Intelligence Officer Vs S Saravanan

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NC: 2025:KHC:49501 CRL.A No. 265 of 2011

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26^TH DAY OF NOVEMBER, 2025

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BEFORE

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THE HON'BLE MR. JUSTICE G BASAVARAJA CRIMINAL APPEAL NO. 265 OF 2011 (A)

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BETWEEN:

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INTELLIGENCE OFFICER NARCOTICS CONTROL BUREAU, SOUTH ZONAL UNIT, CHENNAI - 600 090.

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…APPELLANT

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(BY SRI. UMESH P B., ADV.)

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AND:

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S. SARAVANAN S/O (LATE) SELVARAJU, PUDUPALLI WEST, MARIAMMAN KOIL STREET, KEEZHVELUR TALUK, THIRUVAVUR DISTRICT, TAMILNADU.

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Digitally signed by LAKSHMINARAYAN N Location: HIGH COURT OF KARNATAKA

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VIJAY SINGH S/O BHAGVAN SINGH, PIPALIA MANDI VILLAGE, FATAK MOHALLA, PIPALIA (NEAR RAILWAY SATION) , DISTRICT MANDSORE, MADHYA PRADESH.

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BHIM PATIDAR S/O BHANWARLAL VILLAGE ROZANA, TEHSIL JAORA, DISTRICT RATLAM, MADHYA PRADESH.

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N MAHALINGAM S/O (LATE) NATARAJ GOUNDER, 3/1, PATTI ROAD, VIZUNTHAMAVADI PANCHAYAT, NAGAPATTINAM DISTRICT, TAMILNADU.

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…RESPONDENTS

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(BY SRI. AMAR CORREA, ADV. FOR R1 AND R4, SRI. TEJAS N., ADV. FOR R3, R2 IS SERVED,

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R5 AND R6 ARE DELETED V/C/O DATED: 25.05.2011.)

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THIS CRL.A. IS FILED U/S. 378(1) & (3) CR.P.C PRAYING TO SET ASIDE THE ORDER DT:08.09.10 PASSED BY THE PRL. SESSIONS JUDGE, TUMKUR IN SPL.C.NO.53/05 - ACQUITTING THE RESPONDENT FOR THE OFFENCE P/U/S 8(C) R/W 21(c), 25, 27-A, 28 AND 29 P/U/S 21, 25,27A, 28 AND 29 OF THE NDPS ACT, 1985.

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

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CORAM: HON'BLE MR. JUSTICE G BASAVARAJA

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ORAL JUDGMENT

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The appellant/State has preferred this appeal against the

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judgment of acquittal passed by the Prl. Sessions Judge, Tumkur in Special Case No.53/2005 dated 08.09.2010.

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For the sake of convenience, the parties herein are

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referred to as per their status before the trial Court.

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Brief facts leading to this appeal are that PW12-A. Caleb Arumairaj, Intelligence Officer, Narcotics Control Bureau,

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Chennai has lodged a complaint before the Court on 20.06.2005 against the accused to take cognizance of the offences under Sections 8(c) read with Sections 21(c), 25, 27A, 28 and 29 of the N.D.P.S Act, 1985 as amended in 2001.

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It is alleged by the prosecution that Thirumalai Sridhar (PW1), Intelligence Officer, Narcotic Control Bureau, South Zonal Unit, Chennai (NCB for short) received a credible information over a phone call on 23.12.2004 at 09.30 a.m. that

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one Indiran @ Jeeva, Srilankan, residing at Trichy, who was acquitted in 15.5 kgs of Heroin case of NCB, Chennai, and one Mahalingam, resident of Vizunthamavadi, were arranged to procure 23 kgs of Heroin from accused No.6-Dhilawar Khan @ Sheriff Bhai Pathan (split up accused), which was being sent

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through the Lorry, bearing No.MP.14/JA-0136, to Bangalore, which had to be collected by accused No.1-Saravanan, a relative of Accused No.4-Mahalingam, and had to be brought to Nagapatnam coast by Accused No.4-Mahalingam and Accused No.5- Indiran @ Jeeva (split up accused). Accused No.2-Vijay

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Singh had been sent to Bangalore by accused No.6-Dilwar Khan @ Sheriff Bhai for co-ordination and to collect 23 kgs of Heroin

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from the lorry by accused No.1-Saravanan for onward movement and delivery spot had been fixed as NH4, Joss Toll Road Plaza 2, Chokkanahalli, Tumkur, on the intervening night of 23^rd /24^th December, 2004.

