Bangalore District Court
Intelligence Officer, Directorate Of … vs Mukarushema Saida on 1 August, 2025
KABC010048642022
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 AUGUST 2025
SPL.C.C. NO.204/2022
COMPLAINANT : The Intelligence Officer,
Directorate of Revenue Intelligence,
Bengaluru Zonal Unit,
No.8(1)P, Opp. BDA Complex,
HBR Layout, Kalyanagar Post,
Banaswadi, Bengaluru 560 043.
(By Spl. Public Prosecutor)
V/S.
ACCUSED : Ms. Mukarushema Saida,
Aged about 39 Years,
Kampala, Uganda.
Passport No.B0975223.
(Rep. by Sri TAB., Adv.)
1. Date of Commission of offence: 28.9.2021
2. Date of report of offence: 28.9.2021
2
3. Arrest of the accused : 29.9.2021
4. Date of release of accused on In judicial custody
bail:
5. Period undergone in custody: In judicial custody
6. Date of commencing of 20.3.2023
recording Evidence :
7. Date of closing of Evidence : 23.1.2025
8. Name of the complainant: Sri K. Phanikumar, IO
9. Offence complained of : U/s.8(c) R/w.Sec.21(C),
23(C), 28 & 29 of NDPS
Act
10. Opinion of the Judge :
Charges not proved
11. Order of sentence : Acquitted
::JUDGMENT:
:
The Intelligence Officer, DRI., Bengaluru filed
complaint filed complaint against the accused in
DRI/BZU/S-IV/ENQ-37/(INT-NIL)/2021 for the offences
punishable U/Sec.8(c) R/w. Sec.21(C), 23(C), 28 & 29 of
NDPS Act.
2. The case of the prosecution in nutshell is as
under:-
CCH-33
3 Spl.C.C.204/2022
2a. The Investigation officer, DRI received credible
information that on 27.9.2021 at about 6.30 hours that one
Ugandan National Ms.Mukarushema Saida, bearing
Passport No.B0975223 is scheduled to arrive in Bangalore
from Doha in Qatar Airways flight No.QR 572 on 28.9.2021
at 02.00 hours would be attempting to smuggle a large
quantity of narcotic substance into India. The officers of DRI
formed a team proceeded to KIA, Devanahalli, Bangalore. At
around 4.00 hours the officers intercepted the suspected
female passenger and requested her to produce her passport
for examination. The passport produced by her is an
international passport issued by Republic of Uganda. On
enquiry with her about her visit to India, she has stated that
she came to India for medical treatment.
2b. The officers of DRI informed her that they have
credible information that certain narcotic substances are
being smuggled into India by her and that in pursuance of
the said intelligence they intended to search her hand
4
baggage and check in luggage in the presence of two
independent witnesses to which she readily allowed. Before
that officers offered themselves for personal search which
was declined by her. Thereafter, the officers of DRI
proceeded to systematically opened the luggage belonging to
the accused. In the hand bag no incriminatory article was
found. On open examination of red pink trolley bag bearing
tag No.0157499719 revealed that the said pink trolley bag
consists of several pairs of cloths and documents. After
removing the aforesaid items from the luggage bag, the
weight of the check in luggage bag still appear to be
considerably heavy beyond its normal empty weight. The
officers scanned the red pink trolley bag in the x-ray
scanner available in the customs arrival section of
Bangalore International airport. The image from the x-ray
scanner of the said baggage has indicated the presence of
some concealed substances in the sides of the said bag.
Then the officers asked the accused to open the said
concealed layer in the side of the pink trolley bag. Accused
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5 Spl.C.C.204/2022
has informed that she is not aware what was present in the
said bag. The officers suspected concealment of some
contraband which was stitched to one side of the pink
trolley bag. The officers of DRI decided to cut open the
inside flap of the pink trolley bag to ascertain the secreted
layer. They cut open the inside layer of pink trolley and
found two yellow envelopes.
2c. They took out each of the said two packages and
weighed in a weighing machine. The said two packages
marked as A & B. A small portion of article was taken out
from each of the suspected packages A & B and conduced a
field test in Narcotic Drugs Detection kit, they found that
the article tested positive for heroin which is a narcotic
substance covered under the NDPS Act. When the said
contraband article weighed along with the packet, the
weight came around 3700 grams. The entire contraband
article, packets, the bags of accused were seized. A detail
mahazar was drawn at the spot. On further probing, she
6
revealed that, pink trolley bag from which contraband was
seized was handed over to her by a lady named Yaya who
had contacted her at Nairobi Airport who offered her some
handful of money on delivery of the said pink trolley bag at
Bangalore to her friends. The tickets were booked by the
said lady Yaya and handed over to her outside the Nairobi
Airport along with pink trolley bag. Her statement came to
be recorded. On the reasonable belief that the accused
herein is doing drug trafficking she was put under arrest,
produced before the court, remanded to judicial custody.
The seized sample was sent to CFSL and report from CFSL
was received. On conclusion of investigation, complaint is
filed against the accused for the offences punishable
U/s.8(c) R/w. Sec.21(c), 23(c), 28 & 29 of NDPS Act. She is
in Judicial Custody since the date of arrest.
3. On presentation of complaint, accused was secured from
judicial custody. The learned Predecessor-in-office of this
Court, on perusing the contents of the complaint and the
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7 Spl.C.C.204/2022
annexed documents, took cognizance of the offences
punishable under sections 8(c) R/w. Sec.21(c), 23(c), 28 &
29 of NDPS Act, 1985. 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 offences levelled
against the accused are cognizable in nature, the
predecessor-in-office of this Court heard the learned counsel
for the accused and Special Prosecutor before charge and
framed Charges against the accused for the offences
punishable under sections 22(c) & 23(c) of the NDPS Act,
1985 on 3.1.2023, read-over and explained to the accused
in the language known to her. She pleaded not guilty and
claimed to be tried. Therefore, posted the case for recording
the evidence for the prosecution.
4. The prosecution to prove the Charges levelled
against the accused examined six witnesses as P.W.1 to
P.W.6 and got 15 documents marked as Exs.P1 to P.15 and
8
got two material objects marked as M.Os.1 & 2. After
conclusion of prosecution evidence, the accused was
examined U/Sec.313 of Cr.P.C. However, she denied the
incriminating statements made against her and did not offer
defence evidence. But got one document marked as Ex.D1
by confronting to PW.1.
5. Heard the arguments of Spl.P.P., and learned
counsel for the accused. Perused the synopsis submitted by
the learned counsel for accused and the written arguments
submitted by learned Spl.Public Prosecutor and also the
Citations referred to by the learned counsel for the accused.
6. The learned counsel for the accused has relied on a
number of decisions:-
1. 2022 Livelaw (SC) 267 in the case of Sanjeev
and anr Vs., State of Himachal Pradesh
2. 2014 (5) SCC 345 in the case of State of
Rajastjan Vs., Parmanad and anr.
