Karnataka High Court
Mavangal Prabhakara @ Auto Prabha vs The State Of Karntaka on 4 March, 2024
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NC: 2024:KHC:8948
CRL.A No. 1052 of 2013
C/W CRL.A No. 1054 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.1052 OF 2013
CONNECTED WITH
CRIMINAL APPEAL NO.1054 OF 2013
IN CRL.A. NO.1052/2013:
BETWEEN:
MAVANGAL PRABHAKARA
@ AUTO PRABHA
S/O LATE VELAYUDHAN
AGED ABOUT 56 YEARS
DRIVER OF AUTO NO.KA-12-4118
CHENNANGOLLI PAISARY
BALAJI VILLAGE
GONIKOPPA, VIRAJPET TALUK
KODAGU DISTRICT-571 201.
...APPELLANT
(BY SRI R. K. MAHADEVA, ADVOCATE)
Digitally signed by AND:
MOUNESHWARAPPA
NAGARATHNA
Location: HIGH THE STATE OF KARNATAKA
COURT OF
KARNATAKA REPRESENTED BY THE PSI
MADIKERI RURAL POLICE STATION
KODAGU DISTRICT-571 201.
...RESPONDENT
(BY SRI VINAY MAHADEVAIAH, H.C.G.P.)
***
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NC: 2024:KHC:8948
CRL.A No. 1052 of 2013
C/W CRL.A No. 1054 of 2013
IN CRL.A. NO.1054/2013:
BETWEEN:
1. P. K. JINSON
S/O. KUNJAN
AGED ABOUT 35 YEARS
AGRICULTURIST AND BUSINESSMAN
PANDANCHERI HOUSE, KELAGAM VILLAGE
NEAR MANCHALKAVU TEMPLE
TALLICHERI TALUK
KANNANUR DISTRICT
KERALA STATE - 571 201.
2. NIJU
S/O. KURIAN
AGED ABOUT 44 YEARS
MEENPET
FAROOQ FURNITURE & SAW MILL
VIRAJPET, MADIKERI DISTRICT - 571 201
NATIVE OF KOTTEYUR PUDUMATTATHIL
CHUNGAKUN POST
VENAGALAVADI VILLAGE
KELAGAM PS, KANNANUR DISTRICT
KERALA STATE.
...APPELLANTS
(BY SRI R. K. MAHADEVA, ADVOCATE)
AND:
THE STATE OF KARNATAKA
REPRESENTED BY THE PSI
MADIKERI RURAL POLICE STATION
KODAGU DISTRICT - 571 201.
...RESPONDENT
(BY SRI VINAY MAHADEVAIAH, H.C.G.P)
***
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NC: 2024:KHC:8948
CRL.A No. 1052 of 2013
C/W CRL.A No. 1054 of 2013
THESE CRIMINAL APPEALS ARE FILED UNDER SECTION
374(2) OF THE CR.P.C. PRAYING TO SET ASIDE THE
JUDGMENT OF CONVICTION AND ORDER ON SENTENCE DATED
25-10-2013 PASSED BY THE SESSIONS JUDGE, KODAGU,
MADIKERI, IN SPECIAL CASE (NDPS) NO.7 OF 2007
CONVICTING ACCUSED NO.5 AND ACCUSED NOS.2 AND 3 FOR
THE OFFENCES PUNISHABLE UNDER SECTIONS 8(b) AND
20(a)(i) OF THE NDPS ACT.
THESE CRIMINAL APPEALS ARE COMING ON FOR
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
JUDGMENT
Criminal Appeal No.1052 of 2013 is filed by accused No.5 and Criminal Appeal No.1054 of 2013 is filed by accused Nos.2 and 3 under Section 374(2) of the Code of Criminal Procedure, 1973 (for brevity referred to as 'Cr.P.C.') to set aside the judgment of conviction and order on sentence dated 25-10-2013 passed by the Sessions Judge, Kodagu, Madikeri, in Special Case (NDPS) No.7 of 2007 and acquit them for the offences punishable under Sections 8(b) and 20(a)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity referred to as 'NDPS Act').
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NC: 2024:KHC:8948 CRL.A No. 1052 of 2013 C/W CRL.A No. 1054 of 2013
2. For the sake of convenience, the parties are referred to as per their rankings before the trial Court. The appellants are accused Nos.5, 2 and 3 respectively and the respondent-State is the complainant.
