Bangalore District Court
Rmc Yard Ps vs A1 Vishwanath Alias Vishwa on 4 August, 2025
Spl.C.No.1016/2022
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KABC010140332022
IN THE COURT OF THE XXXIV ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE & SPECIAL JUDGE, (NDPS),
BENGALURU.
Present: Sri. Syed Baleegur Rahaman, B.A.L., LL.B.,
XXXIV Addl.City Civil and Sessions Judge &
Special Judge, (NDPS), Bengaluru.
Dated this the 04th day of August 2025
Spl.C.No.1016/2022
Complainant : The State of Karnataka,
By R.M.C.Yard Police Station.
(By the Ld Public Prosecutor)
-V/s-
Accused : 1.Vishwanath @ Vishwa,
S/o.Nagaraj,
Aged about 26 years,
R/a.No.50, 5th Cross,
Sidedahalli Main Road,
Vishveshwaraiah Layout,
Bagalagunte, Nagasandra (Post),
Bengaluru.
Spl.C.No.1016/2022
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Native place at:-
Dabegatta Village & Post,
Turuvekere Taluk,
Tumakuru District.
2.Sunil,
S/o.Sanjeeva Poojari,
Aged about 19 years,
R/a.No.A-1, Fishstall Shop,
Yashwanthpura,
Bengaluru.
Native place at:-
Anegadale Village,
Malagalale Post,
Aluru Taluk,
Hasan District.
3.Anil Kumar @ Anil,
S/o.Lingaraju,
Aged about 21 years,
R/at.No.194, 1st Cross Road,
1st Main Road, Dasanapura,
Bengaluru North Taluk,
Bengaluru.
Native place at:
Budubudike Oni Village & Post,
Manwi Taluk,
Raichuru District.
(A-1 By Sri.A.B.N.,
A-3 By Sri.N.D.R.,Advocate and
A-2 By Smt.J.R.S.,(DLSA)Advocate)
Spl.C.No.1016/2022
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1.Date of the offence : 21-11-2021
2.Date of report of
the offence : 21-11-2021
3.Arrest of the accused : A-1 : Dt: 21-11-2021
A-2 : Dt: 21-11-2021
A-3 : Dt: 26-11-2021
4.Date of release : A-1 : 09-02-2022
A-3 : 10-01-2022
Period of custody : Year/s Month/s Day/s
A-1 00 02 16
A-3 00 01 15
4.Name of the complainant : Sri.B.V.Prakash
(Police Inspector)
5.Date of commencement of recording
the evidence: 09-06-2025
6.Date of closing the evidence: 10-07-2025
7.Offences complained of: U/s.20(b) of NDPS Act.
8.Opinion of the Judge: Accused not found guilty.
Spl.C.No.1016/2022
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JUDGMENT
The RMC Yard Police have filed this charge sheet against
the accused for the offence punishable U/s.20(b) of NDPS
Act.
2. It is the case of prosecution that on 21.11.2021 at about
10.45 a.m, CW-1 received a credible information that the
accused No.1 and 2 are selling ganja at a road situated
behind BBMP School situated at Marappanapalya within the
limits of RMC Yard Police Station. Therefore, CW-1 secured
the panchas and reached the spot at 12.00 p.m along with
CW-2 to 7 and secured the accused. On verification, it was
found that the accused No.1 and 2 were in custody of ganja
weighing 1 kg 200 gms. The accused No.1 and 2 have
disclosed that they have purchased ganja from accused No.3
in order to sell the same to the public and get the profits. CW-
1 has seized ganja weighing 1 kg 200 gms and cash of
Rs.1,500/- and the Samsung Mobile Phone in presence of
CW-6 and 7. As per the report submitted by the first
informant, this case has been registered against the accused
for the commission of offence referred above.
Spl.C.No.1016/2022
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3. This court being designated as a special court to try the
offence under NDPS Act, cognizance of the offences taken and
S.207 of Cr.P.C. has been complied with.
4. The accused are on bail and represented by their
counsel.