3. CRA.90/2020 between Ali Hossain Sk @ Ali
Hussain Seikh Vs., NCB of Hon’ble High
Court of Calcutta
4. 2011 (1) SCC 609 in the case of Vijaysinh
Chandubha Jadeja Vs., State of Gujrat
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9 Spl.C.C.204/2022
5. (1996) 6 SCC 172 in the case of State of
Punjab Vs., Baldev Singh
6. 2018 0 Supreme (Del) 3214 in the case of
Dharambir Vs., State
7. 2018 (18) SCC 380 in the case of Arif Khan @
Agha Khan Vs., State of Uttarakhand
8. Crl.Appeal No.2239-2240/2022 (SC) in the
case of Ranjan Kumar Chadha Vs., State of
Himachal Pradesh
9. 1994(3) SCC 299 in the case of State of
Punjab Vs., Balbir Singh
10. Crl. Appeal No.3191/2023 in the case of
Yusuf @ Asif Vs., State
11. Crl. Appeal No.149/2020 in the case of
Gurmail Chand Vs., State of Punjab
12. CRM NDPS No.492/493/2022 in the case of
Kalu SH & Kabir SK Vs., State
13. Crl. Appeal No.1610/2023 in the case of
Mohammed Khalid and anr., Vs., The state of
Telangana
14. HIV Act
15. HIV medical certificates from Prison
authorities
7. Having heard the learned Special Public Prosecutor,
the learned Counsel for the accused and on perusal of the
above rulings, the following points that arise for
consideration is as follows :-
10
Point No. 1 : Whether the prosecution proves
beyond reasonable doubt that on
28.9.2021 at about 4.00 hours at
Kempegowda International
Airport, Devanahalli, Bangalore
accused herein who is an Uganda
National traveled in Qatar
Airways from Doha to Bangalore
and when the officers of DRI
intercepted her she was found in
illegal possession of 3700 grams
of Heroin without holding any
licence or permission and thereby
accused has committed the
offence punishable U/s.22(c) of
NDPS Act?
Point No. 2 : Whether the prosecution proves
that the accused on the above
said date, time and place being a
National of Uganda traveled from
Doha to Bangalore in Qatar
Airways has imported 3700 grams
of Heroin without holding any
licence or permission and thereby
accused has committed the
offence punishable U/s.23(c) of
NDPS Act?
Point No.3: What Order ?
8. My findings on the above points are as under:
Point No.1: In the Negative
Point No.2: In the Negative
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11 Spl.C.C.204/2022Point No.3: As per the final order for the
following:
::REASONS::
9. POINT No.1 :- The prosecution in order to
substantiate his case got the CW.1/complainant examined
as PW.2. PW.2 Sri K. Phanikumar was the then Intelligence
Officer, DRI., Bengaluru Zonal Unit. According to him on
27.9.2021 at about 6.30 pm., he had received an
information that one Uganda National would be attempting
to smuggle NDPS substance to India through Kempegowda
International Airport, Bengaluru, that she is traveling in
flight No.QR572 Qatar Airways. Soon after receipt of the
said information, he recorded the said information and
submitted to CW.2 and Cw.2 had formed a team of four
officers namely CWs.5 to 7 including her.
10. At about 1.00 am., on 28.9.2021 they reached the
Airport secured two independent witnesses that the
information of the said case had been given to them and
12
requested them to be part of the search and seizure
procedure, that on the same day at about 2.55 am., to 3.00
am., the flight No.QR572 had been landed and after the
passengers landed from the said flight, that CW.4
intercepted the suspect in Customs Arrival Area, that they
had also verified the Passport and boarding details of the
said passengers, in order to identify her, that the passenger
had two baggage that one is check in luggage and the other
one is the hand bag, check in bag was a trolley bag and they
identified the said bag on the basis of baggage tag, that they
informed the passenger about the intelligence received
regarding suspected import of narcotic substance, that they
offered the personal search to the accused and she had
refused it.
11. PW.2 further deposed that when they checked the
hand bag they could not find any incriminating article in the
said hand bag. However, the check in luggage was
abnormally heavy and they had doubt of containing some
CCH-33
13 Spl.C.C.204/2022
thing in the said bag, that they emptied the said bag and
subjected the said bag for x-ray scanning, that on x-ray
scanning they found a shadow type image on both side flaps
of the bag and on questioning the accused, she said that
she do not know about it. PW.2 further contended that they
cut opened the false side flaps of bag and found two yellow
coloured envelops, on opening the said envelops there was
half white coloured powder and on weighing the said
packets separately, one packet containing 1848 grams and
the other packet contained 1852 grams of heroin. They
seized those articles and had drawn mahazar as per Ex.P7.
12. The learned counsel for accused in order to falsify
the prosecution case, cross examined this witness in length.
13. CW.4 Smt.Sabitha Naik, the Superintendent of
Customs has been examined as PW.3. CW.5 Sri Viju John,
SIO., DRI., Bengaluru has been examined as PW.4. both
these witnesses have deposed in conformity with the
evidence of PW.2.
14
14. CW.2 Smt.Deepti Perumal, the then Dy. Director
has been examined as PW.1. She deposed that on 21.9.2021
she had received information from CW.1 about the specific
intelligence with respect of attempting to smuggle large
quantity of narcotic substance, that the said information
received by her is got marked as Ex.P1. She further deposed
that after receipt of the said information she formed a team
and directed them intercept and proceed with the
investigation. She deposed that she had also issued
intimation of arrest of the accused to the Embassy of
Republic of Uganda at New Delhi. The said intimation letters
issued to Embassy and Ministry of External Affairs are at
Ex.P2 and P3. She further deposed that since there was
mistake in the said letter she had sent rectified letter to the
Joint Secretary, CPB division, Ministry of External Affairs
and Joint Secretary Foreigners Division which are at Ex.P4
and P5.
CCH-33
15 Spl.C.C.204/2022
15. CW.9 Sri Dinesh Kumar S, Superintendent of
directorate Vigilance, South Zonal Unit, Chennai has been
examined as PW.5. He deposed that he had recorded the
statement of accused Ms. Mukarushema Saida on
29.9.2021 and also the statements of Nisha Kumari,
Dr.Zulesh Patle, Manesh Sravan Modkar, that he had
forwarded Form No.F to NCB, Delhi and intimation to
Embassy of Republic of Uganda and Ministry of Home
Affairs. The statement of accused and witnesses are at
Ex.P11 to P15.
16. CW.12 Sri Nikil S.K., has been examined as PW.6.
He is the security supervisor Global management, Airport,
he is said to be the independent witness in this matter and
he deposed that as the customs officer informed him about
the smuggling of cocaine by foreign national, that said
officers requested him to be mahazar witness, that
therefore, he assisted the Customs officers at the time of
apprehending the accused and also seizing the suspected
16
contraband from the said accused. He has also identified
his signature on Ex.P7 mahazar. His signature is at
Ex.P7(d). He identified the accused in Ex.P8 photo.
