Karnataka High Court
Hari Pai @ Hari Anant Pai @ Hari Pai vs State Of Karnataka on 30 September, 2022
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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CRL.P No. 7634 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 7634 OF 2022
BETWEEN:
1. HARI PAI @ HARI ANANT PAI @ HARI PAI
S/O ANANT PAI
AGED ABOUT 26 YEARS
R/A NO.301, MANDAVI PEARL
CITY APARTMENT
MANIPAL, SHIVALLI VILLAGE
UDUPI-576104
PRESENTLY R/A 12-D
RAKSHAK SOCIETY, PIMPLE NIKAH
PUNE-411027
...PETITIONER
(BY SRI. A.S. PONNANNA, SENIOR ADVOCATE FOR
SRI. MANE SHIVAJI HANAMANTAPPA, ADVOCATE)
AND:
Digitally signed by
PADMAVATHI B K 1. STATE OF KARNATAKA
Location: HIGH
COURT OF BY MANIPAL POLICE
KARNATAKA
UDUPI-576104
2. SRI S. J. KUMARASWAMY
DEPUTY SUPERINTENDENT OF POLICE
UDUPI SUB DIVISION
UDUPI-576104
(REPRESENTED BY
THE LEARNED STATE PUBLIC PROSECUTOR
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CRL.P No. 7634 of 2022
HIGH COURT OF KARNATAKA
BANGALORE-560001)
...RESPONDENTS
(BY SRI. K.S. ABHIJITH, HCGP)
THIS CRL.P. IS FILED U/S.482 CR.P.C. PRAYING TO
A. SET ASIDE THE ORDER DATED 27.06.2022 IN
CR.NO.42/2017 WHICH IS NUMBERED AS
SPL.C.C.NO.115/2019 ON THE FILE OF THE PRINCIPAL
DISTRICT AND SESSIONS JUDGE, UDUPI FOR THE ALLEGED
OFFENCE P/U/S.8(c), 20(b)(ii)(B) OF NDPS ACT. B. QUASH
THE ENTIRE PROCEEDINGS IN CR.NO.42/2017 OF MANIPAL
POLICE STATION, UDUPI WHICH IS NUMBERED AS
SPL.C.NO.115/2019 ON THE FILE OF THE PRINCIPAL DISTRICT
AND SESSIONS JUDGE, UDUPI FOR THE OFFENCE P/U/S.8(c),
20(b)(ii)(B) OF NDPS ACT AGAINST THE PETITIONER.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court calling in question proceedings in Special C.C.No.115 of 2019 pending before the Principal District & Sessions Judge, Udupi arising out of Crime No.42 of 2017 registered for offences punishable under Section 8(c) and 20(b)(ii)(B) of the Narcotic Drugs & Psychotropic Substances Act, 1985 ('the Act' for short).
-3- CRL.P No. 7634 of 20222. Heard Sri A.S.Ponnanna, learned Senior counsel appearing for the petitioner and Sri K.S. Abhijith, learned High Court Government Pleader appearing for respondents.
3. The facts adumbrated are as follows:
On 27-03-2017 claiming to be in receipt of credible information, the 2nd respondent/Superintendent of Police, Udupi that Ganja, a narcotic drug is stocked in a room at No.301, Mandavi Pearl City Apartment, Vidyarathna Nagar conducts a search in the said apartment between 2.00 p.m. and 4.00 p.m. and seized a substance which resembled Ganja weighing 1.388 kgs., a mobile phone and other vessels and drew up a mahazar to that effect. Based upon the said conduct of search and seizure, a complaint comes to be filed before the jurisdictional Police in Crime No.42 of 2017 for offences punishable under Section 8(c) and 20(b)(ii)(B) of the Act. The petitioner was then remanded to judicial custody and was enlarged on bail on 06.04.2017.-4- CRL.P No. 7634 of 2022
4. The substance that was seized on 27-03-2017 was sent to Forensic Science Laboratory ('FSL') of the Government.
The report of FSL comes about on 4-08-2017 opining that it was not Ganja. Notwithstanding FSL report of Government, charge sheet was filed by the Police on 11-09-2019, cognizance was taken by the Special Judge and a case was registered in Special Case No.115 of 2019. The basis on which the charge sheet filed was obtaining of FSL report from the laboratory of the Central Government which opined that it was Ganja. On the ground that the substance that was seized was not Ganja, the petitioner prefers an application seeking his discharge from the array of accused on 17-11-2019. The learned Sessions Judge by his order dated 27-06-2022 rejects the application seeking discharge by holding that it is a matter of trial for the petitioner to come out clean. It is challenging the very proceedings instituted before the Special Court and the rejection of application for discharge, the petitioner has knocked at the doors of this Court in the subject petition.
