Karnataka High Court
Bhujang Siddaram Munde vs The State Of Karnataka on 19 June, 2019
Equivalent citations: AIRONLINE 2019 KAR 1258, 2019 (4) AKR 446
Author: A.S Bellunke
Bench: A.S Bellunke
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 19TH DAY OF JUNE 2019
BEFORE
THE HON'BLE MR. JUSTICE BELLUNKE A.S.
CRIMINAL APPEAL No.2557 of 2011
BETWEEN:
BHUJANG SIDDARAM MUNDE
AGED: 34 YEARS, OCC: DRIVER,
R/O: MAJALATTI,. TQ: CHIKKODI,
DIST: BELGAUM.
...APPELLANT
(BY SRI. RAMACHANDRA MALI, ADVOCATE)
AND:
THE STATE OF KARNATAKA
REP. BY CHIKODI PS, DIST: BELGAUM.
NOW REP. BY ITS SPP,
HIGH COURT OF KARNATAKA,
CIRCUIT BENCH, DHARWAD.
...RESPONDENT
(BY SRI V.S. KALASURMATH, HCGP)
THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF
CR.P.C. SEEKING TO SET ASIDE THE JUDGEMENT/ORDER
OF CONVICTION AND SENTENCE DATED 22.01.2011 IN
S.C.NO.127/2009 PASSED BY THE SPEICAL JUDGE (PRL.
SESSIONS JUDGE), BELGAUM, FOR THE OFFENCES P/U/S/
20(b)(ii)(B) R/W SEC. 8(c) OF NDPS ACT AND ACQUIT THE
APPELLANT OF THE ALLEGED OFFENCES.
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THIS CRIMINAL APPEAL COMING ON FOR HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This is an appeal preferred by the accused against the judgment of conviction and sentence imposed by the learned Special Judge (Principal Sessions Judge), Belgaum, in Special Case No.127 of 2009 dated 22.01.2011, wherein the accused has been convicted for the offences punishable under Section 20(b)(ii)(B) read with Section 8(c) of the Narcotic Drugs and Psychotropic Substance Act, 1985 (hereinafter referred to as the 'NDPS Act', for short) and sentenced to undergo rigorous imprisonment for a period of four years and to pay fine of Rs.50,000/- and in default of payment of fine, to undergo further rigorous imprisonment for a further period of one year.
2. Brief facts leading to the case on hand are as under:
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On 07.01.2009 at about 3.00 pm, the Sub- Inspector of Police, Chikodi police station, received a credible information that the accused named in the chargesheet was possessing 2 Kgs of ganja powder worth Rs.3,000/- in a plastic bag. He had also 15 ganja chits each containing 10 grams worth Rs.225/- with him. He was not having any permit or licence. He had engaged in sale of said ganja near Ankali-Koot on Chikkodi- Ankali road. The matter was also informed to the higher officers. Therefore, the Investigating Officer He secured panchas and also a Gazetted Officer. Thereafter, the Sub-Inspector of Police along with Gazetted Officer-PW-1, Panch witnesses PWs.2 and 3, PW-4-photographer and PW-5- weigh-man, left the police station at about 3.30 pm and reached Ankali-Khoot. There, they found the accused sitting with a bag containing powder and he was found selling something to the public. Immediately, the raiding party went to the spot 4 and apprehended the accused. The powder, which the accused was possessing, was found to be ganja powder weighing 2 kgs. Out of that, 100 grams of power was taken as sample in a separate container which was packed and sealed. Apart from that, the accused was also in possession of 15 ganja paper chits each containing 10 grams.
Out of the said chits, two chits were taken as sample. They were separately packed and sealed. A seizure panchanama was also drawn as per Ex.P- 2 at the spot itself between 3.45 pm to 4.15 pm. Sample was also taken from bluk of ganja. Thereafter, the I.O. returned to police station. He filed a complaint about the search and seizure. The documents were handed over to the SHO on that day. Based on such complaint a case was registered.