17. The prosecution in order to substantiate its case
got the CW2 Smt.Deepti Perumal examined as PW1. Smt.
Deepti Perumal is the Joint Commissioner, CGST and
Customs Salem,Tamil Nadu. According to her evidence, she
was working as Deputy Director, DRI, Bangalore Zonal Unit
from 2019 to June.2020. She deposed that, on 27.09.2021,
she had received information from CW1 about the specific
intelligence with respect to attempt to smuggle large
quantity of narcotic substance, that said information was in
writing and she Identified the said information Before the
court, which is at Exhibit P1, that after she received the
information, she formed a team and directed them to
intercept and proceed with the investigation, that she had
also issued intimation of arrest of the accused to the
Embassy of Republic of Uganda at New Delhi.
CCH-33
17 Spl.C.C.204/2022
18. The prosecution apart from examining 6
witnesses has also got 15 documents marked on its behalf
to substantiate its case. Ex.P.1 is the information given by
PW.2 K.Phanikumar the Intelligence Officer to PW.1
Smt.Deepti Perumal the Dy. Director of DRI, BZU,
Bengaluru regarding the information received by him about
narcotic substances smuggling through Uganda National.
As seen from Ex.P.1, the PW.1 after receiving the
information approved the intelligence and directed the
intelligence officer for intelligence by forming a team of four
officers.
19. Ex.P.2 is the intimation of arrest of a foreign
national forwarded to the Embassy of the Republic of
Uganda along with the arrest memo. Ex.P.3 and P5 are also
the intimation forwarded to the Joint Secretary, CPV
Division, Ministry of External Affairs, New Delhi regarding
the intelligence received by PW.2 with arrest memo. Ex.P.4
and P 6 are also the intimation issued to the Joint
18
Secretary, CPV Division, Ministry of External Affairs, New
Delhi regarding the arrest of the accused herein. Ex.P.5 is
also the intimation forwarded to the very same Ministry of
Home Affairs.
20. Ex.P.7 is the mahazar drew by the Intelligence
Offices in Kempegowda International Airport after the arrival
of accused from Doha by Qatar Airways on 28.9.2021.
Ex.P.8 is the copy of Passport of accused. Ex.P.9 is the FSL
report. Ex.P.10 is the sample seal of FSL. Ex.P.11 is the
voluntary statement of the accused. Ex.P.12 to P14 are the
statements of witnesses. Ex.P.15 is the complaint.
21. Before touching the merits of the case, this Court
shall verify whether the prosecution complied the statutory
provisions as mandated under the NDPS Act which are to be
followed during the course of investigation. According to the
evidence of PW.2, he had received the information on
27.9.2021 at 6.30 pm., that an Uganda National is
attempting to smuggle NDPS a substance through
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19 Spl.C.C.204/2022
Kempegowda International Airport, Bengaluru and she is
traveling in Flight No.QR572 Qatar Airways. He also
specifically deposed that he had recorded the said
information under Sec.42(2) of NDPS Act. Ex.P.1 is the said
information recorded by PW.1. However, Sec. 42(2) of NDPS
Act reads as under:-
(2) Where an officers takes down any information in
writing under (1) or records grounds for his belief under
the proviso thereto he shall within 72 hours send a copy
there to his immediate officer superior.
In view of the provisions Sec.42(1) as soon as the
information has received it has to be reduced into writing
and though the PW.2 produced the information sent to the
PW.1, her Higher Officer, has not produced the document
which is taken down by her in writing in her office. Ex.P.1,
evidently is the intimation given to PW.1 as contemplated
u/Sec. 42(2) of NDPS Act. However, as seen from the
documents produced on behalf of the prosecution, the
raiding officer namely PW.2 did not produce the document
20
which is reduced into writing by her soon after the
information received from the intelligence.
22. The learned counsel for accused argued much on
this point and he has also relied on the decision reported in
1994 (3) SCC 299 in the case of State of Punjab v/s
Balbev Singh it is specifically held as under:-
U/sec. 42(1), the empowered officer is has a prior
information given by any person, that should
necessarily being taken down in writing, but if he has
reason to be from personal knowledge that offences
under chapter (V) have been committed or materials
which may furnish evidence of commission of such
offences or concealed in any building etc., he may carry
out arrest or search without a warrant between sun
raise and sunset and this provision does not mandate
that he should referred his reasons of belief.
However, in the present matter, the officer namely PW.2 had
received information when he was in office. Therefore, it is
mandatory to him comply Sec.42(1) of NDPS Act and the
information received by him ought to have immediately
CCH-33
21 Spl.C.C.204/2022recorded in the Station House Diary maintained by them.
The DRI always claim that since their office is not Police
Station, they are not maintaining any Station House Diary.
However, in Tofan Singh‘s case it is specifically held that the
DRI officers are also considered as police officers for the
purpose of recording statement u/Sec. 67 of NDPS Act.
Since the officers are investigating the matter under the
provision of NDPS Act and on the basis of the investigation
conducted by the intelligence officers, the court is trying the
matter and considering the material placed by the officers,
they cannot contend that they are not the police officers.
When the Act mandates a provision to be followed during
the course of investigation for the offences punishable under
the provision of NDPS Act, then, it is the duty of
investigating officers to follow the procedure as
contemplated under the Act. However, in the present
matter, though the PW.2 forwarded the information to PW.1
as per Ex.P.1, as contemplated u/Sec. 42(2) of NDPS Act,
there is no evidence before the court to show that the officer
22
reduced the said information immediately after receiving it
in the diary maintained in their office. Absolutely there are
no material to show the compliance of Sec. 42(1) of NDPS
Act.
23. The learned counsel for accused argued much on
non-compliance of Sec. 50 of NDPS Act.
Sec. 50. Conditions under which search of persons
shall be conducted.
(1) When any officer duly authorized 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.
CCH-33
23 Spl.C.C.204/2022
(5) When an officer duly authorized 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.
24. It is a specific contention of the learned counsel
for accused that the accused has not been apprised with her
right to have personal search before the gazetted officer or
before the Magistrate. The learned counsel for the accused,
during the course of cross examination of PW.3 questioned
the officer specifically about the compliance of Sec. 50 of the
Act. In para No.2 of cross examination it is elicited PW.3
that accused is a lady, that she conducted her personal
24
search, however, no notice u/Sec. 50 NDPS Act was given to
the accused by apprising her right to have personal search
before the Gazetted Officer or before the Magistrate, that the
search and seizing officers have also not issued any notice
to the accused apprising her right to have personal search
before the Gazetted Officer of before the Magistrate. From
the evidence of PW.3 who is superintendent of Customs, she
being a woman officer during the course of personal search
of the accused, she did not apprise the right of accused
stating that she has to be searched before the Gazetted
Officer of before the Magistrate.