-5- CRL.P No. 7634 of 20225. Learned Senior counsel, Sri A.S.Ponnanna appearing for the petitioner would contend with vehemence that the very act of the prosecution in sending the sample for a second test violates the rights of the petitioner and is contrary to law. If this would be permitted, there would be no end, till a report that is favourable to the prosecution comes qua the substance seized. The learned senior counsel would place reliance on the following judgments of the Apex Court and that of this Court to buttress his submission that second test is impermissible in law:
(1) THANA SINGH v. CENTRAL BUREAU OF NARCOTICS - (2013) 2 SCC 590;
(2) LAXMI NAGAPPA KOLI v. NARCOTIC CONTROL BUREAU AND ANOTHER - (2015) 13 SCC 598;
(3) ABDUL ALEEM v. THE INTELLIGENCE OFFICER, NARCOTIC CONTROL BUREAU - Criminal Petition No. 9319 of 2016 decided on 15-09-2020.
6. On the other hand, the learned High Court Government Pleader would refute the submissions to contend that it was always permissible for the prosecution to get a second evaluation from any independent agency. Therefore, the guilty -6- CRL.P No. 7634 of 2022 would not go scot free and it is a matter of trial for the petitioner to come out clean.
7. I have given my anxious consideration to the submissions made by the learned senior counsel and the learned Additional Government Advocate and have perused the material on record.
8. The afore-narrated facts are not in dispute. The Police conduct a search on 27-03-2017 at an apartment in Udupi Taluk and seized a red carry bag which according to the prosecution then was containing Ganja like substance which was weighing 1.388 Kgs. This incident becomes a crime in Crime No.42 of 2017. After the search and during the course of investigation, the Investigating Officer makes an inventory of the seized substance holding it to be Ganja and placed before the learned Magistrate on 4-04-2017 and two sets of samples weighing 25 gms. were drawn before the learned Magistrate and the remaining Ganja was forwarded under Section 52A of the Act to the Drug Disposal Committee.
-7- CRL.P No. 7634 of 20229. Thereafter, the Investigating Officer sends the sample that was drawn before the learned Magistrate to the Forensic Science Laboratory, Madivala, Bangalore, which is a laboratory of Government of Karnataka. The sample was received at the Laboratory on 6-04-2017 and after conducting tests, the laboratory submits its report holding it to be negative for cannabis (Ganja). The opinion on the examination reads as follows:
"The Articles sent in Cr. No.0042/2017 of Manipal PS, U/S NARCOTIC DRUGS & PSYCHOTROPIC SUBSTANCES ACT, 1985 U/s 8(c),20(B)(ll)(b), were received in the Laboratory for examination on 06- Aprl-2017 through SANTHOSHA H T 2588- PC. The seals found on the article/s were intact and tallied with sample seal. The description found on the article/s correspond to that of those present in the invoice.
MATERIALS EXAMINED
Description of IO
Sl.No.
Article/s Marking
Said to contain
1. A-1
ganja
One sealed article, sealed with the seal impression "ACJ JMFC UDUPI", intact and tallied with the -8- CRL.P No. 7634 of 2022 specimen seal sent by the IO. The article is pasted with two paper slips, both the slip bearing article description and it was attested by the P.I., Manipal P.S. and A.C.J., J.M.F.C., Udupi.
1.One sealed white cloth packet containing dried, greenish brown coloured small leaves, small broken stalks not having characteristic smell of cannabis. Marked as Article A-1 by the I.O.
