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2015 DIGILAW 356 (KAR)

Laxman Poojary v. State

2015-03-31

R.B.BUDIHAL

body2015
JUDGMENT : Budihal R.B., J. 1. Since these two appeals are arising out of the common judgment passed by the trial Court and since common questions of fact and law are involved in these two appeals, they have been taken together to dispose of them by a common judgment. 2. Criminal Appeal No. 718/2013 is preferred by Accused No. 1 and Crl. A. No. 728/2013 is preferred by accused No. 2. 3. The appellants-accused Nos. 1 and 2 have preferred these appeals being aggrieved by the judgment of conviction dated 11.7.2013 passed by the Principal Sessions and Special Judge, Dakshina Kannada, Mangalore in Spl.Case No. 8/2009 holding appellants guilty of the offences punishable under Section 8(c) r/w Section 20(b)(ii)(c) of NDPS Act, 1985 and the order of sentence dated 12.7.2013 imposing rigorous imprisonment for ten years and to pay a fine of Rs. 1 lakh each and in default, to undergo further rigorous imprisonment for one year. They have challenged the validity and correctness of the order of trial Court on the grounds mentioned in their respective appeal memorandums. 4. The case of the prosecution in brief before the trial Court is that the Inspector of Police, Narcotic Drugs Cell, COD., Bangalore has lodged the complaint dated 6.8.2008 addressing to the Police Sub-Inspector, Venoor police station, Belthangady Taluk stating that on 5.8.2008 at 16.00 hours when he was in the COD office, his informant informed that on 6.8.2008 one Lakshman Poojary of Mudukodi village will be carrying ganja illegally in his Maruti van for the purpose of sale and if complainant comes, he would show the same. Immediately, he informed the same to his higher officers and after obtaining their permission during night on the same day he left Bangalore to Mangalore along with Head constable Devaraju and went to COD Office at Mangalore and with the staff therein they proceeded in the jeep bearing No. KA01-G-4241 and came to Mudukodi village and were waiting. At that time, informant took the complainant, his staff and also the panchas to the mud road situate on the eastern side of the tar road of Venoor towards Mudukodi and shown them one white colour maruti van and told that it contains ganja bags and the said van belongs to Laxman Poojary and to help Lakshman Poojary one Dinesh @ Harish is also with him in his motorcycle. Immediately the complainant with his staff in the presence of panch witnesses surrounded the said van. Two persons were sitting in the van and after seeing the complainant and his staff, those two persons jumped and ran away. Though the complainant made an effort to chase them he did not succeed. In the van there were 18 polythene bags and when weighed 17 bags contained 10 kgs each of ganja and one bag contained 5 kgs. of ganja The value of the ganja was Rs. 21 lakhs and the maruti van bearing No. KA-19-M-4775 was worth Rs. 1,50,000/- and the motorcycle bearing No. KA-19-H-3703 was worth Rs. 30,000/- and in total all the materials were worth Rs. 22,80,000/-. They were seized in the presence of panch witnesses under seizure mahazar conducted from 15 to 18 hours and on the basis of same, case came to be registered under Section 20(b) of the NDPS Act and further investigation was entrusted to COD. Panchanama was also conducted. Although efforts were made to search the absconding accused persons, they were not traced. On the basis of the said complaint, case was registered in Venoor police station Crime No. 52/2008 for the alleged offences under Section 20(b) of the NDPS Act against accused Nos. 1 and 2. The trial Court, after conclusion of trial and after appreciating the oral and documentary evidence placed on record, has ultimately convicted accused Nos. 1 and 2 for the offences under Section 8(c) r/w Section 20(b)(ii)(c) of the NDPS Act, 1985. Being aggrieved by the judgment and order of conviction passed by the trial Court and also challenging the legality and correctness of the said judgment, appellants-accused Nos. 1 and 2 have preferred the above appeals. 5. Heard the arguments of learned counsel appearing for appellant-accused No. 2 in Crl. A. No. 728/2013. Learned counsel has submitted that accused No. 2 was not at the spot and only on the say of the informant he has been arrayed as one of the accused in the case. Learned counsel also submitted that the informant is not cited as witness and Section 42 of the NDPS Act is not complied with. The complainant himself has investigated the matter and filed the charge sheet, which is illegal and not sustainable in law. Learned counsel also submitted that the informant is not cited as witness and Section 42 of the NDPS Act is not complied with. The complainant himself has investigated the matter and filed the charge sheet, which is illegal and not sustainable in law. It is also further submitted that FSL officer is not examined in the case and the material seized is not ganja. It is also submitted that the oral and documentary evidence produced before the trial Court does not make out a prima facie case against accused No. 2. Hence, he has submitted to allow the appeal and to acquit accused No. 2. In support of his arguments learned counsel for appellant-accused No. 2 has relied upon the following decisions: "1. 2013 (2) SCC 502 (Kishan Chand v. State of Haryana) 2. 2010 15 SCC 111 (Central Bureau of Narcotics v. Bahadur Singh) 3. 2011 5 SCC 123 (Ashok @ Dangra Jaiswal v. State of Madhya Pradesh) 4. 