25. During the course of arguments, the learned
counsel relied on the decision reported in 2022 live Law (SC
269). In the case of Sanjeev & another v/s State of Himachal
Pradesh the three bench of Apex Court has observed that:-
we have checked the original record to satisfy ourselves.
That Ex.P.8/b, 8/c, 8/d and 8/e which are arrest memos,
do not reflect that any option or choice was given to the
accused before their personal search was undertaken.
CCH-33
25 Spl.C.C.204/2022Further, it is observed that it is true that the personal
search did not result in recovery of any contraband
material but the non compliance of the requirement of
affording an option, was one of the reasons which were
with the trial court in this believing the case of the
prosecution.
26. The learned counsel relied on the decision
reported in (2014) 5SCC 345, in the case of State of
Rajasthan v/s Paramanand & another wherein held as
under:-
“thus if merely a bag carried by a person is searched,
without there being any search officer person, Sec. 50 of
NDPS Act will have no application. But, if the bag carried by
him is searched an his person is also searched Sec. 50 of
NDPS Act will have application”
In the present case also the PW.3 has conducted personal
search of the accused Mukarushema Saida as deposed by
PW.3. As deposed by PW.3, she herself conducted the
personal search of the accused, when personal search of the
accused is conducted, that whether they recovered any
contraband from her or not during the course of personal
26
search, but it is mandatory on the part of officers to comply
Sec. 50(1) of NDPS Act and the Hon’ble Apex Court has held
that the search conducted by PW.10 SI,. Kureshi is vitiated
and the Hon’ble Apex Court specifically held that it has no
hesitation to conclude that there was breach of Sec. 50(1) of
NDPS act and it has vitiated the search. Thereby, the
conviction of respondent was held illegally.
27. On this point, the learned counsel has relied on
number of decisions, but those decision as cited herein
above are on the same point of law this court is not
discussing all those decisions as this court has already
come to the conclusion that as the PW.3 conducted personal
search of the accused without affording an option of being
searched person of the accused through the Gazetted Officer
or before the Magistrate by apprising her right is bad under
law.
28. The learned counsel for accused has also
vehemently argued about the non-compliance of Sec. 52A of
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27 Spl.C.C.204/2022
NDPS Act. Learned counsel submitted that the officers of
DRI after the seizure of so called contraband did not get
inventory report from the Magistrate as contemplated
u/Sec. 52A of NDPS Act and the proceedings against the
accused is bad under law. In support of his arguments, he
has also made on the decisions Crl. Appeal No.3191/2023
in the case of Usuf @ Asif v/s State in the decision
rendered on 13.10.2023 by Hon’ble Apex Court.
29. The Hon’ble Apex Court while discussion the
objects of Sec. 52A to be followed during the course of
investigation has reproduced the provision of Sec. 52A of
NDPS Act in the decision and observed as under:-
11. For the sake of convenience, relevant subsections of
Section 52A of the NDPS Act are reproduced herein below:
“52A. Disposal of seized narcotic drugs and psychotropic
substances. (1) (2) Where any [narcotic drugs,
psychotropic substances, controlled substances or
conveyances] has been seized and forwarded to the
officerincharge of the nearest police station or to the
28officer empowered under section 53, the officer referred
to in subsection (1) shall prepare an inventory of such
[narcotic drugs, psychotropic substances, controlled
substances or conveyances] containing such details
relating to their description, quality, quantity, mode of
packing, marks, numbers or such other identifying
particulars of the [narcotic drugs, psychotropic
substances, controlled substances or conveyances] or the
packing in which they are packed, country of origin and
other particulars as the officer referred to in subsection
(1) may consider relevant to the identity of the [narcotic
drugs, psychotropic substances, controlled substances or
conveyances] in any proceedings under this Act and
make an application, to any Magistrate for the purpose
of
(a) certifying the correctness of the inventory so
prepared; or
(b) taking, in the presence of such Magistrate,
photographs of [such drugs or substances or
conveyances] and certifying such photographs as
true; or
(c) allowing to draw representative samples of such
drugs or substances, in the presence of such
Magistrate and certifying the correctness of any list
of samples so drawn.
CCH-33
29 Spl.C.C.204/2022
(3) Where an application is made under sub section (2),
the Magistrate shall, as soon as may be, allow the
application.
(4) Notwithstanding anything contained in the Indian
Evidence Act, 1872 (1 of 1872) or the Code of Criminal
Procedure, 1973 (2 of 1974), every court trying an
offence under this Act, shall treat the inventory, the
photographs of [narcotic drugs, psychotropic substances,
controlled substances or conveyances] and any list of
samples drawn under subsection (2) and certified by the
Magistrate, as primary evidence in respect of such
offence.”
12. A simple reading of the aforesaid provisions, as also
stated earlier, reveals that when any contraband/narcotic
substance is seized and forwarded to the police or to the
officer so mentioned under Section 53, the officer so referred
to in sub section (1) shall prepare its inventory with details
and the description of the seized substance like quality,
quantity, mode of packing, numbering and identifying marks
and then make an application to any Magistrate for the
purposes of certifying its correctness and for allowing to
draw representative samples of such substances in the
presence of the Magistrate and to certify the correctness of
the list of samples so drawn.
30
13. Notwithstanding the defence set up from the side of the
respondent in the instant case, no evidence has been brought
on record to the effect that the procedure prescribed under
subsections (2), (3) and (4) of Section 52A of the NDPS Act
was followed while making the seizure and drawing sample
such as preparing the inventory and getting it certified by the
Magistrate. No evidence has also been brought on record that
the samples were drawn in the presence of the Magistrate
and the list of the samples so drawn were certified by the
Magistrate. The mere fact that the samples were drawn in
the presence of a gazetted officer is not sufficient compliance
of the mandate of subsection (2) of Section 52A of the NDPS
Act.
14. It is an admitted position on record that the samples from
the seized substance were drawn by the police in the
presence of the gazetted officer and not in the presence of the
Magistrate. There is no material on record to prove that the
Magistrate had certified the inventory of the substance
seized or of the list of samples so drawn.
15. In Mohanlal’s3 case, the apex court while dealing with
Section 52A of the NDPS Act clearly laid down that it is
manifest from the said provision that upon seizure of the
contraband, it has to be forwarded either to the officerin-
charge of the nearest police station or to the officer
empowered under Section 53 who is obliged to prepare an
inventory of the seized contraband and then to make an
application to the Magistrate for the purposes of getting its
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31 Spl.C.C.204/2022
correctness certified. It has been further laid down that the
samples drawn in the presence of the Magistrate and the list
thereof on being certified alone 3 Union of India vs Mohanlal
and Anr (2016) 3 SCC 379 would constitute primary evidence
for the purposes of the trial.