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Thereafter, PW1-Tirumalai, Sridhar sent the information report under Section 42 of NDPS Act, to PW5S.Gunabalan Superintendent. The said GunabalanSuperintendent called for the conference. PW1-Tirumalai

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Sridhar along with other Intelligence Officers viz., PW2-C. Radhakrishna Pillai, PW3-A Senthil Murugan, CW2 Aruldas, started their journey from Chennai in a government vehicle and reached the spot at 22.45 hours on the same night. PW5-S. Gunabalan also called another Intelligence Officer, who were at Bangalore for other work, also joined the team. They procured two independent panchas namely PW7-G. Lingaiah and PW8Rangaraju and informed the said panchas about the information. They all kept a careful watch and surveillance at NH-4, Joss Toll Road Plaza 2, Chokkanahalli, Tumkur at 02.15

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hours on the following day, they saw a lorry bearing registration No.MP14/J-0136 and stopped it. At that time, they

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saw two persons- one was tall, lean, black and other was short and bellied. They approached the lorry. The bellied person was chatting with the person, who was sitting on the driver's seat. After that, occupants of the said lorry handed over a sandalwood colour Rexine bag containing volumetrically a heavy thing, to the bellied person and he took over that thing on his shoulder and handed over the same to the tall, lean, black person. They all surrounded, the vehicle along with two persons standing outside and enquired about the names of the said two persons. They are accused No.1-Saravanan and accused No.2- Vijay Singh. The team of officers, superintendent and independent panchas offered themselves to accused Nos. 1 and 2 and the driver and cleaner of the lorry. But all the four persons declined. Then PW1 explained to them that they were not in a position to take them to the Gazatted Officer or Magistrate, and commenced the search and explained regarding the information received by them and asked them whether they had any narcotic drug for which accused No.1Saravanan and A2-Vijay Singh said 'yes'. PW1 Tirumalai Sridhar along with other NCB officers and Superintendent, in the presence of two independent panchas PWs.7 and PW8, opened

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the sandalwood colour Rexine bag in front of accused No.1Saravanan and accused No.2-Vijay Singh and other two persons, and found there were 12 packets wrapped with brown tape and all the 12 packets were cut open and small quantity was taken for carrying out the test with the field test kit. On completion of the field test, the answer was positive for narcotic drug i.e. Heroin. All the 12 packets were weighed. 11 packets contained about 2 kgs. each and last packet containing one kg. and odd, and the total weight was 23.700 kgs.

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On personal search of accused No.1 Saravanan, currency notes worth Rs.5,000/- and one Nokia mobile phone along with two SIM cards, and also telephone receipt were found. On personal search of accused No.2-Vijay Singh, currency notes worth Rs.8,160/- and two telephone bills in which one number co-relates with accused No.1-Saravanan, who had given a call on a particular number, and also one bill of Sumanth Lodge, Bangalore where accused No.2-Vijay Singh stayed and an unreserved railway ticket from Kandwad to Bangalore city and excess fare paid by him against the

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unreserved ticket in which the name is also mentioned, were found.

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On personal search of other occupants of the lorry by name Bhawarnath Yogi-CW12, amount of Rs.250/- and one photograph of accused No.3-Bhim Patidar was found. CW12Bhawarnath Yogi told them that accused No.3-Bhim Patidar is the owner-cum-driver of the vehicle bearing registration No.MP14/JA-0136. On personal search of Mukesh Das BeragiCW13, nothing was recovered. On search of the lorry, copy of the RC book, vehicle insurance, weigh-bridge bill were found and the lorry contained marble stones. CW12- Bhawarnath Yogi-driver has stated that in accused No.3-Bhim Patidar got down at Hospet and sent them alone to hand over the sandalwood colour Rexine bag to accused No.2-Vijay Singh at NH4, Joss Toll Road Plaza 2, without telling anything about what it contained.

