Bangalore District Court
K.G. Halli P.S vs Mohammed Ali Tojari on 1 April, 2026
KABC010021742022
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 1st DAY OF APRIL 2026
SPL.C.C. No.73/2022
COMPLAINANT : State by K G.Halli Police
Station
(By Public Prosecutor)
V/S.
ACCUSED: Mohammad Ali Tojai,
S/o. Ahmed Tojai,
Aged about 29 years,
R/at.No.673, TJ Residency,
I Main, 6th Cross,5thBlock,
HBR Layout, Bengaluru.
(By Sri.NA., Adv.)
1. Date of Commission of offence: 26.10.2020
2. Date of report of offence: 26.10.2020
3. Arrest of the accused : 27.10.2020
4. Date of release of accused on bail: 11.5.2021
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5. Period undergone in custody: 6 months 14 days
6. Date of commencing of
13.12.2022
recording Evidence :
7. Date of closing of Evidence : 30.12.2025
8. Name of the complainant: Sri.H.S.Jagadeesha,
Police Inspector
9. Offence complained of : U/Sec.22(c) of NDPS Act.
10. Opinion of the Judge: Charges not proved
11. Order of sentence: The accused is Acquitted
::JUDGMENT:
:
The police Inspector, K.G.Halli Police Station filed
charge sheet against the accused for the offence punishable
U/Sec.22(c) of N.D.P.S. Act.
2. The case of the prosecution in nutshell is as
under:-
On 26.10.2020 at 9.00 am., the Police Inspector, CCB.,
Spl., Enquiry Squad received credible information about
import of MDMA, Brown Sugar, LSD strips, LSD crystals,
ecstasy tablets, other narcotic drugs from foreign countries
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through post from many people. He orally informed the said
information to the ACP and DCP and also reduced the said
information into writing in the information book and met the
Post Master of Foreign Post Office, Chamarajpet to get
confirmed the said information. The Post Master told him
about the information received by him and orally furnished
the tracking details of one consignee by name Ali P J resident
of house No.673, 6th cross, 5th main, HBR layout, Bangalore,
He obtained permission to conduct raid, secured two
mahazar witnesses, prepared record of reasons and served to
the mahazar witnesses and reached the said House No.673 at
10.30 am., and mounted surveillance near the said house, at
11.00 am., a post man came in a 2 wheeler to the said
residential building and delivered some parcel to the said
house, at that time PSI and his staff along with the mahazar
witnesses raided the said house and found the accused
Mr.Ali. On enquiry he admitted the receipt of postal parcel
from foreign country, that on informing him they conducted
search of the said house, on search there was a postal cover
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on the T-poi in the Hall, that they verified the address found
in the cover, that on said cover the name of the accused was
found and it was received from Netherlands, that they called
ACP to the said spot, at about 12.30 pm., ACP came to the
said spot and the said parcel was opened in the presence of
Gazetted Officer and seized the said cover, in the said cover
there was 100 tablets on weighing it, it weighed around 42
grams, when it was tested with the help of DD kit it
responded for ecstasy tablets, that they packed it and sealed
with seal impression ‘CPUC’ that they had also seized iphone
11pro Max from the accused under mahazar. After raid he
went to the KG Halli police station produced the accused and
seized articles before the Station House Officer with a report.
The Station House Officer, KG Halli registered a case in
Cr.No.341/2020 for the offence punishable U/s.22(c) of
NDPS Act against the accused. Consequently, the accused
was arrested and produced before the Court for further
action.
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5 Spl.C.C.73/2022
3. The Investigating officer, after completing the
investigation filed charge sheet 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(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
22(c) of NDPS Act, 1985 on 17.6.2022, 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 five witnesses as P.W.1 to
P.W.5, got 17 documents marked as Exs.P1 to P.17 and also
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got 6 material objects marked as M.O.1 to 6. 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 26.10.2020 at
about 11.30 am., within the
limits of K.G.Halli police
station in the house bearing
No.673, 6th Cross, I Main, 5th
Block, HBR Layout, Bengaluru,
accused was found in illegal
possession of 100 ecstasy
tablets weighing 50 grams
without having any licence or
permission to sell the same
and thereby accused has
committed the offence
punishable U/s.22(c) of NDPS
Act?