16. In the absence of any material on record to establish that
the samples of the seized contraband were drawn in the
presence of the Magistrate and that the inventory of the
seized contraband was duly certified by the Magistrate, it is
apparent that the said seized contraband and the samples
drawn therefrom would not be a valid piece of primary
evidence in the trial. Once there is no primary evidence
available, the trial as a whole stands vitiated.
“52A. Disposal of seized narcotic drugs and psychotropic
substances. (1) (2) Where any [narcotic drugs, psychotropic
substances, controlled substances or conveyances] has been
seized and forwarded to the officerincharge of the nearest
police station or to the officer empowered under section 53,
the officer referred to in subsection (1) shall prepare an
inventory of such [narcotic drugs, psychotropic substances,
controlled substances or conveyances] containing such
details relating to their description, quality, quantity, mode of
packing, marks, numbers or such other identifying
particulars of the [narcotic drugs, psychotropic substances,
controlled substances or conveyances] or the packing in
which they are packed, country of origin and other
particulars as the officer referred to in subsection (1) may
32consider relevant to the identity of the [narcotic drugs,
psychotropic substances, controlled substances or
conveyances] in any proceedings under this Act and make an
application, to any Magistrate for the purpose of
(a) certifying the correctness of the inventory so prepared;
or
(b) taking, in the presence of such Magistrate,
photographs of [such drugs or substances or
conveyances] and certifying such photographs as true; or
(c) allowing to draw representative samples of such
drugs or substances, in the presence of such Magistrate
and certifying the correctness of any list of samples so
drawn.
(3) Where an application is made under sub section (2), the
Magistrate shall, as soon as may be, allow the application.
(4) Notwithstanding anything contained in the Indian
Evidence Act, 1872 (1 of 1872) or the Code of Criminal
Procedure, 1973 (2 of 1974), every court trying an offence
under this Act, shall treat the inventory, the photographs of
[narcotic drugs, psychotropic substances, controlled
substances or conveyances] and any list of samples drawn
under subsection (2) and certified by the Magistrate, as
primary evidence in respect of such offence.”
12. A simple reading of the aforesaid provisions, as also
stated earlier, reveals that when any contraband/narcotic
substance is seized and forwarded to the police or to the
officer so mentioned under Section 53, the officer so referred
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33 Spl.C.C.204/2022
to in sub section (1) shall prepare its inventory with details
and the description of the seized substance like quality,
quantity, mode of packing, numbering and identifying marks
and then make an application to any Magistrate for the
purposes of certifying its correctness and for allowing to
draw representative samples of such substances in the
presence of the Magistrate and to certify the correctness of
the list of samples so drawn.
13. Notwithstanding the defence set up from the side of the
respondent in the instant case, no evidence has been brought
on record to the effect that the procedure prescribed under
subsections (2), (3) and (4) of Section 52A of the NDPS Act
was followed while making the seizure and drawing sample
such as preparing the inventory and getting it certified by the
Magistrate. No evidence has also been brought on record that
the samples were drawn in the presence of the Magistrate
and the list of the samples so drawn were certified by the
Magistrate. The mere fact that the samples were drawn in
the presence of a gazetted officer is not sufficient compliance
of the mandate of subsection (2) of Section 52A of the NDPS
Act.
14. It is an admitted position on record that the samples from
the seized substance were drawn by the police in the
presence of the gazetted officer and not in the presence of the
Magistrate. There is no material on record to prove that the
Magistrate had certified the inventory of the substance
seized or of the list of samples so drawn.
34
15. In Mohanlal’s3 case, the apex court while dealing with
Section 52A of the NDPS Act clearly laid down that it is
manifest from the said provision that upon seizure of the
contraband, it has to be forwarded either to the officerin-
charge of the nearest police station or to the officer
empowered under Section 53 who is obliged to prepare an
inventory of the seized contraband and then to make an
application to the Magistrate for the purposes of getting its
correctness certified. It has been further laid down that the
samples drawn in the presence of the Magistrate and the list
thereof on being certified alone 3 Union of India vs Mohanlal
and Anr (2016) 3 SCC 379 would constitute primary evidence
for the purposes of the trial.
16. In the absence of any material on record to establish that
the samples of the seized contraband were drawn in the
presence of the Magistrate and that the inventory of the
seized contraband was duly certified by the Magistrate, it is
apparent that the said seized contraband and the samples
drawn therefrom would not be a valid piece of primary
evidence in the trial. Once there is no primary evidence
available, the trial as a whole stands vitiated.
Similarly, in the present case also there is no material on
record to show that the alleged seized contraband had been
taken to the Magistrate for inventory and the sample of the
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35 Spl.C.C.204/2022
seized contraband was drawn in the present of the
Magistrate and that the inventory of the seized contraband
was duly certified by the Magistrate. In the absence of such
a procedure followed by the Investigating Agency, the seized
contraband and the sample drawn there from would not be
a valid piece of primary evidence in the trial. Once there is
no primary evidence available, as held by the Hon’ble
Supreme Court, in the present case also the trial as a whole
stands vitiated.
30. Further, the learned counsel for accused has also
submitted that, it is mandate u/Sec. 57 of NDPS Act that,
as soon as the seizure of material object under NDPS Act,
same shall be reported to the superior officer immediately.
The learned counsel in support of said arguments has also
relied on the said decision rendered in the case of Gurmail
Chand Vs., State of Punjab by Hon’ble Supreme Court of
India in Crl.Appeal No.149/2020 on 23.1.2020. On going
through the said decision, in the said decision the Hon’ble
36
Supreme Court relied on its decision rendered by three
judge bench in the case of Sajan Abraham v/s State of
Kerala, wherein it is held as under:-
“The last submission for the appellant is, there is non-
compliance with Section 57 of the Act. He submits under
it, an obligation is cast on the prosecution while making
an arrest or seizure, the officer should make full report of
all particulars of such arrest or seizure and send it to his
immediate superior officer within 48 hours of such arrest
of seizure. The submission is, this has not been done.
Hence the entire case vitiates. It is true that the
communication to the immediate superior has not been
made in the form of a report, but we find, which is also
recorded by the High Court, that PW5 has sent copies of
FIR and other documents to his superior officer, which is
not in dispute. Ext.P-9 shows that the copies of the FIR
along with other records regarding the arrest of the
appellant and seizure of the contraband articles were sent
by PW5 to his superior officer immediately after
registering the said case. So, all the necessary information
to be submitted in a report was sent. This constitutes
substantial compliance and mere absence of any such
report cannot be said to have prejudiced the accused. This
section is not mandatory in nature. When substantial
compliance has been made, as in the present case, it
CCH-33
37 Spl.C.C.204/2022would not vitiate the prosecution case. In the present
case, we find PW5 has sent all the relevant material to his
superior officer immediately. Thus we do not find any
violation of Section 57 of the Act.”
and it is also held in the said decision that, for want of a
report forwarded to the Higher Officer within prescribed
period, the entire proceedings will be vitiated. Though the
Hon’ble Supreme Court dismissed the appeal by holding
that there was compliance of Sec. 57, in the present matter,
absolutely there are no material to show the compliance of
Sec. 57 of NDPS Act. Therefore, the non-compliance of
Sec.57 of NDPS Act is also fatal to the case of the
prosecution.