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PW1 seized the contraband articles from the possession of accused Nos. 1 and 2 and CW12-Bhawarnath Yogi and CW13-Mukesh Das Beragi under Mahazar Exhibit P2 in the presence of PW7-G. Lingaiah and PW8. Rangaraju and S.P,

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PW5-Gunabalan. After completion of the mahazar formalities, PW1 and other NCB officials issued summons to accused Nos.1 and 2 and CW12 and CW13 and their voluntary statements were obtained in accordance with Section 67 of the N.D.P.S Act. Thereafter, remand application was prepared by PW1Thirumalai Sridhar against accused No.1-Saravanan and accused No.2-Vijay Singh and he has given up CW12Bhawarnath Yogi and CW13 Mukesh Das Beragi as there were no incriminating documents or knowledge about the drug while handing over the contraband to accused No.2-Vijay Singh and produced accused Nos.1 and 2 before the Court. In the course of disclosure made by accused Nos.1 and 2, CW12 and CW13,

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it was revealed that other accused i.e., accused Nos.3 to 6 were also involved in the conspiracy. Therefore, the investigating agency came to the conclusion that all the accused had conspired to commit various offences with which they are charged. The complaint was lodged by PW12-A. Caleb Arumairaj, leading to the framing of charge against the accused Nos. 1 to 4, (accused Nos.5 and 6 are split up).

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The trial Court has heard on charges and framed

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the charges for the offence punishable under Section 8(c) read with Section 21 and 28 of the N.D.P.S Act, against accused Nos.1 to 4 for the offence punishable under Section 8(c) read with Section 21 and 28 of the N.D.P.S Act. Charges were read over and explained to the accused in the language known to them. The accused have denied the charges and claimed to be tried.

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To prove the guilt of the accused, in all, 12 witnesses were examined as PW1 to PW12 and 93 documents were marked as Exhibits P1 to P93. 30 Material Objects were marked as MOs.1 to 30. On closure of prosecution side evidence, statements of the accused under Section 313 of Code of Criminal Procedure were recorded. The accused have totally denied the evidence of prosecution witnesses. However, they have not chosen to lead any defence evidence on their behalf. Accused No. 1 to 4 have filed their separate written statements.

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I have heard the arguments of both sides. The trial Court has acquitted the accused. Being aggrieved by the

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statement of acquittal, the appellant/State has preferred this appeal.

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Learned counsel for the appellant would submit that

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the trial Court has failed to apply its mind to the merits of the case and has mechanically dealt with matter resulting in miscarriage of justice. The trial Court has erred in coming to the conclusion by not believing the Ex.P1-Information Report. The judgment is liable to be set aside on the ground that the trial Court has come to a conclusion that Sections 42, 52 to 55 of the NDPS Act have not been complied with by not discussing the judgment cited by the prosecution in respect of relevant provisions of the NDPS Act. The trial Court disbelieved the voluntary statement of the accused, CW12 and CW13 while passing the judgment. The trial Court misunderstood the case of the prosecution that CW12 handed over sandalwood colour rexine bag containing contraband, to accused Nos.1 and 2 and the contraband was in possession of accused Nos.1 and 2 at the time of surveillance. Even the trial Court erred in noticing

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the case before the trial Court was under Special Enactment and coming to the conclusion that the prosecution has failed to

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prove the case. Even the evidence of PW2 to PW5 and PW12 in respect of search, seizure and mahazar investigation, the trial Court also erred in disbelieving the test conducted by PW10 Chemical Examiner in accordance with law. He has experience for more than 35 years in the said field. The trial Court has erred in coming to the conclusion that prosecution has failed to comply the mandatory provisions of Sections 42, 50, 52, 57 and 67 of NDPS Act, which is highly erroneous and unjustifiable. The finding and reasoning of the trial Court in respect of voluntary statement recorded under Section 67 of NDPS Act, Retraction Statement subsequently given and statement under Section 313 of Code of Criminal Procedure is highly opposed to facts and is unknown to law.

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The trial Court has erred in not properly appreciating the evidence on record placed by the prosecution, in reference to voluntary statement of the accused, as the same is written by the accused in their own handwriting and contained matters which are very personal to them. On all these grounds, it is sought for allowing this appeal.

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As against this, Sri Amar Correa, learned counsel

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for respondent Nos.1 and 4 and Sri Tejas.N, learned counsel for respondent No.3 would submit that, the trial Court has properly appreciated the evidence on record in accordance with law and facts. Absolutely there are no grounds to interfere with the impugned judgment of Acquittal and sought for dismissal of this appeal. To substantiate the arguments, the learned counsel for the respondents have relied on the judgment of Hon'ble Supreme Court in the case of Tofan Singh vs. State of Tamil Nadu reported in (2021) 4 SCC 1.

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Having heard the arguments on both sides and on perusal of materials placed before this Court, the following points would arise for my consideration:

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(1) Whether the trial Court has committed an error in passing the judgment of acquittal?

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(2) What order?