2010 15 SCC 369 (State by Inspector of Police, NIB, Madurai, Tamil Nadu v. Rajangam). 5. 2008 SCC 2 370 (Directorate of Revenue and another v. Mohammed Nisar Holia) 6. 1982 1 SCC 700 (Mohanlal Gangaram Gehani v. State of Maharashtra) 7. 2009 9 SCC 709 (Ramesh Chnadra Agrawal v. Regency Hospital Limited and Others)" 6. Learned counsel appearing for appellant-Accused No. 1 in Crl. A. No. 718/2013 submitted that complainant himself is the investigating officer in this case. No test identification parade is conducted to establish the identity of Accused No. 1. He has also submitted that P.W. 1 who is the independent witness turned hostile and not supported the prosecution case. It is also his submission ganja is not seized from the vehicles. With regard to the alleged information Section 42 of the NDPS Act is not complied with. There is no evidence on the prosecution side that the ganja was taken out from the vehicle. He has also submitted that accused were not known to prosecution witnesses and hence test identification parade was necessary. The trial Court without appreciating the oral as well as documentary evidence properly has wrongly convicted Accused No. 1. As such, order of the trial Court is illegal and not sustainable in law. Hence, it is submitted to allow the appeal and to acquit Accused No. 1 by setting aside judgment and order of the trial Court. The trial Court without appreciating the oral as well as documentary evidence properly has wrongly convicted Accused No. 1. As such, order of the trial Court is illegal and not sustainable in law. Hence, it is submitted to allow the appeal and to acquit Accused No. 1 by setting aside judgment and order of the trial Court. In support of his arguments learned counsel for appellant-Accused No. 1 has relied upon the following decisions: "i. (2002) 7 SCC 419 (Avtar Singh and Others v. State of Punjab) ii. (2002) 15 SCC 369 (State by Inspector of Police, Narcotic Intelligence Bureau, Madurai, Tamil Nadu v. Rajangam) iii. (2010) 15 SCC 111 (Central Bureau of Narcotics v. Bahadur Singh)" 7. Learned SPP during the course of his arguments submitted that Ex. P1 has been proved with cogent and satisfactory materials. The evidence of P.W. 2 in the cross-examination clearly establishes identity of Accused No. 1. It is also submitted that the document Ex. P21 produced during the course of trial shows that Section 42 of the NDPS Act has been complied with. Looking to the oral evidence of prosecution witnesses and the documents produced in the case, the prosecution has proved recovery of ganja from the vehicle belonging to the accused. It is also his submission that during the course of cross-examination of P.W. 6, no suggestion has been made that the information received at the first instance was not reduced into writing. The accused have to establish what is the prejudice caused to them if the information received was not reduced into writing. There is no merit in the contention of the accused that Section 42 of the NDPS Act was not complied with and it vitiates the proceedings. The trial Court has properly considered both oral and documentary materials placed on record and rightly convicted the accused for the said offences. No illegality has been committed and hence, there is no merit in the appeals and the same may be dismissed. 8. I have perused the oral evidence of PWs-1 to 6 documents Exs. P-1 to P-28 and material objects M.Os. 1 to 18. Let me refer to relevant portion in the evidence of prosecution witnesses. 9. PW-1/Mohan deposed in his evidence in the examination in chief that about 3 years back along with cw-1 and other, he went in their jeep to Venoor village in the afternoon. P-1 to P-28 and material objects M.Os. 1 to 18. Let me refer to relevant portion in the evidence of prosecution witnesses. 9. PW-1/Mohan deposed in his evidence in the examination in chief that about 3 years back along with cw-1 and other, he went in their jeep to Venoor village in the afternoon. There, they went to the house, where the Police have picked up the bags and transported them to the police station. Said bags were containing ganja. To the above effect writings, were made in the police station and he has signed the said document. Document is Ex. P-1 and his signature is P-1(a). They have not witnessed the arrival of white Maruthi Omni along with motor cycle from Moodukodi Village side at about 2.30 p.m. He has not witnessed if the motorcyclists got down from his vehicle and was speaking to the driver of Maruti Omni van and at that time the police have apprehended them. He has not seen the present accused, who are present before the Court. He has not seen if there were 18 bags containing the ganja in the said Maruti van. The said ganja was not weighed in the spot. However, seals were affixed in the police station. His statement was not recorded by the Investigation Officer in connection with the said incident. As the witness has not supported the case of prosecution, with the permission of the court, he got treated as hostile. 10. When cross examined by the P.P., P.W. 1 denied all the suggestions put to him about the case of prosecution and the seizure of 18 ganja bags from the white Maruti Omni vehicle and conducting the mahazar at the spot as per Ex. P-1. He has also denied the suggestion that 17 bags are containing 10 kg of ganja and one bag containing 5 kg of ganja and totally 175 kg and 50 grams of ganja was taken from each bag for the purpose of sample. He also denied the suggestion that regarding the seizure of ganja he has given detailed statement before the police on 06.08.2008 as per Ex. P10. He denied the further suggestion that thereafter, on 06.01.2009 he gave further statement after identifying accused Nos. 1 and 2 in the COD office at Mangalore as per Ex. P-11. 