Karnataka High Court
Rajkumar S/O Sidaraya Bhairashetty vs The State Of Karnataka on 8 June, 2020
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 8TH DAY OF JUNE, 2020
BEFORE
THE HON'BLE MR.JUSTICE HANCHATE SANJEEVKUMAR
CRIMINAL APPEAL NO.3683/2012
Between:
Rajkumar
S/o Sidaraya Bhairashetty,
R/o Bhatagunaki,
Taluk Indi,
District Bijapur.
... Appellant
(By Sri Shivanand V.Pattanashetti, Advocate)
And:
The State of Karnataka
Represented by
Additional State Public Prosecutor,
Circuit Bench, Gulbarga
(Through Zalaki Police Station)
... Respondent
(By Sri Mallikarjun Sahukar, HCGP)
This Criminal Appeal is filed under Section 374(2) of
Criminal Procedure Code, praying to set aside the judgment
of conviction and order of sentence dated 26.09.2012 passed
by the Principal Sessions Judge and the Special Judge,
Bijapur in Special (NDPS) Case No.08/2011 and acquit the
appellant/accused in the interest of justice and equity.
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This appeal coming on for final hearing this day, the
Court delivered the following:
JUDGMENT
The above appeal is filed challenging the judgment of conviction and order on sentence dated 26.09.2012 passed in Special (NDPS) Case No.08/2011 by the Court of Principal Sessions Judge and the Special Judge at Bijapur.
2. The brief facts of the case are as follows ;-
PW.1-Complainant who was Deputy Superintendent of Police, Indi on receipt of credible information that on the land belonging to Rajkumar Bhairshetty of Bhatagunaki (the accused) besides lemon tree some cannabis plants were cultivated and accordingly he had requested the Tahasildar (PW-2) to come as pancha while conducting the raid and after informing to his superior officer, conducted raid along with other officials on 18.02.0211 by going over government Jeep bearing Reg.No.KA-28-414 and found 3 that a person was watering the plaint on the land and upon seeing the jeep the said person tried to escape from the spot but he was apprehended and the said apprehended person is the accused in the present case and taken out his name with full address and the said apprehend person (the accused) had stated that he is cultivating his father's land and cultivated cannabis plants amidst of lemon trees and accordingly conducted search of the land and found that there were 145 ganja plants were cultivated and plucked them from the root itself and upon weighing the same they weighed totally 28 kilograms and among them five plants were taken as sample and the weight of the sample plants is 04 kilograms and accordingly packed and sealed separately both samples and the other plants and conducted panchanama as per Ex.P.1 in presence of panchas and other officials and thereafter came to the police station and lodged first information statement (FIS) and then FIR is registered by PW.5. Therefore, on the basis of FIS 4 lodged as per Ex.P.2 the PW.5 had started investigation and conducted investigation and since sufficient material found against the accused, therefore, filed charge sheet against the accused for the offence punishable under Section 20(a) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity hereinafter referred to as NDPS Act).
The accused was released on bail. After filing of charge sheet the Special Court started trial on case and framed charges against accused for the offence punishable under Section 20(a) of the NDPS Act and the accused pleaded not guilty and claims to be tried. After recording his plea the Special Court had started examination of witnesses and the prosecution has totally examined six witnesses as PWs.1 to 6 and got marked documents Ex.P.1 to Ex.P.8 and got marked material objects as M.Os.1 and 2.
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After completion of evidence of the prosecution, the accused examined under Section 313 of Criminal Procedure Code and the accused had simply denied the incriminating circumstances stated before him. The accused did not place any documents and also has not lead any defence evidence and the accused has totally denied the prosecution case.
The Special Court after conducting trial and hearing the arguments on both sides found that the accused had committed the offence punishable under Sections 20(a) of the NDPS Act and accordingly convicted for the offence under Section 20(a) of the NDPS Act and passed order on sentence to undergo rigorous imprisonment for one year and directed to pay fine of Rs.10,000/- with default clause further shall undergo simple imprisonment for three months, if fails to pay the fine amount.
