Karnataka High Court
Kondalrao S/O Anjaneya And Anr vs The State Through on 13 September, 2023
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NC: 2023:KHC-K:7368
CRL.A No. 200022 of 2017
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 13TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.200022 OF 2017
BETWEEN:
1. KONDALRAO
S/O. ANJANEYA
AGED ABOUT 50 YEARS
OCCUPATION: AGRICULTURE.
2. GURUNATHREDDY
S/O. NAGANGOUDA KHANAPUR
AGE ABOUT 30 YEARS
OCCUAPTION: COOLIE WORK
BOTH ARE RESIDNET OF DARSHANAPUR
SHAHAPUR
YADGIR.
...APPELLANTS
(BY SRI R. S. LAGALI, ADVOCATE)
AND:
THE STATE
THROUGH EXCISE SUB-DIVISION
Digitally signed by SHAHAPUR
SHILPA R
TENIHALLI REPRESENTED BY ADDITIONAL STATE
Location: HIGH PUBLIC PROSECUTOR
COURT OF
KARNATAKA KALABURAGI BENCH.
...RESPONDENT
(BY SMT. ANITA M. REDDY, H.C.G.P.)
***
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 OF THE
CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION
AND ORDER ON SENTENCE DATED 1-2-2017 OF SESSIONS JUDGE,
SPECIAL COURT, YADGIRI, IN SPECIAL CASE NO.3/2013 AND
ACQUIT APPELLANT NOS.1 AND 2.
THIS CRIMINAL APPEAL IS COMING ON FOR DICTATING
JUDGMENT, THIS DAY, THE COURT MADE THE FOLLOWING:
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NC: 2023:KHC-K:7368
CRL.A No. 200022 of 2017
JUDGMENT
This appeal is filed by the appellants/accused Nos.1 and 2 under Section 374 of the Code of Criminal Procedure, 1973, (for short, 'Cr.P.C.') praying to set aside the judgment of conviction and order on sentence dated 1- 2-2017 passed by the Sessions Judge, Special Court, Yadgiri, in Special Case No.3 of 2013 and acquit them for the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'NDPS Act').
2. For the sake of convenience the parties are referred to as per their ranking before the trial Court. The appellants are accused Nos.1 and 2 and the respondent- State is the complainant.
3. The brief facts of the prosecution case is that on 25-3-2013 at about 12.45 p.m., the complainant-Excise Inspector, Shahapur, received credible information with regard to illegal transportation of cannabis on the road proceeding to Village Darshanapura Cross to Village -3- NC: 2023:KHC-K:7368 CRL.A No. 200022 of 2017 Chandapura Cross, Shahapura Taluk and hence, she secured her sub-staff, panchas and visited the intended place and started to watch, at that time, they noticed arrival of accused Nos.1 and 2 on motorcycle, bearing registration No.KA-33 L-4583, from bus stand of Village Darshanapura Cross by carrying three white colour plastic pesticide bags by proceeding half kilometre towards Chandapura Village and they stopped the vehicle, accused No.2 ran away in agricultural land and escaped from the said spot, but they apprehended accused No.1 and on inspection, they found 15 kilograms dry cannabis in the said three bags. Accordingly, they took 100 grams each in all 300 grams for the sample purpose, prepared seizure panchanama at the spot, secured accused No.1 and lodged a complaint along with seizure mahazar to the Station House Officer. Hence, the Station House Officer registered the case in Crime No.16 of 2013 and submitted F.I.R. to the jurisdictional Court. Later, the Investigating Officer recorded the statement of witnesses, sent seized cannabis -4- NC: 2023:KHC-K:7368 CRL.A No. 200022 of 2017 to RFSL for examination and report, and thereafter, he filed charge-sheet against accused Nos.1 and 2.
4. After receipt of the charge-sheet, the trial Court took cognizance of the offences against the appellants under Section 190(1)(b) of Cr.P.C., the presence of the appellants were taken and they were enlarged on bail during trial. The trial Court after hearing on charge, framed charges against the appellants for the offences under Sections 20, 25 and 29 of the NDPS Act and they pleaded not guilty and claimed to be tried.
5. The prosecution in order to prove its case examined in all seven witnesses as PW.1 to PW.7, got marked fourteen documents as per Exs.P.1 to P.14 and closed its side of evidence. No material object has been marked on behalf of the prosecution. At the conclusion of the trial, the statement of the appellants were recorded under Section 313 of the Cr.P.C. by explaining the incriminating material available in the prosecution case and the case of the appellants were of total denial. -5-
NC: 2023:KHC-K:7368 CRL.A No. 200022 of 2017
6. After hearing the prosecution and the defence, the trial Court framed the following point for its determination:
i. Does the prosecution proves to the hilt that on 25-3-2013 at about 2-00 p.m. 1⁄2 k.m. away from Dharshnapur cross bus stand by the side of the road leading to Chandapur village, the accused Nos.1 and 2 knowing fully well that the said 15 k.g.
of cannabis is a narcotic drug and
psychotropic substance, found illegally
transporting the same and the accused No.1 being the rider on the abetment of accused No.2 being the pillion rider have committed the said offences and thereby they have committed an offences punishable under Sections 25, 20 and 29 of the Narcotic Drugs and Psychotropic Substance Act, 1985 as alleged?