11. He also denied the suggestion that regarding the seizure of ganja he has given detailed statement before the police on 06.08.2008 as per Ex. P10. He denied the further suggestion that thereafter, on 06.01.2009 he gave further statement after identifying accused Nos. 1 and 2 in the COD office at Mangalore as per Ex. P-11. 11. PW-2/M. Umesh Shetty, ASI, Punjalkatte P.S. has deposed in his evidence in the examination in chief that during the month of August 2008, he was working as head Constable in Narcotic Drugs Cell, COD Mangalore. At that time, Sri. M H Umesh/C.W.-1 was the police Inspector of their unit. On 05.08.2008 when he was in the office, CW-1 informed him at 5.30 p.m. from Bangalore, that accused No. 1 is making preparations for the sale of Ganja at Moodukodi village and also asked them to be ready for conducting the raid on 06.08.2008 as accused No. 1 was trying to transport it. He further told that he has taken permission from the Dy. S.P. of NDC in writing and leaving Bangalore during the night and he came to the office in the Morning. Therefore, they kept their departmental jeep ready for the said raid. On 06.08.2008, CW-1/M.H. Umesh came along with Devaraj, Head Constable/CW-7, who was brought from Bangalore. At that time, they had also secured Panchas and they were introduced to CWs-1 and 7 and also to the other police officials and requested them to act as panchas and notices were also issued in that regard. Thereafter, on 06.08.2008 at about 11.30 a.m. along with CW-1/M.H. Umesh, panchas, CW-7 and others left the office in their departmental jeep. Thereafter, at about 2.30 p.m. they reached near Moodukodi village of Belthangady Taluk. In the mean while, one white Maruti Omni van was coming on the mud road followed by one black Yamaha motor cycle. Maruthi Omni van was stopped by its driver. Thereafter, the rider of motor bike has also stopped his vehicle in the hind side. Thereafter rider of motorcycle came to Maruti Omni van and sat in the front seat of the vehicle. They observed those things and the informants intimated about the identity of those two persons as Laxmana Poojary and Dinesh @ Harish i.e., accused No. 1 and 2. Now he has seen both the persons, who are present before the Court as the accused. They observed those things and the informants intimated about the identity of those two persons as Laxmana Poojary and Dinesh @ Harish i.e., accused No. 1 and 2. Now he has seen both the persons, who are present before the Court as the accused. They went and surrounded the said vehicles to apprehend them but they jumped out of the vehicle and escaped towards paddy fields, though they requested them not to ran away from the spot. Thereafter, along with panchas, they returned back. When they inspected Maruti Omni van they found 18 polythene bags. In the presence of panchas, the bags were opened and on the basis of the smell, they found that they were containing ganja. CW-1 asked him to secure the weighing balance from a petty shop and he brought the weighing balance. 17 bags were weighing about 10 Kgs each of ganja and the remaining bag was weighing about 5 Kgs of ganja. From each bag, they took 50 grams of ganja for sample purposes. They were separately packed and covered with white cloth and stitched. They were sealed with the letters 'NDC. Chits containing the signature of panchas were also affixed, for having seized the ganja. Vehicle mahazar was drawn in between 3.00 p.m. to 6.00 P.M. as per Ex. P-1 and his signature is P-1(b). He identified the Maruti Omni van and the motorcycle in the photos already marked as Ex. P-2(a) to P-9(a) and their negatives prints are at Exs. P-2 to P-9. He also identify the sample sealed packets, which were opened in the open Court at M.Os. 1 to 18. He has seen 18 polythene bags containing ganja, same were seized from the vehicle, which were kept in the bag and they were M.Os. 1(a) to 18(a). These bags contained ganja and on the basis of the smell they can say that they are ganja. 12. In the cross examination by the advocate for Accused No. 1, P.W. 2 has deposed that prior to the incident, he was knowing accused No. 1/Laxman Poojary, as he was working in Venoor P.S. earlier. In their NDC office at Mangalore, he has not reduced the information given by CW-1 at Mangalore in writing. Accused No. 1 is having the house at Moodukodi village at a distance of 7-8 kms from Venoor Police Station. In their NDC office at Mangalore, he has not reduced the information given by CW-1 at Mangalore in writing. Accused No. 1 is having the house at Moodukodi village at a distance of 7-8 kms from Venoor Police Station. He denied the suggestion that mahazar was prepared in the police station. He denied the suggestion that they have not at all witnessed the accused at that time and is deposing falsely that they escaped from the spot by leaving their vehicles. He denied the further suggestion that none of the articles were found and seized from the vehicle. The then ASI of their office had received the phone call from CW-1 at 5.30 p.m. on 05.08.2008. However, he did not speak to him on the phone but on the next day he spoke to him. CW-1/M.H. Umesh informed over the phone to secure two panchas. He also informed CW-1 regarding the identity of accused No. 1 when he escaped from the spot. When he was running away, he intimated CW-1 that said person is Laxman Poojary. The other Police officials were unaware about the identity of accused No. 1 then. In the cross examination by advocate for accused No. 2, PW-2 has denied the suggestion that accused No. 2 was not present in the spot and he did not come to the spot in the motorcycle and accused No. 2 was not present in the vehicle. 