Sampling: Weight of the sample as mentioned below is taken, grinded well and used for the following tests separately. (Weight recorded along with cloth packet) Weight of the sample received before examination = 25.95 grams Weight of the sample returned after examination = 19.62 grams Tests:
1. Scanning Electron Microscopic Negative for characteristics: cannabis in Article A-1.
2. Duquenois-Levine Test: No appearance of Violet colour in the chloroform layer Negative for Cannabis in Article A-1.
3. Para aminophenol test No formation of blue colour.
Negative for cannabis in Article A-1.
4. Thin Layer Chromatography Small quantity of the sample is extracted with acetone/chloroform and the extract is filtered, -9- CRL.P No. 7634 of 2022 evaporated to suitable volume and spotted on the TLC plate and developed in two different solvent systems.
System A: Chloroform:
Metahnol(9:1) System B: Petroleum ether & Diethyl ether(80:20) Result: No purple red colour spots Negative or cannabinoids (the constituents of ganja)in Article A-1.
5. UV Spectrophotometric analysis: Small quantity of the sample is extracted with ethanol and extract is filtered after removing the colouring matter and used to UV spectrophotometric analysis.
Result: No absorption at 276 -280 nm. Negative for tetrahydrocannabinol (the major constituent of ganja) in Article A-1.
OPINION The sample found in the above stated Article A-1 has responded negative for cannabis (ganja)."
(Emphasis added) In terms of the opinion of Government Forensic Science Laboratory, the substance that was seized was negative for
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CRL.P No. 7634 of 2022cannabis. What the Investigating Officer would do is, file a charge sheet in the matter without even placing the FSL report on record. Later, it appears that the petitioner files an application before the concerned Court by producing the report of the Laboratory at Bangalore which had held the sample in the negative for Ganja.
10. On the strength of the report, the petitioner files an application seeking his discharge from the array of accused as the substance seized was negative for Ganja and it was a clinching evidence in favour of the petitioner. During the hearing of the application to the shock and surprise of the petitioner, a report was placed by the prosecution. This report was from the Central Forensic Science Laboratory, Hyderabad.
The sending of the sample for a re-test and receipt of a report of the kind that was produced was never in the knowledge of the petitioner. The permission of the concerned Court was not even sought to send the sample for its re-test. The result of the re-test by the Central Forensic Science Laboratory as submitted on 27.11.2017 is opining that the sample sent
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CRL.P No. 7634 of 2022contained Ganja. The learned Sessions Judge turns the application down, which gets the petitioner to this Court in the subject petition.
11. The issue now is, whether the prosecution could have sent the sample for a second test notwithstanding the first one being sent as ordered by the concerned Court to the Government Laboratory of the State and whether the prosecution could have sent the sample for a second test even without the knowledge of it to the petitioner. Before embarking upon its consideration, I deem it appropriate to notice the judgments rendered by the Apex Court and this Court concerning the issue. The Apex Court in the case of THANA SINGH v. CENTRAL BUREAU OF NARCOTICS - (2013) 2 SCC 590 has held as follows:
"27. Therefore, keeping in mind the array of factors discussed above, we direct that, after the completion of necessary tests by the laboratories concerned, results of the same must be furnished to all parties concerned with the matter. Any requests as to re-testing/re- sampling shall not be entertained under the NDPS Act as a matter of course. These may, however, be permitted, in extremely
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exceptional circumstances, for cogent reasons to be recorded by the Presiding Judge. An application in such rare cases must be made within a period of fifteen days of the receipt of the test report; no applications for re- testing/re-sampling shall be entertained thereafter. However, in the absence of any compelling circumstances, any form of re- testing/re-sampling is strictly prohibited under the NDPS Act."
(Emphasis supplied) The Apex Court considers that on the array of factors that are discussed in the judgment any request for re-testing or re-
sampling should not be entertained under the NDPS Act as a matter of Course. There should be extremely exceptional circumstances and for cogent reasons to be recorded by the Presiding Judge that such re-testing could be permitted and such action should be in those rare cases within 15 days from the receipt of the first test report.