7. On the basis of the oral and documentary evidence on record, the trial Court convicted the appellants for the offence punishable under Section 20 of the NDPS Act and sentenced them to undergo rigorous -6- NC: 2023:KHC-K:7368 CRL.A No. 200022 of 2017 imprisonment for five years and to pay fine of Rs.1,00,000/- each and in default, to undergo simple imprisonment for one year. Aggrieved by the judgment of conviction and order on sentence, the appellants have filed this appeal.
8. Learned counsel for the appellants has contended that the judgment of conviction and order of sentence passed by the trial Court is manifestly illegal, arbitrary and against the facts and evidence on record. There is no iota of evidence to connect the appellants in the crime. In the instant case, the independent witnesses, i.e. PWs.2 and 3, have turned hostile to the case of the prosecution and in absence of independent witnesses and merely on the basis of oral evidence of PWs.1 and 4 to 7, the trial Court convicted the appellants which is gross error in law. The respondent-Police have not complied with the mandatory provisions of Sections 42, 50, 52 and 54 of the NDPS Act. Hence, the judgment of the trial Court is not tenable in law. He further contended that the ganja in question was -7- NC: 2023:KHC-K:7368 CRL.A No. 200022 of 2017 seized in all 14.100 kilograms, but while weighing the same before the Magistrate, it was about 12 kilograms and therefore, there is discrepancy in the weight of seized ganja. Hence, he prayed to allow the appeal.
9. Learned High Court Government Pleader for the respondent-State has vehemently contended the complainant, sub-staffs, Gazetted Officer and Investigating Officer have categorically stated against the appellants. Therefore, the trial Court has rightly convicted the appellants. Further, the complainant has complied with the mandatory requirements of Sections 42, 50, 52 and 54 of the NDPS Act. Hence, there is no finding fault in this regard and on the basis of the material available on record, the trial Court has rightly drawn presumption under Section 54 of the NDPS Act in favour of the prosecution and accordingly, convicted the appellants. Hence, she prayed to dismiss the appeal.
10. Based on the above submissions, the following point arises for my consideration:
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NC: 2023:KHC-K:7368 CRL.A No. 200022 of 2017 Whether the judgment of conviction and order on sentence dated 1-2-2017 passed by the Sessions Judge, Special Court, Yadgiri, in Special Case No.3 of 2013 calls for interference?
11. As per the case of the prosecution, on 25-3-2013 at about 2.00 p.m., the complainant, her sub-staff and the Gazetted Officer conducted raid on accused No.1 and found 15 kilograms of cannabis, which was illegally transporting by the appellants. Therefore, the complainant seized the said cannabis and conducted seizure panchanama and filed the complaint.
12. In order to establish the above said aspect the prosecution examined:
a. PW.1-Vanita, Excise Inspector, has deposed that on credible information, she conducted raid and apprehended accused No.1, drawn seizure panchanama, seized 15 kilograms of ganja, drawn sample of 100 grams each in all 300 grams from three bags and lodged the -9- NC: 2023:KHC-K:7368 CRL.A No. 200022 of 2017 complaint against the appellants as per Ex.P.4. In the cross-examination, she categorically admitted that she did not conduct any panchanama while sending ganja to F.S.L. to ascertain the weight or its nature. She further admits that the sample ganja was stored in her Office. She further admits that the Gazetted Officers were available in Shahapura Taluk, apart from the Gazetted Officers available in her Office. She further admits that she informed her higher Officer at 1.00 p.m. about the information and she sent F.I.R. at 4.30 p.m. to the Court as well as her higher authorities but, she has not produced any documents to substantiate that said information was sent to her higher authority. She further admits that she has mentioned the approximate weight of the ganja and not its actual weight.
b. PW.2-Mallikarjun and PW.3-Timmappa are the witnesses to seizure mahazar-Ex.P.1. They both have turned hostile to the case of the prosecution. Though the learned Special Public Prosecutor treated these witnesses
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NC: 2023:KHC-K:7368 CRL.A No. 200022 of 2017 as hostile witnesses and permitted to cross-examine, but they have not supported the case of the prosecution.
c. PW.4-Mohammad Ismail, Excise Dy.S.P., who accompanied the complainant during raid. He has reiterated the averments made in the evidence of PW.1. In the cross-examination, she admits that they have mentioned approximate weight of cannabis at the time of conducting seizure panchanama and three ganja bags were packed by stitching.
