BONIFACE NWABYNWANNE vs STATE BY NARCOTICS CONTRL BUREAU (NCB)
- Court
- Karnataka High Court
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HC-KAR
NC: 2026:KHC:58720
CRL.A No. 181 of 2023
CNR: KAHC010049352023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 15 DAY OF OCTOBER, 2026
BEFORE
THE HON'BLE MR. JUSTICE S RACHAIAH
CRIMINAL APPEAL NO. 181 OF 2023 (C)
BETWEEN:
BONIFACE NWABYNWANNE,
S/O NWABUNWANNE,
AGED ABOUT 43 YEARS,
R/A VILLAGE ANAM,
STATE ANAMBRA,
NIGERIA – 432 109.
PRESENTLY R/A WZ-106B,
GALI NO.18, SANT GARH,
NEWDLEHI – 110 018.
…APPELLANT
Digitally
signed by
SUSHMA
LAKSHMI B
S
Location:
High Court
of
Karnataka
(BY SRI. NISHIT KUMAR SHETTY, ADVOCATE)
AND:
STATE BY NARCOTICS
CONTROL BUREAU (NCB),
BANGALORE ZONAL UNIT,
RAMANNA GARDEN,
KATTIGENAHALLI,
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CRL.A No. 181 of 2023
CNR: KAHC010049352023
BAGALUR MAIN ROAD,
YELAHANKA POST,
BANGALORE – 560 001.
…RESPONDENT
(BY SRI. KUMAR M N., CGSC)
----
THIS CRL.A FILED U/S.374(2) CR.P.C BY THE ADVOCATE
FOR THE APPELLANT PRAYING TO SET ASIDE THE JUDGMENT
OF CONVICTION DATED 20.12.2022, SENTENCE DATED
22.12.2022, MADE IN SPL.C.C.NO.328/2020, BY THE COURT
OF XXXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND
SPECIAL JUDGE (NDPS), BANGALORE (CCH-33) AND THE
APPELLANT / ACCUSED IS CONVICTED FOR THE OFFENCE
P/U/S 22(c) OF NARCOTIC DRUGS AND PSYCHOTROPIC
SUBSTANCES ACT, 1985.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED ON 23.06.2026, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY, THE COURT
MADE THE FOLLOWING:-
CORAM: HON'BLE MR. JUSTICE S RACHAIAH
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CRL.A No. 181 of 2023
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CAV JUDGMENT
1. This Criminal Appeal has been filed by the appellant /
accused being aggrieved by the judgment of conviction
dated 20.12.2022 and order on sentence dated
22.12.2022 passed in Spl.C.C. No.328/2020 on the file of
the XXXIII Additional City Civil and Sessions Judge and
Special Judge (NDPS), Bengaluru, wherein the appellant
has been convicted for the offence punishable under
Section 22(c) of Narcotic Drugs and Psychotropic
Substances Act, 1985 (for short “NDPS Act”).
2. The ranks of the parties henceforth will be considered as
per their rankings before the Trial Court.
Brief facts of the case:
3. The case of the prosecution is that, on 17.02.2020, at
about 16.35 hours, the complainant had received
information that a Nigerian person, aged about 43 years,
is traveling in a train from Nizamuddin to
Yeshwanthapura Railway Station, carrying contraband.
On receiving the said information, as a swift action, he
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secured the panchas and also his staff and went to the
spot. The complainant noticed that one Nigerian person
carrying a shoulder bag, who came out of the coach S1 of
the train. The said person was apprehended and
enquired. On enquiry, he disclosed his name and handed
over the copy of the ticket to the respondent – police
team. The complainant and his team conducted a search
of the bag which was being carried by the accused and he
noticed that there were clothes in it. On a thorough
search, the team found one Kellogg’s Cornflakes cover.
It contained a transparent polythene cover filled with
white crystalline substance. A small pinch of substance
was taken out and tested with the DD kit; the result was
positive for methaqualone. When the entire substance
was weighed, it weighed 700 grams. Two representative
samples of 5 gms., each were drawn from the substance
and the remaining was sealed and a detailed mahazar
was drawn. The statement of the accused has been
recorded; thereafter, a case came to be registered
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against the accused. After conducting the investigation,
submitted the charge sheet.
4. To prove the case of the prosecution, the prosecution
examined 6 witnesses as PWs.1 to 6 and got marked 21
documents as Exs.P1 to P6 and identified 3 material
objects as MO.1 to MO.3. The Trial Court after
appreciating both oral and documentary evidence on
record, rendered conviction for the offence under Section
22(c) of NDPS Act and sentenced him to undergo rigorous
imprisonment for ten years and to pay fine of
Rs.1,00,000/-, in default, to undergo simple
imprisonment for two years.
5. Heard Sri Nishit Kumar Shetty, learned counsel for the
appellant and Sri M.N. Kumar, learned Central
Government Standing Counsel for the respondent.
