Bangalore District Court
Ncb Bangalore vs Prabha on 14 August, 2025
KABC010192452017
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 14th DAY OF AUGUST 2025
SPL.C.C. NO.382/2017
COMPLAINANT : The Intelligence Officer,
Narcotic Control Bureau,
Bangalore Zonal Unit,
Bangalore.
(By Spl. Public Prosecutor)
V/S.
ACCUSED : 1. Prabha,
W/o. Ansar,
Aged 40 years,
R/at. No.106, 6th Cross,
3rd Main Maruthinagar,
Ward 1 Yelahanka,
Bangalore 560 062.
2.
S Thilak,
S/o. Sekar,
Aged 22 years,
2
R/O 106, 6th Cross,
3rd Main, Maruthinagar,
Ward 1, Yelahanka,
Bangalore-62.
3. Reemala Krupanandh
- Split up in Spl.C.C.834/2024
4. Jurra Pathrudu - referred to
Juvenile court
(Rep. by Sri AP., Adv.)
1. Date of Commission of offence: 03.02.2017
2. Date of report of offence: 03.02.2017
3. Arrest of the accused : 04.02.2017
4. Date of release of accused on A1- 27.4.2017
bail: A2- 7.8.2017
5. Period undergone in custody: A1- 2 months 23 days
A2 - 6 months 3 days
6. Date of commencing of
8.12.2021
recording Evidence :
7. Date of closing of Evidence : 9.02.2024
8. Name of the complainant: Sri Samiran Paul, IO.,
9. Offence complained of : U/s.8(c) R/w.
Sec.20(b), 28 & 29 of
NDPS Act
CCH-33
3 Spl.C.C.382/2025
10. Opinion of the Judge : Charges not proved
11. Order of sentence : Acquitted
::JUDGMENT:
:
The Intelligence Officer, NCB., Bengaluru filed
complaint filed complaint against the accused Nos.1 to 4 in
NCB.F.No.48/1/02/2017/BZU for the offences punishable
2. The case of the prosecution in nutshell is as
under:-
2a. The Investigation officer, NCB received credible
information that on 3.2.2017 at 8.00 am., that two
persons/accused Nos.3 and 4 who were coming from
Kakinada are carrying huge quantity of ganja and will be
arriving at KR Puram Railway station and deliver the same
to accused Nos.1 and 2. He secured panchas and staff
members and came to the spot at 12.00 noon train reached
4KR Puram Railway station. Two persons got down from the
train and handed over the gunny 7 bags to other two
persons who were waiting at the station. The complainant
surrounded him and apprehended all the 4 accused
persons. On search they found each with gunny bag
contained 20.5 Kgs., of ganja. Thus, in all they seized 41
Kgs., of ganja from the accused persons. Out of which 24
grams was taken for sample. They drew panchanama,
arrested the accused and produced before Magistrate and
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.20(b), 28 & 29 of
NDPS Act.
3. On presentation of complaint, accused were secured
from judicial custody. As accused No.4 was a minor he
was referred to juvenile Court. The learned Predecessor-
in-office of this Court, on perusing the contents of the
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5 Spl.C.C.382/2025
complaint and the annexed documents, took cognizance of
the offences punishable under sections 8(c) R/w. Sec.20(b),
28 & 29 of NDPS Act, 1985. The copy of the complaint and
annexed documents were furnished to the learned counsel
appearing for the accused Nos.1 to 3 as provided under Sec.
207 of the Criminal Procedure Code, 1973. Since the
offences alleged 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
Nos.1 to 3 for the offences punishable under sections 8(c)
R/w.Sec. 20(c), 28 & 29 of the NDPS Act, 1985 on
13.12.2018, read-over and explained to the accused in the
language known to them. They pleaded not guilty and
claimed to be tried. Therefore, posted the case for recording
the evidence for the prosecution. Thereafter, as the accused
No.3 was absconding, case against him came to be split up
and a separate case is registered against him in
Spl.C.C.834/2024.
6
4. The prosecution to prove the Charges levelled
against the accused Nos.1 and 2 examined six witnesses as
P.W.1 to P.W.5 and got 35 documents marked as Exs.P1 to
P.35 and got two material objects marked as M.Os.1 & 4.
After conclusion of prosecution evidence, the accused Nos.1
and 2 were examined U/Sec.313 of Cr.P.C. However, they
denied the incriminating statements made against them and
did not offer defence evidence.
5. Heard the arguments of Spl.P.P., and learned
counsel for the accused. Perused 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. 2021(19) SCC page-606 in the case of Boota
Singh V/s State of Haryana.
2. 2009(8) SCC 539 in the case of Karnail Singh
V/s State of Punjab.
3. 2013(2) SCC 502 in the case of Kishan Chand
V/s State of Haryana
4. 2013(2) SCC 2012 in the case of Sukhdev
Singh V/s State of Haryana
CCH-33
7 Spl.C.C.382/2025
5. 1995(4) SCC 255 in the case of Pradeep
Narayan Madgoankar V/s State of Maharastra
6. 2006(12) SCC 321 in the case of Ritesh
Chakravathi V/s State of M.P
7. 2023 SCC Online SC 906 in the case of
Simoranjit Singh V/s State of Punjab
8. 2023 SCC Online SC 862 in the case of
Mangilal V/s State of M.P
9. 2023 SCC Online SC 1213 in the case of
Balwinder Singh V/s NCB
10. 2024 SCC Online SC 680 in the case of
Firdosh Khan V/s State of Gujrath
11. 2022 LiveLaw (SC) 1002 in the case of
Amarchand V/s State of H.P
12. 2012 SCC Online Kar 9043 in the case of
Mujeeb Mehboob V/s State of Kalsipalya
13. 2021 (2) SCC 50 in the case of Bharath
Choudhary V/s Union of India
14. 1999(7) SCC 280 in the case of State of H.P
V/s Jai Lal
15. (2008) 2 SCC 370 in the case of directorate of
Revenue and anr., Vs., Mohammed Nisar
Holia
16. (2000) 2 SCC 513 in the case of Abdul Rashid
Ibrahim Mansuri Vs., State of Gujarat
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 :-
8
Point No. 1 : Whether the prosecution
proves beyond reasonable
doubt that the accused Nos.3
and 4 were transporting huge
quantity of ganja from
Kakinada to Bangalore in
Train No.17210 Sheshadri
Express and on arriving at
Bangalore accused Nos.1 and
2 came to the railway station
to receive the said ganja at
that time accused Nos.1 to 4
were intercepted by the IO.,
NCB., Bangalore, on enquiry
it is found that accused were
in possession of 41 Kgs., of
ganja without holding any
licence or permission to
transport the same and
thereby accused Nos.1 & 2
along with accused Nos.3 and
4 have committed the offences
punishable U/s.20(b)(ii)(C), 28
& 29 of NDPS Act?