13. PW-3/Manju, retired PSI, deposed in his evidence in examination chief that during the month of August 2008, he was working as PSI at Venoor Police Station. On 06.08.2008 at about 11.00 p.m. C.W.-1/M.H. Umesh had appeared in the police station and produced written report, panchanama and 17 polythene bags containing 10 Kgs. of ganja each and one polythene bag containing 5 Kgs. of ganja and also 18 small sealed pockets containing ganja weighing about 50 grams each, took out for samples and the Maruti Omni car bearing registration No. KA-19-M-4775 and the motor cycle bearing registration No. KA-19-H-3703. On the basis of the above materials, he has registered a case in his P.S. in Crime No. 52/2008 of Venoor police station under Section 20(b) of NDPS Act, 1985. Thereafter, he has transmitted the FIR and the report to the Special Court through women constable Smt. Vanaja/CW-9. FIR is Ex. P-16 and his signature is P-16(a). Report submitted by CW-1 is Ex. Thereafter, he has transmitted the FIR and the report to the Special Court through women constable Smt. Vanaja/CW-9. FIR is Ex. P-16 and his signature is P-16(a). Report submitted by CW-1 is Ex. P-17 and his endorsement with signature is P-17(a). Panchanama is already marked as Ex. P-1. Thereafter, he has subjected the seized properties to P.F. No. 31/2008 on 06.08.2008. On 11.08.2008 he handed over the further investigation to CW-1/M.H. Umesh along with the report and seized properties and connected materials. He has seen M.O.s-1 to 18 and corresponding M.O.s-1(a) to 18(a). He can identify the vehicles, if shown to him. He has seen the photos Ex. P-2 to P-5 and P-6 to P-9 in respect of seized vehicles. However, accused No. 1 and accused No. 2 were not produced by CW-1 at that time but they had appeared before him after obtaining the orders of anticipatory bail from the Court. Therefore, he had seen them and he identified both accused, who are present before the Court. 14. In the cross examination by learned counsel for accused No. 2, P.W. 3 has deposed that before submitting the report, CW-1 had not sent any information to him over phone. There is a distance of about 6 kilometers between Venoor P.S. and Moodukodi village. 15. PW-4/Devaraju, ASI, deposed in his evidence in the examination in chief that during the year 2008, he was working as Head Constable in Narcotic Drugs Cell, COD, Bangalore. At that time, M.H. Umesh/CW-1 was working as Police Inspector in NDC, COD, Bangalore. On 05.08.2008 at about 4 P.M., CW-1 called him and informed him about the receipt of credible information from the informant at Mangalore stating that, Laxman Poojary/accused No. 1 has stored the Narcotic in his house at Moodukodi village and he is proceeding to dispose off the same on the next day and asked him to accompany him immediately to Belthangady. CW-1/M.H. Umesh informed the superior officers in writing about the credible information and obtained permission to raid. He has also informed their staff in Mangalore office about it and also intimated that he would arrive at Mangalore on the next day. Therefore, during night they left Bangalore in a Bus and came to Mangalore at about 7 a.m. and went to the office at 7.30 a.m. CW-1 introduced themselves to the staff and also to the two panchas. Therefore, during night they left Bangalore in a Bus and came to Mangalore at about 7 a.m. and went to the office at 7.30 a.m. CW-1 introduced themselves to the staff and also to the two panchas. Thereafter, on the very same day at 11.30 a.m. they went in their departmental jeep bearing registration No. KA-01-4241 to Moodukodi village at Belthangady Taluk. They reached at about 1.30 P.M. and the informant met them in the said village. They went inside the said village to the extent of half kilometer and parked their jeep and then they were watching by concealing themselves. At about 2.30 p.m. in the said spot one white Maruti Omni van came there followed by the bike. The informant told them that in the said van, ganja is being transported and the van is driven by its owner Sri. Laxman Poojary/accused No. 1. It was also informed that the rider of motor cycle was one Mr. Dinesh/accused No. 2. Then they went near the house of accused No. 1 and parked the said vehicles. Accused No. 2 went inside the Maruti van and sitting by the side of driver's seat, they were talking to each other. The informant went away. In the meanwhile, Police Inspector along with their staff and panchas surrounded the said vehicles. On seeing, both of them started running on a kachcha road to escape from the spot. Though they asked them not to escape, they did not do so, but ran away. Now he has seen both the persons, who are present before the Court and he identified them. Then they returned back and on search in the van, found 18 polythene bags. When opened the bags, they found ganja. Then same was weighed and there were 17 bags each weighing 10 kg and 1 bag weighing 5 kg. Totally, it was 175 kg of ganja. From each bag, they took 50 grams for sample purpose. Ganja packets were seized under the mahazar Ex. P-1. His signature is Ex. P-1(c). The seized articles are M.O.s. 1 to 18 and samples are M.O.s. 1(a) to 18(a). Ex. P-2 to P-5 are the photos in respect of Omni Van and Exs. P-6 to P9 are photos in respect of motorcycle. 