Karnataka High Court
M D Kohiunddin @ Phohinuddin vs The State Of Karnataka on 23 April, 2014
Equivalent citations: 2015 (1) AKR 721
Author: N.Ananda
Bench: N.Ananda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 23RD DAY OF APRIL 2014
BEFORE
THE HON'BLE MR.JUSTICE N.ANANDA
CRIMINAL APPEAL No.557/2008
BETWEEN:
M D KOHIUNDDIN @ PHOHINUDDIN
(CORRECT NAME MOHAMMED FAHIMUDDIN)
AGED 26 YEARS, PRESENTLY LODGED IN
CENTRAL PRISON BANGALORE
BANGALORE. ... APPELLANT
(BY SRI P MAHESHA, ADV. APPOINTED AS AMICUS CURIAE)
AND
THE STATE OF KARNATAKA
BY J.J.NAGAR POLICE STATION
REP. BY THE SPP
HIGH COURT OF KARNATAKA BUILGING
BANGALORE. ... RESPONDENT
(BY SRI.NARAYANA REDDY, STATE PUBLIC PROSECUTOR)
THIS APPEAL IS FILED UNDER SECTION 374(2) CR.P.C.,
AGAINST THE JUDGMENT DATED 10.03.2008, PASSED BY THE
XXXIII ADDITIONAL CITY CIVIL & SESSIONS JUDGE & SPECIAL
JUDGE (NDPS), BANGALORE, IN SPL.C.C.NO.24/2007 -
CONVICTING THE APPELLANT/ACCUSED FOR AN OFFENCE
PUNISHABLE UNDER SECTION 20(B) OF N.D.P.S.ACT & ETC.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
The appellant (hereinafter referred to as accused) was tried and convicted for an offence punishable under Section 20 (B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the Act"). Therefore, he is before this court.
2. I have heard Sri.P.Mahesha, learned Amicus Curiae for accused and learned State Public Prosecutor for the State.
3. The accused was tried for the aforestated offence on the allegations that on 21.02.2006 at about 11.45 a.m., in front of Jai Anjaneya Gym School, situated at 3rd Cross, 1st Main Road, Padarayanapura within the limits of J.J.Nagar Police Station, the accused was found in possession of 9 Kg 500 Grams of Ganja which is a narcotic drug, thereby committed an offence punishable under Section 20 (B) of the Act.
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4. The prosecution has mainly relied on evidence of PW.1-M.S.Hussain, who at the relevant time was working as Police Inspector, Central Crime Branch at Bangalore.
5. PW.1 has deposed; that on 21.02.2006 at about 10.30 a.m., when he was in the office of CCB, he received credible information that one person holding a suitcase containing Ganja was waiting for customers near Jai Anjaneya Gym School, situated at 3rd Cross, 1st Main Road, Padarayanapura; PW.1 reduced the information to writing and submitted the same to the Deputy Commissioner of Police, CCB and obtained his permission to investigate the matter. The credible intimation recorded by PW.1 is marked as per Ex.P1, which would clearly reveal that PW.1 had recorded the information which he had received and forwarded the same to the Deputy Commissioner of Police, CCB, Bangalore. The intimation was received by the Deputy Commissioner of Police, CCB at 12.00 p.m., (afternoon) on 21.02.2006. Thus, PW.1 had complied with the provisions of Section 43 of the Act without loss of time.
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PW.1 has deposed; that he secured two witnesses namely CW.2-Babu and CW.3-Abdul and proceeded to the place; he identified the accused by the clothes worn by him, which he had learnt through credible information; PW.1 and other staff members surrounded the accused and enquired him and found that accused was holding a suitcase; the accused informed his name as Kohinuddin, S/o Fakruddin, 24 years and gave his address as resident of no.1/141, Kurti Grama, Kurti Mandal, Kareemnagar District, Andhra Pradesh State; the accused also told that the suitcase contains Ganja; PW.1 opened the suitcase in the presence of panchas and found that there was Ganja; PW.1 weighed the suitcase and found that entire suitcase containing Ganja was weighing 14 Kgs; the suitcase was weighing 5 Kgs; thus accused was found in possession of 9 Kg 500 grams of Ganja which was above small quantity and below commercial quantity; after taking sample for sending to the Forensic Science Laboratory, the seized contraband was wrapped in the paper; the accused was arrested and he was given intimation containing the grounds/reasons for his arrest; thereafter, PW.1 took the 5 accused and seized contraband to J.J.Nagar Police Station and submitted a report, on the basis of which crime was registered against the accused for the aforestated offence.
During cross-examination, PW.1 has denied the suggestion that he had foisted a case against the accused for statistical purpose. During cross-examination of PW.1, the arrest of accused near Jai Anjaneya Gym School, 3rd Cross, 1st Main Road, Padarayanapura has not been controverted. The evidence of PW.1 that accused was holding a suitcase and the suitcase was containing 9 Kg 500 grams of Ganja is consistent and credible.
6. At this juncture, it is relevant to state that accused is a native of Kurti Grama, Kurti Mandal, Kareemnagar District, Andhra Pradesh. PW.1 did not know the accused. PW.1 had no grudge or grievance against the accused. It is difficult to conceive that PW.1 having come in possession of 9 Kg 500 Grams of Ganja from some other source had foisted a case to implicate the accused whom he did not know before. The immediate record prepared by PW.1 after 6 he received the credible information which infact was forwarded to the Deputy Commissioner of Police would lend substantial corroboration to evidence of PW.1.