Point No.2: What Order ?
8. My findings on the above points are as under:
Point No.1: In the Negative
Point No.2: As per the final order for the following:
CCH-33
9 Spl.C.C.382/2025
::REASONS::
9. POINT No.1 :- The prosecution, in order to
substantiate its case, got the CW1 Samiran Paul, the then
IO., of NCB, Bangalore zone has been examined by PW1. He
deposed in his examination in chief that on 03.02.2017 at
about 08.00 am., he received a call regarding an information
that, two persons namely Krupanand and Pathrudu are
coming from Kakinanda to K .R. Puram railway station, that
they are carrying a huge quantity of Ganja in general
compartment Sheshadri Express, Train no. 17210 and they
will hand over the said Ganja at K. R Puram railway station
on the same day to accused nos. 1 and 2, that he had noted
the said information in a paper and informed the same to
the Superintendent of NCB, Bangalore, that after getting
permission from him, he constituted a team and obtained
seal No.1 from the Superintendent of NCB, that along with
the team members with the D.D Kit, laptop and printer
moved from the office and left to K.R.Puram railway station,
10that they reached the railway station at 10.40 am., that
after reaching the railway station, he called two independent
witnesses and got himself introduced to them and disclosed
about the information received by him to them and
requested them to be present during search and seizure
procedure, to which, they voluntarily agreed, that on
enquiry about their names they revealed their names as
Akram and Sheikh Musa, they are the CW3 and CW4.
10. PW1 further deposed that they mounted
surveillance in the entry gate, platform No.4 of K.R Puram
railway station where the general compartment of train
would stop, that at about 12 noon train came to the spot,
that 2 persons came down from the general compartment
with 2 big gunny bags, each one was holding 1 gunny bag,
that they Handed over the gunny bags to the accused nos. 1
and 2 in the entry gate of K.R. Puram railway station, that
among the 4 accused, accused no. 4 Pathrudu is a juvenile,
that they surrounded the accused persons and disclosed to
CCH-33
11 Spl.C.C.382/2025them about the information they received, that PW1 had
also showed his departmental ID card to them and also
introduced himself to them and also introduced the
independent witnesses that he had issued notice under
Section 50 of NDPS Act that he explained the contents of
notice to them that he also explained their right to have
personal search in the presence of a gazetted officer or In
the presence of a Magistrate that they replied that they need
a gazetted officer for their personal search, that before
issuing notice to them, they offered themselves for personal
search to them, to which they have declined, that when he
asked the accused persons about the contents of gunny
bag, they stated that it contains ganja, that after opening
the gunny bags, he found suspected material inside the
gunny bags, he took a small portion of suspected material
and tested it with the help of D.D. Kit and found it positive
for ganja, that then they mixed the said contents properly
and took 2 samples from each gunny bag, each sample
contained 24 grams of ganja, that they kept the samples in
12polythene pouch, heat sealed, and kept it in a envelop by
marking it as S1, S2, S3 and S4, that each gunny bag
contained 20.5 Kgs., of ganja, that they stitched the ganja
bag and wrapped it with cloths and marked it as P1 and
P2, they pasted a paper slip on it which contains the
description of gunny bag, all the samples and bulk were
sealed with NCB seal No.1, the contents of gunny bag was
flowering and fruiting tops of ganja leaves with pungent
smell, he affixed his signature on all the sealed packets, the
signatures of panch witnesses and accused was also taken
on it. At about 4.15 pm., DIG, BSF came to the spot and
conducted personal search of accused, but no incriminatory
articles were found, he prepared the panchanama in the
spot, he issued notice to the accused persons, recorded the
voluntary statement of all the four accused persons,
arrested them and issued arrest memo, prepared
jamathalashi and as the accused No.4 was juvenile a
separate complaint filed before Juvenile justice board, that
on 4.2.2017 he produced the accused persons before Court
CCH-33
13 Spl.C.C.382/2025and on 5.2.2017 he submitted success report, seizure report
and arrest report before Zonal Director, NCB, sent samples
to CFSL, Hyderabad on 5.2.2017 and transmitted P1, P2, S2
and S4 to NCB godown, he prepared the arrest memo in the
spot and he forwarded the case file to CW.6 who was
present during search and seizure procedure.
11. PW.2 Sri V. V. Singh, superintendent, NCB,
Mumbai has deposed that on 3.2.2017 he received the
information from PW.1, according to the information two
persons were travelling in Sheshadri Express train and were
about to supply huge quantity of ganja to the persons at KR
Puram railway station, Bengaluru, that he directed PW.1 to
constitute a team and take action, that on the same day at
about 8.30 am., he issued NCB brass seal No.1 to PW.1,
and made entry in seal movement register, on the same day
at 21.00 hours PW.1 returned the seal that an entry in this
regard was made in the register, on 9.2.2017 at 11.00 hours
PW.1 has given the seized properties to him to keep in
14malkana, an entry was made in malkana and on 20.3.2017
CW.6 gave him remnant samples, he entered the same in
malkana.
12. PW.3 Smt. M Kumudhavalli, IO., NCB has
deposed that on 03.02.2017 she along with PW.1 and other
team members went to Platform No.4, KR Puram Railway
station, she was told that one suspect in the case is a lady,
they reached the railway station at 10.30 am., and waiting
for Sheshadri Express train, PW.1 secured two panchas
Cws.4 and 5 and shared the information and requested
them to be present during search and seizure procedure, to
which, they voluntarily agreed, that at about 12 noon train
came to the spot, that 2 persons got down from the train
carrying huge gunny bags, one lady and one man
approached the two persons who were standing on the
platform, the said passengers have handed over the gunny
bags to the persons i.e., a lady and a man who were
standing on the platform that immediately, their team
CCH-33
15 Spl.C.C.382/2025intercepted them and introduced themselves as officers of
NCB and introduced the panch witnesses to them and
informed them about the information they had received, on
enquiry they revealed their names and addresses, the
persons who got down from the train revealed their names
as Jurra Pathrudu and Reemala Krupanandh, the persons
who were in the platform are Prabha and Tilak, PW.1 issued
Notices to all the four persons, he apprised their right to
have personal search through a Gazetted Officer, they have
consented have personal search through a Gazetted Officer,
when PW.1 asked the contents of the bag, they revealed that
they are carrying Ganja, on opening the bag, a strong
pungent smell was coming, in that, there was flowering and
fruiting tops of vegetation was found, small portion of the
said substance was taken out from the gunny bags and
tested with D.D kit, which gave positive response for Ganja,
the contents of gunny bags was mixed property, 24 grams of
Ganja was taken out from each of the gunny bag and
marked as S1 to S4, On weighing the gunny bags each
16came out to be 20 Kgs 500 grams, in total 41 Kgs, they were
marked as P1 and P2 and affixed with NCB seal No.1,
specimen seal was taken, The seizing officer and all the four
accused have affixed their signatures on the articles and
mahazar. A1 and A2 were speaking Tamil language, she
explained the contents of mahazar in Tamil to them, A3 and
A4 were speaking Telugu language, one of their team
member explained the contents of mahazar to them in
Telugu languag, A1 and A2 were carrying platform ticket,
that has been seized under Jamathalashi. A3 and A4 were
carrying ticket from Kakinada to Bengaluru, that were also
seized, Sec. 67 were explained to them in their known
language, they have affixed their signatures on mahazar,
that the test memo was prepared on the spot by the seizing
officer, that at around 4.15 p.m. DIG, BSF came to the
platform No.4, K.R Puram Railway Station and conducted
personal search of all the four persons, but no contraband
was found, that A1 to A4 were taken to their office and PW.1
recorded their statements, that she was present at the time
CCH-33
17 Spl.C.C.382/2025of recording of statement of A1 and A2 as she was
acquainted with Tamil language. That the statements of A1
and A2 typed by her in English, that the PW.1 was asking
the questions in English, she was translating the same in
Tamil to them and thereafter typed the same in English, she
has made a shara in the said statement.