16. Ganja packets were seized under the mahazar Ex. P-1. His signature is Ex. P-1(c). The seized articles are M.O.s. 1 to 18 and samples are M.O.s. 1(a) to 18(a). Ex. P-2 to P-5 are the photos in respect of Omni Van and Exs. P-6 to P9 are photos in respect of motorcycle. 16. In the cross examination by the learned counsel for accused No. 1, PW-4 has deposed the Inspector/CW-1 informed him about the credible information in the COD office at Bangalore, said to be received from the informant. Other than the panch witnesses and Police officials, private persons were not accompanied them. This information was written or not, known to Police Inspector. Before his visit there, he was not acquainted with anybody from the said village. They did not make any attempts to secure local persons as the panch witnesses. He denied the suggestion that they have not gone to the spot and not seized the ganja or vehicles and accused are in no way related to M.Os. 1 to 18 and M.Os. 1(a) to 18(a). He denied the suggestion that they have not seen accused Nos. 1 and 2 at that time and deposing falsely that they escaped from the spot 17. PW-5/Chndramma, Tahasildar, deposed in her evidence in the examination in chief that during the year 2008 accused No. 2 was working on temporary basis as a Grama Sahayak. Before she took charge in the said office, accused No. 2 was entrusted with the duty of driving their departmental jeep. On 06.08.2008 accused No. 2 requested her to grant leave on the ground that he was sick. However, as there was a meeting pertaining to elections of Kannada Sahyithya Parishad, she asked him to avail on the afternoon. On the next day i.e., on 7.08.2008, he came to attend the duty and accordingly, he drove the jeep to Hassan along with them. After completing the meeting at about 3.00 p.m., they were returning back to Belthangady. When they reached Dharmasthala, accused No. 2 started telling that he was unable to drive the jeep as he was suffering from ill-health. Accused No. 2 told that he would make an alternate arrangement by getting a driver of his choice and thereafter, he secured one driver and thereafter, accused No. 2 went away. In the meanwhile, the substituted driver drove the jeep and they came to their house. Accused No. 2 told that he would make an alternate arrangement by getting a driver of his choice and thereafter, he secured one driver and thereafter, accused No. 2 went away. In the meanwhile, the substituted driver drove the jeep and they came to their house. Thereafter, she made enquiries about the accused with Police and found that he was involved in the case pertaining to NDPS Act. NDPS Squad have sought for extract of attendance register for the month of August 2008, and accordingly, she had issued the true copy of the extract to the Police Inspector, Narcotic Drugs Cell, COD Bangalore. It is Ex. P-18 and her signature is P. 18(a). In the said extract, on 7th, it is shown as duty to Hassan. She addressed letter to Police Inspector, NDC, COD, Bangalore on 19.08.2008 as per Ex. P-19 and P-19(a) is her signature. As accused No. 2 was involved in the offence under the NDPS Act and as he was a temporary employee, she removed him from service in the public interest by an order dated 8.08.2008 as per Ex. P-20. Now she has seen accused No. 2 present before the Court. 18. In the cross examination by learned counsel for accused No. 2, PW-5 has deposed that they maintained the attendance register in their office. As per the attendance register extract, accused No. 2 has worked on 06.08.2008. They have not issued any notice to accused No. 2 for his removal from the office, since he was a temporary employee. In Ex. P-20, there is no mention about the leave on 06.08.2008. 19. PW-6/M.H. Umesh, Police Inspector, deposed in his evidence in the examination in chief that from 26.06.2008 to 8.07.2009,1 he was working as Police inspector of NDC, COD at Bangalore. On 05.08.2008, when he was in office at Bangalore, at about 4 p.m. he received a phone call from their informant at Mangalore stating that, on 06.08.2008 at Moodukodi village, accused No. 1 is trying to dispose of ganja in his vehicle and if he arrive at the spot, then he would show him. Therefore, he mentioned the receipt of said information in separate register kept in their office for the said purpose. He has also intimated the said fact to his Dy. S.P. and obtained his permission to conduct the raid. He has seen written information submitted to Dy. Therefore, he mentioned the receipt of said information in separate register kept in their office for the said purpose. He has also intimated the said fact to his Dy. S.P. and obtained his permission to conduct the raid. He has seen written information submitted to Dy. S.P. of NDC, COD cell Bangalore as per Ex. P-21 his signature is P-21(a). Permission given by Dy. S.P. is Ex. P-22. The extract of register in form No. 3 is Ex. P-23. He has also deposed in further examination in chief, in detail, about the investigation conducted, going to spot along with panchas and the staff and seizing the ganja bags from the white Maruti Omni van and conducting the weighment and seizing the ganja bags under the mahazar Ex. P-1. He further deposed that at 11.00 p.m. on 06.08.2008, they retuned back to Venoor Police along with seized articles and mahazar and