During the course of investigation, accused was apprehended at the spot itself. He was remanded to judicial custody and subsequently, 5 was enlarged on bail. After completion of investigation, the Investigating Officer filed charge sheet against the accused for the offences punishable under Sections 20(b)(ii)(B) read with Section 8(c) of the NDPS Act. The learned Special Judge after taking cognizance of the aforesaid offences registered Special Case No.127 of 2009. The presence of the accused was secured. After hearing both sides, charge was framed for the aforesaid offences. The accused pleaded not guilty and claimed to be tried.
After holding trial, the learned trial judge found that the prosecution has proved beyond reasonable doubt that the accused has committed the offence punishable under Section 20(b)(ii)(B) read with Section 8(c) of the NDPS Act. Therefore, the learned Judge passed the impugned order convicting and sentencing the accused for the aforesaid offence. The said judgment has 6 been challenged by the accused on the following grounds:
The trial Court has not properly appreciated the evidence on record. The approach of the learned Judge is erroneous and illegal. The material on record does not make out the alleged offence. The complainant is an interested person. Independent panch witnesses PWS.2, 3 and 4 have not supported the case of the prosecution. Very possession of the contraband by the accused is not at all proved. The trial Court has committed an error in believing the evidence of PWs.1 to 6. Though independent witnesses were available at the time of the incident, none of them were examined. There was an inordinate delay in sending the samples to the FSL for chemical examination. That has vitiated the trial. The author of Ex.P-7 has not at all been examined. The accused had no opportunity to examine the material witness. Therefore, the accused has 7 contended that the prosecution has not proved its case beyond reasonable doubt and hence prayed to allow the appeal by acquitting the accused.
3. Learned counsel for the appellant submitted that there was no segregation of the contraband seized i.e., the leaves and stems. Therefore, it cannot be said that the article that was seized was ganja. The author of Ex.P-7 was not examined. There was no proper investigation as provided under the NDPS Act. Therefore, the learned counsel has prayed to allow the appeal by acquitting the accused.
4. Learned Government Pleader submitted that there are no reasons to disbelieve the evidence of the independent official witness-PW-1, who is a Government Doctor. In his presence, the raid was conducted. Ganja was seized under mahazar. The accused was apprehended on the spot itself. Ultimately, the report of the chemical 8 analysis proved that the article that was seized from the possession of the accused, was ganja. Therefore, learned Government Pleader submitted that the guilt of the accused has been proved beyond reasonable doubt. Hence, he prayed to dismiss the appeal by confirming the judgment of conviction and sentence passed by the trial Court.
5. Learned counsel for the appellant relied on the ruling of this Court reported in Kar 2009 763 disposed off on 20.07.2009 and submitted that the investigation conducted by the Investigating Officer is illegal and the accused could not have been convicted for the aforesaid offence. He has also relied on the decision of Hon'ble Supreme Court in the case of Jitendra vs. State of Madhya Pradesh reported in SC 2003 9 36 and in the case of Dilip vs. State of Madhya Pradesh, reported in SC 2006 11 134. Relying on the said decision, learned counsel would submit 9 that the panchanama is nothing but an ordinary document. The scribe of the said document has not been examined. Therefore, relying on the said authority, learned counsel for the accused prayed to acquit the accused.
6. On the basis of the above said contentions, the following points would arise for consideration:
i. Whether the prosecution has proved beyond reasonable doubt before the trial Court that the accused was in possession of ganja without any licence or permit and the same was being sold and hence has committed the offence punishable under Section 20(b)(ii)(B) read with Section 8(c) of the Narcotic Drugs and Psychotropic Substance Act?
ii. Whether the appellant/accused proves that the judgment of the trial court is perverse, capricious and against the facts and evidence and material on 10 record and therefore is liable to be set aside?
I answer the points for consideration as under:
Point No.1: in the negative Point No.2: in the affirmative.