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7 Spl.C.C.73/2022
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 CW.1 Sri H S Jagadeesha the
then PSI of CCB., Spl. Enquiry Squad examined as PW.1. He
deposed that on 26.10.2020 when he was in CCB office he
received a credible information that there is import of MDMA,
Brown Sugar, LSD strips, LSD crystals, ecstasy tablets, other
narcotic drugs from foreign countries through post from
many people, that he orally informed the said information to
the ACP and DCP and also reduced the said information into
writing in the information book, copy of the said information
book is produced at Ex.P1.
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8. He further deposed that he met the Post Master of
Foreign Post Office, Chamarajpet, to get confirmed the said
information, that the Post Master told him about the
information received by him is true, that he requested the
Post Master to give the tracking details of suspected
contraband received from foreign countries, that Post Master
orally furnished the tracking details of one consignee by
name Ali P J resident of house No.673, 6th cross, 5th main,
HBR layout, Bangalore, that he returned to the CCB office,
informed the said matter to ACP in writing and obtained
permission to conduct raid as per Ex.P2 letter, he secured
two mahazar witnesses namely CWs.2 and 3, that he briefed
to them about the information received by him, that he
issued notice to them as per Ex.P3, that he prepared record
of reasons as per Ex.P.4 and served to the mahazar witnesses
and reached the said House No.673 at 10.30 am., that he
mounted surveillance near the said house at 11.00 am., a
post man came in a 2 wheeler to the said residential building
and delivered some parcel to the said house, at that time
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9 Spl.C.C.73/2022
PW.1 and his staff along with the mahazar witnesses went to
the said house and found the accused Mr.Ali, on enquiry he
admitted the receipt of postal parcel from foreign country,
that on informing him they conducted search of the said
house, on search there was a postal cover on the T-poi in the
hall, that they verified the address found in the cover, that on
said cover the name of the accused was found and it was
written in blue ink as 30953, MDMA, 11/8/2020 and
beneath that, wt.70 grams, beneath the said address it is
also mentioned MDMA/50 grams and it was received from
Netherlands, that they called ACP to the said spot, at about
12.30 pm., ACP came to the said spot and the said parcel
was opened in the presence of Gazetted Officer and seized the
said cover, in the said cover there was 100 tablets on
weighing it, it weighed around 42 grams, when it was tested
with the help of DD kit it responded for ecstasy tablets, that
they packed it and sealed with seal impression ‘CPUC’ that
they had also seized iphone 11pro Max from the accused
under Ex.P6 mahazar, that after raid he went to the KG Halli
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police station produced the accused and seized articles before
the Station House Officer with a report as per Ex.P7, that the
Station House Officer KG Halli registered a case in
Cr.No.341/2020 as per Ex.P8 FIR.
9. The prosecution has also examined CW13
Sri.Santhosh Kumar L, the then PI of K.G.Halli police station
as PW4. PW.4 in his evidence deposed that on 25.11.2020,
received Records from CW.8 for further investigation, that on
13.01.2021 he submitted a requisition to the Postmaster,
Kalyanagara Post Office to furnish documents pertaining to
the case and issued notice to the Postmaster to send the staff
to his office to record their statements., that he had also
recorded the statements of the staff of post office, that CW.4
had furnished true copies of the document as per Ex.P16,
that he received FSL report from the FSL on 15.07.2021 and
after concluding the investigation, he filed charge sheet
against the accused person.