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3. Being aggrieved by the judgment of conviction and order on sentence by the Special Court above stated the accused had preferred the present appeal under Section 374(2) of Criminal Procedure Code (eventhough there is special provision to prefer appeal under Section 36B of the NDPS Act) inter alia on the grounds as stated below ;-
• The Special Court had not appreciated evidence correctly regarding search, seizure and recovery of contraband articles and had not appreciated well on record. Further there is violation of Section 50 of the NDPS Act.
• All the witnesses are the official witnesses and only one witness PW.4 is the independent witness but who has turned hostile. Therefore, apart from the official witnesses there were no independent witnesses are available for the prosecution and these officials are being police official cannot be believed as they are found to be highly interested witnesses. • Further the sentence imposed is harsh one. Further raised a ground that the Special Court ought to have 7 extended the benefit of P.O.Act to the accused/appellant.
4. Heard the arguments from both sides and perused all the evidence on record and other materials, the points that would arise for consideration are as follows ;-
i. Whether judgment of conviction, convicting the accused/appellant for the offence under Section 20(a)(i) of the NDPS Act requires interference by this court ?
ii. Whether the order on sentence passed by Special court requires any interference by this court ?
5. The submissions made by the learned counsel for the accused/appellant and the learned High Court Government Pleader are considered, placed and discussed in the appropriate place (paragraphs) considering the points raised by them while going on discussion on reasons in order to avoid repetition of their submissions.
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6. Before adverting to the entire evidence of the prosecution and analyzing them it is just, proper and necessary to have the cursory look into the role of the witnesses which they played in the present case.
PW.1 is the Deputy Superintendent of Police, Indi who had conducted raid along with Tahasildar and other police officials and searched and seized cannabis plants and prepared a panchanama and also lodged FIS before PW.5;
PW.2 is the Tahasildar who is party to the raid accompanied along with PW.1.
PW.3 is a Constable who had accompanied the raid and assisted PW.1.
PW.4 is a panch witness to the panchanama Ex.P.1.
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PW5 is the Police Sub Inspector who had received FIS and registered the crime and conducted investigation and filed the charge sheet.
PW.6 is the Scientific Officer, who had given the report that the sample ganja is the cannabis plants. ANALYSES
7. Learned counsel for the accused/appellant vehemently argued that in the present case Section 50 of the NDPS Act is not complied with as there is violation. This exercise is on the part of the Gazetted officer and also by the part of PW.1 enabling the accused to enlighten him regarding the mandatory legal provision that he is to be searched by the Gazetted officer and this legal provision must be explained to the accused and then conduct search. But in the present case that is not followed, since the right of the accused is not explained to him. Thus, submitted there is violation of Section 50 of the NDPS Act. 10
8. The learned counsel for the appellant/accused relied on the judgment of Hon'ble Supreme Court in the case of Arif Khan @ Agha Khan vs. State of Uttarakhand reported in [2018] ACR 461. Considering this legal position as enumerated in the NDPS Act while applying in the present case on factual matrix in the present case Section 50 of the NDPS Act is not applicable. Section 50 of the NDPS Act is applicable wherever there is a 'search of a person'. The word used in Section 50 of NDPS Act is 'search any person'. Section 50 of the NDPS Act is not applicable for search of conveyance, vessels lands, buildings etc., and this legal position is settled at rest as promulgated by the Hon'ble Supreme Court in catena of decisions. In the case of Jarnail Singh vs. State of Punjab ((2011) 3 Supreme Court Cases 521), wherein it is held that -
"16. This apart, it is accepted that the narcotic/opium, i.e., 1 kg. and 750 grams was recovered from the bag (thaili) which was being carried by the appellant. In such circumstances, Section 50 would not be applicable. The aforesaid 11 Section can be invoked only in cases where the drug/narcotic/NDPS substance is recovered as a consequence of the body search of the accused. In case, the recovery of the narcotic is made from a container being carried by the individual, the provisions of Section 50 would not be attracted.