31. It is also submitted by learned counsel for
accused that, videography of crimes in during investigation
is of immense value in improving the administration of
criminal justice and no there was an opportunity to take
videography of the crime scene, the concerned officers did
not take the videography of the crime scene. In the decision
38
of Shafhi Mohammed vs State of Himachal Pradesh reported
in (2018)5 SCC 311, the Hon’ble Supreme Court has lied
guidelines after holding as under:-
In Shafhi Mohammad Vs. State of Himachal Pradesh, the
Apex Court noted the aforesaid report and observed as
follows;
“9. We are in agreement with the Report of the Committee of
Experts that videography of crime scene during
investigation is of immense value in improving
administration of criminal justice. A Constitution Bench of
this Court in Karnail Singh v. State of Haryana3, SCC para
34 noted that technology is an important part in the system
of police administration. It has also been noted in the
decisions quoted in the earlier part of this order that new
techniques and devices have evidentiary advantages,
subject to the safeguards to be adopted. Such techniques
and devices are the order of the day. Technology is a great
tool in investigation. By the videography, crucial evidence
can be captured and presented in a credible manner.”
The Court further held time was ripe to introduce
videography in investigation particularly for crime scene as
a desirable and acceptable “best practice” as suggested by
the Committee to strengthen the rule of law. It approved the
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39 Spl.C.C.204/2022
Centrally Driven Plan of Action prepared by the
Committee and the timelines mentioned therein.
The observations made in Shafhi Mohammad (supra) as
well as the guidelines in the Field Officers’ Handbook
issued by the Narcotics Control Bureau reinforce our view
regarding mandatory videography of recovery proceedings
under NDPS Act. Technology has advanced considerably
and equipments like smartphones and other electronic
devices enabling videography are ordinarily available with
seizing officers. Hence, lack of availability of technology or
awareness is a non-issue.
Accordingly, we direct as follows:-
(i) In all cases involving recovery of narcotic substance
particularly recovery of narcotic above commercial quantity,
seizing officers shall make a video recording of the entire
procedure unless for reasons beyond the control of seizing
officers, they are unable to do so;
(ii) Reasons for failing to videograph the recovery
proceeding must be specifically recorded in the
investigation records particularly contemporaneous
documents including seizure/inventory list;
(iii) Superior Police Officer not lower than the rank of
Additional Superintendent of Police shall monitor recovery
of narcotic substance above commercial quantity within
their territorial jurisdiction and ensure due compliance of
40statutory provisions regarding search and seizure including
compliance of the directives (i) and (ii) relating to
videography of recovery and/or recording of adequate
reasons for departure from such procedure;
(iv) Non-compliance of the directives (i) and (ii) relating to
videography of recovery and/or failure to record just
reasons in contemporaneous documents for its non-
compliance would attract departmental proceeding so far as
the seizing officer is concerned;
(v) Director General of Police shall issue necessary
directions for due compliance with the aforesaid directives;
(vi) Superintendent of Police/Commissioner of Police in each
district/commissionerate shall undertake training
programmes to spread awareness and capacity building of
officers regarding compliance of statutory requirements in
the matter of search and seizure of narcotic substance
under NDPS Act and compliance of the aforesaid directives
relating to videograph of recovery including collection,
preservation and production of such electronic evidence in
Court.
As seen from the guidelines issued by the Apex Court, in all
cases involving recovery of narcotic substance particularly
recovery of narcotic above commercial quantity, seizing
CCH-33
41 Spl.C.C.204/2022
officers shall make a video recording of the entire procedure
unless for reasons beyond the control of seizing officers,
they are unable to do so. They shall also mark reasons for
failing to v ideograph the recovery proceedings.
32. However, in the present matter, no such
procedure is followed and no photography or videography
was recorded during the recovery proceedings. Though the
directions issued in the year 2018 itself by Hon’ble Apex
Court, in the present case, neither the photographs were
take or video was recorded nor reasons for not taking
videography recorded during the course of investigation. The
said aspect is also fatal to the case of the prosecution.
33. If the Court examines the merits of the case,
evidently, PW.2 Sri K Phani Kumar, intelligence officer is the
raiding officer who had received information on 27.9.2021.
In the examination in chief PW.2 explained the procedure
followed by them about the recovery of contraband from
42
accused in the Airport. However, during cross examination
it has been elicited from him as under:-
3. From the arrival area suspect was taken to conveyor belt
area. Photograph of the suspect was not taken at the
arrival area. I do not remember who has opened the
trolley bag. And who has taken out the contraband from
the bag. Trolley bag was not weighed before opening the
bag. It is false to suggest that I do not remember the
colour of the contraband substance. There is no
procedure of maintaining the check list during the course
of investigation. I am the officer who has seized the
contraband.
34. From the evidence of PW.2 it can be gathered that
though he is seizing officer and according to him the
contraband was found in the trolley bag, he does not know
who had opened the trolley bag and who had taken out the
contraband from the said bag. It is the specific case of the
prosecution that the accused had carried only hand bag and
trolley bag had been received in check-in baggage. PW.4 in
his examination in chief states that the passenger had two
baggages, one is check-in baggage and the other is hand
CCH-33
43 Spl.C.C.204/2022
bag, that check-in baggage is a trolley bag, that they
identified check-in baggage basing on the baggage tag. But
the said baggage tag has not been produced by the
prosecution. Further, PW.4 deposed that after emptying the
contents of the check in baggage, the bag was abnormally
heavy, they scanned the said bag through x-ray scanner,
that while scanning they found shadow type image on both
side flaps of the bag, that when the accused was questioned,
she said she does not know about it, that in front of her
they cut opened it and found two packets and on testing
them with field kit they confirmed it as Heroin and it was
weighing 1848 grams and 1852 grams.
35. During cross examination the learned counsel for
the accused elicited in para-7 as under:-
7. It is true to suggest that, we have not stated that
suspected was carrying two luggage bags while
arriving. Witness volunteers that, the luggage bags
would come from International Arrival Hall luggage
built. While she was coming out of the Airbus, she was
carrying hand bag and she was not carrying other
44baggages.