he submitted his report as per Ex. P-17 to the PSI of Venoor Police Station to register the case for further investigation and his signature is P-17(b). On 7.08.2008 at 1.15 a.m., he informed his superior officers about seizure of ganja and the vehicles through wireless message. It is as per Ex. P-25 and his signature is P-25(a). He has also submitted the written detailed report regarding the raid as per Ex. P-26 and his signature is P-26(a). On 11.08.2008, he was directed by the S.P. of NDC to proceed with further investigation. The said memo is Ex. P27 and for having received the same, he put his signature as per P. 27(a). On 13.08.2008 he sent M.Os. 1(a) to 18(a) to FSL at Bangalore for chemical analysis. On 16.08.2008, he secured B extract, from the RTO Puttur, in respect of seized Maruti Omni van bearing No. KA-19-M-4775 as per Ex. P-12. So also in respect of two wheeler vehicle as per Ex. P-13. On 15.09.2008, he received FSL report as per Ex. P-14. On the very day, he has also recorded the statement of Sallapurayya CW-10. On 9.04.2009, as he has completed the investigation, he submitted the charge sheet. PW-1 stated before him as per Ex. P10 and 11. 20. In the cross examination by advocate for Accused No. 1, PW-6 has deposed that immediately after the receipt of information at about 4.00p.m., he made the entries in the register. On 9.04.2009, as he has completed the investigation, he submitted the charge sheet. PW-1 stated before him as per Ex. P10 and 11. 20. In the cross examination by advocate for Accused No. 1, PW-6 has deposed that immediately after the receipt of information at about 4.00p.m., he made the entries in the register. He has not sent the extract of said register to his superior officer and the same is produced along with charge sheet. He denied the suggestion that subsequently, he has created Exs. P-21 to P-23. The place of offence is at the distance of about 50 to 60 kms from their office at Mangalore. Before arrival to the place of raid, he did not intimate the said fact at Venoor police station. He denied the suggestion that accused have not given any voluntary statement before him, and also denied the further suggestion that he has not received any credible information in the matter. 21. During the course of argument, it is the contention of learned counsel for the accused that regarding the receipt of the credible information is concerned, Section 42 of NDPS Act is not complied with. Section 42(2) of NDPS Act reads as under: "Section 42. Power of entry, search, seizure and arrest without warrant or authorization. (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." 22. Therefore, looking to the said provision, the requirements of said provision are that the information so received as per Section 42(1) of the Act is to be reduced into writing and as per the proviso to Section 42(1) regarding his belief for the necessity for the search, seizure and the arrest of the persons within 72 hours, complainant has to send the said information to his superior officers. 23. But looking to the materials placed on record, it shows that the prosecution has not complied with the mandatory provision of Section 42(2) of NDPS Act. The person, who said to have been received the information at the first instance from the informant is PW-6/M.H. Umesh, Police Inspector. Perusing his evidence in the cross-examination, he has clearly mentioned that he has not sent the extract of said register to his superior officer. 24. The person, who said to have been received the information at the first instance from the informant is PW-6/M.H. Umesh, Police Inspector. Perusing his evidence in the cross-examination, he has clearly mentioned that he has not sent the extract of said register to his superior officer. 24. During the course of arguments, learned counsel for accused No. 1 has also drew the attention of this Court to ground No. (b) in para No. 3 of the appeal memorandum, which reads as under: "(b) In the course of investigation, accused were granted anticipatory bails per order dated 17.10.2008 by the Court of Principal Sessions Judge, D.K. Mangalore. In the said orders of anticipatory bail, it was noted as under: "On the material available on record, at this stage, as per the case of the prosecution, it is clear that eighteen polythene bags containing ganja were found in white omni van bearing No. KA-19-M-4775. No material whatsoever is forthcoming at this stage to show as to whether the said vehicle is a private vehicle or a public vehicle. The mere fact that ganja was found in the said vehicle, which was on the public road, at this point of time, cannot lead to any inference that the seizure has been effected in a public so as to attract the provisions of Section 43 of Narcotic Drugs and Psychotropic Substances Act, 1985 to the case. Recovery of contraband article from a conveyance is attracting provisions of Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985. Though the complaint and the mahazar refers in detail about the fact of the case, at this stage, even by looking into the case diaries produced it is not forthcoming about the complainant reducing the information received by him into writing and about sending copy of the said information to the superiors. " 25. From the original records secured from the trial Court, I have also perused the order passed by the Prl. Sessions Judge, Dakshina Kannada dated 17.10.2008 passed in Crl. Misc. Nos. 495 and 497 of 2008 and get it confirmed about the observation made by the Sessions