d. PW.5-Basavaraj, Excise Superintendent, a Gazetted Officer, who accompanied the complainant during raid. He reiterates the evidence of PWs.1, 4 and 6. He has undergone intrinsic cross-examination by the learned counsel for the accused. In the cross-examination, he admits that the distance between alleged spot and the Court is about 1 kilometre. He never insisted the complainant to obtain search warrant for intended raid, as sometimes the information received would be false. He admits that he affixed his signature on seizure
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NC: 2023:KHC-K:7368 CRL.A No. 200022 of 2017 panchanama as the Gazetted Officer. He further admits that he did not inform PW.1 to secure Gazetted Officer from other Departments. He further admits that they did not weigh ganja at the spot, but they weighed the same in the Office. On perusal of the cross-examination of PW.4, three bags were packed and stitched at the spot, but as per the cross-examination of this witness, they did not weigh the ganja at the spot and they weighed ganja at the Office.
e. PW.6-Anil Kumar, Excise Inspector, who participated in the raid. He reiterates the evidence of PWs.1, 4 and 5.
f. PW.7-Somappa, Excise Sub-Inspector, who conducted investigation and filed the charge-sheet against the appellants.
13. In the instant case, it is admitted that, the Excise Inspector, who conducted raid on accused No.1, has not made any record of any ground on the basis of
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NC: 2023:KHC-K:7368 CRL.A No. 200022 of 2017 which, she had a reasonable belief that, the offence under Section 54 of the NDPS Act is being committed before proceeding to conduct raid on the appellants without obtaining a search warrant and therefore, the provisions of Section 54 of the NDPS Act have not at all complied with. Therefore, this renders the entire search, raid without jurisdiction and as a logical corollary, it vitiates the proceedings. Sections 53 and 54 of the NDPS Act contain valuable safeguards for the liberty of citizen, in order to protect them from ill-founded or frivolous prosecution or harassment. Therefore, there has been a direct non- compliance of the provisions of Section 54 of the NDPS Act, which renders the search completely without jurisdiction.
14. Further, as per Section 42(2) of the NDPS Act, where an Officer takes down any information in writing under Sub Section (1) or grounds for his belief, he shall within 72 hours send a copy thereof to his immediate superior official. The compliance with Section 42(2) of the
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NC: 2023:KHC-K:7368 CRL.A No. 200022 of 2017 NDPS Act is mandatory and failure of the Excise Officer to take down the information received by him in writing and shall forthwith send a report to his immediate Officer would cause prejudice to the appellants. Under this Section, if there is total non-compliance in the provisions, the same would adversely affect the prosecution case and to that extent, it is mandatory. Whereas in the instant case, no information was taken down in writing by the Police Officer, Excise Police or conveyed to the immediate Excise Officer. As per the evidence of PW.1, she orally informed to her higher Official. Any oral evidence of PW.1/Excise Officer will not be in compliance with the provisions of Section 42(2) of the NDPS Act. Apart from this, the first informant did not reduce the credible information in writing and she has not registered the said credible information as F.I.R.
15. On perusal of the oral and documentary evidence on record, it appears that the requirements of Section 50 of the NDPS Act have not been complied with. In fact, the
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NC: 2023:KHC-K:7368 CRL.A No. 200022 of 2017 appellants ought to have been informed that, they have the option of being searched in the presence of a Gazetted Officer or a Judicial Magistrate of First Class. In the instant case, PW.1, the first informant, ought to have complied with the requirements of Section 50 of the NDPS Act. Though the Excise Officials have not complied with the mandatory requirements of Section 50 of the NDPS Act, the trial Court has wrongly interpreted that there is no hard and fast rule that independent Gazetted Officer, the search to be made in the presence of the independent Gazetted Officer.
16. On perusal of the oral testimony of PW.5, it clearly establishes that he is the higher authority of PW.1. The obligation of raiding party under Section 50 of the NDPS Act has been settled in the case of VIJAYASINH CHANDUBHA JADEJA v. STATE OF GUJARAT reported in (2011) 1 SC 609 wherein, the Hon'ble Apex Court held that "the requirement of Section 50 of the NDPS Act is a mandatory requirement and the provision of Section 50
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NC: 2023:KHC-K:7368 CRL.A No. 200022 of 2017 must be very strictly construed." From perusal of the ratio laid down in the decision cited supra, on the case on hand, the requirements of Section 50 of the NDPS Act is not complied with by informing the appellants of their option to be searched either in the presence of a Gazetted Officer or a Magistrate. The mandatory requirement continues even after that and it is required that the appellants is actually brought before the Gazetted Officer or the Magistrate in order to impart authenticity, transparency and creditworthiness to the entire proceedings. In the instant case, PW.1, Excise Inspector, ought to have laid an endeavour to produce the appellants before the nearest Magistrate or she ought to have conducted raid in the presence of Gazetted Officer of other Departments, though PW.1 conducted raid on the appellants, she never gave any option to the appellants either to conduct the raid before the Magistrate or in the presence of any Gazetted Officer of other Departments. PW.1 conducted raid in the presence of PW.5, who is none other than higher superior Officer of PW.1 termed as Excise Superintendent. Thus,
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NC: 2023:KHC-K:7368 CRL.A No. 200022 of 2017 PW.1 has not complied with the requirements of Section 50 of the NDPS Act.