3. The brief facts of the prosecution case is that on 7-2-2007 at 5:00 a.m., when PW1-G.M. Naikar, Sub- Inspector of Police (Crimes), Madikeri Rural Police Station, was in his official quarters, received a credible information with regard to growing of cannabis (ganja) plants at Meghathalu of Makkandur Village in the land belonging to accused No.1 to an extent of 1½ acres with the assistance of other accused persons. Immediately, PW1 went to the Police Station, secured sub-staff, panchas and PW3- K.N. Sathyanarayana, In-charge Tahasildar, and reached the spot at 7:00 a.m. and conducted raid on the accused persons. Accused No.1 and two other persons were watering cannabis plants, two others were filling the pits with mud using spades, and one person was cooking in a shed covered with plastic sheet. Therefore, PW1 with the -5- NC: 2024:KHC:8948 CRL.A No. 1052 of 2013 C/W CRL.A No. 1054 of 2013 assistance of his sub-staff took accused Nos.1 to 6 to his custody. PW1, his sub-staff and Gazetted Officer identified cannabis plants, where 525 pits had been dug and in each of them, four to five plants were found. In this regard, a detailed seizure mahazar was drawn in the presence of the witnesses. There were 2415 cannabis plants in the land of accused No.1 and out of it, five were removed for the purpose of sample. Hence, PW1 went to the Police Station, along with accused persons, lodged a complaint as per Ex.P2 and produced accused Nos.1 to 6 before PW7- K.P. Harishchandra, Sub-Inspector of Police. On the basis of Ex.P2, PW7 registered a case in Crime No.20 of 2007 and sent FIR as per Ex.P5. In turn, PW7 took up investigation, recorded the statements of the witnesses, and on the following day of the incident, he went to the spot, destroyed the remaining 2410 plants with permission of the Court and sent five sample plants for chemical examination and on receipt of the report-Ex.P8 and after completion of investigation, he submitted charge-sheet to the Court.
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4. After receipt of the charge-sheet, the trial Court took cognizance of the offences against the appellants and other accused under Section 190(1)(b) of the 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 charge against the appellants for the offences punishable under Sections 8(b) and 20(a)(i) of the NDPS Act and they pleaded not guilty and claimed to be tried.
5. In order to prove its case, the prosecution examined in all ten witnesses as PWs.1 to 10, got marked eleven documents as per Exs.P1 to P11, got marked seven material objects as per MOs.1 to 7 and closed its side. At the stage of 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 case of the appellants were of total denial.
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NC: 2024:KHC:8948 CRL.A No. 1052 of 2013 C/W CRL.A No. 1054 of 2013
6. After hearing the prosecution and the defence, the trial Court framed the following point for its determination:
"i) Whether the prosecution has established beyond all reasonable doubts that prior to
07.02.2007 the accused had cultivated cannabis plants in land bearing Sy.No.53/A1 of Meghathalu village coming within the limits of Madikeri Rural police station without any licence or permit and thereby have committed the offences under Section 8(b) punishable under Section 20(a)(i) of the N.D.P.S. Act, 1985?"
7. On the basis of the oral and documentary evidence on record, the trial Court convicted the appellants and others for the offences punishable under Sections 8(b) and 20(a)(i) of the NDPS Act and sentenced them to undergo rigorous imprisonment for five years with fine of Rs.50,000/- each and in default of payment of fine, to undergo rigorous imprisonment for one year. Aggrieved by the judgment of conviction and order on sentence, accused Nos.2, 3 and 5 have filed these appeals. -8-
NC: 2024:KHC:8948 CRL.A No. 1052 of 2013 C/W CRL.A No. 1054 of 2013
8. Learned counsel for the appellants has contended that the judgment of conviction and order on 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 with the crime. In the instant case, independent witnesses i.e. PWs.4, 5 and 10 have turned hostile to the case of the prosecution and in absence of any independent witnesses, merely on the basis of oral evidence of PWs.1 to 3 and 5 to 9, the trial Court convicted the appellants, which is gross error in the eye of law.
He further contended that the respondent-Police have not complied with the mandatory provisions of Sections 42, 50, 52 and 54 of the NDPS Act. It is contended that the alleged raid was conducted in the land of one Madlanda B. Devaiah and these accused persons are not the owners of the said land. As per the report of PW8-P.S. Nagendra, Village Accountant, accused No.1 was cultivating the land in question, but oral evidence is quite -9- NC: 2024:KHC:8948 CRL.A No. 1052 of 2013 C/W CRL.A No. 1054 of 2013 contrary to Exs.P9 and 10-RTC extracts. As per Exs.P9 and P10, one Madlanda B. Devaiah is the owner of the land and not these accused persons.