12. The Apex Court later following the judgment in THANA SINGH (supra) has in the case of LAXMI NAGAPPA KOLI v. NARCOTIC CONTROL BUREAU AND ANOTHER -
(2015) 13 SCC 598 held as follows:
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"5. During the course of hearing, the learned counsel for the appellant assailed the determination of the courts below, in having the third sample tested. In this behalf, reliance was placed on the decision rendered by this Court in Thana Singh v. Central Bureau of Narcotics [(2013) 2 SCC 590: (2013) 2 SCC (Cri) 818]. Our pointed attention was invited to the following observations recorded in the above judgment: (SCC p. 601, para 27) "27. Therefore, keeping in mind the array of factors discussed above, we direct that, after the completion of necessary tests by the laboratories concerned, results of the same must be furnished to all parties concerned with the matter. Any requests as to re-testing/re-sampling shall not be entertained under the NDPS Act as a matter of course. These may, however, be permitted, in extremely exceptional circumstances, for cogent reasons to be recorded by the Presiding Judge. An application in such rare cases must be made within a period of fifteen days of the receipt of the test report; no applications for re-testing/re-sampling shall be entertained thereafter. However, in the absence of any compelling circumstances, any form of re-testing/re-sampling is strictly prohibited under the NDPS Act."
(emphasis supplied)
6. We have given our thoughtful consideration to the submissions advanced at the hands of the learned counsel for the rival parties. It is no doubt true that the Forensic Science Laboratory, Mumbai, in its report dated 7-3-2013 had clearly opined that it did not have sufficient infrastructure to test the
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CRL.P No. 7634 of 2022sample provided to it by the respondents, and as such, required the respondents to have the same tested by another laboratory. What however, cannot be overlooked is, that a separate sample which was sent to the Forensic Science Laboratory, Hyderabad, which clearly recorded a conclusion that the sample contained Paracetamol and Fervunulin. The instant determination by the Forensic Science Laboratory, Hyderabad is clear, categorical and specific. The same cannot be overlooked under any circumstances.
7. It is in the above factual scenario, that we have to determine whether a third sample could be sent for testing, before some other forensic science laboratory, in terms of the observations made by this Court in Thana Singh case [(2013) 2 SCC 590:
(2013) 2 SCC (Cri) 818]. We are of the view that the instant case is not a case which presents a situation of extreme exceptional circumstances, narrated in the above judgment. At no point in time, can the report submitted by the Forensic Science Laboratory, Hyderabad be ignored. Moreover, the learned counsel for the appellant, during the course of hearing contended that even the report of the Forensic Science Laboratory, Mumbai, clearly establishes that the sample sent to it did not contain heroin. In this behalf it was submitted that the Mumbai laboratory had returned a clear finding, that the sample tested by it was a "Nitrogen based organic compound". It was submitted that heroin is not a Nitrogen based compound, and as such, even the second sample, according to the test report did not contain heroin. The abovementioned factual position (in respect of the report of the Mumbai laboratory), was not disputed by the learned counsel for the
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respondents. In the above view of the matter, no fruitful purpose will be served by sending another sample to any third laboratory."
(emphasis supplied) In the light of what is held by the Apex Court, the re-
testing of the sample from the hands of a second Forensic Science Laboratory should be only in rare and exceptional cases. The learned Magistrate in a given case while directing such re-testing should record reasons of such exceptional and rare circumstance in a particular case warranting a second testing. In the case at hand, the prosecution does not even seek the permission of the concerned Court to send the sample for a second test to the Central Forensic Laboratory at Hyderabad. The prosecution on its own has done so. None are aware of the fact as to when the sample was sent and the report was procured.
13. In the teeth of the facts of the present case where the prosecution has sent the sample for a re-test without even an application for such permission from the hands of the
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CRL.P No. 7634 of 2022concerned Court, the opinion that is tendered by the second laboratory on a re-test becomes an opinion without jurisdiction and contrary to law. These are admitted facts.
14. The sample that was sent to FSL, Bangalore, opinion of which is extracted hereinabove, indicates that it is negative to cannabis. What it contains is also extracted hereinabove. It contains one sealed white cloth packet containing dried, greenish brown coloured small leaves, small broken stalks not having any characteristic smell of cannabis. If on the very smell of it and the look of it or an examination of it, if it could not be depicted that it was cannabis. No proceeding could be instituted under the Act for possession of a narcotic drug. In the light of the fact that the opinion is they were brown leaves and broken stalks which cannot be construed to be Ganja, the law in this regard becomes necessary to be noticed.