5. On hearing the prosecution and defence, my learned
predecessor in office has framed charge against the accused
for offences punishable U/s.20(b)(ii)(B) of NDPS Act, read over
and explained to the accused, for which, they pleaded not
guilty and claimed to be tried.
6. The prosecution in support of its case has examined
witnesses as P.W.1 to 4 and got marked documents as Ex.P.1
to Ex.P.11 and M.O.1 to 6. After closing of prosecution side
evidence, accused were examined under S.313 of Cr.P.C., and
they have denied the incriminating circumstances appearing
against them in the evidence of the prosecution witnesses.
The case of the accused is one of the total denial that they
have been falsely implicated in this case. The accused did not
choose to lead any defence evidence.
7. Heard the learned Public Prosecutor and learned counsel
Spl.C.No.1016/2022
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for the accused.
8. Perused oral and documentary evidence on record.
9. Based on the materials, the following points are framed.
POINTS
1.Whether the prosecution proves beyond
all reasonable doubt that on 21.11.2021
at about 12.00 p.m, the accused No.1 and
2 were found in possession of ganja
weighing 1 kg 200 gms in a road situated
behind the BBMP school of
Marappanapalya within the limits of RMC
Yard Police Station without holding a
valid license and thereby the accused
No.1 and 2 have committed the offence
punishable U/s.20(b)(ii)B of NDPS Act?
2. What order ?
10. My findings on the above points are as under:
Point No.1 : In the Negative
Point No.2 : As per final order
for the following:
REASONS
11. POINT NO.1 :- PW-1 Sri.Prakash.B.V has deposed that
on 21.11.2021 at about 10.45 a.m, when he was in the police
station, he received a credible information that two unknown
Spl.C.No.1016/2022
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persons are selling Ganja behind BBMP school of
Marappanapalya. He informed the said fact to A.C.P,
Yeshwanthpura Sub Division and obtained permission to
conduct raid. He secured CW-6 and 7 as panchas. Thereafter,
he reached to the spot along with CW-2 to 5 at 11.45 a.m. He
secured the accused No.1 and 2 and thereafter requested the
A.C.P, Yeshwanthapura Sub Division to come to the spot to
conduct the search. At about 12.30 p.m, A.C.P came to the
spot and served notice to the accused No.1 and 2. The A.C.P
had searched the accused and recovered 1 kg 200 gms of
ganja in a bag and 5 plastic covers. On body search, a
Samsung Mobile Phone and Cash of Rs.1,200/- was found
from accused No.1. On body search of the accused No.2,
Cash of Rs.300/- was found. The articles were seized in
presence of panchas under Ex.P-4.
12. PW-2 Dr.Nithin Chandra has deposed that on
03.12.2021, FSL, Madiwala, Bengaluru, received one sealed
article pertaining to Cr.No.198/2021 of RMC Yard Police
Station. The article was examined from 27.01.2022 to
31.01.2022. The article was sealed with the seal impression
R.M.C. The seal was intact and tallied with the specimen seal
sent by the Investigating Officer. On opening the article, it
Spl.C.No.1016/2022
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was having 23.78 gms of dried broken small stalks bearing
greenish brown coloured small leaves with fruiting and
flowering tops seeds, stalks having characteristic smell of
cannabis. He has conducted 5 different tests which are
mentioned in detail in his report. After analysis he opined
that the articles responded positive for cannabis. He has
submitted report as per Ex.P-7.
13. PW-3 Sri.Arun Nagegowda has deposed that on
21.11.2021 CW-1 called him and sought information to
conduct raid. He permitted to conduct the raid. On the same
day, 12.30 p.m, CW-1 called him and requested to come to
the spot. Accordingly he reached the spot at 12.50 p.m. The
accused No.1 and 2 were secured and he came to know that
the contraband has been seized from the possession of the
accused. Thereafter, he asked the accused whether they are
intending to be searched by a Gazetted Officer or a
Magistrate. The accused submitted that they are ready to be
searched by a Gazetted Officer. He introduced himself to the
accused stating that he himself is a Gazetted Officer. The
accused agreed to be searched by himself. On checking the
bag which was found in possession of the accused No.1, 1 kg
ganja and 5 small packets of ganja weighing 200 gms each
Spl.C.No.1016/2022
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was found. Rs.1,200/- was found in possession of accused
No.1. He informed that the said amount was acquired by
selling the ganja. Cash of Rs.300/- was found in the custody
of accused No.2. The above said articles were seized under
Ex.P-4. He had handed over the accused and the seized
articles to CW-1.