13. She further deposed that she had sent a letter to
jurisdictional police about intimation of arrest and sent
letters to Canara Bank Zonal Office, Indian Bank Head
Office, Bengaluru regarding the seized Debit Cards from A1,
that she received reply from Indian Bank on 21.3.2017
stating that Indian Bank Debit Card belongs to one Ansar
which belongs to Thysayanvalai Branch of Indian Bank, that
she had also received reply from Canara Bank on 24.3.2017
stating that, one Debit Card in the name of A1 having
account in Yelahanka Branch, Sattelite Town, another Debit
Card is in the name of Akhbar Ali, Mallapuram Branch,
Kerala.
18
14. She further deposed that on 24.3.2017 she
recorded the statements of panch witnesses regarding
seizure panchanama dtd 3.2.2017, on receiving the Bank
Statement of Prabha, it is found that, there was huge
monetary transactions in the account since from 2016, that
therefore, she initiated proceedings to freeze the accounts
u/Sec. 68(F) of NDPS Act through competent authority for a
sum of Rs. 1,54,410/-, that the competent authority issued
confirmation order dtd 17.7.2017, that it was confirmed
that, some of the amount was earned through illicit drug
transaction, that the competent authority confirmed that,
there is no legitimate source of income to accused No.1.
15. She has also deposed that a separate complaint is
filed before Juvenile Justice Board against A4 Jurra
Pathrudu and he had pleaded guilty before the JJ Board,
that he had been convicted to undergo SI for 5 months and
18 days, that she has also collected the CFSL report on
7.3.2017 stating that, the sample responded positive for
CCH-33
19 Spl.C.C.382/2025Ganja and after completion investigation filed the complaint
before this Court on 2.8.2017.
16. PW.4 Sri Sunil Kumar Sinha, the then Zonal
Director has deposed that on 3.2.2017, there was seizure of
cannabis Ganja, that PW.1 has submitted seizure report
and arrest report before him on 5.2.2017, that the CFSL
authorities have sent a letter stating that, report is ready
and requested to depute the official messenger to collect the
report.
17. PW.5 Dr.Seema Srivathsava, Asst. director, CFSL,
Hyderabad has deposed that in this case, she received two
sealed brown colour paper envelopes on 7.2.2017 that on
opening the S1 and S2, she found dark green colour
flowering and fruiting tops of vegetative material kept in an
auto pressed polythene packet, that the weight of the
substance was 25.9677 and 26.8715 grams, excluding
polythene packet, that she conducted in all 5 tests between
8.2.2017 to 3.3.2017 and opined that the sample responded
20positive for the presence of Ganja and accordingly she
submitted a report to the Zonal Director of NCB as per
Ex.P35.
18. Under NDPS Act there are stringent mandatory
provisions that are to be complied with by the investigating
agency. Then only the prosecution can prove its case beyond
reasonable doubt. Therefore, it is significant to examine the
records placed on behalf of the prosecution to find out
whether the prosecution complied those statutory provisions
or not and whether the prosecution succeeded to bring
home the guilt of the accused Nos.1 and 2.
19. The learned Spl. P.P., advanced arguments and
specifically submitted that the prosecution has complied the
statutory provisions of NDPS Act and proved its case beyond
reasonable doubt against accused Nos.1 & 2.
20. As seen from the documents got marked on behalf
of the prosecution, Ex.P1 is the information forwarded to
CCH-33
21 Spl.C.C.382/2025the superintendent, NCB, BZU, Bangalore by the PW.1
Sri.Samiran Paul, the Intelligence officer. According to
PW.1, Ex.P1 is forwarded to his superior officer under
Section 42(2) of NDPS Act. The learned Sr. Counsel for
accused Nos.1 and 2 cross examined this witness and
elicited from him that he received the information at about
8.00 am., when he was in his office over telephone, that he
had only made note in NCB information, that he has not
reduced the information into writing immediately on receipt
of the said information, that there was no information
register maintained in his office in the year 2017, that he
had not recorded the information in any permanent register
in the office as no register is maintained at that time, that
he does not know that as per NCB Manual, the first
information has to be noted in Form No.1(A) and also, that
thereafter, it has to be reduced into writing in the
information register, that he has not saved the said
information in his laptop or in the office system. The
evidence of PW.1 clearly indicates that PW.1 being the
22Intelligence officer, on receiving the information did not
reduced the said information into writing in any register and
according to him in their office no such register is
maintained. He deposes that Ex.P1 is the information
reduced into writing U/s.42 of NDPS Act. As seen from
Ex.P1 it is the forwarding letter signed by PW.1 and same is
said to be forwarded to Superintendent of NCB namely PW.2
and that PW.1 specifically admitted that the information has
not been recorded in any permanent register maintained by
them in their office. At this stage it is relevant to reproduce
Sec.42 of NDPS Act.
