her bags were
8
scanned, that there were no incriminating materials in her
bags, that they had also found a cartoon box with her, that
the said cartoon box was wrapped with polythene sheets,
they unwrapped it with the permission of the said passenger,
that inside the said cartoon box there was some food items,
artificial hairs, tea bags, that after removing those articles,
the weight of the cartoon box was heavy, that on scanning
the said cartoon box, they found some suspected
concealment in the inner layer of the box.
9. She further deposed that when the inner layer of the
carton box was cut open, they found rectangular polythene
pouches which were 12 in numbers, that inside the covers,
they found cream-coloured powdery-like substance, on
testing it with the help of DD kit it responded positive for
Heroin, that they seized the said heroin under Ex.P2
mahazar in the presence of mahazar witnesses, that they had
also followed arrest procedure against the accused and
produced her before the court for further action. This witness
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9 Spl.C.C.911/2023
has been subjected for cross-examination by learned counsel
for accused.
10. CW2 Sri. Ratan B, the then Dy Director of AIU,
Bangalore has been examined as PW1. He deposed that he
received credible information through Deputy Director of DRI,
Chennai Zone that a passenger by name Anet Nanfuka, an
Ugandan national is arriving to Bangalore in Ethiopian
Airways from Adidas Ababa, scheduled to arrive at 07.30
am., that she is suspected to have carrying some narcotic
substance, that on receiving the said information, he formed
a team and directed the officers including CW.1 to intercept
the passenger, that he has also identified the information
received by him which was reduced into writing which is at
Ex.P1. This witness has also been subjected for cross
examination by Learned counsel for accused.
11. CW8 Sri. Raj Kishore, the Assistant Chemical
Examiner CRCL, Vadodara has been examined as PW4. He
deposed that on 07.02.2023 he received representative of
sample in this case, that he subjected the said sample for
10
chemical analysis and he opined that it responded positive
for heroin and cocaine, that he issued a report to that effect.
12. The learned Public Prosecutor as well as the
learned counsel for accused have filed written arguments. In
the written arguments, the learned Special Public Prosecutor
narrated the brief facts of the case, chronological facts of the
case, and also evidence on record. While discussing about
the evidence on record, the learned Special Public Prosecutor
stated that the prosecution has examined 3 witnesses as
PW1, PW2 and PW4 and also got 4 documents on behalf of
the prosecution. No doubt the learned Public Prosecutor cited
eight decisions in support of the prosecution case and finally,
he submitted that the claim of the accused about lack of
knowledge is untenable in the light of her voluntary
confession statement, that the allegations of procedure lapses
are unfounded as all statutory provisions were meticulously
followed, including drawing of samples before the learned
Magistrate and proper documentation, that the presumption
under Section 35 of NDPS Act applies and the accused has
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11 Spl.C.C.911/2023
failed to reverse the same. Accordingly, the learned Special
PP prayed to convict the accused.
13. The learned counsel for the accused in his written
arguments contended that the prosecution has not complied
the mandatory provisions of NDPS Act, that the prosecution
has not examined the independent witnesses, that the
photographs were not taken at the time of seizure
proceedings and that there are contradictions in the evidence
of prosecution witnesses. Accordingly, he prayed for acquittal
of accused.
14. In the present case, the prosecution has got four
documents marked. Ex.P1 is the information received by
CW1. Ex.P2 is the seizure mahazar. Ex.P3 is the voluntary
statement of the accused and Ex.P4 xerox copies of
photographs. During the course of cross-examination of PW2,
the learned counsel for accused got the inventory marked as
Ex.D1.
12
15. Before dwelling into the merits of the case, it is
significant to verify the case of the prosecution to confirm
that whether the prosecution has complied with the
mandatory provisions of NDPS Act.