36. In view of the evidence of PW.4, it is clear that
accused was not carrying luggage bag and it was collected
from Arrival Hall luggage built. While she was coming out of
the Air bus she was carrying only hand bag. As such, the
seizing officers shall link the said luggage bag with the
accused. PW.4 says they identified it through boarding pass
and luggage tag. Both these documents are not before the
Court. At the same time the PW.5 in her cross examination
deposed that the accused has not admitted that the
contraband was containing in her luggage, that she had
voluntarily stated that the luggage was handed over by some
other person and she had come to India for medical
treatment. It has also come in evidence that the accused is
suffering from HIV. When the accused specifically stated
that she did not know that the luggage contained
contraband and the luggage was handed over by some
other person, it is the duty of the investigating officer to
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45 Spl.C.C.204/2022
investigate further to find out from whom the said
contraband was brought through the said luggage. No
doubt, the learned Spl. Public Prosecutor in Para No.13 of
written arguments submitted that under Sec.35 of NDPS
Act, the Court shall presume the existence of culpable
mental status of the accused and it shall be a defence for
the accused to prove that he had no such mental state with
respect to act charged of an offence in the prosecution. It is
true that the Court shall presume the existence of culpable
mental state of the accused, but initially the prosecution
shall establish that the accused with conscious possession
brought the said contraband for gaining unlawfully. As
already discussed herein above the prosecution failed to
prove to connect the accused with the luggage which
contain contraband. Apart from that the learned counsel
for accused effectively cross examined the prosecution
witnesses to establish that accused had no conscious
possession of the said contraband.
46
37. The learned Spl.P.P., has also vehemently argued
that U/s.54 of the NDPS Act the Court shall presume,
unless and until the contrary is proved that the accused has
committed an offence for possession of illicit materials in
respect of which he fails to account satisfactorily. However,
in the present case the accused specially stated that she did
not know that the baggage contain contraband and the said
luggage was given by some other person to her. When such
being the case, the Court has to hold that the accused
specifically explained that she had no conscious possession
of the alleged contraband.
38. The learned Spl.P.P., while arguing on conscious
possession relied on the decision reported in (2015) SCC
222 in the case of Mohan Lal Vs., State of Rajasthan
wherein it is observed as under:-
A. Narcotic Drugs and Psychotropic Substances Act, 1985—
Ss.13 to 22, 25 and 35– Possession of contraband–
Contraband hidden away in secret place by accused–
Absence of physical control over the contraband, but
accused exercising requisite control over contraband to give
rise to culpable mental state–“Possession, held, is a flexible
CCH-33
47 Spl.C.C.204/2022concept, and its meaning depends upon the contextual
purpose and objective of statute concerned and an
appropriate meaning has to be assigned to the word to
effectuate the statutory object–Ordinarily, elements of
possession are physical control and animus to control the
thing concerned/contraband–However, even in absence of
physical control of the contraband, culpable mental state of
accused can arise if the accused still has the requisite
degree of control over the contraband–Accused’s conscious
possession, in view of his special knowledge of location or
site of contraband article, with animus and intention to
retain exclusive control or dominion over it, would constitute
offence punishable under S.18--Fact that accused after
stealing opium form Magistrate Court’s malkhana concealed
it in a secret place and later led police party to discover the
same, shows his conscious possession–Words and Phrases
— “Possession”,” conscious possession”–“Possession” when
possible without actual physical control.
The concept of possession is basically connected to “actus of
physical control and custody”. Attributing this meaning in
the strict sense would be understanding the factum of
possession in a narrow sense. With the passage of time
there has been a gradual widening of the concept and the
quintessential meaning of the word “Possession”. There is a
degree of flexibility in the use of the said term and that is
why the word “Possession” can be usefully defined and
understood with reference to the contextual purpose for the
said expression. Over the years, courts have refrained form
adopting a doctrinaire approach towards defining
Possession. A functional and flexible approach in defining
and understanding the possession as a concept is
acceptable and thereby emphasis has been laid on different
possessory rights according to the commands and justice of
the social policy. Thus, the word “possession” in the context
of any enactment would depend upon the object and
48
purpose of the enactment and an appropriate meaning has
to be assigned to the word to effectuate the said object.
The term “possession” ordinarily consists of two elements.
First, it refers to the corpus or the physical control and the
second, it refers to the animus or intent which has reference
to exercise of the said control. Coming to the context of
section 18 of the NDPS Act, it would have a reference to the
concept of conscious possession. The legislature while
enacting the said law was absolutely aware of the said
element. The word “possession” refers to a mental state as
is noticeable from the language employed in Section 35 of
the NDPS Act. It includes knowledge of a fact. That apart,
Section 35 raises a presumption as to knowledge and
culpable mental state from the possession of illicit articles.
The expression “possess or possessed” is often used in
connection with statutory offences of being in possession of
prohibited drugs and contraband substances. Conscious or
mental state of possession is necessary and that is the
reason for enacting Section 35 of the NDPS Act, 1985.
39. The learned Spl.P.P., has also relied on the
decision reported in (2015) 6 SCC 674 in the case of
Kulwinder Singh and another Vs., State of Punjab
wherein it is observed as here under:-
A. Narcotic Drugs and psychotropic Substances Act,
1985–Ss. 35 and 15–Recovery of contraband from
truck–factum of conscious possession–Invocation of
presumption of culpable mental state–Expressions
‘conscious’ and ‘possession’–Meaning of, restated–
Conviction confirmed–Held, once possession of
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49 Spl.C.C.204/2022contraband is established, accused is presumed to be in
conscious possession–Further, if accused takes a stand
that he was not in conscious possession, he has to
establish the same–Herein, defence plea that both
appellant-accused were only traveling in truck and had
no knowledge of what the bags contained, rejected.
D. Narcotic Drugs and psychotropic Substances Act, 1985
—S. 15--Recovery of contraband from truck–No
independent witness examined to substantiate allegation
of prosecution as they had been allegedly won over by
accused–But, evidence of official witnesses, trustworthy
and credible–Prosecution case, trustworthy–Held, no
reason not to rest conviction on basis of such evidence of
official witnesses–Conviction confirmed.
This Court has gone through both the decisions carefully, as
held in the case of Mohan Lal –
The concept of possession is basically connected to
“actus of physical control and custody”. Attributing this
meaning in the strict sense would be understanding the
factum of possession in a narrow sense. With the passage
of time there has been a gradual widening of the concept
and the quintessential meaning of the word “Possession”.
There is a degree of flexibility in the use of the said term
and that is why the word “Possession” can be usefully
defined and understood with reference to the contextual
purpose for the said expression.
When the possession also refers mental state as noticeable
from the language employed in Sec.35 of NDPS Act, the
50
initial burden of establishing that the contraband was in the
possession of the accused is on the prosecution. When the
accused specifically stated that she had no knowledge about
the seized contraband, it was the duty of the investigating
agency to investigate further to ascertain whether the
accused herself with conscious possession brought it or not.