14. PW-4 Sri.Navynath Dakayi has deposed that on
21.11.2021 at about 1.45 p.m,, CW-1 came to the police
station along with accused and three sealed articles and
produced report before him on the basis of which he
registered Cr.No.198/2021 and submitted FIR to the court on
Higher Officer. On the same day, the accused No.1 and 2
were arrested and produced before the court. He recorded the
statements of CW.2 to 5. He submitted a report to the Higher
Officer regarding a successful raid. On 22.11.2021 he
recorded the statements of CW-6 and 7. On 23.11.2021 he
produced the seized articles before ACMM court and got
certification of the inventory. On 23.11.2021, the accused
No.3 was secured by CW-4 and produced before him;. On
27.11.2021, the accused was produced before the court. On
03.12.2021 the samples of seized articles were sent to FSL to
CW-8. On 31.01.2022 he received FSL report as per Ex.P-7.
Spl.C.No.1016/2022
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As the investigation of this case was complete, he submitted a
final report before the court.
15. The accused are facing charge punishable U/s.20(b)(ii)
(B) of NDPS Act. It is the case of prosecution that PW-1
Sri.Prakash.B.V on receipt of credible information obtained
permission from A.C.P, Yeshwanthapura to conduct raid and
secured the accused at the spot and recovered ganja weighing
1 kg 200 gms from the possession of the accused No.1 and 2
with the help of the A.C.P who is a Gazetted Officer. Needless
to say that NDPS Act is a special enactment. The said law
provides for stringent punishment in case of violation of any
of the provision thereunder. Therefore, the law mandates that
the concerned officials who are involved in conducting raid,
search and seizure have to follow the mandatory provision of
NDPS Act. PW-1 Sri.Prakash.B.V during the course of his
examination in chief has deposed about getting credible
information and proceedings to the spot for conducting raid
after getting permission from the A.C.P, securing the accused
and recovery of ganja from the possession of the accused. So
far as search and seizure is concerned it is the responsibility
of the officer conducting raid to strictly comply the mandatory
provision of Sec.41, 42 and 43 of the NDPS Act. Now let me
Spl.C.No.1016/2022
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appreciate whether PW-1 has complied the mandatory
provision of Sec.41 to 43 of the NDPS Act or not. It is
pertinent to note that during the course of his examination in
chief PW-1 has not deposed that he had obtained a warrant
or authorization from the Magistrate for the purpose of
conducting the raid. Needless to say that the officer who is
conducting the raid is authorized to conduct raid without
getting the search warrant from the Magistrate if he has
reason to believe that the offender may abscond or there is a
possibility of destruction of the evidence. In such a situation,
the officer who is authorized to conduct search U/s.42(1) of
the NDPS Act has to record the reasons of the same and he
has to send the copy of the same to his immediate official
superior within 72 hours. The relevant provision of Sec.42(2)
of the NDPS act is as under :-
” Sec.42(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.”
16. The above said provision of law not only mandates the
Spl.C.No.1016/2022
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recording of reasons in writing but also it has to be sent to
the immediate official superior within seventy two hours. As
already discussed PW-1 has not whispered anything with
respect to the compliance of Sec.41 and 42 of the NDPS Act.
At this juncture, it is relevant to refer to the judgment of
Hon’ble Apex Court in State of Punjab V/s Baldev Singh
reported in (1994) SCC page 299 wherein the Hon’ble Apex
court while considering the mandates of Sec.41 and 42 of the
NDPS Act as observed as under :-
” Para-25 (2-C) 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
Spl.C.No.1016/2022
13and 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.”