16. In the decision reported in AIR 1994 Supreme
Court 1872 in the case of State of Punjab versus Balbir
Singh wherein it is observed as under:-
“If a police officer, without any prior information as
contemplated under the provisions of the NDPS Act,
makes a search or arrest of a person in the normal course
of investigation into an offence or suspected offence as
Provided under the provisions of Cr.P.C., and when Such
search is completed at that stage Section 50 of NDPS Act
would not be attracted and the question of complying with
the requirements thereunder would not arise. If during
such search or arrest there is a chance recovery of any
narcotic drug or Psychotropic substance, then the police
officer, who is not empowered, should inform the
empowered officer who should thereafter proceed in
accordance with the provisions of NDPS Act. If he
happens to be an empowered officer also, then from that
stage onwards, he should carry out the investigation in
accordance with the other provisions of the NDPS Act.”
CCH-33
13 Spl.C.C.911/2023
In the aforesaid decision, it is also observed that:
the provisions of the Cr.P.C., are applicable where an
offence under the Indian Penal Code or under any other
law is being inquired into, tried and otherwise dealt with.
From the word “Otherwise dealt with” in Section 4 of
Cr.P.C., it does not necessarily mean something which is
not included in the investigation, inquiry or trial and the
word ” otherwise” points to the fact that the expression
“dealt with” is all comprehensive and that investigation,
inquiry and trial are some of the aspects dealing with the
offence. Consequently the provisions of the CrPC shall be
applicable insofar as they are not inconsistent with the
NDPS Act to all warrants, searches, seizures or arrests
made under the Act. But when a police officer carrying on
the investigation including search, seizure or arrest
empowered under the provisions of the CrPC comes
across a person being in possession of the narcotic drugs
or psychotropic substances then two aspects will arise. If
he happens to be one of those empowered officers under
the NDPS Act also then he must follow thereafter the
provisions of the NDPS Act and continue the investigation
as provided thereunder. If on the other hand, he is not
empowered then the obvious thing he should do is that he
must inform the empowered officer under the NDPS Act
who should thereafter proceed from that stage in
accordance with the provisions of the NDPS Act. But at
this stage the question of resorting to Section 50 and
14informing the accused person that if he so wants, he
would be taken to a Gazetted Officer and taking to
Gazetted Officer thus would not arise because by then
search would have been over. As laid down in Section 50
the steps contemplated thereunder namely informing and
taking him to the Gazetted Officer should be done before
the search. When the search is already over in the usual
course of investigation under the provisions of CrPC then
the question of complying with Section 50 would not
arise.
Under Section 41(1) only an empowered Magistrate can
issue warrant for the arrest or for the search in respect of
offences punishable under Chapter IV of the Act etc. when
he has reason to believe that such offences have been
committed or such substances are kept or concealed in
any building, conveyance or place. When such warrant
for arrest or for search is issued by a Magistrate who is
not empowered, then such search or arrest if carried out
would be illegal. Likewise only empowered officers or
duly authorized officers as enumerated in Sections 41(2)
and 42(1) can act under the provisions of the NDPS Act. If
such arrest or search is made under the provisions of the
NDPS Act by anyone other than such officers, the same
would be illegal. Under Section 41(2) only the empowered
officer can give the authorisation to his subordinate officer
to carry out the arrest of a person or search as mentioned
therein. If there is a contravention, that would affect the
CCH-33
15 Spl.C.C.911/2023prosecution case and vitiate the conviction. Under Section
42(1) the empowered officer if has a prior information
given by any person, that should necessarily be taken
down in writing. But if he has reason to believe from
personal knowledge that offences under Chapter IV have
been committed or materials which may furnish evidence
of commission of such offences are concealed in any
building etc. he may carry out the arrest or search
without a warrant between sunrise and sunset and this
provision does not mandate that he should record his
reasons of belief. But under the proviso to Section 42(1) if
such officer has to carry out such search between sunset
and sunrise, he must record the grounds of his belief. To
this extent these provisions are mandatory and
contravention of the same would affect the prosecution
case and vitiate the trial.