17. This Court in the case of Kalema Tumba Vs. State of Maharastra ((1999) 8 SCC 257) discussed the provisions pertaining to "personal search" under Section 50 of the NDPS Act and held as follows: (SCC p.260, para 4);
"4....... if a person is carrying a bag or some other article with him and narcotic drug or psychotropic substance is found from it, it cannot be said that it was found from his 'person'."
18. Similarly, in the case of Megh Singh Vs. State of Punjab ((2003) 8 SCC 666), this Court observed that; (Sc p.670, para 16) "16. A bare reading of section 50 shows that it applies in case of personal search of a person. It does not extend to a search of a vehicle or container or a bag or premises."
19. The scope and ambit of Section 50 was also examined by this Court in the case of State of Himachal Pradesh Vs. Pawan Kumar ((2005) 4 SCC
350). In SCC paras 10 and 11, this Court observed as follows: (SCC pp.359-60) "10. We are not concerned here with the wide definition of the word 'person', which in the legal world includes corporations, associations or body of individuals as factually in these type of cases search of their premises can be done and not of their person. 12 Having regard to the scheme of the Act and the context in which it has been used in the section it naturally means a human being or a living individual unit and not an artificial person. The word has to be understood in a broad common-sense manner and, therefore, not a naked or nude body of a human being but the manner in which a normal human being will move about in a civilised society. Therefore, the most appropriate meaning of the word 'person' appears to be -'the body of a human being as presented to public view usually with its appropriate coverings and clothing'. In a civilised society appropriate coverings and clothings are considered absolutely essential and no sane human being comes in the gaze of others without appropriate coverings and clothings. The appropriate coverings will include footwear also as normally it is considered an essential article to be worn while moving outside one's home. Such appropriate coverings or clothings or footwear, after being worn, move along with the human body without any appreciable or extra effort. Once worn, they would not normally get detached from the body of the human being unless some specific effort in that direction is made. For interpreting the provision, rare cases of some religious monks and sages, who, according to the tenets of their religious belief do not cover their body with clothings, are not to be taken notice of. Therefore, the word "person" would mean a human being with appropriate coverings and clothings and also footwear.
11. A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as 13 such. They cannot even remotely be treated to be part of the body of a human being.
Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act."
9. Therefore considering the present factual matrix involved into the case herein in the present case the search is made on the land but not the accused. In case of search is made on the accused i.e., personal search of the accused is involved then the compliance of Section 50 of the NDPS Act is necessary and mandatory. But here it is the case of the prosecution that the accused was not subjected to search personally but raid is conducted on the land and land of the accused was inspected. Therefore, the submission made by the 14 learned counsel for the accused/appellant cannot be accepted under the legal provision and principle of law laid down by the Apex Court above stated.
10. In the present case PW.1 is the Deputy Superintendent of Police, Indi who had conducted the raid on the land of the accused and found that there were 145 ganja plants were cultivated totally weighing 28 kilograms and among them 04 cannabis plants were taken out as sample and further deposed that he has drawn panchanama as per Ex.P.1 along with him PW.2 Tahasildar and PW.3 Police Constable were also present and in presence of them panchanama was conducted ganja plants were seized and packed and sealed and thus lodged FIS before police as per Ex.P.2 which is registered by PW.5.
11. PW.1 was elaborately cross-examined regarding going to the route towards the land of the accused and various plants situated on the land and 15 surrounding the land whoever houses and lands were situated. On all these aspects cross-examination was done but this exercise of cross-examination do not discredit the evidence of PW.1 as stated in examination- in-chief. Therefore, regarding raid conducted and drawing of panchanama by PW.1 is found to be trustworthy and believable.
12. PW.2 is the Tahasildar who is a Gazetted Officer had deposed in the line of PW.1 that he had accompanied during the raid along with PW.1 and found that on the land belonged to accused there was cannabis plants were found and packed them with the roots and PW.1 had drawn panchanama as per Ex.P.1 and PW.2 had stated as in the line of PW.1.
13. The learned counsel for the appellant has not pointed out anything in the cross-examination to show that evidence of PW.2 is found to be false one. Upon perusing the entire cross-examination of PW.2 16 nothing is elicited that PW.2 is telling falsehood before the court. Hence, evidence of PW.2 is found to be trustworthy. Therefore, the evidence of PW.1 Deputy Superintendent of Police is corroborated by the evidence of PW.2 - Tahasildar.