Sec.42 of NDPS Act reads as under:-
42. Power of entry, search, seizure and arrest without
warrant or authorisation.–
(1)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
paramilitary forces or armed forces as is empowered in
this behalf by general or special order by the Central
CCH-33
23 Spl.C.C.382/2025Government, 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 persons knowledge or information given by
any person and taken down in writing that any narcotic
drug, or psychotropic substance, or controlled substance in
respect of which an offence punishable under this Act has
been committed or any document or other article which
may furnish evidence of the commission of such offence or
any illegally acquired property or any document or other
article which may furnish evidence of holding any illegally
acquired property which is liable for seizure or freezing or
forfeiture under Chapter VA of this Act is kept or concealed
in any building, conveyance or enclosed place, may
between sunrise and sunset,–
(a) enter into and search any such building, conveyance
or place;
(b) in case of resistance, break open any door and
remove any obstacle to such entry;
(c) seize such drug or substance and all materials used
in the manufacture thereof and any other article and
any animal or conveyance which he 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
24any offence punishable under this Act or furnish
evidence of holding any illegally acquired property
which is liable for seizure or freezing or forfeiture
under Chapter VA of this Act; and
(d) detain and search, and, if he thinks proper, arrest
any person whom he has reason to believe to have
committed any offence punishable under this
Act:Provided that in respect of holder of a licence for
manufacture of manufactured drugs or psychotropic
substances or controlled substances granted under
this Act or any rule or order made thereunder, such
power shall be exercised by an officer not below the
rank of sub-inspector:Provided further that if such
officer has reason to believe that a search warrant or
authorisation cannot be obtained without affording
opportunity for the concealment of evidence or
facility for the escape of an offender, he may enter
and search such building, conveyance or enclosed
place at any time between sunset and sunrise after
recording the grounds of his belief.
(2) Where an officer takes down any information in writing
under sub-section (1) or records grounds for his belief
under the proviso thereto, he shall within seventy-two
hours send a copy thereof to his immediate official
superior.
CCH-33
25 Spl.C.C.382/2025
On relying on Sec.42(1) & (2), the learned counsel for
accused Nos.1 & 2 submitted that the PW.1 who is the
recipient of information did not comply the mandatory
statutory provision envisaged under section 42 of NDPS Act.
In support of his arguments the learned counsel has relied
on the decision reported in 2009(8) SCC 539 in the case of
Karnail Singh V/s State of Punjab wherein it is observed as
under :-
21. Sub-section (1) of Section 42 lays down that the
empowered officer, if has a prior information given by
any person, should necessarily take it down in writing
and where he has reason to believe from his personal
knowledge that offences under Chapter IV have been
committed or that 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 warrant between sunrise and sunset
and he may do so without recording his reasons of
belief. The proviso to sub-section (1) of Section 42 lays
down that if the empowered officer has reason to
believe that a search warrant or authorization cannot
be obtained without affording opportunity for the
concealment of evidence or facility for the escape of an
26offender, 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.
22. Sub-section (2) of Section 42 as it originally stood
mandated that the empowered officer who have taken
down information in writing or records the grounds of
his belief under the proviso to sub section (1), should
send a copy of the same to his immediate official
superior forthwith. But after the amendment in the year
2001, the period within which such report has to be
sent was specified to be 72 hours. Section 43 deals
with the power of seizure and arrest of the suspect in a
public place.
21. Further the learned counsel also relied on the
decision in the case of Abdul Rashid and Sajan Abraham,
the Hon’ble Apex Court 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 :
CCH-33
27 Spl.C.C.382/2025
(a) The officer on receiving the information (of the nature
referred to in Sub-section (1) of section 42) from any
person had to record it in writing in the concerned
Register and forthwith send a copy to his immediate
official superior, before proceeding to take action in
terms of clauses (a) to (d) of section 42(1).
(b) But if the information was received when the officer
was not in the police station, but while he was on the
move either on patrol duty or otherwise, either by mobile
phone, or other means, and the information calls for
immediate action and any delay would have resulted in
the goods or evidence being removed or destroyed, it
would not be feasible or practical to take down in writing
the information given to him, in such a situation, he could
take action as per clauses (a) to (d) of section 42(1) and
thereafter, as soon as it is practical, record the
information in writing and forthwith inform the same to
the official superior .
(c) In other words, the compliance with the requirements
of Sections 42 (1) and 42(2) in regard to writing down the
information received and sending a copy thereof to the
superior officer, should normally 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
28
information to the official superior forthwith, may not be
treated as violation of section 42. But if the information
was received when the police officer was in the police
station with sufficient time to take action, and if the police
officer fails to record in writing the information received,
or fails to send a copy thereof, to the official superior,
then it will be a suspicious circumstance being a clear
violation of section 42 of the Act. Similarly, where the
police officer does not record the information at all, and
does not inform the official superior at all, then also it
will be a clear violation of section 42 of the Act. Whether
there is adequate or substantial compliance with section
42 or not is a question of fact to be decided in each case.
The above position got strengthened with the amendment
to section 42 by Act 9 of 2001.
Similarly in the decision reported in 2021 (19) SCC 606 in
the case of Boota Singh Vs., State of Haryana and in the
decision relied on by the learned counsel for the accused
reported in 2013 (2) SCC 502 in the case of Kishan Chand
Vs., State of Haryana the Hon’ble Supreme Court re-
affirmed the said preposition of law and held that the non
compliance of Sec.42 is impermissible. However, in the
present case the NCB officers, in spite of mandatory
provision to be complied with did not comply it and it is
fatal to the case of the prosecution.
CCH-33
29 Spl.C.C.382/2025
22. Further, it is to be noted that PW.1 in para-3 of
his cross examination deposed that Sri Vishwavijay Singh
was his immediate superior officer as on 3.2.2017 and he
admitted that the information received by him has not been
sent to his immediate superior Sri Vishwavijay Singh, that
before proceeding for raid, he did not note down the
information in any of his office record, that he has not given
any reference number to Ex.P1 information, that he had
shown the information to panchas but did not obtain
endorsement of panchas on Ex.P1. Accordingly the learned
counsel for the accused elicited from PW.1 about non
compliance of Sec.42(1) and 42(2) of NDPS Act.
23. The learned Spl.P.P., though submitted the
provisions of Sec.42(1) & 42(2) of NDPS Act are need to be
complied with as the seizure of material object happened in
public place, the learned counsel for the accused rightly
pointed out that as PW.1 had received the information while
30
he was in office the strict compliance of Sec.42(1) & 42(2) is
required.
24. In the decision of Sukhdev Singh Vs., State of
Haryana reported in (2013) 2 SCC 212 which is relied
herein above, it is observed as under:-
21. In the present case, the occurrence was of 4th
February, 1994. The Trial of the accused concluded by
judgment of conviction dated 4th July, 1998. Thus, it
will be the unamended Section 42(2) of the NDPS Act
that would govern the present case. The provisions of
Section 42 are intended to provide protection as well as
lay down a procedure which is mandatory and should
be followed positively by the Investigating Officer. He is
obliged to furnish the information to his superior officer
forthwith. That obviously means without any delay. But
there could be cases where the Investigating Officer
instantaneously, for special reasons to be explained in
writing, is not able to reduce the information into writing
and send the said information to his superior officers but
could do it later and preferably prior to recovery.