Judge while granting bail to accused Nos. 1 and 2. " 25. From the original records secured from the trial Court, I have also perused the order passed by the Prl. Sessions Judge, Dakshina Kannada dated 17.10.2008 passed in Crl. Misc. Nos. 495 and 497 of 2008 and get it confirmed about the observation made by the Sessions Judge while granting bail to accused Nos. 1 and 2. When case diary was produced before the Court for reference to the Court while passing the bail order and as per the contention of prosecution, the information received was immediately reduced into writing and the same was sent to the superior officers of PW-6 within 72 hours. If there was compliance of Section 42 of the NDPS Act, then the same could have found place in the case diary produced in the Sessions case. PW-6 has clearly admitted that he has not sent the information to the superior officers. But perusing the materials on record, it not only indicates about non-sending of information to the superior officers, but also the said information was not reduced into writing. 26. During the course of cross-examination of PW-6, it is the specific suggestion made by the learned counsel for the accused that Exs. P-21 to P-23 were created subsequently. 27. Perusing the materials on record and also the decisions relied upon by the learned counsel for the accused, which are referred above, it probabilises the defence of the accused that there is non-compliance of Section 42 of NDPS Act. 28. In this case, another legal contention of the learned counsel for the accused is that PW-6/M.H. Umesh, Police Inspector, is the complainant of this case and he himself proceeded with the further investigation of the case from 11.08.2008 and after completing the investigation, he submitted the charge sheet. Therefore, the contention of the defence is that, it is not fair on the part of complainant himself to proceed with the investigation of the case and to file charge sheet in the matter. It is no doubt true, perusing the judgment and order passed by the Trial Court, it has been observed that though the complainant himself had proceeded with the investigation, but that itself will not disentitle him to proceed with investigation, unless, it is shown that the accused have been prejudiced by such act. 29. It is no doubt true, perusing the judgment and order passed by the Trial Court, it has been observed that though the complainant himself had proceeded with the investigation, but that itself will not disentitle him to proceed with investigation, unless, it is shown that the accused have been prejudiced by such act. 29. I have perused the decision relied upon by the leaned counsel appearing for the accused, reported in (2010) 15 SCC 369. Persuing the said decision, Their Lordships of Hon'ble Supreme Court have laid down the proposition as under: "Narcotic Drugs and Psychotropic substances Act, 1985 -Ss. 42, 44,53, 56, 57, 67 and 68 - Investigation by the very officer who registered crime - Reiterated, not conducive to fair and impartial investigation - Hence, reversal of conviction, upheld - 5 kg opium recovered from accused - Accused was convicted by Special Judge and was sentenced to 10 years' RI with a fine of Rs. 1,00,000 - Officer, who had registered crime, also investigated the said crime - Hence, held, High Court was justified in acquitting accused - Criminal Procedure Code, 1973, Ss. 156 and 161." 30. Therefore looking to principle enunciated in the said decision, it shows that the procedure adopted by PW-6 complainant in lodging the complainant, and he himself proceeding with the investigation of the case, is not fair on his part. 31. It is the prosecution case that on 06.08.2008 both accused Nos. 1 and 2 were involved in committing the alleged offence and both were seen at the spot. But looking to prosecution materials placed before the Trial Court so also looking to evidence of PW-5/Smt. Chandramma, the Tahasildar, they shows that, not only as per the oral evidence of PW-5 but even according to the document Ex. P-18/attendance register extract, on 06.08.2008 accused No. 2 worked in the office of PW-5. Even on the next day i.e., on 7.08.2008 he worked up to noon time. This evidence of PW-5 and the document Ex. P-18/attendance register extract goes to falsify the story of prosecution that accused No. 2 was seen along with accused No. 1 at the spot and when the Police surrounded them, both of them ran away from the said place. 32. The independent witness PW-1, who is said to be the panch witness, has not supported the prosecution case with reference to presence of accused Nos. 32. The independent witness PW-1, who is said to be the panch witness, has not supported the prosecution case with reference to presence of accused Nos. 1 and 2 at the spot and after seeing the Police, they ran away from the said place. It is true that as per the evidence of other official witnesses, they have stated that accused were present at the spot and after seeing them, they ran away. But it has come in the evidence of PW-2 that PW-2 knew Laxman Poojary/accused No. 1 as he was working in Venoor Police Station earlier and that other Police Officers were unaware about the identity of accused No. 1 then. Perusing this evidence of PW-2, so far as accused No. 2, is concerned absolutely, there is no material regarding his identification at the spot. Even with regard to accused No. 1 also, only on the basis of evidence of PW-2 and in the absence of corroboration from the independent witnesses, it is difficult for this Court to come to the conclusion that identity of accused No. 1 was established to the satisfaction of the Court. 