14. PW.3-Police Constable who had accompanied PW.1 during conducting of raid. PW.3 has given evidence in the line of PW.1. Upon considering the cross-examination of PW.3 there were no material found to show that PW.3 is telling lie before the court and is not shaken to the fact that the entire case is false one.
15. It is cross-examined to PW.3 to the effect that regarding what are the plants were cultivated and surrounding to the land of the accused whichever land and house are situated and distance between police station and the land but this cross-examination do not discredit the evidence of PW.3. Therefore, from the evidence of PW.3 it is also found that the raid was 17 conducted and the raid is genuine one and the entire exercise of raid conducted is in natural course.
16. PW.4 is the panch witness who had turned hostile and his evidence is not helpful to the prosecution case.
17. PW.5 is the Police Sub Inspector who gave evidence that PW.1 had lodged FIS, accordingly first information report was registered as per Ex.P.5 and conducted a procedure of arrest of the accused and received cannabis plants and also received sample ganja and had recorded the statement of police officials who have gone to the land for the raid and then made arrangement for sending of sample to the Forensic Science Laboratory after obtaining permission from the Deputy Superintendent of Police and then forwarded to the Forensic Science Laboratory, Bengaluru and after receiving report from the Forensic Science Laboratory found that the sample cannabis plants are having ganja 18 element and accordingly after completion of investigation found that there are ample materials against the accused to send him for trial. Therefore, filed charge sheet against the accused. Therefore, the role of PW.5 is after receipt of FIS, had conducted investigation and filed charge sheet.
18. The evidence of PW.5 is appreciated whether investigation conducted is having any embellishment or unfair but found that the investigation conducted is found to be in natural course and the sequence of events narrated during the course of investigation are in order having genuinity. Therefore, the investigation conducted is found to be fair one.
19. PW.6 is the Scientific Officer, Forensic Science Laboratory, Bengaluru had stated that he had received sealed cloth bag on 26.05.2011 and found the sealed bag was intact and later on tested the sample plants and found that the sample plants are found to be 19 cannabis plant having element of ganja and accordingly prepared a report and submitted as per Ex.P.6.
20. Therefore, upon considering the entire evidence on record as discussed above, the prosecution is able to prove that the accused had committed the offence alleged that he has illegally cultivated the ganja plants on the land belonging to his father.
21. The learned counsel for the accused/appellant argued that the accused/appellant is not responsible for the offence alleged because on the land in question the plants were seized does not belong to him but his father is the owner of the land and therefore submitted that the accused/appellant is liable to be eschewed as he was not having of knowledge regarding the plants were grown on the land belong to his father. When it is the specific contention of the accused/appellant that the land belonging to his father and he is not in possession and is not cultivating the land 20 then this fact could be proved by the accused by placing some material to show that he was not cultivating the land and he was not in a possession by stating so during the course of examination under Section 313 of Criminal Procedure Code by way of preponderance of probability.
22. It is the evidence of PW.1 that when the raid was conducted on the land it was found that the accused was watering the plant and upon seeing the accused/appellant had tried to escape from the spot but he was apprehended and when this being the evidence of PW.1 then the accused/appellant atleast could have shown some material during the course of recording of statement under Section 313 of Criminal Procedure Code stating that he is not in any way concerned to the land in question but upon perusing the trial court records the accused had simply denied the incriminating circumstances put during the course of cross-examination under Section 313 of Criminal 21 Procedure Code but had not made ventures even to state that he is not concerned to the land.
