Irene Omoibe Alias Iryan Vs Union of India

THE CRL.A FILED U/S 374(2) CR.PC (FILED U/S 415(2) BNSS) PRAYING TO SET ASIDE JUDGMENT OF CONVICTION DATED 09.04.2025 & ORDER ON SENTENCE DATED 23.04.2025 MADE IN SPL.CC NO.840/2019 BY THE COURT OF XXXIII ADDL.CITY CIVIL AND SESSIONS JUDGE, SPECIAL JUDGE (NDPS), BANGALORE, CCH-33, FOR THE OFFENCES UNDER SECTIONS 21, 23 & 29 OF NDPS ACT, 1985 & SEC. 14 OF THE FOREIGNERS ACT, 1946.

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

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CORAM: HON'BLE MR. JUSTICE S RACHAIAH

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NC: 2025:KHC:38540 CRL.A No. 1171 of 2025

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HC-KAR

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ORAL JUDGMENT

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This appeal is filed by the appellant / accused No.1, being aggrieved by the judgment of conviction dated 09.04.2025 and order on sentence dated 23.04.2025 made in Spl. C.C. No.840/2019 by the Court of XXXIII Addl. City Civil and Sessions Judge, Special Judge (NDPS), Bengaluru (CCH-33), for the offences punishable under Sections 21, 23 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS Act’) and Section 14 of the Foreigners Act, 1946.

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The rank of the parties would be considered as per their rankings in the Trial Court for convenience.

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Brief facts of the case:-

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It is the case of the prosecution that, on 17.01.2019 around 11.30 a.m., Ms. Indu M Kumar, Intelligence Officer in NCB, Bangalore Zonal Unit, received a credible information that one Nigerian national lady, by name, Irene Omoibe @ Iryan Aged about 25 years, was traveling from Mumbai to Bengaluru in SRS travel bus bearing registration No.PY 01 CC 1357, was in possession

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HC-KAR

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of substantial quantity of cocaine and narcotic drug and she would get down at Kalasipalya bus stand, Bengaluru. She reduced the same in writing and informed her immediate superior officers and took sufficient staff and Investigating Officer, went near Nelamangala toll gate and intercepted the SRS bus around 03.00 p.m. She showed her identity cards to the conductor and informed him that she had an information regarding transportation of contraband by one of the passengers.

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It is further stated that she boarded the bus and enquired the Nigerian lady about the contraband. Initially, the said lady refused to answer the enquiry, subsequently, she has confessed that she was carrying the contraband. It was seized in the presence of panch witnesses and in accordance with law. Thereafter, investigation was done, charge sheet was laid. The Trial Court recorded the conviction for the above said offences.

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Heard Sri. Nishit Kumar Shetty, learned counsel for the appellant and Sri. S.Rajashekar, learned CGC for the respondent.

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HC-KAR

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It is the submission of the learned counsel for the appellant that the mandatory provision under Section 50 of the NDPS Act has not been followed. In fact, they did not collect the details of accused No.1 as to whether she had travelled in the bus or not.

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It is further submitted that, Section 52A of the Act has not been followed, which is mandatory. In case, if such procedure is not followed, the seizure of contraband would be vitiated. Hence, the appellant has to be acquitted. Therefore, it is appropriate to acquit the appellant in order to deport her from India to her country.

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Per contra , Sri S. Rajasekhar, learned CGC has vehemently contended and justified the judgment of conviction passed by the Trial Court and he further contended that, the procedure as required to be complied has been followed properly. The witnesses have supported the case of the prosecution. There is no infirmity in the judgment and no infirmity in appreciating the evidence. Therefore, it is not proper to interfere with

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the said findings. Moreover, there are several such foreigners involving in trafficking of the contraband, which is detrimental not only to the State, but, also to the entire nation.

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It is further submitted that, the appellant is overstayed here, even her VISA period got expired. Therefore, the Trial Court convicted the appellant even under the said provision. Even assuming that she got acquitted in this case, she will be stayed here unauthorizedly, therefore, the appeal has to be dismissed. Making such submissions, learned CGC prays to dismiss the appeal.

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Having heard learned counsel for the respective parties and also perused the findings of the Trial Court, the Trial Court has discussed in detail regarding each provision, namely, Sections 42, 50, 52A of the NDPS Act. While arriving at a conclusion regarding the provision under Section 50 of the NDPS Act, the Trial Court opined that the prosecution has failed to establish that the mandatory provision had been complied with. However, tried to justify the same by considering the judgment of the

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Hon’ble Supreme Court. No doubt, if the search is required to be made on the conscious possession, the said provision is not required to be followed. This Court has concurrent view to that effect.

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As regards, Section 52A of the NDPS Act is concerned, learned counsel contended that the sample was not drawn in the presence of the learned Magistrate and there is a delay in sending the sample to the FSL for chemical analysis, therefore, Section 52A of the Act has not been followed. The Trial Court, while dealing with the said issue, opined that P.W.1 recovered and seized the contraband from the bag of accused No.1. 400 gms., of while colour powder was seized. Out of the said 400 gms., 10 gms., was taken out for sample. P.W.5 was the then Zonal Director sent the sample to the CFSL for chemical analysis as per Ex.P53. As per the standing order, drawing of samples at the spot is to be valid. Therefore, not drawing the sample before the learned Magistrate thus cannot be stated to be illegal. As such, the Trial Court opined and proceeded further on holding that the said provision has been complied. The said

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contention, in my considered view, is not proper for the reason that Section 52A(c) would indicate that, allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn, it would indicate that the inventory has to be made in the presence of the Magistrate. The Trial Court has committed an error in not appreciating the provision under Section 52A(c) of the Act.

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It is needless to say that, keeping such persons in the country is nothing but a waste of national resources. Hence, it is appropriate to direct the authorities to deport her to her native country.

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In the light of the observations made above, I proceed to pass the following:-

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ORDER

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i) The Criminal Appeal is allowed.

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ii) The judgment of conviction dated 09.04.2025 and order on sentence dated 23.04.2025 made in Spl. C.C. No.840/2019 by the Court of XXXIII Addl. City

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HC-KAR

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Civil and Sessions Judge, Special Judge (NDPS), Bengaluru (CCH-33), insofar as it relates to the appellant / accused No.1 is concerned, is set aside.

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iii) The appellant / accused No.1 is acquitted for the offences punishable under Sections 21, 23 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and Section 14 of the Foreigners Act, 1946.

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iv) The appellant / accused No.1 is ordered to be deported immediately to her native country, after completing the formalities, as is required to be completed under law.

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v) In view of the disposal of the main appeal, interim application, if any, does not survive for consideration and the same is disposed of.

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Sd/(S RACHAIAH) JUDGE

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Bss

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List No.: 2 Sl No.: 30

Irene Omoibe Alias Iryan v. Union of India

Case brief

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Irene Omoibe Alias Iryan v. Union of India

Case brief

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