17. On perusal of the evidence of PW.1, it appears that on 25-3-2013 at 1.00 p.m., she received credible information about illegal transportation of cannabis. Admittedly, PW.1 not recorded the said information received in her diary nor it was communicated to her higher authority in writing within the period of 72 hours, even after raid was conducted.
18. In the instant case, according to the prosecution case, the appellants were in possession of 15 kilograms of ganja, which were kept in three bags. In support of the contention of the prosecution, it got examined the Scientific Officer. Admittedly, the raiding party seized ganja. But on perusal of Ex.P.10-F.S.L. Report of chemical analysis, the Chief Scientific Officer of R.F.S.L., Bengaluru, opined that there is presence of ganja (cannabis) in the packets sent for examination. It appears that the report of chemical analysis is incomplete as the Chief Chemist
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NC: 2023:KHC-K:7368 CRL.A No. 200022 of 2017 has not categorized ganja whether it includes stem, leaves, branches, fruiting tops, etc.
19. A Co-ordinate Bench of this Court, in the case of K.K. REJJI v. STATE BY MURDESHWAR POLICE STATION, KARWAR, reported in 2010 (5) KAR.L.J 279, has held as under:
"Ganja is defined under the provision of NDPS Act as follows:
"2(iii)(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".
Whereas in the instant case, the Chief Chemist has not described the ganja as defined under Section 2(iii)(b) of the NDPS Act. Therefore, the F.S.L. Report is inconclusive.
20. On perusal of the evidence of PWs.1 and 4 to 7, it appears that there is contrary to the evidence as to
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NC: 2023:KHC-K:7368 CRL.A No. 200022 of 2017 seizure of ganja, its measurement and the manner of seizure conducted by them. Admittedly, the Investigating Officer has not examined any independent witness, though available in the locality. Further, PWs.2 and 3, being independent seizure mahazar witnesses, have not supported the case of the prosecution. Though the Office of PW.1 is situated in Shahapur and in the vicinity of Office of PW.1, there were chances of availability of Gazetted Officers of other Departments, but PW.1 or PW.5 failed to call the Gazetted Officers, who were available in Shahapur locality. Except the Excise Official witness, the other locality witness or independent witness have not made as witness to the case on hand.
21. Learned High Court Government Pleader submits that the evidence of PWs.1 and 4 to 7 are trustworthy, reliable, cogent. Hence, their evidence inspires the confidence. Therefore, the trial Court has rightly convicted the appellants.
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NC: 2023:KHC-K:7368 CRL.A No. 200022 of 2017
22. In the instant case, PWs.1 and 4 to 7 are Officials of the Excise Department. The entire raid has been conducted by them in the absence of any independent witness and the manner of conduct of raid on the appellants is also contrary to the provisions of the NDPS Act. The mandatory provisions of the NDPS Act have not been complied with and the raiding party have not given any opportunity to choose or gave an option to conduct raid in presence of the Magistrate or independent Gazetted Officers. Under such circumstances, the evidence of Excise Officials requires corroboration and based on the oral testimony of Excise Officials, conviction cannot be imposed. Further, except the Excise Official witness, the other locality witness or independent witness have not supported the case of the prosecution. Hence, looking into any angle, the prosecution has failed to prove its case beyond reasonable doubt, but the trial Court based on uncorroborated testimonies has wrongly convicted the appellants. Hence, the appeal filed by the appellants
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NC: 2023:KHC-K:7368 CRL.A No. 200022 of 2017 deserves to be allowed. Accordingly, I answer above point in the affirmative.
23. Accordingly, I pass the following ORDER i. Criminal appeal is allowed;
ii. The judgment of conviction and order on sentence dated 1-2-2017 passed by the Sessions Judge, Special Court, Yadgiri, in Special Case No.3 of 2013 is hereby set aside;
iii. Appellant Nos.1 and 2/accused Nos.1 and 2 are set at liberty and their bail bonds, shall stand cancelled, and iv. The fine amount, if any, deposited shall be returned to the appellants, forthwith.
Sd/-
JUDGE KVK List No.: 1 Sl No.: 23