Compliance of Section 42 is mandatory and there cannot
be an escape from its strict compliance.
CCH-33
31 Spl.C.C.382/2025
22. This question is no more res integra and stands
fully answered by the Constitution Bench judgment of
this Court in Karnail Singh v. State of Haryana [(2009) 8
SCC 539]. The Constitution Bench had the occasion to
consider the conflict between the two judgments i.e. in
the case of Abdul Rashid Ibrahim Mansuri v. State of
Gujarat [(2000) 2 SCC 513] and Sajan Abraham (supra)
and held as under:-
“35. In conclusion, what is to be noticed is that 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 Sections 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
register concerned and forthwith send a copy to his
immediate official superior, before proceeding to take
action in terms of clauses (a) to (d) of Section 42(1).
(b) But if the information was received when the
officer was not in the police station, but while he was
on the move either on patrol duty or otherwise, either
by mobile phone, or other means, and the information
calls for immediate action and any delay would have
resulted in the goods or evidence being removed or
destroyed, it would not be feasible or practical to take
down in writing the information given to him, in such
a situation, he could take action as per clauses (a) to
(d) of Section 42(1) and thereafter, as soon as it is
practical, record the information in writing and
forthwith inform the same to the official superior.
32
(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 with requirements of
sub- sections (1) and (2) of Section 42 is
impermissible, delayed compliance with satisfactory
explanation about the delay will be acceptable
compliance with 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 of a copy of such information
to the official superior forthwith, may not be treated
as violation of Section 42. But if the information was
received when the police officer was in the police
station with sufficient time to take action, and if the
police officer fails to record in writing the information
received, or fails to send a copy thereof, to the official
superior, then it will be a suspicious circumstance
being a clear violation of Section 42 of the Act.
Similarly, where the police officer does not record the
information at all, and does not inform the official
superior at all, then also it will be a clear violation of
Section 42 of the Act. Whether there is adequate or
substantial compliance with Section 42 or not is a
question of fact to be decided in each case. The above
position got strengthened with the amendment to
Section 42 by Act 9 of 2001.”
23. Having referred to the above settled principle of law, we
are unable to accept the contention raised on behalf of the
CCH-33
33 Spl.C.C.382/2025
State and have to grant our approval to the submission
made on behalf of the appellant.
It is further observed in the aforesaid decision as under:-
22. There is patent illegality in the case of the prosecution
and such illegality is incurable. This is a case of total non-
compliance, thus the question of substantial compliance
would not even arise for consideration of the Court in the
present case. The twin purpose of the provisions of Section
42 which can broadly be stated are that : (a) it is a
mandatory provision which ought to be construed and
complied strictly; and (b) compliance of furnishing
information to the superior officer should be forthwith or
within a very short time thereafter and preferably post-
recovery.
23. Once the contraband is recovered, then there are other
provisions like Section 57 which the empowered officer is
mandatorily required to comply with. That itself to some
extent would minimize the purpose and effectiveness of
Section 42 of the NDPS Act. It is to provide fairness in the
process of recovery and investigation which is one of the
basic features of our criminal jurisprudence. It is a kind of
prevention of false implication of innocent persons. The
legislature in its wisdom had made the provisions of
Section 42 of NDPS Act mandatory and not optional as
stated by this Court in the case of Karnail Singh (supra).
34
At this stage, it is also relevant to know the deference
between Sec.42 & 43 of NDPS Act. In the decision reported
in (2008) 2 SCC 370 in the case of Directorate of Revenue
and another Vs., Mohammed Nisar Holia, the difference
between those two provisions clearly made out as under:-
13. Requirements of Section 42 was read into Section 43
of the NDPS Act. A somewhat different view, however, was
taken subsequently. Decisions were rendered opining that
in conducting search and seizure in public place or a
moving vehicle, provisions appended to sub-section (1) of
Section 42 would not be attracted. Decisions were also
rendered that in such a case even sub-section (2) of Section
42 need not be complied with.
14. Section 43, on plain reading of the Act, may not attract
the rigours of Section 42 thereof. That means that even
subjective satisfaction on the part of the authority, as is
required under sub-section (1) of Section 42, need not be
complied with, only because the place whereat search is to
be made is a public place. If Section 43 is to be treated as
an exception to Section 42, it is required to be strictly
complied with. An interpretation which strikes a balance
between the enforcement of law and protection of the
valuable human right of an accused must be resorted to. A
CCH-33
35 Spl.C.C.382/2025declaration to the effect that the minimum requirement,
namely, compliance of Section 165 of the Code of Criminal
Procedure would serve the purpose may not suffice as non-
compliance of the said provision would not render the
search a nullity. A distinction therefor must be borne in
mind that a search conducted on the basis of a prior
information and a case where the authority comes across a
case of commission of an offence under the Act
accidentally or per chance. It is also possible to hold that
rigours of the law need not be complied with in a case
where the purpose for making search and seizure would
be defeated, if strict compliance thereof is insisted upon. It
is also possible to contend that where a search is required
to be made at a public place which is open to the general
public, Section 42 would have no application but it may be
another thing to contend that search is being made on prior
information and there would be enough time for
compliance of reducing the information to writing,
informing the same to the superior officer and obtain his
permission as also recording the reasons therefor coupled
with the fact that the place which is required to be
searched is not open to public although situated in a public
place as, for example, room of a hotel, whereas hotel is a
public place, a room occupied by a guest may not be. He is
entitled to his right of privacy. Nobody, even the staff of the
hotel, can walk into his room without his permission.
Subject to the ordinary activities in regard to maintenance
36
and/or house keeping of the room, the guest is entitled to
maintain his privacy. The very fact that the Act
contemplated different measures to be taken in respect of
search to be conducted between sunrise and sunset,
between sunset and sunrise as also the private place and
public place is of some significance. An authority cannot be
given an untrammeled power to infringe the right of
privacy of any person. Even if a statute confers such
power upon an authority to make search and seizure of a
person at all hours and at all places, the same may be
held to be ultra vires unless the restrictions imposed are
reasonable ones. What would be reasonable restrictions
would depend upon the nature of the statute and the
extent of the right sought to be protected. Although a
statutory power to make a search and seizure by itself
may not offend the right of privacy but in a case of this
nature, the least that a court can do is to see that such a
right is not unnecessarily infringed. Right of privacy deals
with persons and not places.
In view of that, in the present case on hand also there is no
material to show the compliance of Sec.42(1) & 42(2) of the
Act.
25. It is also the submission of learned counsel for
the accused that PW.1 has also not strictly complied the
CCH-33
37 Spl.C.C.382/2025
provisions of Sec.50 of the Act and the seizure of the so
called contraband not effected in the presence of gazetted
officer and therefore, the so called seizure is bad under law.