He further contended that at no point of time, accused Nos.1 to 6 were cultivating the land in question. The owner of the land was neither cited as witness in the charge-sheet nor made him as one of the accused in this case. The investigating Officer has falsely implicated these accused in the crime in order to save the real culprit or the owner of the land. On all these grounds, he prays to allow these appeals.
9. Learned High Court Government Pleader for the respondent-State vehemently contended that PWs.1 to 3 and 6 to 9 have categorically stated against the accused about cultivation of cannabis plants in the land of accused No.1. There were 2410 cannabis plants in the land of accused No.1, the raiding party removed those plants in the presence of independent witnesses, sub-staff and Gazetted Officer and they have categorically stated against
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NC: 2024:KHC:8948 CRL.A No. 1052 of 2013 C/W CRL.A No. 1054 of 2013 the accused. PW9-B. Lingappa, FSL Officer, has categorised the seized plants as leaves, root parts, stems and accordingly, he submitted his report as per Ex.P8. Therefore, the trial Court has rightly convicted the appellants. Further, PW1 has complied with the mandatory requirements of Sections 42, 50, 52 and 54 of the NDPS Act. Hence, there was no error on the part of the Investigating Officer or raiding party in conducting raid as per the mandatory provisions. Hence, there is no finding fault in this regard and on the basis of the material available on record, the trial Court has rightly drew presumption under Section 54 of the NDPS Act in favour of the prosecution and accordingly, convicted the appellants. Hence, he prays to dismiss the appeal.
10. Based on the above submissions, the following point that would arise for consideration of this Court is:
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NC: 2024:KHC:8948 CRL.A No. 1052 of 2013 C/W CRL.A No. 1054 of 2013 "Whether the judgment of conviction and order on sentence dated 25-10-2013 passed by the Sessions Judge, Kodagu, Madikeri, in Special Case (NDPS) No.7 of 2007, calls for interference by this Court?"
11. As per the case of the prosecution, on 7-2-2007, accused Nos.1 to 6 were cultivating cannabis plants in the land bearing Survey No.53/A1 of Meghathalu Village, hence, the complainant, his staff and Gazetted Officer conducted raid on accused Nos.1 to 6 and found 2415 cannabis plants which were illegally grown in the land of accused No.1. Therefore, the complainant seized cannabis plants and conducted seizure mahazar and lodged the complaint.
12. In order to establish the above aspects, the prosecution has examined:
a. PW1-G.M. Naikar, Sub-Inspector of Police, who received credible information about illegal cultivation of cannabis plants in the land of accused No.1. After receipt
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NC: 2024:KHC:8948 CRL.A No. 1052 of 2013 C/W CRL.A No. 1054 of 2013 of the said information, he reduced it into writing in his diary and informed this aspect to his higher authorities, secured sub-staff and PW3-K.N. Sathyanarayana, In- charge Tahasildar as Gazetted Officer, visited the land of accused No.1 at 7:00 a.m. PWs.1 to 3 and his sub-staff seen cannabis plants in the land of accused No.1. Hence, they removed 2415 cannabis plants and out of it, five plants were sent for examination. The approximate weight of each cannabis plants were about 1½ kilograms. Same were packed. He also seized plastic pipe, two spades, plastic mug, bucket and plastic-sheet as MOs.1 to 7. In the cross-examination, he has categorically admitted that cannabis plants were grown in the land belonging to one Somanna (accused No.1). He admits that he did not weigh the cannabis plants, but he approximately mentioned its weight in Ex.P1-seizure mahazar and even, he did not weigh the sample plants.
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NC: 2024:KHC:8948 CRL.A No. 1052 of 2013 C/W CRL.A No. 1054 of 2013 b. PW2-H.R.S. Shetty, Deputy Superintendent of Police, who orally permitted PW1 to conduct the raid in the land of accused No.1.
c. PW3-K.N. Sathyanarayana, In-charge Tahasildar, who accompanied PW1 on his request, has stated about the alleged raid conducted on accused Nos.1 to 6 in the land of accused No.1. But, he failed to identify the accused before the Court. In the cross-examination, he categorically admitted that PW1 did not invite him as Gazetted Officer, but he invited him in the capacity of In- charge Tahasildar. He further admits that PW1 did not separate the flowering and fruiting part, root, leaves and stems. He is unable to name the accused who grown cannabis plants in the land bearing Survey No.53/A1 of Meghathalu Village. He further admits that PW1-Police Officer did not ask the accused to conduct seizure in the presence of the Gazetted Officer or Judicial Magistrate First Class.