15. A co-ordinate Bench of this Court in ABDUL ALEEM v. THE INTELLIGENCE OFFICER, NCB - Criminal Petition
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CRL.P No. 7634 of 2022No.9319 of 2016 decided on 15-09-2020, has held as follows:
12. As could be seen from the contents of panchanama drawn at the spot it only says that it was containing dried leaves dark brown color. Be that as it may. If the FSL report is accepted, there is no definite weight of actual flowering or fruiting parts of the plant. A specific weighing of separate quantity of flowering or fruiting parts, separately, is also necessary so as to come to the conclusion that whether it is a small quantity or a intermediate quantity or commercial quantity. That particular fact is also absent in the records. Even as held in the decision in the case of K.K.Rejji and others, quoted supra at para Nos.13 and 14, it has been observed as under:
"13. From the extracted portion it is seen what the officers have seized are cannabis plants. The description of seized product shows it had stems, leaves, branches and perhaps even the fruiting parts. But the question is can the stem, leaves, branches be termed as 'Ganja' in view of definition referred to above. The answer is obviously in the negative, because the Act itself defines what is Ganja. Not only the raiding party but the Investigation Officer has not separated fruiting tops or flowering from the Ganja plants before weighing. What has been done is they have weighed the entire plants to record the weight as 10 kgs. Since the leaves, stem and branches were also part of the weight, (mass) there was no definite weight of actual flowering or
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fruiting part of the plant (defined as Ganja). Hence the evidence produced before the prosecution to sustain the charge is totally vague. If the whole plant is seized, then it will only be a cannabis plant and not ganja.
14. Initially, the charge against the appellant/accused was for the offence punishable under Section 20(a), (b) of NDPS Act, but the Trial Court found them guilty only for the offence punishable under Section 20(b)(i) of the Act. There is no conviction for the offence under Section 20(a) of the Act. Hence, in was incumbent upon the prosecution to establish it was Ganja as defined and its weight."
By taking into consideration the ratio laid down in the said decision that whatever the article which has been seized, it appears to be only dried leaves and it will not fit within the definition of the 'Ganja' as defined under Section 2(iii)(b) of the NDPS Act. Even, the FSL report does not specifically mention what is the quantity of tetrahydrocannabinol found in the said articles. As could be seen from the said report, the only opinion which has been expressed is that the quantity estimated of the sample under the reference could not be done for the want of facility. On that count, it may not be held that it was the ganja which is prohibited under the said NDPS Act. For the purpose of the said facts that on relying upon the decision of Mujeeb Mehboob (supra) quoted at para Nos.7, 8, 10 and 11, it is observed as under:
"7-The definition of 'cannabis' in Section 2(iii) of the NDPS Act is as under:
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(iii) "Cannabis (hemp)" means--
(a) charas, that is, the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish;
(b) ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated; and
(c) any mixture, with or without any neutral material, of any of the above forms of cannabis or any drink prepared therefrom.
7A. It is therefore clear from the aforesaid definition that, it is only flowering or fruiting tops of cannabis plant excluding the seeds and leaves that constitute ganja. This Court in the decision referred to by the petitioner's Counsel in K.K.Rejji's case has also held that, it is only the fruiting or flowering part of cannabis plants that will constitute ganja.
8. In the case on hand, the FSL report that is produced by the petitioner does not give clear indication as to what was seized was the flowering or fruiting part of cannabis plant and if the samples seized are to be termed as charas, then that would also require the prosecution to indicate as to the percentage of resin that is obtained from the cannabis plant. The FSL report does not give any indication in regard to this aspect also.
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CRL.P No. 7634 of 202210. In the case on hand, the alleged seizure from the petitioner is said to be 1 kg 195 gms and it certainly falls below the commercial quantity. In the decision referred to by the petitioner's Counsel viz., Bajinder Singh's case, the Division Bench of the said High Court has held that, as per the definition u/s 2(iii)(a) of the NDPS Act, it is the separated resin alone which constitute charas and as far as the percentage is concerned, insofar as ganja is concerned, it has been held in the said case that tetrahydrocannabinol are found not only in charas, but also in ganja and the extent of the said ingredient has to be 25% in ganja and 25 to 41% in charas.