In support of his arguments the learned counsel for the
accused has relied on the decision rendered in (2013) 2
SCC 502 in the case of Kishan Chand Vs., State of
Haryana wherein in paragraph Nos.19 to 21 it is observed
as under:-
19. The provisions like Section 42 or 50 of the Act are the
provisions which require exact and definite compliance as
opposed to the principle of substantial compliance. The
Constitution Bench in the case of Karnail Singh (supra)
carved out an exception which is not founded on
substantial compliance but is based upon delayed
compliance duly explained by definite and reliable
grounds.
20. While dealing with the requirement of complying with
the provisions of Section 50 of the Act and keeping in mind
its mandatory nature, a Bench of this Court held that there
is need for exact compliance without any attribute to the
element of prejudice, where there is an admitted or
apparent non-compliance. The Court in the case of State of
38Delhi v. Ram Avtar alias Rama [(2011) 12 SCC 207], held
as under:-
26. The High Court while relying upon the judgment of
this Court in Baldev Singh and rejecting the theory of
substantial compliance, which had been suggested in
Joseph Fernandez, found that the intimation did not
satisfy the provisions of Section 50 of the Act. The
Court reasoned that the expression “duly” used in
Section 50 of the Act connotes not “substantial” but
“exact and definite compliance”. Vide Ext. PW 6/A, the
appellant was informed that a gazetted officer or a
Magistrate could be arranged for taking his search, if
he so required. This intimation could not be treated as
communicating to the appellant that he had a right
under law, to be searched before the said authorities.
As the recovery itself was illegal, the conviction and
sentence has to be set aside.
27. It is a settled canon of criminal jurisprudence that
when a safeguard or a right is provided, favouring the
accused, compliance therewith should be strictly
construed. As already held by the Constitution Bench
in Vijaysinh Chandubha Jadeja, the theory of
“substantial compliance” would not be applicable to
such situations, particularly where the punishment
provided is very harsh and is likely to cause serious
prejudice against the suspect. The safeguard cannot
be treated as a formality, but it must be construed in
its proper perspective, compliance therewith must be
ensured. The law has provided a right to the accused,
and makes it obligatory upon the officer concerned to
make the suspect aware of such right. The officer had
prior information of the raid; thus, he was expected to
be prepared for carrying out his duties of investigation
in accordance with the provisions of Section 50 of the
Act. While discharging the onus of Section 50 of the
Act, the prosecution has to establish that information
regarding the existence of such a right had been given
to the suspect. If such information is incomplete and
CCH-33
39 Spl.C.C.382/2025
ambiguous, then it cannot be construed to satisfy the
requirements of Section 50 of the Act. Non-compliance
with the provisions of Section 50 of the Act would
cause prejudice to the accused, and, therefore,
amount to the denial of a fair trial.
21. When there is total and definite non-compliance of such
statutory provisions, the question of prejudice loses its
significance. It will per se amount to prejudice. These are
indefeasible, protective rights vested in a suspect and are
incapable of being shadowed on the strength of substantial
compliance.
26. The learned counsel for accused Nos.1 and 2
argued that the prosecution has also failed to prove that the
investigating officer has complied the provisions of Sec.57 of
NDPS Act. As seen from the evidence of PW.1 no where the
PW.1 in the examination in chief deposed about the
compliance of Sec.57 of NDPS Act. As contemplated U/s.,57
of NDPS Act as soon as the raid is completed the raid
success report shall be submitted to his superior officer
within reasonable time. As seen from Ex.P11 the seizure
report U/s.57 of NDPS Act submitted to Zonal director and
then signature of Zonal director for having received the said
40
report is at Ex.P11(b). Ex.P12 is the arrest report submitted
U/s.57 of NDPS Act to the very same Zonal Director and the
Zonal Director affixed his signature on Ex.P12 for having
received the said report, the signature is at Ex.P12(b). in
view of these two documents this Court is of the considered
view that the seizing officer has complied the provisions of
Sec.57 of NDPS Act as on 5.2.2017.
27. Further, the learned counsel for accused has also
submitted that the search and seizing officer did not secure
the witnesses from the railway station where the alleged
contraband said to be seized and the witnesses who have
signed the seizure mahazar have not been examined by the
prosecution which adversely affects the case of the
prosecution. The learned counsel for accused while arguing
so has relied on the decision reported in 2024 (5) SCC 393 in
the case of Mohammad Kalid and anr., Vs., State of
Telangana wherein it is observed that the two independent
panch witnesses i.e., Sharif Shah and Mithun Jana who
CCH-33
41 Spl.C.C.382/2025
were associated in the recovery proceedings, were not
examined in evidence and no explanation was given by the
prosecution as to why they were not being examined.
28. Likewise, in the present matter also CWs.3 Sri
Syed Musa and CW.4 Sri Akram pasha have not been
examined by the prosecution.
29. Evidently the alleged raid happened in the KR
Puram Railway station. Obviously, in the railway station
there will be crowd and also railway employees. The raiding
officer would have secured mahazar witnesses from the
railway station itself. Moreover, the said officer had time till
arrival of train to secure independent witnesses from the
station. But he did not attempt to secure witnesses from
the railway station itself. This is also one of the suspicious
circumstances from which Court is unable to accept the
story of prosecution.
30. In the instant case, the learned counsel for the
accused Nos.1 and 2 has also argued by attacking the FSL
42
report submitted before the Court which is at Ex.P35. As
seen from Ex.P35, the duration of examination of articles is
from 8.2.2017 to 3.3.2017 and the result of examination is
mentioned in Para-12 of the report. Same is extracted
herein below for better understanding.
12. Results of Examination:-
The exhibit were analysed by Physico-Chemical
examination, Microscopic examination, colour tests
(fast Blue B salt test, dequinois Levine test, para –
aminophenol test), Thin Layer Chromatography
(TLC) and Gas Chromatography – Mass
Spectrometry (GC-MS) methods. Bases on the above
methods, the results obtained are given below:-
1. Ganja has been detected in the exhibit marked
as Exhibits-S1 and S3.
As could be seen from the report, the chemical examiner did
not mention the method of analysis and number of tests
conducted to arrive at conclusion that the said articles
contained ‘Ganja’. As pointed out by learned counsel for
accused the report is cryptic and no quantitative test is
conducted to arrive at proper conclusion that whether that
CCH-33
43 Spl.C.C.382/2025
article contained the substance of ‘Ganja’. The learned
counsel for accused also relied on amended Rule 14 of
NDPS Rules 2022.
