Karnataka High Court
Shivkumar S/O Chennappa Padshetty vs The State Of Karnataka on 28 June, 2023
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
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CRL.A No. 200104 of 2020
C/W CRL.A No. 200107 of 2020
CRL.A No. 200109 of 2020
CRL.A No. 200116 of 2020
CRL.A No. 200121 of 2020
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 28TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR
CRIMINAL APPEAL NO.200104 OF 2020
C/W
CRIMINAL APPEAL NO.200107 OF 2020,
CRIMINAL APPEAL NO.200109 OF 2020,
CRIMINAL APPEAL NO.200116 OF 2020,
CRIMINAL APPEAL NO.200121 OF 2020
IN CRL.A. NO.200104 OF 2020:
BETWEEN:
1. SHIVKUMAR S/O CHENNAPPA PADSHETTY,
Digitally signed
by LUCYGRACE AGE: 22 YEARS, OCC: STUDENT,
Location: HIGH R/O LODGING CROSS, CHITTAPUR,
COURT OF
KARNATAKA DIST. KALABURAGI - 585 101.
...APPELLANT
(BY SRI. RAJESH DODDAMANI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA THROUGH
RURAL POLICE STATION, KALABURAGI,
NOW REPRESENTED BY THE
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CRL.A No. 200109 of 2020
CRL.A No. 200116 of 2020
CRL.A No. 200121 of 2020
ADDITIONAL STATE PUBLIC PROSECUTOR,
KALABURAGI BENCH - 585 103.
...RESPONDENT
(BY SRI. SHARANABASAPPA M. PATIL, HCGP,)
THIS CRL.A. IS FILED U/S.374 (2) OF CR.P.C BY THE
ADVOCATE FOR APPELLANT/ACCUSED NO.5, PRAYING TO
SET ASIDE THE ORDER OF CONVICTION DATED 29.08.2020
PASSED BY THE PRL.SESSIONS JUDGE AND SPECIAL JUDGE
AT KALABURAGI IN S.C.No.01/2014 (NDPS) CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCES PUNISHABLE
U/SEC. 20(b) OF NDPS ACT.
IN CRL.A. NO.200107 OF 2020:
BETWEEN:
1. IRFAN S/O USMAN PATEL INAMDAR,
AGE: 22 YEARS, OCC: AGRICULTURE,
R/O VILLAGE BENAKANAHALLI,
TQ. CHINCHOLLI, DIST. KALABURAGI-585 307.
...APPELLANT
(BY SRI. NANDKISHORE BOOB, ADVOCATE)
AND:
1. THE STATE THROUGH
RURAL P.S., KALABURAGI,
NOW REPRESENTED BY
ADDL. SPP, HCKB AT KALABURAGI.
...RESPONDENT
(BY SRI. SHARANABASAPPA M. PATIL, ADVOCATE)
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CRL.A No. 200104 of 2020
C/W CRL.A No. 200107 of 2020
CRL.A No. 200109 of 2020
CRL.A No. 200116 of 2020
CRL.A No. 200121 of 2020
THIS CRL.A. IS FILED U/S. 374(2) OF CR.P.C BY THE
ADVOCATE FOR THE APPELLANT/ACCUSED NO.2, PRAYING
TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION
DATED 29.08.2020 PASSED BY THE PRL. SESSIONS JUDGE
AND SPECIAL JUDGE AT KALABURAGI IN S.C.No.01/2014
(NDPS) CONVICTING THE APPELLANT/ACCUSED NO.2 FOR
THE OFFENCES PUNISHABLE U/SEC. 20(b) OF NARCOTIC
DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985.
IN CRL.A. NO.200109 OF 2020:
BETWEEN:
1. GANESH KUMAR
S/O SHARANAPPA HOSMANI,
AGE: 26 YEARS, OCC: MBBS STUDENT,
R/O BENAKANAHALLI, TQ. CHINCHILI,
DIST. KALABURAGI.
2. SRINIVAS S/O DEVINDRAPPA
@ GUNDAPPA YADAV @ YALGUTTI,
AGE: 40 YEARS, OCC. D.A. R.POLICE,
BUCKLE NO.307, R/O QUARTERS NO.10-1-35,
POLICE COLONY, BIDAR.
3. RACHAYYA @ BASAYYA
S/O MOGALAYYA GUTTEDAR,
AGE: 26 YEARS, BENAKANALLI,
TQ. CHINCHOLI, DIST. KALABURAGI.
4. JAYATEERTH @ JAYAPRAKASH
S/O MALLIKARJUN HUDAGI,
AGE: 37 YEARS, OCC: AGRICULTURE,
R/O VIDYANAGAR COLONY, BIDAR.
...APPELLANTS
(BY SRI. ASHOK B. MULAGE, ADVOCATE)
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CRL.A No. 200104 of 2020
C/W CRL.A No. 200107 of 2020
CRL.A No. 200109 of 2020
CRL.A No. 200116 of 2020
CRL.A No. 200121 of 2020
AND:
1. THE STATE THROUGH
RURAL POLICE STATION, KALABURAGI,
THROUGH ADDL. SPP,
HIGH COURT OF KARNATAKA,
KALABURAGI BENCH-585 107.