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11 Spl.C.C.73/2022
10. CW.11 Sri. N.Hanumantraya the then ACP of CCB.
has been examined as PW5. He deposed that on 26.10.2020
he received a requisition from CW1 seeking permission to
conduct raid, that on the basis of the said requisition he
permitted the CW.1 to conduct raid as per Ex.P2(b)
endorsement on Ex.P2 requisition letter, that on the same
day, the CW1 had called him to House No.673, TJ Residency
of HBR layout Bangalore, that in the said place, he issued
body search memo to the accused person as per Ex.P17 and
in his presence CW1 conducted body search of the accused
and seized 100 MDMA tablets weighing 42 grams, one
iphone, silver foil and plastic covers under Ex.P6 Mahazar.
11. CW10, Dr. Srinath B. S, the scientific officer of FSL
Madivala has been examined as PW2. He deposed that on
25.11.2020 their office had received one sealed article in
Crime No. 341/2020 of KG Halli Police Station, that on
examining the said article he opined that it responded
positive for MDMA and it is central nervous system stimulant
drug. Accordingly, he issued Ex.P9 report.
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12. Similarly, CW3, Ajay Sarathi the then PI of KG
Halli police station has been examined as PW3. He deposed
that on 3.11.2020, He filed Property Form before the court,
that on 25.11.2020 he collected the sample from the court
and sent it to the FSL for chemical analysis and handed over
the case file to CW13.
13. The witnesses, who have been examined on behalf
of the prosecution are also cross-examined by learned
counsel for accused to test their credibility.
14. The prosecution apart from examining 5 witnesses,
has also got 17 documents marked as Ex.P1 to 17 and 6
material objects marked as MO1 to M.O P6.
15. During the course of arguments, Learned Public
Prosecutor submitted that the prosecution has examined 5
witnesses, got 17 documents marked along with 6 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
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provisions of NDPS Act and proved its case beyond all
reasonable doubt. Accordingly, Learned PP sought for
convicting the accused person.
16. 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.
17. The learned counsel for accused submitted that
under CCB there are many wings and CW.1, Sri.H.S
Jagadeesh was the PI of Special Enquiry Wing, that for
investigation regarding drug trafficking, in CCB there is
separate wing and the PI of women and Narcotic drug wing is
connected to investigate the drug trafficking cases, that the
CW1 being the PI of Special enquiry wing was not connected
with the wing, namely women and narcotic drugs. Therefore,
he is not empowered to conduct raid as deposed by him. It is
true that before court no record is placed to show that when
there is an independent wing to conduct investigation
regarding the NDPS cases, the PI of Special wing was also
14
empowered to conduct investigation. Therefore, the locus-
standi of CW1 to conduct investigation in this case is
questionable and he has not explained under which
circumstances he proceeded to conduct raid when there was
a separate wing meant for the investigation of cases under
NDPS Act. The learned counsel for accused has also cross
examined PW1 in this regard. The PW1 in his cross
examination has deposed that he may have an order passed
by the ACP. At the same time he deposed that he has not
attached the said order with the complaint filed before K
G.Halli Police Station. When such being the case, when no
document is produced on behalf of the prosecution, then
there is no material to hold that the PW1 was empowered to
act as an empowered officer under NDPS Act to conduct raid.
In the absence of any document it is the considered view of
this court that PW.1 had no locus-standi to conduct raid.