After the apprehension and seizure of Ganja as aforestated, PW.1 lodged the first information with the jurisdictional police as per Ex.P6. The first information was registered at 3.00 p.m., on 21.02.2006. In the circumstances, there are no reasons to suspect the evidence of PW.1.
7. It is seen from the records that learned Sessions Judge had issued non-bailable warrant to secure CW.2-Babu and CW.3-Abdul (panch witnesses) however, they could not be secured. In the circumstances, the prosecution could not examine CW's.2 and 3 before the trial court.
8. The evidence of PW.2-Lokesh M.S. that he had carried the sample of Ganja to Forensic Science Laboratory has not been controverted.
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9. PW.3-P.R.Jayaram, the Assistant Director of Forensic Science Laboratory has given evidence relating to examination of sample of contraband. PW.3 has deposed; that sample sent to him contain sample of small leaves along with fruitening and flowering tops, seeds, stalks with characteristic smell of Ganja packed inside a newspaper; after conducting the tests namely microscopic examination, Duquenois Levine test and thin layer chromatography examination, he came to the conclusion that the sample sent to Forensic Science Laboratory in the sealed packet was Ganja and he had issued the certificate as per Ex.P10.
During cross-examination, the evidence relating to examination of contraband and information furnished by him as per Ex.P10 has not been controverted.
10. At the relevant time, PW.4-Lingaraju was working as Sub-inspector of Police of J.J.Nagar Police Station. PW.4 has deposed; that on 21.02.2006 at about 3.00 p.m., he was the officer in-charge of J.J.Nagar Police Station; PW.1 appeared before him along with the accused and seized 8 quantity of Ganja and submitted report as per Ex.P6, on the basis of which PW.4 registered Crime No.37/2006 for an offence punishable under Section 20 (B) of the Act against the accused and despatched the same to the jurisdictional Special Judge. He has identified the sample of Ganja before the court and the suitcase in which ganja was concealed.
During cross-examination, PW.4 has denied the suggestion that accused pwas not in possession of Ganja. The evidence of PW.4 that accused was produced before him at about 3.00 p.m., on 21.02.2006 along with the seized contraband has not been controverted. Therefore, evidence of PW.4 lends substantial corroboration to evidence of PW.1.
11. From the evidence of PW.3, Assistant Director of Forensic Science Laboratory, it is proved that Contraband contained ganja. The prosecution has proved that accused was found in possession of 9 Kg 500 Grams of Ganja and he had concealed the same in a suitcase.
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12. The learned counsel for accused submits that PW.1 has not complied with the provisions of Section 50 of the Act. In other words, before seizing contraband from the possession of accused, accused was not given an option to be searched in the presence of Gazetted Officer. This submission cannot be accepted for the reason that contraband was not seized from the person of accused.
13. In a decision reported in (2013) 6 SCC 595 (in the case of Kashmirilal -vs- State of Haryana) the Supreme Court has held that Section 50 of the Act is applicable only if the person of accused is searched, not a container or other vehicle in which contraband is concealed.
14. As already stated, the accused was a resident of Kurti Grama, Kurti Mandal, Kareemnagar District, Andhra Pradesh. The accused has not offered explanation for his presence near the place of incident at material point of time. It is not even suggested to the prosecution witness that the accused had come to Bangalore on a legitimate business or 10 he had any persons/relatives to visit in J.J.Nagar area. The defence of accused is one of total denial.
15. In the discussion made supra, I have held that PW.1 did not know the accused. Immediately after receipt of credible information, he had recorded the same. PW.1 after taking permission from the Deputy Commissioner of Police, CCB, Bangalore, proceeded to the place and identified the accused by clothes worn by him which infact was convened to PW.1 in the credible information.
16. As already stated, accused was not known to PW.1. PW.1 did not have grudge or animosity to falsely implicate the accused. The defence theory that PW.1 had foisted a case against the accused cannot be accepted. It is difficult to conceive that PW.1 would plant 9 Kg. 500 Grams of Ganja to foist a case against the accused who was not known to PW.1.
17. The law is fairly well settled that evidence of investigation officer cannot be suspected merely because he is a police official. On the other hand, official duty performed 11 by the police officer as a public servant bears a presumption under Section 114 of the Evidence Act.
18. Thus, on reappreciation of evidence, I find that the prosecution has proved beyond reasonable doubt that accused who is a resident of Kurti Grama, Kurti Mandal, Kareemnagar District, Andhra Pradesh had come to Bangalore on 21.02.2006 at about 11.45 a.m., in front Jai Anjaneya Gym School, situated at 3rd Cross, 1st Main Road, Padarayanapura within the limits of J.J.Nagar Police Station and he was found in possession of 9 Kg 500 Grams of Ganja. The quantity of Ganja found in possession of accused was more than small quantity and less than commercial quantity thereby, accused committed an offence punishable under Section 20 (B) of the Act which is punishable with imprisonment for a tem which may extend to 10 years and with fine which may extend to One Lakh rupees.
19. The learned Special Judge has sentenced the accused to undergo rigorous imprisonment for a period of 4 years and pay fine of Rs.10,000/- in default, to undergo rigorous imprisonment for a period of one year. The period of 12 detention undergone by the accused during trial is given set off. Having regard to nature of offence and impact of offence on the society, I do not find any mitigating circumstance to reduce the sentence imposed by the learned Special Judge.
20. In the result, I pass the following:
ORDER The appeal is dismissed. The impugned judgment is confirmed. The valuable service rendered by Sri.P.Mahesha, learned Amicus Curiae is placed on record. His remuneration is fixed at Rs.5,000/-.
Sd/-
JUDGE Np/-