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Regarding Point No.1:

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I have examined the materials placed before this Court. Before appreciation of evidence and record, it is

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necessary to mention here as to the recent judgment of the Apex Court in the Case of CONSTABLE 907 SURENDRA SINGH AND ANOTHER v. STATE OF UTTARAKHAND passed in Criminal Appeal No.355 of 2013 connected with Criminal Appeal No.788 of 2013 decided on 28^th January, 2025. In the said judgment, relying on the decisions in the case of BABU SAHEBGOUDA RUDRAGOUDAR AND OTHERS v. STATE OF KARNATAKA reported in (2024)8 SCC 149; in the case of CHANDRAPPA v. STATE OF KARNATAKA reported in (2007)4 SCC 415; and in the case of H.D. SUNDARA v. STATE OF KARNATAKA reported in (2023)9 SCC 581, wherein the principles governing exercise of appellate jurisdiction while dealing with an appeal against judgment of acquittal under section 378 of Code of Criminal Procedure, as has been summarized in the case of H.D. SUNDARA, is reiterated at paragraphs 40 and 41 of the judgment. The same are as under:

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“40. …

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"8. … 8.1. The acquittal of the accused further strengthens the presumption of innocence;

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8.2. The appellate court, while hearing an appeal against acquittal, is entitled to re-appreciate the oral and documentary evidence;

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8.3. The appellate court, while deciding an appeal against acquittal, after re-appreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record;

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8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.”

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41. Thus, it is beyond the pale of doubt that the scope of interference by an appellate court for reversing the judgment of acquittal recorded by the trial court in favour of the accused has to be exercised within the four corners of the following principles:

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41.1. That the judgment of acquittal suffers from patent perversity;

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41.2. That the same is based on a misreading/omission to consider material evidence on record; and

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41.3. That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.”

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In view of the aforesaid decision of the Apex Court,

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it could be seen that it is a settled legal position that the interference with the finding of acquittal recorded by the learned trial, Judge would be warranted by the High Court only If the judgment of acquittal suffers from patent perversity; that the same is based on a misreading/omission to consider material evidence on record; and that no two reasonable views are possible, and only the view consistent with the guilt of the accused is possible from the evidence available on record.

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Learned counsel for appearing on behalf of the appellant would submit that the trial Court has failed to comply the Section 67 of NDPS Act. In this regard, the learned counsel for respondents have relied on the judgment of Hon'ble Supreme Court in the case of Tofan Singh vs. State of Tamil Nadu reported in (2021) 4 SCC 1 in which at para No.75, the Hon'ble Supreme Court has observed as under:

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"75. If Shri Lekhi's argument were correct, that a confessional statement made under Section 67 is sufficient as substantive evidence to convict an accused under the NDPS Act, Section 53-A would be rendered otiose. Sections 53 and 53-A of the NDPS Act, when read together, would make it clear that Section 53-A is in the nature of an exception to Sections 161, 162 and 172 CrPC. This is for the reason that Section 53(1), when it invests certain officers or classes of officers with the power of an officer in charge of a police station for investigation of offences under the NDPS Act, refers to Chapter XII CrPC, of which Sections 161, 162 and 172 are a part. First and foremost, under Section 162(1) CrPC, statements that are made in the course of investigation are not required to be signed by the person making them—under Section 53-A they can be signed by the person before an officer empowered under Section 53. Secondly, it is only in two circumstances [under Sections 53-A(1)(a) and (b)] that such a statement is made relevant for the purpose of proving an offence against the accused: it is only if the person who made the statement is dead, cannot be found, is incapable of giving evidence; or is kept out of the way by the adverse party, or whose presence cannot be obtained without delay or expense which the court considers unreasonable, that such statement becomes relevant. Otherwise, if the person who made such a statement is examined as a witness, and the court thinks that in the interest of justice such statement should be made relevant and does so, then again, such statement may become relevant. None of this

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would be necessary if Shri Lekhi's argument were right, that a confessional statement made under Section 67— not being bound by any of these constraints—would be sufficient to convict the accused."

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In view of the aforesaid decision, arguments advanced on behalf of learned counsel for the appellant, cannot be accepted.