7. Admittedly, the offences committed falling under NDPS Act are serious offences and invite stringent punishment. Even, presumption is available for such offence under Section 50 of the NDPS Act. Therefore, search and seizure conducted by the Investigating Officer has to be proved beyond reasonable doubt. The articles seized must be proved to be ganja as defined under Section 2(iii)(b) of the NDPS Act and it must also be proved that the articles seized weighs the quantity which could be called as small or commercial quantity or less than commercial quantity. The quantity of the contraband seized 11 would also decide the applicability of section under which the offence has been defined. If the quantity seized is small, then the Special Court has no jurisdiction to try the offence and the case has to be committed to the Magistrate and the punishment provided for possessing small quantity of narcotic drugs is less. But in case of quantity beyond small and less than commercial quantity or even commercial quantity, the punishment provided is severe one. Therefore, keeping in mind the above said provisions of NDPS Act, the evidence on record has to be re-appreciated.
8. No doubt PW-1 is an independent witness, who is a Government doctor, would only absolve the Investigating Officer from the allegation of conducting raid without there being any gazetted officer to witness the same. In addition to that, the panch witnesses, who were said to have been present at the spot, were 12 examined to prove that the investigation was just and fair. It is important to note that the time of incident is between 3.35 pm to 4.00 pm. Therefore, it was before sunset. The place of incident in question is found to be a public road running between two villages. The photographs of the place of incident produced at Ex.P-3 goes to show that shops are situated and the road is a tar road and is a busy place. Hence, a question would arise as to whether it could be possible, that too in such a highly busy area, contraband could be sold so openly by any one that too sitting by the side of a road. Normally, these types of articles are sold in a secluded place or in a place where it cannot be easily visible to the raiding party. The article that was found at the time of raid was 2kgs of ganja powder in a hand bag and 15 paper chits each containing 10 grams of ganja powder. 13
9. The Investigating Officer collected samples from each of article separately and packed and sealed them for weighing. By the time, he filed complaint as per Ex.P-9, major portion of the investigation was over. Therefore, immediately after finding the accused in possession of the contraband article, he ought to have filed a complaint and investigation should have been conducted by an independent Investigating Officer. Admittedly, the police Station was not far away from the place of incident. The Investigating Officer himself being a complainant should not have continued further investigation. Therefore, this can be stated to be a serious lacuna in the investigation. As admitted by PW-1, they were watching the accused at a distance of 100 meters. Out of the police officials who had come for raid, 2 were in mufti and others were in uniform. The spot in question i.e. Ankali- Chikodi road is a busy road. Immediately after 14 the raid, nearly 20-25 persons had gathered but the PSI did not enquire any of those persons for having sold the ganja by the accused to public nor the persons nearby the shop had been examined. Panchanama was drawn at the spot by the case worker of the police station. After apprehending the accused, seizure was carried out and panchanama was drawn within a span of 15 minutes. In addition to that, it is found that the segregation of sampling has not been done as per the provisions provided under Section 50 of the NDPS Act. Sampling should have been certified by the Magistrate to the effect that it was sealed as a sample.
10. Now coming to the report, the public analyst had certified that the seized article was a ganja. The said document is at Ex.P-7. As per the said report, on microscopic examination and chemical tests of both the samples confirmed the 15 characteristics of Cannabis (Ganja). According to the analyst, both the samples contained pieces of stems, leaves, flowering and fruiting tops and seeds and the whole plant was weight without there being any segregation. The learned counsel for the appellant rightly points out to Section 2(iii)(b) of the Act wherein the word 'ganja' is defined as, 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 to contend that, only the flowering or fruiting tops of cannabis plant than the stems, leaves etc. are to be weighed and not the whole article seized. In that case, the jurisdiction to try the offence would be before the Magistrate and the punishment prescribed for small quantity is considerably less than what is imposed by the learned trial Judge in the impugned order. In addition to that, the Public Analyst has not been examined. Therefore, 16 the accused lost a right of cross-examining him. Therefore, even looking to the actual quantity of ganja, the punishment prescribed under Section 20(b)(ii)(B) of the Act cannot be sustainable. The counsel for the appellant relied on the decision of this Court in the case of K.K.Rejji Vs. State by Murdeshwar Police Station, Karwar reported in 2010 (5) Kar.L.J 279, wherein this Court has held as under:
"Ganja is defined unde r the pro visio n of NDPS Act as follows.--
"2(iii)( b) Ganja, that is, the flowering or fruiting to ps of the cannabis plant ( excluding the see ds and le aves when not accompanie d by the tops) , by whatever name they may be known or designated".