18. During the course of cross-examination of PW1,
the learned counsel for accused has also cross-examined on
Ex.P1, the so-called copy of the information book maintained
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15 Spl.C.C.73/2022
in CCB. The Learned counsel for accused suggested to PW1
that Ex.P1 is prepared in a white sheet and there is no
pagination and continuous page numbers. It is true that as
seen from Ex.P1, except the entry made relating to this case,
there are no other entries in Ex.P1. Further, it is also clear
from this document that there is no pagination and
continuous page numbers on Ex.P1 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 PW1, definitely he
would have sent a copy of the said information book to the
Assistant Commissioner of Police while seeking permission to
conduct raid as per Ex.P2. As seen from Ex.P2 the requisition
letter sent by PW1 to the Assistant Commissioner of Police, it
is only mentioned that he has received information that from
foreign countries the prohibited narcotic drugs will be
imported through post by some persons and the said
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information had been reduced into writing in the information
book. When so mentioning in Ex.P2, PW.1 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.P2 requisition letter. At the same time, the Assistant
Commissioner of Police has also not made an endorsement
on Ex.P2 stating that he has received the copy of the
information book wherein the information had been reduced
into writing by PW1. Therefore, it is hard to accept the
contention of the prosecution that the information had been
reduced into writing as soon as the so-called information
received by PW1.
19. Further, PW1 in his cross-examination has
admitted that the empowered officer has to maintain Form
No. 66 of Police Manual and the information has to be
reduced into writing in the said Form No.66. When PW1 has
the knowledge that the information has to be reduced into
writing in information in Form No. 66 of Police Manual, then
PW1 ought to have produced the information recorded by
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17 Spl.C.C.73/2022
him in Form No. 66 and copy thereof ought to have sent to
the Assistant Commissioner of Police while seeking
permission to conduct raid as per Ex.P2. 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.P2, 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.
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
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given by any person and taken down in writing that any
narcotic drug, or psychotropic substance, or controlled
substance in respect of which an offence punishable
under this Act has been committed or any document or
other article which may furnish evidence of the
commission of such offence or any illegally acquired
property or any document or other article which may
furnish evidence of holding any illegally acquired property
which is liable for seizure or freezing or forfeiture under
Chapter VA of this Act is kept or concealed in any
building, conveyance or enclosed place, may between
sunrise and sunset,-
(a) enter into and search any such building,
conveyance or place;
(b) in case of resistance, break open any door and
remove any obstacle to such entry;
(c) seize such drug or substance and all materials
used in the manufacture thereof and any other
article and any animal or conveyance which he
has reason to believe to be liable to confiscation
under this Act and any document or other article
which he has reason to believe may furnish
evidence of the commission of any offence
punishable under this Act or furnish evidence of
holding any illegally acquired property which is
liable for seizure or freezing or forfeiture under
Chapter VA of this Act; and
(d) detain and search, and, if he thinks proper,
arrest any person whom he has reason to believe
to have committed any offence punishable under
this Act:
[Provided that in respect of holder of a licence for
manufacture of manufactured drugs or
psychotropic substances or controlled substances
granted under this Act or any rule or order made
thereunder, such power shall be exercised by an
officer not below the rank of sub-inspector:
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19 Spl.C.C.73/2022Provided 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
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).
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(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
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
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21 Spl.C.C.73/2022
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.
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
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accordance with law, it is fatal to the case of the prosecution
and thereby, the prosecution left room to doubt its case.
20. It is also to be noted that at 9.00 am., PW1 had
received the information regarding drug trafficking by
importing foreign countries by some persons of Bangalore. As
seen from Ex.P1, the said information is said to be reduced
into writing in Ex.P1 at about 9.30 am., he made enquiry
with the postal officers and confirmed about the information
received by him and thereafter he sent a requisition to the
Assistant Commissioner of Police for permission to conduct
raid. At about 9.45 am., he secured two mahazar witnesses
and at 10 am., he returned from the place of raid and filed
complaint before K.G.Halli Police Station and got registered a
case in Crime No.341/2020 of K.G.Halli Police Station.