23. When after completion of evidence of prosecution and during the course of cross-examination under Section 313 Criminal Procedure Code incriminating evidences are put to the accused then the accused had every opportunity of freedom not only to deny the incriminating circumstances put to him but to produce some material showing not concerned to the land in question and that would be considered by way of preponderance of probabilities. Whatever the defence may be those are to be considered by way of preponderance of probabilities but not beyond reasonable doubt but even this benefit is accrued to the accused but has not taken up by the accused. It is for the accused/appellant to show something by way preponderance of probabilities regarding disproving of his involvement in the case on the land in question where cannabis plants were grown up and found. 22
24. The learned counsel for the accused/appellant argued with reference to Section 35 of the NDPS Act which states regarding "presumption of culpable mental status" and argued that when the land in question is standing in the name of the father therefore presumption cannot be accrued against the accused that the accused had committed the alleged offence and in this regard he relied on the judgment of the Hon'ble Supreme Court in the case of Bhola Singh vs. State of Punjab [(2011) 11 Supreme Court Cases 653], wherein it is held that -
"11. Applying the facts of the present case to the cited one, it is apparent that the initial burden to prove that the appellant had the knowledge that the vehicle he owned was being used for transporting Narcotics still lay on the prosecution, as would be clear from the word "knowingly", and it was only after the evidence proved beyond reasonable doubt that he had the knowledge would the presumption under Section 35 arise. Section 35 also presupposes that the culpable mental state of an accused has to be proved as a fact beyond reasonable doubt and not merely when its existence is established by a preponderance of probabilities. We are of the opinion that in the absence of any evidence with regard to the mental state of the appellant no presumption under Section 35 can be drawn. The only evidence 23 which the prosecution seeks to rely on is the appellant's conduct in giving his residential address in Rajasthan although he was a resident of Fatehabad in Haryana while registering the offending truck cannot by any stretch of imagination fasten him, with the knowledge of its misuse by the driver and others."
25. The prosecution has to prove the fact of culpable mental status beyond reasonable doubt then only presumption under Section 35 of the Act can be raised. In the present case the fact is that as discussed above, as it is proved the appellant had knowledge regarding cultivating the cannabis plant on the land then he alone cultivated the cannabis plant on the land. From the discussions made above while appreciating the evidences on record, it is proved beyond reasonable doubt that the accused had cultivated cannabis plant in a large number. Therefore the prosecution has discharged its initial burden of proving the guilt against the appellant beyond reasonable doubt, then as per Section 35 of the Act presumption of culpable mental 24 status can be raised and accordingly it is argued in the present case raising presumption of culpable mental status of the accused of cultivating the cannabis plant. Considering the arguments canvassed by the learned counsel for the appellant in this regard had prosecution not proved beyond reasonable doubt that the accused had not cultivated cannabis land on the land and he is not concerned with the land then presumption cannot be raised. But in the present case, the prosecution has proved beyond reasonable doubt regarding cultivating the cannabis plant on the land and therefore the argument canvassed by the counsel for the appellant that presumption of culpable mental status cannot be raised is not found to be having merit.
26. Further more it is the principle of law laid down in the above stated judgment is that for drawing presumption of culpable mental status of the accused it is initial burden on the prosecution to prove the involvement of accused in commission of offence by the 25 accused beyond reasonable doubt but not only by way of preponderance of probability and only after discharging initial burden by the prosecution, the prosecution can rely with this legal proposition as enumerated under Section 35 of the NDPS Act.
27. Considering the entire scenario in the present case what is depicted by both the sides the prosecution has discharged its burden regarding the involvement of the accused and therefore presumption of culpable mental status of the accused is drawn in the present case and for rebutting this presumption the accused/appellant had not lead any evidence even by way of preponderance of probabilities. For rebutting presumption by the accused it need not be always beyond reasonable doubt as it is being done by the prosecution while proving guilt against the accused but the accused has to show some preponderance of probabilities rebutting the presumption but in the instant case accused failed even to show what is 26 preponderance of probabilities involved in the present case benefiting him. Therefore, in the present case the prosecution has also an added advantage as per Section 35 of the NDPS Act.