17. The above said observation makes it clear that there has
been violation of mandatory provision of Sec.41 and 42 of the
NDPS Act. Anyway though on this sole ground, the accused
cannot be acquitted, but while considering the entire
evidence adduced by the prosecution, it is the responsibility
of the court to keep in mind the procedural lapses in order to
find out whether prejudice has been caused to the accused
due to the procedural lapses or not.
18. It is the specific case of prosecution that PW-1 after
securing the accused on the spot had requested PW-3
Sri.Arun Nagegowda to come to the spot and conduct body
search. PW-1 during the course of his examination in chief
has deposed that after securing the accused he called PW-3
over phone and requested him to conduct body search and
therefore, PW-3 reached the spot at 12.30 p.m and issued
notice to the accused. It is pertinent to note that, it is the
Spl.C.No.1016/2022
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responsibility of the Investigating Officer to comply the
mandatory provision of Sec.50 of the NDPS Act which
provides for the manner in which search of person has to be
conducted. Sec.50(1) of the NDPS Act provides that an officer
who is authorized to conduct search as per Sec.41 to 43 as
the case may be, if the person so requires he has to take such
person, if he so requires to a Gazetted Officer or the nearest
Magistrate for the purpose of conducting search. Here is a
case wherein it is the responsibility of the PW-1 to inform the
accused regarding their right of search as contemplated
U/s.50 of the NDPS Act. During the course of his
examination in chief, PW-1 has not deposed that he had
asked the accused whether they are intending to be searched
by a Gazetted Officer or a Magistrate. But on the other hand,
he has deposed that immediately after securing the accused
he called PW-3 and requested him to come to the spot for the
purpose of conducting the search. The said deposition of
PW.1 makes it clear that PW-1 called PW-3 to the spot not
because of the request of the accused but out of his own will.
On plain reading the examination in chief of PW-1 it becomes
clear that PW-1 has not complied the mandatory provision of
Sec.50 of the NDPS Act. PW-3 Sri.Arun Nagegowda the A.C.P
of Yeshwanthapura Sub Division has deposed that as per
Spl.C.No.1016/2022
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request of PW-1 he came to the spot at 12.50 p.m, and asked
the accused whether they are intending to be searched by a
Magistrate or the Gazetted Officer. It is pertinent to note that
it was not the duty of PW-3 to inform the accused regarding
the right of search. But it was the duty of PW-1 the officer
authorized U/s.41 to 43 of the NDPS Act, to inform the
accused regarding their right of search. Though PW-3 has
deposed that as the accused agreed to be searched by him, he
conducted search, the same cannot be considered as strict
compliance of Sec.50 of the NDPS Act. When this court has
found that there is no compliance of Sec.41 to 43 and Sec.50
of the NDPS Act, it has to be held that the search and seizure
has to be held that the search and seizure has to be
considered as illegal and the search is deemed to be vitiated.
19. The Hon’ble Apex court in the judgment of Baldev
Singh supra has resolved the controversy regarding search
and seizure with respect to conflicting judgment of Hon’ble
Apex court on the said point. The Hon’ble Apex court in the
judgment refer to supra has held that the judgment in Ali
Mustaffa’s case correctly interprets and distinguishes the
judgment in Pooran Mal’s case and that the broad
observation made in Kirthichand’s case and Jasbeer
Spl.C.No.1016/2022
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Singh’s case are not in tune with the correct position of law
as laid down in Pooran Mal’s case. In the above said
judgment the Hon’ble Apex court has clearly observed that it
is the duty of the officer conducting search to inform the
concerned person regarding his right under Sub Sec.(1) of
Sec.50 of being taken to nearest Gazetted Officer or a nearest
Magistrate for making search. It is also clearly held that
failure to inform the person about the existence of his right to
be searched before a Gazetted Officer or a Magistrate would
cause prejudice to an accused. It is further held that if the
concerned officer does not comply Sec.50(1) of the NDPS Act,
the same will not vitiate the trial but would render the
recovery of illicit articles suspect and vitiate the conviction
and sentence where the conviction has to be recorded only on
the basis of possession of illicit articles. In view of the said
observation it can be concluded that though the lapse on part
of PW-1 to comply Sec.50(1) of NDPS Act would not vitiate
trial, but because of the same, the recovery of articles has
become illegal. Needless to say that the prosecution is purely
relying on the recovery of contraband from the possession of
the accused No.1 and 2 in order to base conviction. When it
is held that the recovery has become illegal, then conviction
cannot be based on such a recovery.