However, as seen from Ex.P2, there is no mention about the
time when the requisition sent to the Assistant Commissioner
of Police seeking permission to conduct raid. At the same
time in Ex.P3, the notice issued to the mahazar witnesses
also there is no mention of time when actually PW1 had
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secured the mahazar witnesses and issued Ex.P3 notice to
them. Ex.P4 is the record of reasons recorded by PW1 and
served to the mahazar witnesses. In this document also there
is no mention of time to show when actually this document
was prepared. It is the specific case of PW1 that, after
obtaining permission from the Assistant Commissioner of
Police, he had visited the Foreign Post Office at Chamarajpet
and got confirmed the information regarding drug trafficking
by the person by name Ali Tojari resident of house No.673,
6th cross, 5th main, HBR layout, Bengaluru. But, except
mentioning in Ex.P3 and Ex.P4, there is no material to show
that the PW1 had visited the said post office and got
information about the accused person, namely Mr.Ali Tojari
who is resident of house No.673. If at all the PW1 had visited
the said post office and on enquiry he got information about
the drug trafficking by the accused person, definitely, PW1
would have mentioned the name of the Postmaster who gave
information to him and he would have recorded the
statement of the said Postmaster about the information
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received by him. But no such statement of the Postmaster is
recorded and the said Postmaster though a material witness,
has not been cited as witness in the charge sheet.
21. 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
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25 Spl.C.C.73/2022
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
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
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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
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 persons 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
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not an independent Gazetted officer. Therefore, there is no
proper compliance of Section 50 of NDPS Act.
22. That part as could be seen from Ex.P6, the Seizure
mahazar, the PW1 who is said to be the raiding officer after
confirming the name and address of the accused, he got
confirmed the possession of alleged contraband with the
accused and thereafter telephoned to the Assistant
Commissioner of Police at about 11.45 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 the 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.–
28
(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.
(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
CCH-33
29 Spl.C.C.73/2022Criminal 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.
23. 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 PW2, 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 deceased Sri H.M.Mahadevappa 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
30
empowered officer, namely PW2, to apprise the right of the
accused to have his body searched in the presence of a
gazetted officer or before 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
CCH-33
31 Spl.C.C.73/2022existence 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
as 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
32exercise 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.
Conducting 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
CCH-33
33 Spl.C.C.73/2022
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
serve 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;
34
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
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
CCH-33
35 Spl.C.C.73/2022independent 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.
(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.
36
(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.
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.
24. Further, it is also an argument of learned counsel
for accused that there are no documents to show that the
said parcel was delivered to the accused person and it is an
unclaimed parcel. As contented by learned counsel for
accused, absolutely there are no materials except Ex.P6
CCH-33
37 Spl.C.C.73/2022
mahazar to show that the said article had been delivered to
the accused person. If at all there was such delivery to the
accused, definitely the Investigating Officer would have
collected legally acceptable documents to show that the said
parcel had been delivered to the accused person to his
address. No doubt prosecution got marked Ex.P16 which is
true copy of endorsement. By producing a true copy of
document without proving the signature of the accused on
that document, it cannot be said that the document is the
document signed by the accused. Accordingly, except the
self-serving statement of PW1, no other material to accept the
contention of the prosecution that the said parcel was
received by accused. It is noticed that the raiding officer has
not secured any document to show that the accused is the
resident of the said house. The owner of the said house has
not been examined and no materials are collected to show
that the accused was staying in the said house. Further,
during the seizure proceedings the raiding officer would have
taken photographs as well as recorded videography. It is
38
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:-
“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
CCH-33
39 Spl.C.C.73/2022premises 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
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.
40
25. In the present case, the prosecution has also cited
two mahazar witnesses as CW.2 Hiralal and CW.3 Bharath.
But these two witnesses have not been secured by the
prosecution and examined. The non-examination of mahazar
witnesses is fatal to the case of the prosecution as the
learned counsel for accused has highlighted the flaws found
in the investigation. Therefore, in the absence of evidence of
mahazar witnesses, the evidence of PW1, as well as the
evidence of Assistant Commissioner of Police, cannot be
accepted. For the said reasons only on the basis of the
evidence of interested official witnesses the case of the
prosecution cannot be accepted.