11. In the instant case, the material placed at this juncture through FSL report throws no light as to the percentage of aforesaid ingredient in the quantity seized and there is still doubt as to what was seized was actually charas or ganja. Having regard to the aforesaid factors, in the instant case on hand, the petitioner can be released on bail by imposing conditions to safeguard the prosecution interest. Hence, the following order is passed:
1. The petitioner shall be released on bail on his furnishing personal bond for Rs.50,000/- with two sureties for the likesum to the satisfaction of the Trial Court.
2. He shall not tamper with the evidence and shall not give threat to the witnesses in any manner.
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CRL.P No. 7634 of 20223. He shall not hamper the investigation.
4. He shall attend the Court on all dates of hearing.
5. He shall mark his attendance before the concerned police Station on the 15th and 30th of every month between 10.00 a.m. and 5.00 p.m.
6. He shall not involve himself in the offence of like nature in future.
7. He shall appear before the Trial Court regularly on all dates of hearing.
Violation of any one of the above conditions will give rise to cancellation of bail at the instance of the prosecution."
13. When the entire material is analyzed and if the said quantity of the article which has been seized is not considered to be Ganja within the definition then under such circumstances, I am of the considered opinion that the continuation of the proceedings before the Court below is nothing but it is abuse of process of law. Though it is contended by the learned counsel for the respondent that the prosecution has to examine many more witnesses to substantiate its case but the documents produced itself clearly points out the seized article is only dried leaves brown in color then under such circumstances, any quantity of the evidence which is going to be produced orally is not going to help the case of the prosecution in any manner, it is nothing but waste of the valuable judicial time.
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CRL.P No. 7634 of 202214. I am conscious of the fact that now a days case of high profile drug peddling are increasing and such circulation is also increasing. I am also conscious of the fact that it has got a serious effect in the society particularly, harming younger generation, the college going children, it promotes crimes, easy money and it affects the life of youngsters who are the future of this country, they will be much affected. The said menace has to be removed from root level like "Chanakya" who removed the grass by taking it as a challenge. Now it is high time for investigating agency to take proper steps and become "Chanakya" to nip from the bed from grass root level. There is a trend of inculcation of drugs, ganja and other such things in the society by various transactions and it has created menace in the society and such things are to be dealt with iron hands and they could not be spared even for a while. However, in the absence of any legal material, this Court will be helpless only to pass the present order."
(emphasis supplied) The Co-ordinate Bench considers an earlier judgment of this Court in the case of K.K.REJJI AND OTHERS v. STATE BY MURDESHWAR POLICE STATION, KARWAR - 2009 SCC OnLine KAR 325 and holds that collection of dried leaves brown in colour would not come within the definition of Ganja.
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CRL.P No. 7634 of 2022The co-ordinate Benches had obliterated the proceedings on the aforesaid ground.
16. What is seized, in the case at hand, at the time of search and according to what was sent to the Forensic Science Laboratory were dried leaves brown in colour and some stalks of a plant. In the light of the law laid down by the Apex Court and that of this Court and the unequivocal opinion of the laboratory on its first testing was that it was not Ganja and the fact that the second testing was without any application even before the concerned Court, permitting further proceedings would run foul of the judgment of the Apex Court and the facts obtaining in the case at hand. Therefore, I deem it appropriate to obliterate the proceedings against the petitioner, failing which, it would become an abuse of the process of law and result in miscarriage of justice. Therefore, the concerned Court fell in error in not allowing the application of the petitioner seeking his discharge from the array of accused in Spl.Case No.115 of 2019.
17. For the aforesaid reasons, I pass the following:
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ORDER
(i) The Criminal Petition is allowed.
(ii) The proceedings in Crime No.42 of 2017 and all further actions including the order dated 27th June, 2022 passed by the Principal District & Sessions Judge, Special Court, Udupi in Spl.Case No.115 of 2019, stand quashed.
(iii) The petitioner shall stand discharged from the proceedings in Spl.Case No.115 of 2019.
Sd/-
JUDGE SJK/bkp List No.: 1 Sl No.: 8