Spl.C.No.1016/2022
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20. The Investigating Officer are PW-1 has recovered the
contraband from the possession of the accused under Ex.P-4.
CW-6 Sri.Shivaraj S/o.Ningegowda and CW-7 Sri.Narasimha
Murthy S/o.Boraiah are the panch witnesses to Ex.P-4. On
perusal of the order sheet, it is found that though summons
and warrant was issued to CW-6 and 7 repeatedly, the
concerned police could not secure the above said witnesses.
Ultimately, it is reported that CW-6 and 7 could not be
traced. Therefore, court felt that no purpose would be served,
if the NBW is reissued to CW-6 and 7. Hence, CW-6 and 7
were dropped. Therefore, it can be said that even if we ignore
the non compliance of mandatory provision of Sec.41 to 43
and Sec.50 of NDPS Act, then also it can be said that the
prosecution has not been able to prove Ex.P-4 with the help
of independent evidence.
21. The prosecution has also examined the Scientific Officer
by name Dr.Nithinchandra as PW-2. During the course of his
examination in chief, he has deposed about receipt of articles
on 03.12.2021 for forensic analysis, and after analyzing the
said article submitting his report as per Ex.P-7 stating that
the article No.1 responded positive for cannabis. When this
Spl.C.No.1016/2022
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court has clearly held that the prosecution has not been able
to prove the illegal possession of the contraband due to
several reasons, the evidence of PW-2 will not help the
prosecution to establish the charges leveled against the
accused beyond all reasonable doubt.
22. PW-4 Sri.Navynath Dakayi is the Investigating Officer of
this case. PW-4 has deposed about registering FIR in
Cr.No.198/2021, recording statements of the accused, getting
certificate of inventory from the court, completing
investigation and submitting charge sheet before the court. It
is the responsibility of Investigating Officer to comply
Sec.52(A) of the NDPS Act, which provides for disposal of the
seized Narcotic Drugs and Psychotropic Substances. PW-4
has deposed that on 25.11.2021 he produced to seized the
articles before the Magistrate and got certification of
inventory. He has not deposed anything about the drawing of
samples in presence of the learned Magistrate. Anyway
certificate of inventory as per Annexure-2 is available on
record. The court can take the judicial notice of the same.
The certificate shows that a sample of 24 gms was drawn in
presence of the Magistrate. However, it is pertinent to note
that the sample has to be drawn in terms of Rule-10 of NDPS
Spl.C.No.1016/2022
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(seizure, storage, sampling and Disposal) Rules 2022. One
sample in duplicate has to be drawn from each packet and
container seized. Even the drawing of sample has not been in
compliance of Rule-10 of the NDPS Act Rule-2022.
23. In the present case the accused No.3 has been sent for
trial on the basis of voluntary statements of accused No.1
and 2. Nothing has been seized from his possession. Needless
to say that as per the judgment of Hon’ble Apex Court in
Toofan Singh, the statement of the accused recorded
U/Sec.67 of NDPS Act is not admissible. Therefore absolutely
there is no material available on record to show that the
accused No.3 is involved in the present case in any manner.
PW.-4 the I.O. of the present case during the course of his
examination in chief has only deposed that he secure accused
No.3 and produced before the court. He has not conducted
any further investigation to connect the accused No.3 to the
present case.