31. Apart from that the learned counsel has also
relied on the decision rendered in Criminal Petition
No.10262/2024 in the case of Mr. Dhanaram Patel Vs. State
of Karnataka. Where in it is held as under:
20. In Dayaram Singh‘s case supra, the Madhya Pradesh
High Court held as under:-
“3. As per the allegations in the present case, on
19.3.2011 the police Amarpatan made a
Panchanama that from the pump house of the
petitioners, the alleged 2.500 kgs of Ganja was
recovered by the Excise Department. The petitioners
have assailed the lodging of FIR in question and
subsequent proceedings undertaken in pursuance
thereof on legal parameters. In order to appreciate
the contentions of the learned counsel for the
petitioners, it would be relevant to see the definitions
as enumerated in Section 2 of the Narcotic Drugs
and Psychotropic Substances Act, 1985 (for short
“NDPS Act, 1985“). For ready reference, Section 2(iii)
of the NDPS Act, 1985 is hereby reproduced as
under:–
“(iii) cannabis (hemp) means-
44
(a) charas, that is, the separated resin, in
whatever form, whether crude or purified,
obtained from the cannabis plant and also
includes concentrated preparation and resin
known as hashish oil or liquid hashish;
(b) ganja, that is, the flowering of fruiting
tops of the cannabis plant (excluding the
seeds and leaves when not accompanied by
the tops) by whatever name they may be
known or designated; and
(c) any mixture, with or without any neutral
material, of any of the above forms of
cannabis or any drink prepared therefrom.”
4. Cannabis plant and cannabis (hemp) are two
distinct contrabands under the NDPS Act, 1985.
Cannabis plant means any plant of the genus
cannabis. Charas is separated resin, in whatever
form, whether crude or purified, obtained from the
cannabis plant. It also includes concentrated
preparation and resin known as hashish oil or liquid
hashish. Ganja is flowering of fruiting tops of the
cannabis plant (excluding the seeds and leaves when
not accompanied by the tops).
5. The contraband allegedly recovered from the
petitioners was subjected to chemical analysis. As
per the chemical analysis report dated 31.3.2011,
Ex.A-1 and A-2 were found containing greenish and
whitish coloured leaves, flowers and vegetable item.
The chemical microscope and thin layer
chromatography examination found the contraband
to be Ganja. The FSL report did not show the
presence of tetrahydrocannabinol in any manner. The
CCH-33
45 Spl.C.C.382/2025
sample as a whole was classified as Ganja without
any classification based on percentage of
tetrahydrocannabinol. In case of Bhang,
tetrahydrocannabinol in the sample stuff would be
15%. In case of Ganja, it would be 25% and in case of
Charas, it would be between 25-40%. The presence
of tetrahydrocannabinol on percentage pattern in the
sample stuff would show whether it is actually
Bhang, Ganja or Charas. In the absence of such
percentage of tetrahydrocannabinol given in the FSL
report, no other evidence would make the recovered
contraband to be a Bhang, Ganja or Charas.
Reference can be made to the judgment of the
Himachal Pradesh High Court in Nagendra Shah v.
State of HP, (2010) 4 RCR (Cri) 194.
6. Learned counsel for the petitioners, even in the
absence of any such pleadings submitted that the
issue is purely a legal issue and can be racked up
during the course of arguments and the arguments
are duly supported by the precedents in Nagender
Shah’s case (supra) and Anav Jain v. State of
Haryana, CRM-M No. 51512 of 2022 decided on
1.12.2022, wherein the Court after considering the
different precedents on the subject held the aforesaid
proposition. As per the Working Procedure Manual of
conducting the test, the Directorate of forensic Science
Services, Ministry of Home Affairs, Government of
India has prescribed working procedure in terms of
5.7.2.5 i.e. test for differentiation between Bhang,
Ganja and Charas.
7. The FSL report is totally silent with regard to
adoption of working procedure while determining the
contraband to be Ganja only. In the absence of
showing presence of Tetrahydrocannabinol,
46
Cannabinol and Cannabidiol being part of
manufacturing process, no offence under the NDPS
Act, 1985 is made out. Para No. 29 and 30 of
judgment of State of Himachal Pradesh v. Roshal Lal,
2010 SCC OnLine HP 2554 are reproduced as
under:-
“29. As noticed hereinabove, the only tests, which
were conducted by the Experts, were to find out
tetrahydrocannabinol or cystolithic hair. They found
tetrahydrocannabinol but did not indicate in their
reports the percentage thereof. While in the witness-
box also, the Experts did not say what was the
percentage of tetrahydrocannabinol in the samples.
Specific category of a cannabis product, like Charas,
ganja, or mixture, as defined in Section 2(iii) of the Act,
or anything else, like bhang, etc., can also be
determined, with reference to the percentage of in the
stuff. As noticed hereinabove, percentage of
tetrahydrocannabinol varies from one product to other
product of cannabis.
30. According to Parikh’s Textbook of Medical
Jurisprudence, Forensic Medicine and Toxicology, in
the case of bhang it is 15 per cent, in the case of ganja
it is about 25 per cent and in the case of Charas it is
between 25 and 40 per cent. When the percentage of
tetrahydrocannabinol in the sample stuff is not
indicated in the report nor had any test been
conducted to ascertain whether the stuff was Charas,
that is to say resin, or some other preparation of
cannabis, it cannot be said that the stuff was in fact
Charas. As regards eystolithic hair, these being the
fibre of cannabis plant, are bound to be present in all
the products of cannabis. It is quite likely that the
samples were only of bhang, i.e. the dried leaves of
cannabis plant, which is also supposed to contain 15
per cent concentration of tetrahydrocannabinol.
CCH-33
47 Spl.C.C.382/2025Possession of only the leaves or the seeds of cannabis
plant is no offense, because it is only the Charas,
ganja or mixture, as defined in Section 2(iii) of the Act,
which is an offense, under Section 20 of the Act.
Leaves and seeds of cannabis plant are not included
either in the definition of Charas or ganja and are
rather specifically excluded from the definition of
ganja, unless accompany the flowering and fruiting
tops of the plant.”
8. The FSL report is absolutely silent about the
percentage of Tetrahydrocannabinol, Cannabinol and
Cannabidiol, and therefore the prosecution has
miserably failed to show the commission of any
offence. Reference can also be made to Arjun Singh v.
State of Haryana, (2004) 4 RCR (Cri) 506. Evidently
the Bhang does not fall under the definition of
cannabis hemp as defined under Section 2(iii) of the
NDPS Act, 1985.
9. The alleged contraband recovered from the
petitioners finds place at Sl. No. 55 of the table,
wherein 1000 gms. would fall under small quantity
and commercial quantity starts from 20 kg onwards.
After filing of the charge sheet/173 of Cr. P.C., the
ingredients of the FSL report cannot be improved. The
FSL report is discrepant with regard to presence of
tetrahydrocannabinol in any manner. The sample
stuff can only be categorized as Ganja, if percentage
of tetrahydrocannabinol is found to be 25%.