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With regard to non-compliance of Sections 42, 52 to 55 of NDPS Act are concerned, the trial Court at para Nos.38, 39 and 40 of the judgment, has observed as under:

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"38. On the other hand, the CrPC has been made expressly applicable by the following sections of the NDPS Act : Section 34(2), which refers to the form of a security bond; Section 36-B, which refers to the High Court's powers in appeal and revision; Section 50(5), which refers to searching a person without the intervention of a Gazetted Officer or a Magistrate; and Section 51, which deals with warrants, arrests, searches and seizures made under the Act. Equally, the CrPC has been applied with necessary modifications under Section 36-A(1)(b), when it comes to authorising the detention of a person in custody for a period beyond fifteen days; Section 37(1)(b), which contains additional conditions for the grant of bail in certain circumstances; and Section 53-A, which are exceptions engrafted upon statements made in

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writing under Sections 161, 162 and 172 CrPC. Read with Sections 4(2) and 5 CrPC, the scheme of the NDPS Act seems to be that the CrPC is generally followed, except where expressly excluded, or applied with modifications.

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39. The Statement of Objects and Reasons for enacting the NDPS Act is important and states as follows:

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“Statement of Objects and Reasons.—

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The statutory control over narcotic drugs is exercised in India through a number of Central and State enactments. The principal Central Acts, namely, the Opium Act, 1857, the Opium Act, 1878 and the Dangerous Drugs Act, 1930 were enacted a long time ago. With the passage of time and the developments in the field of illicit drug traffic and drug abuse at national and international level, many deficiencies in the existing laws have come to notice, some of which are indicated below:

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(i) The scheme of penalties under the present Acts is not sufficiently deterrent to meet the challenge of well-organised gangs of smugglers. The Dangerous Drugs Act, 1930 provides for a maximum term of imprisonment of 3 years with or without fine and 4 years' imprisonment with or without fine for repeat offences. Further, no minimum punishment is prescribed in the present laws, as a result of which drug traffickers have been sometimes let off by the courts with nominal punishment. The country has for the last few years been increasingly facing the problem of transit traffic of drugs coming mainly from some of our neighbouring countries and destined mainly to Western countries.

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(ii) The existing Central laws do not provide for investing the officers of a number of important Central enforcement agencies like Narcotics, Customs, Central Excise, etc. with the power of investigation of offences under the said laws.

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(iii) Since the enactment of the aforesaid three Central Acts a vast body of international law in the field of narcotics control has evolved through various international treaties and protocols. The Government of India has been a party to these treaties and conventions which entail several obligations which are not covered or are only partly covered by the present Acts.

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(iv) During recent years new drugs of addiction which have come to be known as psychotropic substances have appeared on the scene and posed serious problems to national Governments. There is no comprehensive law to enable exercise of control over psychotropic substances in India in the manner as envisaged in the Convention on Psychotropic Substances, 1971 to which India has also acceded.

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2. In view of what has been stated above, there is an urgent need for the enactment of a comprehensive legislation on narcotic drugs and psychotropic substances which, inter alia, should consolidate and amend the existing laws relating to narcotic drugs, strengthen the existing controls over drug abuse, considerably enhance the penalties particularly for trafficking offences, make provisions for exercising effective control over psychotropic substances and make provisions

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for the implementation of international conventions relating to narcotic drugs and psychotropic substances to which India has become a party.

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3. The Bill seeks to achieve the above objects.”

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40. The very first thing that this statement addresses is the woeful inadequacy of three old Acts, insofar as the scheme of penalties is concerned, which were not sufficiently deterrent to meet the challenge of well-organised gangs of smugglers, together with the importance of investing, for the first time, the officers of Central enforcement agencies with the power of investigation of offences under the new law. Undoubtedly, the NDPS Act is a comprehensive legislation which makes provisions for exercising control over narcotic drugs and psychotropic substances, at the heart of which is the power vested in various officers to investigate offences under the Act, so as to prevent and punish the same against offenders being, inter alia, organised gangs of smugglers who indulge in what is considered by Parliament to be a menace to society. Also, the preamble to the NDPS Act states:

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“An Act to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances, to provide for the forfeiture of property derived from, or used in, illicit traffic in narcotic drugs and psychotropic substances, to implement the provisions of the International Convention on Narcotic Drugs and

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Psychotropic Substances and for matters connected therewith.”

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On re-appreciation, re-consideration and re-

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examination of the entire evidence on record, I do not find any error/legal infirmity in the impugned judgment of acquittal passed by the trial Court. Accordingly, I answer Point No.1 in the Negative.

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Regarding Point No.2: .

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Insofar as the aforesaid reasons and discussion, I proceed to pass the following:

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O R D E R

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Appeal is dismissed .

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Sd/(G BASAVARAJA) JUDGE

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KBM,DHA List No.: 1 Sl No.: 34

Intelligence Officer v. S Saravanan

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Intelligence Officer v. S Saravanan

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