24. In criminal cases law mandates that the prosecution
must prove its case beyond all reasonable doubt. If any
reasonable doubt arise in the mind of the court regarding the
authenticity of the case of prosecution, then the benefit of
Spl.C.No.1016/2022
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doubt shall be extended to the accused. The standard of proof
in criminal cases is “must be” and not “may be”. If two views
are possible from the evidence adduced by the prosecution,
the view which favours the accused has to be accepted.
25. On overall verification of the evidence adduced by the
prosecution, it can be said that the prosecution has not been
able to establish the charges leveled against the accused
beyond all reasonable doubt. Hence, I am of the view that the
accused deserves to get the benefit of doubt. Therefore, I
answer the Point No.1 in the Negative.
26. POINT NO.2 :- In view of my finding to Point No.1, I
proceed to pass the following:
ORDER
Acting under S.235(1) of Cr.P.C., the
accused No.1 to 3 are acquitted of the
charge brought against them.
The bail bond of the accused No.1 and 3
and that of their surety shall continue for a
period of six months in terms of S.437(a) of
Spl.C.No.1016/2022
21Cr.P.C., to ensure their appearance before
the higher court in case of any appeal or
revision.
M.O.1 to 4 being worthless articles shall
be destroyed after expiry of the appeal
period, if an appeal is preferred, then after
its disposal, as per law. M.O.5 and 6 are
ordered to be confiscated to the state.
Office to intimate to the concerned jail
authorities to release the accused No.2
forthwith if he is not required in any other
case.
Office is directed to take personal bond
for Rs.1,00,000/- from accused No.2 in
compliance of Sec.437(a) of Cr.P.C.to
ensure his appearance before the higher
court in case of any appeal or revision.
(Dictated to the Stenographer Grade-I, transcribed and typed by her, script
corrected and signed by me, then pronounced in the open court on this the
04th day of August 2025.)(Syed Baleegur Rahaman)
XXXIV Addl. City Civil & Sessions Judge &
Special Judge, (NDPS), Bengaluru.
Spl.C.No.1016/2022
22ANNEXURE
List of the witnesses examined for the prosecution:
PW-1 : Sri.Prakash.B.V PW-2 : Dr.Nithin Chandra PW-3 : Sri.Arun Negegowda PW-4 : Sri.Navynath Dakayi
List of the documents marked for the prosecution:
Ex.P-1 : Notice to Panchas
Ex.P.1(a) : Signature of PW-1
Ex.P.2 : Notice to Panchas
Ex.P.2(a) : Signature of PW-1
Ex.P.3 : Record of Reasons
Ex.P.3(a) : Signature of PW-1
Ex.P.4 : Mahazar
Ex.P.4(a) : Signature of PW-1
Ex.P.5 : Complaint
Ex.P.5(a) : Signature of PW-1
Ex.P.5(b) : Signature of PW-4
Ex.P.6 : Letter to A.C.P
Ex.P.6(a) : Signature of PW-1
Ex.P.7 : F.S.L Report
Ex.P.7(a) : Signature of PW-2
Ex.P.7(b) : Signature of PW-4
Ex.P.8 : Body Search Notice
Ex.P.8(a) : Signature of PW-3
Ex.P.9 : F.I.R
Ex.P.9(a) : Signature of PW-4
Ex.P.10 : S.H.D
Ex.P.11 : Search Report
Ex.P.11(a) : Signature of PW-4
Spl.C.No.1016/2022
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List of material objects:-
M.O.1 : Sample
M.O.2 : One Blue Colour Bag
M.O.3 : Five Plastic Covers
M.O.4 : One Samsung Mobile
M.O.5 : Rs.1,200/- cash
M.O.6 : Rs.300/- cash
List of documents got marked for the defence:-
-Nil-
Digitally signed by
SYED SYED BALEEGUR
BALEEGUR RAHAMAN
RAHAMAN Date: 2025.08.05
17:42:10 +0530
(Syed Baleegur Rahaman)
XXXIV Addl. City Civil & Sessions Judge
& Special Judge, (NDPS), Bengaluru.