In NDPS cases, strict compliance with statutory search and seizure procedures, including recording information and drawing up a mahazar, is mandatory; procedural lapses create reasonable doubt that necessitates upholding an acquittal, especially where the appellate court finds the trial court's evaluation of evidence reasonable.

Headnote:(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 42 - Search and seizure - Procedure - The information received must be reduced in writing by the officer empowered under the Act - Procedural lapses in recording information and the failure to draw a separate panchnama for the seizure of contraband recovered from the accused's person create reasonable doubt in the prosecution's case. (Paras 12, 13, 17)

(B) Appeal - Scope and ambit - Appellate court against acquittal - Presumption of innocence - The appellate court has power to review evidence but must respect the double presumption of innocence of the accused; if two reasonable conclusions are possible, the acquittal should not be disturbed. (Para 21)

Facts of the case:
The respondent, a foreign national, was apprehended at an international airport on suspicion of carrying heroin. It was alleged that he had concealed heroin capsules in his body. Following a search and medical intervention, 65 capsules were recovered. The trial court acquitted the accused due to failure to follow mandatory procedures under the Act, including improper recording of information and lack of a proper panchnama during the recovery, leading to the state's appeal.

Findings of Court:
The court upheld the acquittal, noting that the prosecution failed to strictly comply with the requirements of Section 42 of the NDPS Act. The process of recording information was contrary to law, and the lack of a separate mahazar for the recovery of the capsules introduced significant procedural doubts that benefited the accused.

Issues: Whether the trial court was justified in acquitting the respondent despite the recovery of alleged contraband, and whether the search and investigation procedures complied with the mandatory statutory provisions.

Ratio Decidendi: Strict adherence to procedural safeguards, such as recording information and documentation of seizure via mahazar, is essential in NDPS cases. Failure to follow these leads to the failure of the prosecution's case, particularly when corroborated with witness credibility issues and unexplained delays in sample dispatch.

Result: Appeal dismissed.

Table of Content
1. overview of trial court findings and prosecution case. (Para 1 , 2 , 3 , 4 , 5 , 6)
2. failure to comply with section 42 of the ndps act regarding recording information. (Para 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14)
3. procedural flaws including lack of mahazar and delay in sample dispatch. (Para 15 , 16 , 17 , 18 , 19 , 20)
4. appellate court's scope in reversing acquittals and presumption of innocence. (Para 21 , 22)

THIS CRL.A. FILED U/S.378(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 26.08.2011 PASSED BY THE XXXIII ACC & SJ & SPL. JUDGE (NDPS), BANGALORE IN SPL.C.C.NO.1/2009-ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 8(c) R/W SEC. 29, 21(c), 23(c) AND 28 OF NDPS ACT.

THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE M.G.S. KAMAL

ORAL JUDGMENT

1. This appeal is by the State aggrieved by the judgment and order dated 26.08.2011 passed in Spl.C.C.No.1/2009 on the file of XXXIII Additional City Civil and Sessions Judge & Spl. Judge (NDPS), Bengaluru, CCH-33, (hereinafter referred to as 'the Trial Court'), by which, the accused/respondent herein has been acquitted for the offences punishable under Section 8(c), read with Sections 29, 21(c), 23(c) and 28 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985.

2. The case of the prosecution is that Additional Director, Directorate of Revenue Intelligence, New Delhi had received information stating that accused herein, who was bound to travel to Kuala Lumpur from Bengaluru by Malaysian Airlines, Flight No.MH-193 dated 02.07.2008 scheduled to leave Bengaluru International Airport at 00-50 hrs on 02.07.2008 was carrying narcotic drug (heroin) concealed in his accompanied baggage or in his person and requested to take necessary action in this matter. Thereafter, Additional Director, DRI, New Delhi had faxed the message to one R.Venkatraman, Additional Director General, DRI, Bangalore Zonal unit, Bangalore to take necessary action in the matter. Said R.Venkatraman entrusted the matter for investigation to complainant-CW1, Sri.M.Eshak. CW1 secured the presence of his colleagues and left to the International Airport, Bangalore and reached at 11.45 p.m. on 01.07.2008, introduced himself to the Airport authorities and requested the officials at the international Airport to witness the same and also become panchas for the same. Assistant Director, DRI, BZU, informed the complainant that required seal and drug testing kit had already been taken by Sri.D.Chandrasekhar, Intelligence Officer, who had already gone to the International Airport in respect of the other matter. He had requested the staff of checking counter to provide with list of passengers so scheduled to fly to Kuala Lumpur. According to the list, name of the accused was found at Sl.No.67 who had already checked in and was allotted seat number 24G. The complainant and his staff went inside the aircraft and found the accused in the said seat No.24G. On enquiry, he reveals his name which tallied with the information received. He was brought out of the aircraft and was taken to the departure hall. Accused was informed that information regarding he carrying narcotic drug/substance was received and was requested to clarify, to which he denied. On persistent enquiry, he revealed that he had concealed 65 capsules of heroin in his body and would eject if he was taken to a convenient place.

3. Accused was informed that he had right to be searched in the presence of a Gazetted Officer or Magistrate, to which he preferred to be inspected in the presence of Gazetted Officer. PW3 custom officer was present and was called for inspection. In the presence of PW3, personal search was conducted and nothing was found. Accused was thereafter taken to Baptist Hospital by PW1 and his colleagues, wherein he was admitted. PW7-Dr.Amudhan, requested the accused to eject the capsule to which he refused. He refused medical intervention. Upon his

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2026 Supreme(Online)(Kar) 26191

THE HIGH COURT OF KARNATAKAM.G.S. Kamal, JSenior Intelligence Officer Directorate Of Revenue Intelligence – AppellantVersusMwinshehe Shabani Selemani – RespondentCRL.A No. 229 of 2012

Cases Referred (2)

THE HIGH COURT OF KARNATAKA
M.G.S. Kamal, J
Senior Intelligence Officer Directorate Of Revenue Intelligence – Appellant
Versus
Mwinshehe Shabani Selemani – Respondent
CRL.A No. 229 of 2012