10. In view of the law laid down by the Division
Bench of the Himachal Pradesh High Court in
Nagendra Shah’s case (supra) and other precedents
on the subject, I am of the view that further
prosecution in the aforesaid criminal case would
48
result in futility, as the sample stuff cannot be
categorized as Ganja on the basis of chemical
analysis. The sample stuff has been categorized as
Ganja solely on the basis of FSL report, which is
discrepant in terms of percentage of
tetrahydrocannabinol, rather cannabinol as a
component in the sample stuff has not been
mentioned in the FSL report. The FSL report has only
indicated that some greenish, whitish coloured leaves
and flowers were found in the sample stuff and on
the basis of some chemical analysis and thin layer
chromatography, sample stuff was categorized to be
Ganja. In the aforesaid test, tetrahydrocannabinol
was not found as a component contributing any
required percentage in order to bring the sample stuff
within the four corner of Ganja.
11. For the reasons recorded hereinabove, I deem it
appropriate to accept this petition, as no bonafide
purpose would be served in carrying out with the
case, as the recovered article/item cannot be
categorized to be Ganja by any stretch of
imagination. The complicity of the petitioners on the
basis of recovery of small quantity of Ganja cannot
result in any conviction, as no case is made out to
bring the alleged contraband within the definition of
Ganja.
In view of that without quantitative test it cannot be
concluded that the seized articles contained substance of
Ganja and it is Ganja within the meaning of Sec.2(iii) of
NDPS Act.
CCH-33
49 Spl.C.C.382/2025
32. Further in the present matter the chemical
examiner has been examined as PW.5. He specifically
admitted that since he did not conduct quantitative test he
cannot say that to designate a product as Ganja 15-20%
THC is required. When such being the case, where is the
evidence to establish that the seized article is Ganja when
the prosecution failed to establish the basic requirement to
prove the guilt of accused Nos.1 and 2, on the sole ground
the accused 1 and 2 are entitled to be acquitted.
33. Accordingly for want of compliance of mandatory
statutory provisions of NDPS Act as discussed above and
for want of proof of the contents of Ganja in the seized
Article the Court shall hold that the prosecution failed to
prove the guilt of accused Nos.1 and 2.
34. Further, on fact also the prosecution could not
prove that seizure of the so called article from the
possession of the accused Nos.1 and 2. The prosecution did
not examine the material witnesses and the prosecution
50
case is depending on only the official witnesses. The non-
examination of independent witnesses cited in the witnesses
list is definitely adversely affected the case. Further, the
prosecution has not relied on the amount found in he bank
account of accused No.1. However, this Court by its order
dated 9.6.2017 itself has observed that the amount was
credited to her account on 20.5.2017 and the seizure
proceedings taken place on 3.2.2017. there is no nexus
between this case and the said amount and accordingly, the
account of the accused No.1 was ordered to be de-freezed
subsequently, the accused No.1 during the recording of her
statement U/s.313 of Cr.P.C., she filed written statement
and in her statement she stated about her false implication
in this case and also explained that Rs.65,000/- was
credited by her landlord on 20.5.2017 and Rs.35,000/- was
deducted by him towards rent from the total advance
amount of Rs.1,00,000/-. Further she also submitted that
she was doing textile business from 15 years. In view of her
written explanation as the amount credited subsequent to
CCH-33
51 Spl.C.C.382/2025
her arrest it cannot be said that the amount found in her
bank account was gained illegally by involving in the
business of selling illicit drugs. Accordingly, viewing from
any angle the prosecution left the reasonable suspicions
without clearing it and therefore, it has to be held that the
prosecution failed to prove its case beyond reasonable
doubt. The benefit of doubt shall be extended on accused
Nos.1 and 2 and thus accused Nos.1 and 2 are entitled to be
acquitted for the offences punishable U/sec.20(b)(ii)(C), 28
& 29 of NDPS Act. Accordingly, I answer Point Nos.1 and 2
in the Negative.
35. Point No.3: In the result, following:
::ORDER::
Acting under Section 235(1) of Cr.P.C.
accused No.1 Smt.Prabha & accused No.2 S Thilak
are acquitted for the offences punishable under
Sections 20(c), 28 & 29 of NDPS Act.
The entire record and properties are ordered to
be preserved and kept in the split up case in
52Spl.C.C.No.834/2024 registered against accused
No.3.
Accused Nos.1 and 2 are directed to comply
Sec.437-A of Cr.P.C.
[Dictated to the Stenographer, directly on the computer, typed
by her, corrected, signed and then pronounced by me in Open
Court on this the 14th day of August 2025)(LATHA)
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BANGALORE.
ANNEXURE
1. List of witnesses examined for the:
(a) Prosecution:
P.W.1 : Sri. Samiran Paul
P.W.2 : Sri. V.V.Singh
P.W.3 : Smt. M Kumudavalli
P.W.4 : Sri. Sunil Kumar Sinha
P.W.5 : Dr. Seema Srivathsava
(b) Defence :
- NIL -
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53 Spl.C.C.382/2025
2. List of documents exhibited for the:
(a) Prosecution:
Ex.P.1 : Information (a) (b) Sig., of PW.1 & 2
Ex.P.2 : Panchanama (a) sign.
Ex.P.3 to P6 : Notices (a) signatures Ex.P.7 to P10 : Notices (a) signatures Ex.P.11 : Seizure report U/s.57 of NDPS Act Ex.P.12 : Arrest report (a) sign. Ex.P.13 : Godown receipt (a) sign. Ex.P.14 : Test Memo (a) sign. Ex.P.15 : Forwarding Memo (a) sign. Ex.P.16 : Railway platform ticket Ex.P.17 : Railway train ticket Ex.P.18 : Voluntary statement of A1 Ex.P.19 : Voluntary statement of A2 Ex.P.20 : Arrest Memo (a) sign. Ex.P.21 : Arrest Memo (a) sign. Ex.P.22 : Details of debit card of A1 Ex.P.23 : Letter sent to Indian Bank Ex.P.24 : Reply received from Indian Bank Ex.P.25 : Reply received from Canara Bank Ex.P.26 : Letter sent to Canara Bank Ex.P.27 : Bank statement Ex.P.28 : Summons Ex.P.29 : Summons Ex.P.30 : Statement of witness Ex.P.31 : Statement of witness Ex.P.32 : Freezing Notice Ex.P.33 : Confirmation order dt.17.7.2017 Ex.P.34 : Proceedings of JJ Board Ex.P.35 : FSL report 54 (b) Defence: -Nil-
3.List of Material Objects admitted in evidence:
M.O.1 : Sample contraband
M.O.2 : Sample contraband
M.O.3 : Sample contraband
M.O.4 : Sample contraband
(LATHA)
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BANGALORE.
CN/*