The prosecution failed to prove the possession of narcotics and did not comply with mandatory statutory requirements, leading to the acquittal of the accused.

JUDGMENT :

G. BASAVARAJA, J.

1. The appellant-Intelligence Officer, Narcotics Control, Bureau, South Zonal unit, Chennai, has preferred this appeal against the order dated 14^th October, 2011 password in Special Case No.46 of 2005 by the Principal Sessions Judge at Tumkur (for short "the trial Court").

2. For the sake of convenience, the parties herein are referred to as per their rank before the trial Court.

3. Brief facts leading to this appeal are that Caleb Arumairaj, Intelligence Officer, Narcotic Control Bureau, South Zonal Unit, Chennai, on 04^th December 2004 at 5:30 pm received credible information over phone that one Balakrishnan @ Krishnan (A4) then at Central Prison, Bangalore for NDPS cases, is indulging in drug trafficking and has arranged to procured six kilograms of heroine from North India through one Shekhar (A6) who has to bring the said consignment to Bangalore. Balakrishnan has also arranged one Subhash resident of Bangalore to collect the said drug from Shekhar. The delivery spot was fixed on the road between Tumkur and Bangalore on 05^th December 2004. Subhash, on receipt of the drug from Shekhar, was to handover the same to Antony Raj Alias John of Nagercoil (A3) at Bangalore on the instruction of Balakrishnan. John, on receipt of drug from Subhash, is to smuggle the same to Sri Lanka on the instruction of Balakrishnan. Rajaratnam Alias Ravi (A5-now dead) brother of Balakrishnan, is also associated with smuggling of drugs. Subhash is going to Tumkur on 5^th December 2004 in a Maruti van bearing registration number KA-01/M-6994 to collect the narcotic drug. Thereafter, PW3-Caleb Arumairaj submitted information to Gunabalan-Superintendent. The Superintendent called Arumaraj and another Intelligence Officer, Thirumalai Sridhar and discussed about the information. Then on the night of 04^th December 2004, Gunabalan, along with Arumaraj and Thirumalai Sridhar, Shankar Kumar, Intelligence Officers, and Naqvi, Tax Assistant, proceeded in the department vehicle to Tumkur. On 5^th December 2004 at about 2.00 pm, Thirumalai Sridhar and two witnesses at JOSS Toll Gate Plaza, Chokkanahalli said that they have agreed to be witnesses for the search proceedings under the NDPS Act. They kept waiting for the vehicle and at 4.00 pm, they noticed Maruti Omni bearing registration No.KA-01/M-6994 as mentioned in the information, and they stopped the vehicle.

4. Investigating officer-Thirumalai Sridhar, introduced himself to the occupants of the van by showing his ID and enquired about them. The person seated on the front left seat revealed his name as Subhash. The driver of Omni said his name is Mahendra Kumar. Thirumalai Sridhar told them about the information received and informed that they have to conduct search of vehicle and he also told them that they have right to exercise that search to be conducted in the presence of a Magistrate or a Gazetted officer. Then, Thirumalai Sridhar enquired Subhash and Mahendra Kumar, whether they were in possession of any narcotic drug to which Subhash replied in the affirmative, took out the white coloured polythene sack and handed it over to Thirumalai Sridhar from the rear seat and told that it contain heroine. Thirumalai Sridhar opened the sack and found it contained 11 brown coloured packets wrapped together in an adhesive tape and upon opening the packet, found brown coloured powder in it. All the 11 packets were containing brown coloured powder and from which a small quantity was drawn for testing purpose. All the 11 packets put- together weighed 5.800 kilograms. Then Thirumalai Sridhar seized the narcotic drug under the pr