28. Likewise Section 54 of the NDPS Act also enumerates presumption of possession of illicit articles. Where the accused fails to give account of possession of contraband articles satisfactorily or fails to give sufficient explanation of such possession then the presumption can be raised as per Section 54 of the NDPS Act regarding illicit articles against the accused. In the present case the accused had not shown any explanation why cannabis plants that too in 145 in number totally weighing 28 kilograms are cultivated whether for any medical purpose or for any genuine reasons. The accused had failed to give satisfactory answer and to give satisfactory account for possession of the cannabis plants on the land which are cultivated. Possession always need not be physical possession also 27 it may be a constructive possession. But the evidence of PW.1 shows that the accused was pouring water to the land while raid was conducted and this material evidence borne in the evidence of PW.1 is not shaken in the course of cross-examination. Therefore even though in the RTC extract Ex.P.8 the land is standing in the name of the father of the accused but the prosecution proved that the accused is on constructive possession as well as physical possession over the land.
29. The learned counsel for the appellant even to the question posed by the Court failed to convince the court where a person's name is found on RTC extract showing who is owner and possessor of the land as per RTC extract whether can he alone be made as accused. In this regard there is no satisfactory answer put-forth by the learned counsel for the appellant. Therefore, by making use of Section 54 of NDPS Act the presumption of possession of illicit articles is also accrued in favour of the prosecution.
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30. The learned counsel for the appellant argued that appellant father's name is appearing on the RTC extract but father is not made as accused but appellant has falsely implicated in the case. It is argument canvassed that since appellant name is not found in the RTC extract then he cannot be implicated in the case as accused. Where the prosecution by placing cogent evidence that the appellant had cultivated cannabis plant on the land even though on revenue record the name of father of the appellant is mentioned then the appellant alone be made as accused. Just because the name of father of the appellant is mentioned in the RTC extract and father name is not stated as accused but appellant is made as accused and implicating the accused in the case even though there being not the name of appellant in the revenue records, it is ridiculous submission. As discussed above, the appellant had ample opportunities to deny his role on the land by placing some evidences even by way of 29 preponderance of probabilities to rebut presumption, but the appellant had not exercised his right to put- forth his defence even by way of preponderance of probabilities to rebut presumption. Where the prosecution discharge its initial burden then the onus shifts on the accused to rebut the said presumption but the appellant failed to rebut the presumption.
31. The learned counsel for the accused/appellant argued that in the present case there is abnormal delay in sending sample ganja to the Forensic Science Laboratory, thus, it goes to the core of the prosecution case and is fatal one. In this regard the learned counsel for the accused/appellant places reliance on the judgment of the Hon'ble Apex Court in the case of State of Rajasthan vs. Tara Singh [(2011) 11 Supreme Court Cases 559] and in the case of Karan Singh vs. State of Punjab and Haryana [2011 (2) Crimes 329 (P&H)] and argued that the delay in sending sample to the FSL discredit the prosecution 30 case in its entirety and there is reasonable doubt arises in the mind of the court whether the sample ganja is really cannabis and the sample is really the material which is extracted at the time of conducting raid and this creates doubt regarding prosecution case.
32. On the other hand learned High Court Government Pleader argued that there is no delay in the present case in sending sample ganja to the FSL and stated the chronological events that on 18.02.2011 raid was conducted and sample ganja was drawn and on 26.02.2011 the sample ganja was reached to the FSL, Bengaluru and in this regard there is no delay in sending sample ganja and whatever may be the time taken in sending sample ganja which is normal course of transaction which cannot be attributed as delay in forwarding samples to the FSL for testing purpose.
33. Firstly upon considering the factual matrix involved in Tara Singh's case as referred by the 31 counsel for the accused/appellant and in that case the Apex court had observed from the record that the samples remained in some unknown custody from 26.02.1998 to 09.03.1998 and there is no explanation and evidence by the prosecution in whose custody the samples were in custody for the said period. The Apex Court had observed the sample were in unknown custody. Therefore, doubted the prosecution case. But in the present case PW.1 after drawing samples from the place of raid and packed and put seal and handed over to PW.5 while lodging FIS and PW.5 has taken over the sample ganja and then wrote a letter to Deputy Superintendent of Police and then forwarded the same to FSL, Bengaluru and said sample materials reached on 26.02.2011 and it is the evidence of Scientific Officer PW.6 that the sample seal put on the material were found in tact. Therefore, this factual matrix makes difference between the cited case and in the present case herein. In the present case the prosecution has 32 sufficiently explained under whose custody the sample ganja were there during this interregnum period from 18.02.2011 to 26.02.2011 and therefore from the evidence of PWs.1, 5 and 6 the prosecution explained in whose custody sample ganja were and as per the evidence of PW.6 the sample seal found are intact. Therefore, this difference of factual matrix between two cases found that the above said judgment is not applicable in the present case.