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NC: 2024:KHC:8948 CRL.A No. 1052 of 2013 C/W CRL.A No. 1054 of 2013 d. PW4-M.B. Ponnappa, father of accused No.1, PW5-S.K. Achaiah, witness to Ex.P1-seizure mahazar and PW10-H.N. Laksmisha, Photographer, have turned hostile to the case of the prosecution and hence, their oral evidence do not aid the case of the prosecution to any extent.
e. PW6-S.N. Suresh Babu, Circle Inspector of Police, who accompanied PW1, supports the case of the prosecution and reiterates the oral evidence of PW1.
f. PW7-K.P. Harishchandra, Sub-Inspector of Police, who received the complaint as per Ex.P2, conducted seizure mahazar as per Ex.P1, registered the case against the accused and submitted FIR as per Ex.P5 to the Court and his higher authorities. In the cross-examination, he admitted that he destroyed the entire cannabis plants with the permission of the Court.
g. PW8-P.S. Nagendra, Village Accountant, who visited the land of accused No.1 along with the Gazetted
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NC: 2024:KHC:8948 CRL.A No. 1052 of 2013 C/W CRL.A No. 1054 of 2013 Officer and as per the request of the Investigating Officer, he issued Exs.P9 and P10-RTC extracts. As per the contents of Exs.P9 and P10, Madlanda B. Devaiah is the owner of the land in question.
h. PW9-B. Lingappa, Chemical examiner, has deposed that he examined the sample plants and issued his report as per Ex.P8. He categorically stated that the sample sent to him was cannabis plants containing leaves and flowers.
13. Learned counsel for the appellant submitted that the prosecution failed to furnish the material particulars as to accused No.1 whether he is in exclusive possession of the land in question. As per the material produced by the prosecution itself, PW8-P.S. Nagendra, Village Accountant, has deposed that one Madlanda B. Devaiah is in possession of the land in question.
14. In the instant case, it is admitted that, PW1- G.M. Naikar, Sub-Inspector of Police, who conducted raid
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NC: 2024:KHC:8948 CRL.A No. 1052 of 2013 C/W CRL.A No. 1054 of 2013 in the land of accused No.1, has not made any record of any ground on the basis of which, he had a reasonable belief that the offence under Section 54 of the NDPS Act is being committed before proceeding to conduct raid in the land of accused No.1 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.
15. 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
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NC: 2024:KHC:8948 CRL.A No. 1052 of 2013 C/W CRL.A No. 1054 of 2013 superior official. The compliance with Section 42(2) of the NDPS Act is mandatory and failure of raiding party (PW1) to takedown the information received by him in writing and shall forthwith send a report to his immediate Officer would cause prejudice to the accused. 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, though PW1-Sub-Inspector of Police received information, but the same was not taken down in writing by him or conveyed to his immediate Police Officer. As per the evidence of PW1, he orally informed his higher official. Any oral evidence of PW1 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 he has not registered the said credible information as FIR.
16. On perusal of the oral and documentary evidence on record, it appears that the requirements of Section 50
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NC: 2024:KHC:8948 CRL.A No. 1052 of 2013 C/W CRL.A No. 1054 of 2013 of the NDPS Act have not been complied with. In fact, the accused ought to have been informed that, they have the option of being searched in the presence of a Gazetted Officer or a Judicial Magistrate First Class. In the instant case, PW3-K.N. Sathyanarayana was an In-charge Tahasildar, and was not a Gazetted Officer at the relevant point of time. Hence, PW1, the first informant, ought to have complied with the requirements of Section 50 of the NDPS Act. Though PW1 has not complied with the mandatory requirements of Section 50 of the NDPS Act, the trial Court has wrongly interpreted that such requirement was in response of personal search.