The object of NDPS Act is to make stringent provisions for
control and regulation of operations relating to those
drugs and substances. At the same time, to avoid harm to
the innocent persons and to avoid abuse of the provisions
by the officers, certain safeguards are provided which in
the context have to be observed strictly. Therefore these
provisions make it obligatory that such of those officers
mentioned therein, on receiving an information, should
reduce the same to writing and also record reasons for
the belief while carrying out arrest or search as provided
under the proviso to Section 42(1). To that extent they are
16
mandatory. Consequently the failure to comply with these
requirements thus affects the prosecution case and
therefore vitiates the trial.
If the afore mentioned decision is carefully gone through one
can understand the scope of Sec.50, Sec.42(1) and Sec.42(2)
of NDPS Act. In the present case, the prosecution has
produced Ex.P1 NCB Form-1. As seen from Ex.P1 and the
evidence of PW.1 Sri.Rathan B., Dy. Commissioner of
Customs, he has specifically deposed that on 18.11.2022 at
about 7.30 am., he had received secret information from a
reliable source about one Passenger by Name Annet Naufuka,
an Ugandan National is travelling to Bengaluru from Addis
Ababa in Ethiopian Airways in flight No.ET 690 is suspected
to be carrying narcotic substance. The said information had
been reduced into writing as per Ex.P1 and same had been
forwarded to the superior officer. In turn the superior officer
directed the PW.2 to form a team and proceed with the
matter in accordance with law. Accordingly, the provisions of
Sec.42(1) & 42(2) of NDPS Act are duly complied by the
officers.
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17 Spl.C.C.911/2023
17. Insofar as compliance of Section 50 is concerned,
absolutely there is no defence by the learned counsel for the
accused, he has not disputed about the compliance or non
compliance 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
unnecessary delay to the nearest Gazette Officer of any of
the departments mentioned in section 42 or to the nearest
Magistrate.
(2)If such requisition is made, the officer may detain the
person until he can bring him before the Gazetted Officer
or the Magistrate referred to in 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.
18
(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
search and within seventy-two hours send a copy thereof
to his immediate official superior.
In the decision of 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
Gazetted Officer or Magistrate if he so desires, and it is
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19 Spl.C.C.911/2023the 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
capacity. Any joint or common communication of this
right would be in violation of Section 50.
20
(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
same. Any other article that has been recovered may be
relied upon in any other independent proceedings.
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21 Spl.C.C.911/2023
18. Now, the court has to verify whether the provisions
of Section 50 attracts in the present case. Admittedly, the
Airport is a public place and the alleged contraband had been
seized from the trolley bag of the accused and it was not
seized from the person of the accused. When such being the
case, it is the considered view of this Court that the
provisions of Section 50 does not attract in the present case
and the compliance of Section 50 was not required. In view of
that, the alleged seizure proceedings conducted by PW.2 is
not bad under law.
19. Now in so far as compliance of Section 57 is
concerned, the riding officer or the seizing officer as soon as
completion of seizure proceedings shall submit raid success
report or seizure report before the immediate superior in
office. Section 57 of NDPS Act reads as under:
57. Report of arrest and seizure.–
Whenever any person makes any arrest or seizure, under
this Act, he shall, within forty-eight hours next after such
22
arrest or seizure, make a full report of all the particulars of
such arrest or seizure to his immediate official superior.
In view of the provisions contemplated under Section 57 of
the NDPS Act to show the transparency in the Seizure
proceedings, it is necessary to submit the report under the
said provision to the immediate official superior about the
seizure proceedings. If the detailed report regarding seizure
proceedings had been submitted before the official superior,
then it will help the court to know the genuineness of the
investigation in the case. However, in the present case no
such documents are produced and absolutely there is no
material to show that there was compliance of the provisions
of Section 57 of NDPS Act. The compliance of Section 57 of
NDPS Act though not mandatory, it is directory in nature and
non compliance of said provision amounts to a drawback in
the investigation conducted by the Investigating Officer.