34. Learned counsel for the appellant by relying on the judgment of the Hon'ble Punjab and Haryana High Court in Karan Singh's case (stated supra) and taken this court to the observations made by the High Court at para No.12, wherein it is observed that -
"12. The alleged recovery was effected from the vehicle on11.04.1996 and thee is an unexplained delayof six days in sending the sample to the Chemical Examiner. Learned counsel has rightly pointed out that delay of six days in the office of Forensic Science Laboratory was not explained and as such possibility of tampering with the same could not be ruled out. The submission of the learned counsel in this regard appears to be correct. It is no 33 doubt, that if the other evidence produced by the prosecution to prove the completion of link evidence, is found to be cogent, convincing, reliable and trustworthy, then mere delay in sending the sample to the office of the Forensic Science Laboratory, pales into significance. On the other hand, if the other evidence produced in this regard is found to be unreliable then certainly the delay by the prosecution to prove the completion of link evidence besides being deficient, is neither reliable, nor creditworthy. In these circumstances the unexplained delay, referred to above in sending the sample to the Laboratory certainly proved fatal to the case of the prosecution."
35. The Punjab and Haryana High Court had observed that for that 6 days delay in sending the material to the chemical examination and there was no explanation by the prosecution and also it was observed that if there is no link evidence and link evidence is not completed and the delay in sending sample to the chemical examination is fatal to the prosecution case. But considering the instant case as discussed above, the prosecution has explained in whose custody the sample were there. From PW.1 to PW.5 after conducting raid and then the PW.5 had made arrangement for 34 sending samples to the chemical examination after receipt from letter from the Deputy Superintendent of Police which are all found to be in natural course and quite naturally this time of 8 days taken cannot be said that there is unreasonable delay so as to going to core of the prosecution case. Further more the prosecution has shown link between each witnesses making full circle unerringly pointing quiet of the accused and proved that the accused had committed the offence as alleged. Therefore under these circumstances the judgment delivered by the Punjab and Haryana High Court is not applicable in the present case as there is difference in factual aspects in that cited case and in the present case.
36. Learned counsel for the appellant argued that PW.4 is an independent witness who is Pancha had turned hostile and has not supported the prosecution case and he had not stated that Panchanama was conducted and then the other witnesses are police 35 officials, Tahasildar and it is by mere believing the official witnesses it cannot be said that the prosecution has proved the guilt against the accused. Therefore it is a total submission for the counsel for the accused is that for want of any other independent witnesses the evidence lead by the official witnesses cannot be believed. In this regard I place reliance on the judgment of Hon'ble Apex Court regarding dealing with the appreciation of evidences on official witnesses, in the case of Surinder Kumar vs. State of Punjab [(2020) 2 Supreme Court Cases 563], wherein it is held that -
"14. Further, it is contended by learned Senior Counsel appearing for the appellant that no independent witness was examined, despite the fact they were available. In this regard, it is to be noticed from the depositions of Devi Lal, Head Constable (PW-1), during the course of cross- examination, has stated that efforts were made to join independent witnesses, but none were available. The mere fact that the case of the prosecution is based on the evidence of official witnesses, does not mean that same should not be believed.
15. The judgment in the case of Jarnail Singh v. State of Punjab ((2011) 3 SCC 521), relied on by the counsel for the respondent-State also 36 supports the case of the prosecution. In the aforesaid judgment, this Court has held that merely because prosecution did not examine any independent witness, would not necessarily lead to conclusion that accused was falsely implicated. The evidence of official witnesses cannot be distrusted and disbelieved, merely on account of their official status.