33. No test identification parade was conducted to establish the identity. It is the prosecution case that the witnesses had identified accused Nos. 1 and 2 when they appeared in the Police Station along with an application for anticipatory bail, which is not the identification, as required under law. 34. Regarding the seizure of ganja under Ex. P-1 mahazar, the only independent panch witness examined in the case is PW-1. He has not supported the prosecution case. It is true he went along with raiding party to Venoor and he signed Ex. P-1 mahazar and only on that basis, the trial Court has held that he has admitted the seizure under Ex. P-1. But looking to oral evidence of PW-1, he deposed that after going to Venoor and to the house, the Police have picked up ganja bags from the shed of the house and brought them to Police Station and writings were made in the Police Station. So, it is not his evidence that ganja bags were seized from white colour Maruti Omni van and the panchanama was written at the spot in his presence. So, it is not his evidence that ganja bags were seized from white colour Maruti Omni van and the panchanama was written at the spot in his presence. By treating him hostile though the prosecution suggested him about the seizure of ganja bags from the Maruti Van and thereafter, conducting the mahazar proceedings at the spot and drawing the mahazar Ex. P1 at the spot, he denied all those suggestions. Therefore, looking to his evidence, it cannot be taken that the prosecution proved the mahazar proceedings satisfactorily. The other evidence regarding the seizure of ganja and writing Ex. P-1 mahazar, they are all the official witnesses. Though there was another independent witness CW-3, he has not been examined by the prosecution to prove the seizure proceedings. 35. In view of my above discussion and the infirmities in conducting the investigation by the Police, it is difficult to accept their evidence and to say that the seizure mahazar proceedings have been established satisfactorily and their evidence in that regard is worth believable. 36. As per the prosecution case, ganja was seized on 06.08.2008 and then it was brought to the Police Station, produced before the SHO along with the report of PW-6. Looking to the evidence of PW-6, he deposed that the seized ganja sample was sent to FSL on 13.08.2008 i.e., after the lapse of seven days. But during the period of seven days, absolutely no evidence was placed by the prosecution as to where this ganja was kept, how it was kept, whether anybody was deputed to keep watch in respect of the said ganja. Perusing the oral evidence of prosecution witnesses, none of them have deposed about the manner in which, and the place at which, the ganja was kept during this interval period of seven days and who are the persons, under whose care and custody, the ganja was kept, who are the persons handled the ganja during that period. Though PW-6 has deposed in his evidence that he sent the samples on 13.08.2008 for chemical analysis, the covering letter for sending the sample ganja to the FSL is not produced. The person, who carried the articles to FSL i.e., CW.-10 Sallapurayya, HO, COD is also not examined before the Court, so also nobody is examined from the FSL. Though PW-6 has deposed in his evidence that he sent the samples on 13.08.2008 for chemical analysis, the covering letter for sending the sample ganja to the FSL is not produced. The person, who carried the articles to FSL i.e., CW.-10 Sallapurayya, HO, COD is also not examined before the Court, so also nobody is examined from the FSL. Learned counsel for the accused No. 2 has relied upon the decision of the Hon'ble Supreme Court reported in AIR 2011 SC 1335 (1) in the case of ASHOK ALIAS DANGRA JAISWAL V. STATE OF M.P. In para No. 11 of the said decision Their Lordships have observed as under: "11. The FSL report came on March 21, 2005, and on that basis the police submitted charge-sheet against the accused on March 31, 2005, but the alleged narcotic substance that was seized from the accused including the appellant was deposited in the Malkhana about two months later on May 28, 2005, there is no explanation where the seized substance was kept in the meanwhile." 37. Therefore, the Trial Court has not taken into consideration all these aspects while appreciating the case on hand and wrongly proceeded to hold that prosecution proved its case against accused Nos. 1 and 2 and wrongly convicted them. The judgment and order of conviction passed by the Trial Court is not in accordance with oral and documentary evidence, which I have discussed above. Hence, the judgment and order of the trial Court is not sustainable in law. There arises reasonable doubt as to the case of prosecution and prosecution materials will not prove the case beyond all reasonable doubt, hence, the benefit of doubt will have to be given to the accused. 38. Accordingly, both the appeals are allowed. The judgment and order of conviction dated 11.7.2013 passed by the Principal Sessions and Special Judge, Dakshina Kannada, Mangalore in Spl.Case No. 8/2009, which is challenged in these appeals is set-aside. The appellants/accused Nos. 1 and 2 are acquitted of the charges leveled against them and they are set at liberty. In view of allowing the appeals, I.A. Nos. 1/2013 and 1/2014 filed in Crl. A. 728/2013 and I.A. No. 1/2013 filed in Crl. A. 718/2013 are disposed of.