20. Insofar as compliance of Section 52A of NDPS Act,
any contraband seized in a case, the inventory of the said
contraband has to be made in the presence of Judicial
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23 Spl.C.C.911/2023
Magistrate as contemplated under Section 52A of NDPS Act.
For more understanding, it is necessary to reproduce Section
52A(3) of NDPS Act.
Under Section 52A(3) of the Narcotic Drugs and Psychotropic
Substances (NDPS) Act, 1985, a Magistrate is legally
obligated to allow an application for the certification,
sampling, and disposal of seized contraband “as soon as
may be”.
At this stage, it is also relevant to relay on the decision of
Union of India Vs., Mohanlal rendered by Hon’ble Supreme
Court in Criminal Appeal No.652/2012 dated 28.01.2016 in
Para No.13 it is observed as under:-
“13. It is manifest from Section 52A (2)(c) (supra) that upon
seizure of the contraband the same has to be forwarded
either to the officer in-charge of the nearest police station or
to the officer empowered under Section 53 who shall
prepare an inventory as stipulated in the said provision
and make an application to the Magistrate for purposes of
(a) certifying the correctness of the inventory (b) certifying
photographs of such drugs or substances taken before the
Magistrate as true and (c) to draw representative samples
in the presence of the Magistrate and certifying the
correctness of the list of samples so drawn. Sub-section (3)
24of Section 52- A requires that the Magistrate shall as soon
as may be allow the application. This implies that no
sooner the seizure is effected and the contraband
forwarded to the officer in charge of the Police Station or the
officer empowered, the officer concerned is in law duty
bound to approach the Magistrate for the purposes
mentioned above including grant of permission to draw
representative samples in his presence, which samples will
then be enlisted and the correctness of the list of samples
so drawn certified by the Magistrate. In other words, the
process of drawing of samples has to be in the presence
and under the supervision of the Magistrate and the entire
exercise has to be certified by him to be correct. The
question of drawing of samples at the time of seizure
which, more often than not, takes place in the absence of
the Magistrate does not in the above scheme of things
arise. This is so especially when according to Section 52-
A(4) of the Act, samples drawn and certified by the
Magistrate in compliance with sub-section (2) and (3) of
Section 52-A above constitute primary evidence for the
purpose of the trial. Suffice it to say that there is no
provision in the Act that mandates taking of samples at the
time of seizure.”
This Court carefully gone through the afore mentioned
decision. As held in the aforesaid decision, the sample has
not been taken before the Magistrate and absolutely there are
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25 Spl.C.C.911/2023
no documents to show the due compliance of Sec.57A of
NDPS Act and the non compliance of the said provision goes
to the root of the case of the prosecution.
21. Further, absolutely there are no materials to show
that at the time of seizure proceedings the seizing officer
namely PW.2 had taken photographs and recorded
videography. In the case like this nature it is very significant
to take photographs and record videography. In this regard it
is specifically settled in the decision Kalu Sk. @ Kuran Vs.,
State in CRM (NDPS) 493/2022 dated 22.6.2022 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
26search.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”.