From this definition it is clear that 'Ganja' would mean only the flo wering or fruiting to ps excluding the leave s as also seeds.
In the instant case, the prosecutio n has produced se izure panchanama-Ex.P.5, to show what was seized. I t reads as fo llows.-- 17
"(1) ...............(2) ................( 3) F rom the extracte d portio n it is seen what the office rs have se ize d are cannabis plants. The description o f seized product sho ws it had stems, le aves, branches and perhaps eve n the fruiting parts. But the question is can the stem, le aves, branches be termed as 'Ganja' in view o f de finition refe rre d to above. The answe r is obvio usly in the ne gative , because the Act itse lf de fines what is Ganja. Not only the raiding party but the I nvestigation Officer has no t separated fruiting to ps or flowe ring from the Ganja plants befo re we ighing. What has been done is they have weighed the entire plants to re cord the weight as 10 kgs.
Since the le aves, stem and branches were also part of the weight, (mass) the re was no definite weight of actual flo wering or fruiting part o f the plant (define d as Ganj a). Hence the evidence pro duced be fore the prosecutio n to sustain the charge is totally vague. If the whole plant is se ized, the n it will only be a cannabis plant and not ganja."
11. So far as drawing of panchanama is concerned, alleged independent panch witnesses have not supported the case of the prosecution. It 18 is not stated whether they were the local residents or outsiders or where the accused was apprehended. In addition to that, the photograph only shows the accused sitting along with the article, officials and witnesses and therefore the alleged incident has not been taken place at all. Therefore after taking the photograph it appears that the Investigating Officer must have returned to the police station and must have written about the conducting of seizure, collecting samples and sealing the same. If a photographer is summoned, then photographs of all the relevant proceedings should have been taken. The Hon'ble Supreme Court in Jitendra's case (supra) has held that "in case where panchas have turned hostile to the prosecution and where there is no other evidence except the interested testimony of the police Officers, it would not be safe to rely on such evidence." Further, it is held that 'the 19 panchanama is nothing but a document written by concerned police officer.'
12. The Hon'ble Supreme Court in the case of Dilip v. State of Madhya Pradesh reported in 2006 11 134 has held that 'the offence committed under NDPS Act is grave one and the procedural safeguards provided therein in terms of Sections 41, 42 and 50 of the NDPS Act should be complied with. In this case it appears that the Investigating Officer was the complainant and has not complied any of the aforesaid provisions, such as segregation etc., should have been done as required under Section 50 of the NDPS Act.
13. Having regard the law laid down by the Hon'ble Supreme Court, I find that the prosecution has not proved that the weight and seizure was in accordance with the mandatory provisions of NDPS Act. No hard cash has been seized from the accused, though he is said to have found selling 20 ganja to the public. Hence, when independent witnesses PWs.2 and 3 have not at all supported the case of the prosecution with regard to search and seizure, in addition to that there is inordinate delay in sending the samples to the chemical examiner for chemical analysis. Though articles were seized on 07.01.2009, it was sent to the FSL laboratory for examination on 25.03.2009 i.e. after more than 2½ months. There is no explanation as to whether these samples were the seized property or were kept in Malkhana. That also vitiates the entire investigation.
Therefore, looking from any angle, I find that based on the evidence of PWs.1, 6 and 7-the officers, the accused could not have been convicted. Major portion of the investigation has been done by the complainant himself i.e. also a lacuna in the case of the prosecution. Hence, I find that the findings of the learned Judge are not sustainable in law, facts, material and evidence on 21 record and therefore points are answered accordingly and pass the following order:
The appeal is allowed. The judgment of conviction and sentence imposed by the learned Special Judge (Principal Sessions Judge), Belgaum, in Special Case No.127 of 2009 is set aside. The appellant-accused is acquitted of all the charges leveled against him. Fine amount, if any, paid by the appellant shall be refunded to him. Bail bond and surety bond shall be in force for a period of another six months or till expiry of the appeal period whichever is earlier.
Sd/-
JUDGE kmv