26. During the course of cross examination of PW.1 the
learned counsel for accused has also got marked a
photograph which is at Ex.D1. At the time of cross
examination of PW.1, the learned counsel for accused has
also confronted certain photographs to PW.1 along with a
certificate under Section 65B of Indian Evidence Act. Since
PW.1 did not admit those photographs, those photographs
CCH-33
41 Spl.C.C.73/2022
are not got marked and the accused during the course of his
examination under Section 313 of Cr.P.C has produced his
written statement by narrating certain facts. When the case
of the prosecution is in doubt for want of sufficient material
to establish that the accused himself had received the said
parcel, the facts narrated in his statement, has to be
accepted as true. If at all, the accused is involved in the case,
definitely the prosecution would have placed sufficient
material to accept its case. But the prosecution failed to
establish its case beyond all reasonable doubt. No doubt the
IO., has complied Section 52A of NDPS Act and obtained
report from the FSL., however, for want of proper compliance
of Section 50 of NDPS Act, as the entire seizure proceedings
has been vitiated, it cannot be said that the prosecution has
established the possession of the alleged contraband with
accused.
27. Further, at this juncture, this Court feels it
appropriate to rely on the decision of Hon’ble Supreme Court
42
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
ensure 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,
CCH-33
43 Spl.C.C.73/2022
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
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.
28. 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.,
44
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:
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
CCH-33
45 Spl.C.C.73/2022probability 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.
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
46
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 law
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. Since the prosecution failed
to prove the guilt of the accused and failed to connect M.O.3
mobile phone said to be seized from the accused, with the
alleged offence and failed to substantiate that it was used in
commission of offence, same shall be returned to the accused
CCH-33
47 Spl.C.C.73/2022
after expiry of appeal period. Accordingly, the Point for
consideration is answered in the Negative.
29. Point No.2: In the result, this Court proceeds to
pass the following:
::ORDER::
Acting under Section 235(1) of Cr.P.C., accused
Mohammad Ali Tojai is acquitted for the offence
punishable under Sections 22(c) of NDPS Act.
The accused is directed to comply Sec.437-A
of Cr.P.C., within a week from this date.
M.O.1 & 2 contraband is ordered to be
returned to complainant for producing before the
Drug Disposal committee for disposal, M.O.3
Mobile phone shall be returned to the accused,
M.Os.4 to 6 Postal cover, silver foil and 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 1st day of April 2026)(LATHA)
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BANGALORE.
48
ANNEXURE
1. List of witnesses examined for the:
(a) Prosecution:
P.W.1 : Sri. H.S.Jagadeesha
P.W.2 : Dr. Srinatha B S
P.W.3 : Sri. Ajay Sarathi
P.W.4 : Sri.Santhosh Kumar L
P.W.5 Sri.N Hanumanthaiah
(b) Defence :
- NIL -
2. List of documents Exhibited for the:
(a) Prosecution:
Ex.P.1 : Information
Ex.P.2 : Request letter
Ex.P.3 : Panch notice
Ex.P.4 : Record of reasons
Ex.P.5 : Letter of ACP
Ex.P.6 : Panchanama
Ex.P.7 : Complaint
Ex.P.8 : FIR
Ex.P.9 : FSL report
Ex.P.10 : Sample seal
Ex.P.11 : Letter to FSL
Ex.P.12 : Request letter to FSL
Ex.P.13 : Requisition for inventory
Ex.P.14 : Inventory report
Ex.P.15 : Letter to Post Master
Ex.P.16 : Copy of parcel delivery
Ex.P.17 : Body search memo
CCH-33
49 Spl.C.C.73/2022
(b) Defence:
Ex.D1 : Photograph
3.List of Material Objects admitted in evidence:
M.O.1 & 2 : Sample & bulk contraband
M.O.3 : Mobile phone
M.O.4 : Postal cover
M.O.5 : Silver foil
M.O.6 : Plastic covers
(LATHA)
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BANGALORE.
CN/*