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
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27 Spl.C.C.911/2023
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. PW.2 being the seizing officer in her examination in
chief deposed that when the passenger had arrived to the
Airport, they stopped her and checked her hand bag, trolley
bag, cartoon box wrapped with polythene sheet, that they did
not find any incriminatory article in hand bag and trolley
bag, that when they cut open the cartoon box with the
permission of the passenger they found some food items,
artificial hair, tea bags, that after removing those items the
cartoon box was still heavy, that they scanned the said box
and on scanning it they came to know about the presence of
some concealed substance in the inner layer of the box, that
they taken out the said substance, that on testing it
responded positive for heroin and seized under Ex.P2
mahazar. This witness has been subjected for cross
examination by learned counsel for accused. In Para No.6 of
28
the cross examination it has been elicited by PW.2 that the
cartoon box was not in the check in luggage, that the said
cartoon box was not with the luggage of the passenger, that
the check-in bags were moving in the luggage belt one by
one, that PW.2 did not enquire with the other passengers
whether the cartoon box is belonging to them or not, that she
herself taken the cartoon box from the luggage belt, that in
the cartoon box there was no tag, that though the cartoon
box was scanned at the time of scanning the box, no
photographs were taken and the scanning images are not
produced before the Court, that after seizure of the said
cartoon box she has not signed on it with the mahazar
witnesses, that when the counsel for accused specifically
cross examined PW.2, PW.2 ought to have produced the
documents relating to the seizure of cartoon box apart from
Ex.P2, the said cartoon box also not produced along with the
contraband and it has not been got marked on behalf of the
prosecution. Further, except the say of PW.2 absolutely
there are no documents to show that the said cartoon box
CCH-33
29 Spl.C.C.911/2023
was belonging to the accused. If at all, the said cartoon box
was belonging to the accused, definitely in the said cartoon
box there would be tag. The PW.2 in her cross examination
specifically admitted that there was no tag to the said cartoon
box. Further, it is also relevant to note here that that in the
cartoon box there was artificial hair, food items and tea bags,
but no where the PW.2 deposed that there were items in the
said cartoon box which were belonging to the accused. If at
all, the said food items, artificial hair and tea bags were
belonging to the accused, the PW.2 would have seized the
bills of the said items for having purchased it. If at all, the
said bills were produced, the Court would have come to know
the bills are in the name of accused or in some other person.
But PW.2 being the seizing officer has not made effort in
seizing any document to relate the accused with the said
cartoon box. When such being the case, only because the
said cartoon box was with check in bag of the accused in the
luggage belt, it does not presuppose that it is also belonging
30
to the accused. At this stage, absolutely there are no
material to link the accused with the said cartoon box.
23. It is also to be noted here that the prosecution has
not examined any mahazar witnesses. During the course of
arguments, the learned counsel for accused relied on the
decision rendered in (2008) 16 SCC 417 in the case of Noor
Aga Vs., State of Punjab and anr., the Hon’ble High Court in
Para-56 observed as under:-
“56. The provisions of the Act and the punishment
prescribed therein being indisputably stringent flowing
from elements such as a heightened standard for bail,
absence of any provision for remissions, specific
provisions for grant of minimum sentence, enabling
provisions granting power to the Court to impose fine of
more than maximum punishment of Rs.2,00,000/- as also
the presumption of guilt emerging from possession of
Narcotic Drugs and Psychotropic substances, the extent of
burden to prove the foundational facts on the prosecution,
i.e., `proof beyond all reasonable doubt’ would be more
onerous. A heightened scrutiny test would be necessary to
be invoked. It is so because whereas, on the one hand,
the court must strive towards giving effect to the
parliamentary object and intent in the light of the
CCH-33
31 Spl.C.C.911/2023international conventions, but, on the other, it is also
necessary to uphold the individual human rights and
dignity as provided for under the UN Declaration of
Human Rights by insisting upon scrupulous compliance of
the provisions of the Act for the purpose of upholding the
democratic values. It is necessary for giving effect to the
concept of `wider civilization’. The courts must always
remind itself that it is a well settled principle of criminal
jurisprudence that more serious the offence, the stricter is
the degree of proof. A higher degree of assurance, thus,
would be necessary to convict an accused. In State of
Punjab v. Baldev Singh, (1999) 3 SCC 977, it was stated:
“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.”
24. Similarly, when the degree of proof of the case of
the prosecution is heavy on the prosecution, the prosecution
shall prove its case beyond all reasonable doubt. When the
seizing officer has cited two independent mahazar witnesses
and specifically deposed that she conducted the seizure
proceedings in the presence of mahazar witnesses, such
witnesses ought to have examined before the Court.