However, the investigating agency did not make further
enquiry in the matter. During the course of investigation
they did not collect material to show that the accused
herself brought the said contraband. When the investigating
agency apprehend a person with the allegation of serious
offence, it has to ascertain at least from whom it was
brought and whether the accused had made payment for it
or not. However, in the record absolutely no material to link
the accused with the said trolley bag which contained so
called contraband. The learned counsel apart from oral
arguments has also filed written arguments and relied on
the decision reported in 1992 Crl.L.J.3206 in the case of
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51 Spl.C.C.204/2022
Soorajmal Vs., The State of Madhya Pradesh in support
of his arguments which is as under:-
7. The trial Court vide its order dated 29-6-91 has framed a
charge against Surajmal only on the ground that the
contraband opium was found in possession of Surajmal as
the field belonged to him. The trial Court has solely relied
on Section 54 of the N.D.P.S. Act. It has failed to notice that
possession for the purpose of Section 54 of the N.D.P.S. Act
has to be a conscious possession and not a constructive
possession alone. It is true that it is not necessary that the
contraband must be found on the person of an accused
person or in his house alone. A person could be held
responsible for something which was found on the
premises, which are in his control but in such a case there
should be something in the circumstances that it was not
likely that the accused-person had no knowledge of the
existence of the contraband on the premises. In the present
case, there is absolutely no evidence collected by the police,
which could show that Surajmal had any knowledge of the
contraband being concealed in his field. The circumstances
do not indicate that the contraband could not have been
kept on the field of Surajmal without his having knowledge
of it. It is after all; an open field, to which anyone could
have had an access in the absence of the owner and
especially when the owner had engaged a servant for
looking after the field, the possibility of a servant engaging
himself in illegal activities without the knowledge of his
master cannot be ruled out. As no evidence to connect the
master with the contraband has been collected, it appears
that the police have implicated Surajmal solely because he
is the owner of the field from which contraband opium was
recovered.
Therefore, as held in the said decision the ‘possession’ is not
a legal concept but also a matter of fact i.e., as a
52
relationship between a person and a thing. The test for
determining whether a person is in possession of any thing
is whether he is in general control of it.
40. If the principles laid down in the aforesaid
decision is taken into consideration, as already noted herein
above the investigating agency did not ascertain whether
actually the accused with conscious brought the said
contraband or not. No iota of evidence to come to the
conclusion that the accused with an intention to bring
contraband to India brought the trolley bag. The
investigating agency had to work more in this regard and
had to collect relevant documents to show that the accused
there was nexus between the accused and the so called
contraband. Further in the decision rendered in
Crl.Appeal No.1953/2014 in the case of Rakesh Kumar
Raghuvanshi Vs., State of MP wherein it is observed as
under :-
Thus, before the Court holds the accused guilty of the
offence under the NDPS Act, possession is something that
CCH-33
53 Spl.C.C.204/2022the prosecution needs to establish with cogent evidence. If
the accused is found to be in possession of any contraband
which is a narcotic drug, it is for the accused to account for
such possession satisfactorily, if not, the presumption
under Section 54 comes into place.
Therefore, as envisaged by the provision itself, unless and
until the contrary is proved in trials of cases involving
offences coming within the purview of the NDPS Act, it may
be presumed that the accused has committed an offence
under the Act in respect of any articles prohibited to be
possessed by him and for the possession of which, he
failed to account satisfactorily. Therefore, it is the burden of
the prosecution to establish that the contraband was seized
from the conscious possession of the accused. Only when
that aspect has been successfully proved by the
prosecution, the onus will shift to the accused to account for
the possession legally and satisfactorily. Conscious
possession refers to a scenario where an individual not
only physically possesses a narcotic drug or psychotropic
substance but is also aware of its presence and nature. In
other words, it requires both physical control and mental
awareness. This concept has evolved primarily through
judicial interpretation since the term “conscious possession”
is not explicitly defined in the NDPS Act. This Court through
various of its decisions has repeatedly underscored that
possession under the NDPS Act should not only be physical
but also conscious. Conscious possession implies that the
54person knew that he had the illicit drug or psychotropic
substance in his control and had the intent or knowledge of
its illegal nature.
From the observations made in the aforesaid decisions it is
clear that the possession of contraband shall be conscious
possession. When once the prosecution initially establishes
the ingredients of the offences alleged against the accused,
then the burden shift on the accused to give explanation
about her possession of the article. However, in the present
matter, as already noted herein above the prosecution failed
to establish the conscious possession of the alleged
contraband with the accused. Hence, the reverse burden did
not shift on the accused. Accordingly, considering all the
aspects discussed herein above, this Court is of the
considered view that the prosecution failed to prove the guilt
of the accused for the offences punishable U/s.22(c) & 23(c)
of NDPS Act beyond all reasonable doubt. The benefit of
doubt shall be extended to the accused. Hence, the accused
is entitled to be acquitted for the offences U/Sec.22(c) &
CCH-33
55 Spl.C.C.204/202223(c) of NDPS Act. Accordingly, I answer Point Nos.1 and 2
in the Negative.
41. Point No.3: In the result, following:
::ORDER::
Acting under Section 235(1) of Cr.P.C. accused
– Ms.Mukarushema Saida is acquitted for the
offences punishable under Sections 22(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.
M.O.1 & 2 contraband is ordered to be
returned to complainant for producing before the
Drug Disposal committee for disposal.
[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 August 2025)(LATHA)
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BANGALORE.
56
ANNEXURE
1. List of witnesses examined for the:
(a) Prosecution:
P.W.1 : Smt.Deepti Perumal
P.W.2 : Sri K. Phanikumar
P.W.3 : Smt. Sabita Naik
P.W.4 : Sri Viji John
P.W.5 : Sri Dinesh Kumar S
P.W.6 : Sri Nikil S K
(b) Defence :
- NIL -
2. List of documents exhibited for the:
(a) Prosecution:
Ex.P.1 : Information (a) Sig., of PW.1
Ex.P.2 : Intimation of arrest of foreign National to
to P6 Embassy of Republic of Uganda and Joint
Secretary CPV Diision, Ministry of
External Affairs
Ex.P.7 : Mahazar (a)(b)(c) signatures
Ex.P.8 : Copy of Passport
Ex.P.9 : FSL report
Ex.P.10 : Sample seal
Ex.P.11 : Voluntary statement of accused (a)(b)
signs.
Ex.P.12 : Statement of Ms.Nisha Kumari (a) Sign
Ex.P.13 : Statement of Dr.Zulesh Patle (a) Sign
Ex.P.14 : Statement of Manish Sravan Modkar (a)
Sign
CCH-33
57 Spl.C.C.204/2022
Ex.P.15 : Complaint
(b) Defence:
Ex.D.1 : Letter dated 7.5.2021
3.List of Material Objects admitted in evidence:
M.O.1 : Sample contraband
M.O.2 : Sample contraband
(LATHA)
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BANGALORE.
CN/*
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