16. In State (NCT of Delhi) v. Sunil ((2001) 1 SCC 652, it was held as under (SCC p.655):
'It is an archaic notion that actions of the police officer, should be approached with initial distrust. It is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law, the presumption should be the other way round. The official acts of the Police have been regularly performed is a wise principle of presumption and recognized even by the Legislature'. "
37. Considering the submissions of the counsel for the appellant and High Court Government Pleader that in the present case even though PW.4 had turned hostile and other witnesses are official witnesses who are police, Tahasildar and FSL officer but just because the witnesses are officials their evidence cannot be rejected in toto.
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38. In the present context I place reliance on the judgment of Hon'ble Apex Court stated supra while considering and appreciating the evidence of the police officials and other officials. Therefore just because PWs.1, 3 and 5 are the officials and PW.2 is the Tahasildar and PW.6 is the Scientific Officer and all these are Government officials their evidence cannot be thrown away mechanically. Unless evidence of officials found to be biased, vindictive in nature against the accused the evidence of the official witnesses cannot be brushed aside for the reason they are the official witnesses.
39. Therefore upon considering and analyzing the entire evidence on record the prosecution is able to prove the guilt of the accused by placing cogent and reliable evidence and in this regard the Special Court has rightly appreciated the evidence on record and there are no reasons to cause interference in the judgment of conviction rendered by the Special Court. Therefore the 38 recording of judgment of conviction is perfectly justified and correct.
POINT NO.2 :
40. In the present case the Special Court has convicted the appellant for the offence under Section 20(a)(i) of the NDPS Act. The sentence imposed is rigorous imprisonment for a period of one year with fine of Rs.10,000/- and with default clause in case of failure of payment of fine amount to undergo simple imprisonment for three months.
41. Upon considering the nature of sentence imposed and the period of imprisonment as it is only one year with fine of Rs.10,000/- which is not heavy fine deposit amount, this court is of the opinion that the nature of sentence imposed is found to be correct and there is no need to cause any interference in the order on sentence. Therefore the order on sentence rendered by the Special Court is found to be correct. Therefore 39 upon considering the entire case as discussed above and for the reasons stated above, the appeal is found to be devoid of merits and is liable to be dismissed, accordingly dismissed.
42. Section 40 of the Act enumerates power of court to publish names, place of business, etc., of certain offenders. -
(1) Where any person is convicted of any of the offences punishable under section 15 to section 25 (both inclusive), section 28, section 29 or section 30, it shall be competent for the court convicting theperson to cause the name and place of business or residence of such person, nature of the contravention, the fact that the person has been so convicted and such other particulars as the court may consider to be appropriate in the circumstances of the case, to be published at the expense of such person in such newspapers or in such manner as the court may direct.
(2) No publication under sub-section (1) shall be made until the period for preferring an appeal against the orders of the court has expired without any appeal having been preferred, or such appeal, having been preferred, has been disposed of.
40(3) The expenses of any publication under sub-
section (1) shall be recoverable from the convicted person as if it were a fine imposed by the court.
43. Under this provision of law whoever convicted for the offence punishable stated thereunder and after preferring the appeal and appeal is disposed off then the court shall make publication in such newspapers and such manner as enumerated in Section 40 of the NDPS Act. This mandate of law is seldom followed by the court. In the present case, the Special Court has convicted the appellant for the offence punishable under Section 20(a)(i) of the Act and the judgment of conviction and order on sentence is confirmed by this court in the appeal. Therefore, it is hereby directed the Special Court to cause publication in the newspaper as enumerated in Section 40 of the NDPS Act. For the foregoing discussions made above, I answer Points No.1 and 2 as negative. Hence, I pass the following ;
41
ORDER Criminal Appeal No.3683/2012 is hereby dismissed.
The judgment of conviction and order on sentence dated 26.09.2012 passed by the court of Special Judge/Principal Sessions Judge, Bijapur in Special (NDPS) Case No.8/2011 is hereby confirmed.
Registry is hereby directed to send trial court records along with certified copy of judgment to the Special Court forthwith.
The Special Court shall secure the appellant/accused to serve the sentence and also shall comply with Section 40 of the Act.
Sd/-
JUDGE sn