6. The submission of the learned counsel for the appellant
is that the judgment of conviction and order on sentence
is contrary to the evidence on record and also to the
settled principles of law. The Trial Court has committed a
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serious error in appreciating the evidence on record. In
fact, the mandatory provisions under Sections 42 and 50
of the NDPS Act had not been followed.
7. It is further submitted that Section 50(1) of the NDPS Act
makes it imperative that a person who is arrested must
know the reasons for his arrest and also he must be
informed in respect of the search and seizure. If any
seizure is made without following the due procedure,
such seizure would become redundant.
8. It is further submitted that Section 52A of the NDPS Act
has not been followed, which is mandatory in nature. Not
following the said procedure would be fatal to the case of
the prosecution. Though in the present case there are
some irregularities and also illegalities committed by the
Investigating Authority, the Trial Court passed the
impugned judgment without observing the said aspect
resulted in passing the impugned judgment, which is
required to be set aside. By making such submissions,
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learned counsel for the appellant prays to allow the
appeal.
Per contra
9. , learned Central Government Standing Counsel
vehemently submitted that the judgment of conviction
and order on sentence has been passed by the Trial Court
after appreciating the evidence and also the documents
available on record.
10. It is further submitted that the contraband was kept in
the shoulder bag. Therefore, Section 50 of the NDPS
cannot be required to be followed. The evidence of
PWs.1 to 4 and 6 demonstrate that the contraband which
was seized from the conscious possession of the accused
is methaqualone. The Scientific Officer has submitted a
report as per Ex.P14, which clarified that the seized
material is methamphetamine. The prosecution has
proved the case beyond reasonable doubt that the
appellant was carrying contraband and it has been seized
in the presence of the witnesses and those witnesses
have supported the case of the prosecution. Therefore,
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the conviction rendered by the Trial Court is justified.
Interference with the said findings is not warranted.
Making such submissions, learned Central Government
Standing Counsel for the respondent prays to dismiss the
appeal.
11. Having heard learned counsel for the respective parties
and also on perusal of the findings of the Trial Court, it
makes clear that a case has been registered against the
accused alleging that he was carrying contraband in his
shoulder bag and he was traveling from Nizamabad to
Bengaluru by train. He has been apprehended at
Yeshwanthapura Railway Station. Learned counsel for
the appellant mainly relied on Section 52A of the NDPS
Act, which makes clear that inventory of the seized
contraband has to be done in the presence of the
Magistrate. The Magistrate after certifying the correctness
of the inventory so prepared and taking photographs in
the presence of such Magistrate and certifying such
photographs as true or allowing to draw representative
samples of such drugs or substances in the presence of
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Magistrate and certifying the correctness of any list of
samples so drawn.
12. On going through the entire records available, nowhere it
is stated that the Investigating Officer has followed the
procedure contemplated under Section 52A of the NDPS
Act. It is relevant to take note of the ratio laid down by
the Hon'ble Supreme Court in the case of Union of India
1
v. Mohan Lal wherein the Hon'ble Supreme Court held
that the process of drawing samples has to be done in the
presence of Magistrate under Section 52A and the
practice of police or arresting officers drawing samples
themselves at the spot of seizure is invalid and vitiates
the primary evidence.
13. In another case, Mangilal v. State of Madhya
2
Pradesh , the Hon'ble Supreme Court reiterated that the
samples drawn by the police officers instead of following
the procedure contemplated under Section 52A of the
1
(2016) 1 SCC (Cri) 864
2
(2023) 19 SCC 364
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NDPS Act renders such seizure of contraband to be
inadmissible.
14. In the present case, none of the officials have spoken
about the compliance of Section 52A of the NDPS Act. In
fact, in this case, P.W.6 was working as Head Constable,
RPF, stated that samples were taken in the absence of
Magistrate at the Yeshwanthapura Railway Station.
Having considered the said aspect, I am of the considered
opinion, the Trial Court has committed an error in
rendering the conviction. Hence, the conviction is liable
to be set aside.
15. In the light of the observations made above, I proceed to
pass the following:
ORDER
i) The Criminal Appeal is allowed.
ii) The judgment of conviction dated 20.12.2022 and
order on sentence dated 22.12.2022 passed in
Spl.C.C. No.328/2020 on the file of the XXXIII
Additional City Civil and Sessions Judge and Special
Judge (NDPS), Bengaluru, is set aside.
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iii) The appellant is acquitted of the offence under
Section 22(c) of Narcotic Drugs and Psychotropic
Substances Act, 1985.
iv) Bail bonds executed, if any, stand cancelled.
v) Amount in deposit, if any, be returned to the
appellant / accused, on proper identification.
vi) The Foreigners Regional Registration Officer (FRRO)
is directed to deport the appellant to his native in
accordance with law.
Sd/-
(S RACHAIAH)
JUDGE
Bss
List No.: 1 Sl No.: 37