However, in the present case no such effort made by the
32
prosecution to examine the independent witnesses. That
apart, as already absorbed herein above, the seizing officer
has not taken photographs and recorded videography, when
such being the case, only on the basis of her self serving
statement, the Court cannot come to the conclusion the
prosecution has proved its case beyond all reasonable doubt.
In the present case, the prosecution has relied much on the
voluntary statement of the accused recorded U/s.67 of NDPS
Act. However, the learned counsel for accused submitted
about the evidentiary value on confession given by the
accused and in support of his arguments, the learned
counsel for the accused relied on the case of Tofan Singh
Vs., State of Tamil Nadu reported in AIR 2020 SC 5592.
In the said decision, it is observed as under:
“155. We answer the reference by stating:
……………..
158.1. That the officers who are invested with powers
under Section 53 of the NDPS Act are “police officers”
within the meaning of Section 25 of the Evidence Act, as
a result of which any confessional statement made to
them would be barred under the provisions of Section 25
CCH-33
33 Spl.C.C.911/2023
of the Evidence Act, and cannot be taken into account in
order to convict an accused under the NDPS Act.
158.2. That a statement recorded under Section 67 of the
NDPS Act cannot be used as a confessional statement in
the trial of an offence under the NDPS Act.”
In view of the principles laid down in the aforesaid decision,
there is no confusion to hold that the NCB officers are also
considered as police officers for the purpose of recording
statement under Section 67 of NDPS Act and the statements
of accused persons recorded by the DRI officers or the NCB
officers under Section 67 of NDPS Act are inadmissible in
evidence if it is not led to discovery of property involved in the
case. Therefore, the statements recorded under Section 67 of
NDPS Act by the Customs officers, at any stretch of moment,
cannot be considered as a piece of evidence and the said
evidence shall be kept aside while considering the material
on record while considering that whether the accused
committed the alleged offences. When the said statement is
kept aside, there is no other material to hold that the
accused had the conscious possession of the contraband and
34
same is seized from her. The prosecution failed to link the
accused with the alleged contraband, thereby failed to prove
its case.
25. 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”.
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:
CCH-33
35 Spl.C.C.911/2023Sections 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
operative, namely, the element of possession will have to
be proved beyond reasonable doubt.
36
If this principle of law is taken into consideration, the
prosecution shall initially discharge its burden of proof.
Though the learned Spl. 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 persons
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 persons 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
CCH-33
37 Spl.C.C.911/2023
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 her. Accordingly, the accused is entitled to be
acquitted for the offence punishable under Section 21(c) &
23(c) of NDPS Act. Accordingly, the Points for consideration is
answered in the Negative.
26. Point No.3: In the result, following:
::ORDER::
Acting under Section 235(1) of Cr.P.C. accused
Annet Nanfuka is acquitted for the offence punishable
under Sections 21(c) & 23(c) of NDPS Act.
Accused shall be set at liberty if she is not
required in any other case subject to the compliance of
Sec.437A of Cr.P.C., within a week.
38
The accused shall be deported from India after
the expiry of appeal period, if she is not required in
any other legal proceedings.
[Dictated to the Stenographer, directly on the computer, typed
by her, corrected, signed and then pronounced by me in Open
Court on this the 8th day of July 2026)(LATHA)
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BANGALORE.
ANNEXURE
1. List of witnesses examined for the:
(a) Prosecution:
P.W.1 : Sri.Rathan B
P.W.2 : Smt.S.Pushpamma
P.W.3 : - nil-
P.W.4 : Sri.Raj Kishore
(b) Defence :
NIL
2. List of documents Exhibited for the:
(a) Prosecution:
Ex.P.1 : Information
Ex.P.2 : Mahazar
Ex.P.3 : Voluntary statement
Ex.P.4 : Photo
CCH-33
39 Spl.C.C.911/2023
(b) Defence:
Ex.D1 : Inventory of goods seized
3.List of Material Objects admitted in evidence:
-Nil-
(LATHA)
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BANGALORE.
CN/*