17. On perusal of the oral testimonies of PWs.1 to 3, it clearly establishes that PW3-K.N. Sathyanarayana was an In-charge Tahasildar and not a Gazetted Officer. The obligation of raiding party under Section 50 of the NDPS Act has been settled in the case of VIJAYSINH CHANDUBHA JADEJA v. STATE OF GUJARAT reported in (2011) 1 SCC 609 wherein, the Hon'ble Apex Court
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NC: 2024:KHC:8948 CRL.A No. 1052 of 2013 C/W CRL.A No. 1054 of 2013 held that "the requirement of Section 50 of the NDPS Act is a mandatory requirement and the provision of Section 50 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 accused 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 accused are 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, PW1 or PW7, ought to have laid an endeavour to produce accused Nos.1 to 6 before the nearest Magistrate or ought to have conducted raid in the presence of regular Gazetted Officer. However, PW1 or PW7 has not complied with the requirements of Section 50 of the NDPS Act.
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18. On perusal of the evidence of PW1, it appears that on 7-2-2007 at 5:00 a.m., he received credible information about illegal cultivation of cannabis in the land of accused No.1. Admittedly, PW1 neither recorded the said information received in his diary, nor communicated the same to his higher authority in writing within the period of 72 hours, even after raid was conducted.
19. In the instant case, according to the prosecution, accused Nos.1 to 6 were cultivating cannabis plants in the land of accused No.1 and as per the evidence of PW1, he removed 2415 plants and out of it, 5 cannabis plants were sent for examination. In support of the contention of the prosecution, it got examined PW9-B. Lingappa, Scientific Officer. On perusal of Ex.P8-Chemical Examiner's Report, the Scientific Officer opined that he examined leaves, fruiting tops and stems. It appears that the report of chemical analysis is incomplete as the Scientific Officer has not categorised the cannabis plants, whether it includes stem, leaves, branches, fruiting tops, etc.
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20. A Co-ordinate Bench of this Court, in the case of K.K. REJJI AND OTHERS v. STATE BY MURDESHWAR POLICE STATION, KARWAR, reported in 2010 (5) KANT.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, PW9-Scientific Officer has not described the ganja as defined under Section 2(iii)(b) of the NDPS Act. Therefore, Ex.P8-Chemical Examiner's Report is inconclusive.
21. On perusal of the evidence of PWs.1 to 3 and 6 to 9, it appears that there is contrary to the evidence as to seizure of ganja, its measurement, weight and the manner
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NC: 2024:KHC:8948 CRL.A No. 1052 of 2013 C/W CRL.A No. 1054 of 2013 of seizure conducted by them. Admittedly, the Investigating Officer has not examined any cannabis plants and sample plants. The owner of land, Sri Madlanda B. Devaiah, is not cited as witness in charge-sheet or made as accused in this case, however, son of PW4 has been arraigned as accused No.1. Admittedly, the Investigating Officer has not examined other independent witnesses or neighbouring land owners though available in the locality. Further, PW5, being independent mahazar witness, has not supported the case of the prosecution.
22. From perusal of the prosecution witnesses, it appears that the entire raid has been conducted by them in the absence of any independent witnesses and the manner of conduct of raid on the accused 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 has not given any opportunity to choose or gave an option to conduct raid in the presence of the Magistrate or independent Gazetted Officer. In the
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NC: 2024:KHC:8948 CRL.A No. 1052 of 2013 C/W CRL.A No. 1054 of 2013 absence of any material, the Investigating Officer falsely implicated the accused.
23. Under such circumstances, the evidence of official witnesses requires corroboration of independent witnesses and based on the oral testimonies of official witnesses, conviction cannot be imposed. Further, except the oral evidence of PWs.1 to 3 and 6 to 9, other locality witnesses or independent witnesses have not supported the case of the prosecution. Hence, looking into any angle, the prosecution has failed to prove its case beyond reasonable doubt against accused Nos.2, 3 and 5, but the trial Court based on uncorroborated testimonies has wrongly convicted the accused. Hence, the appeal filed by accused Nos.2, 3 and 5 deserves to be allowed and point No.1 is answered in the affirmative.
24. Accordingly, I pass the following ORDER i. Criminal appeals are allowed;
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NC: 2024:KHC:8948 CRL.A No. 1052 of 2013 C/W CRL.A No. 1054 of 2013 ii. The judgment of conviction and order on sentence dated 25-10-2013 passed by the Sessions Judge, Kodagu, Madikeri, in Special Case (NDPS) No.7 of 2007 is hereby set aside;
iii. Appellants/Accused Nos.2, 3 and 5 are set at liberty and their bail bonds, if any, shall stand cancelled, and iv. The fine amount, if any, deposited shall be returned to them, forthwith.
Sd/-
JUDGE PSG [paragraph Nos.1 to 12(c)] KVK [paragraph Nos.12(d) to end]