...RESPONDENT
(BY SRI. SHARANABASAPPA M. PATIL, HCGP)
THIS CRL.A. IS FILED U/S.374 (2) OF CR.P.C BY THE
ADVOCATE FOR THE APPELLANT/ACCUSED NOS.3, 6, 8 AND
9, PRAYING TO SET ASIDE THE ORDER OF CONVICTION
DATED 29.08.2020 PASSED BY THE PRL.SESSIONS JUDGE
AND SPECIAL JUDGE AT KALABURAGI IN SPL.C.No.01/2014
(NDPS) CONVICTING THE APPELLANT/ACCUSED NOS.3, 6, 8
AND 9 FOR THE OFFENCE PUNISHABLE U/SEC. 20(b) OF
NDPS ACT.
IN CRL.A. NO.200116 OF 2020:
BETWEEN:
1. SHEKHAR @ RAJSHEKHAR
S/O SIDDANNA KYASAN,
AGE: 22 YEARS, OCC: B.COM STUDENT,
R/O INDIRANAGAR, CHITTAPUR,
DIST. KALABURAGI - 585 211.
...APPELLANT
(BY SRI. NANDKISHORE BOOB, ADVOCATE)
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C/W CRL.A No. 200107 of 2020
CRL.A No. 200109 of 2020
CRL.A No. 200116 of 2020
CRL.A No. 200121 of 2020
AND:
1. THE STATE THROUGH
RURAL P.S., KALABURAGI,
NOW REPRESENTED BY ADDL. SPP,
HCKB AT KALABURAGI - 585 104.
...RESPONDENT
(BY SRI. SHARANABASAPPA M. PATIL, HCGP)
THIS CRL.A. IS FILED U/S.374 (2) OF CR.P.C BY THE
ADVOCATE FOR THE APPELLANT/ACCUSED, PRAYING TO
SET ASIDE THE JUDGMENT OF CONVICTION DATED
29.08.2020 PASSED BY THE PRL. SESSIONS JUDGE AND
SPECIAL JUDGE AT KALABURAGI IN SPL.C.No.01/2014 (NDPS)
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
PUNISHABLE U/SEC. 20(b) OF NDPS ACT.
IN CRL.A. NO.200121 OF 2020:
BETWEEN:
1. MEHABOOB S/O KHAJAMIYA INAMDAR,
AGE: 29 YEARS, OCC: AGRICULTURE,
R/O BENAKANAHALLI, TQ. CHINCHOLI,
DIST. KALABURAGI.
...APPELLANT
(BY SRI. SYED MASTAN, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
THROUGH RURAL POLICE STATION, KALABURAGI,
(REPRESENTING BY LEARNED
ADDL. STATE PUBLIC PROSECUTOR,
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CRL.A No. 200109 of 2020
CRL.A No. 200116 of 2020
CRL.A No. 200121 of 2020
HIGH COURT OF KARNATAKA,
BENCH AT KALABURAGI-585 105).
...RESPONDENT
(BY SRI. SHARANABASAPPA M. PATIL, HCGP)
THIS CRL.A. IS FILED U/S.374 (2) OF CR.P.C BY THE
ADVOCATE FOR THE APPELLANT/ACCUSED, PRAYING TO
SET ASIDE THE JUDGMENT OF CONVICTION DATED
29.08.2020 PASSED BY THE PRL. SESSIONS JUDGE AND
SPECIAL JUDGE AT KALABURAGI IN SPL.C.No.01/2014
(NDPS) CONVICTING THE APPELLANT/ACCUSED FOR THE
OFFENCES PUNISHABLE U/SEC. 20(b) OF NDPS ACT.
THESE APPEALS COMING ON FOR FINAL HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These appeals under Section 374(2) of Cr.P.C. are filed challenging the judgment and order dated 29.08.2020 passed by the Principal Sessions Judge and Special Judge at Kalaburagi in Special Case No.01/2014 (NDPS), by which, the appellants- accused Nos.2 to 9 were convicted for the offence punishable under Section 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'NDPS Act' for short) and sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.25,000/- each and in default of payment of fine to undergo simple imprisonment for a period of six months.
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2. The case of the prosecution in brief is as follows:
On 01.12.2013, the Addl. Superintendent of Police (Probationary), Rural Police Station, Gulbarga received a credible information that some persons were selling brown sugar near Raneshwar Peer Darga. He called upon two panchas i.e., PWs.2 and 3, his subordinates, Circle Inspector, two Police Sub-Inspectors, Head Constables and other constable and reached the spot at 1.00 p.m. and saw some people were sitting on the plat form under the Banyan tree and on seeing them all the persons tried to escape. The police personnel chased and caught hold of 8 accused persons. On search they found 01 kg brown sugar was in the possession of accused No.2. On an enquiry with accused No.2, he disclosed that he purchased 03 Kgs of brown sugar from accused No.1, who is his elder uncle, from Mumbai. He also disclosed that he sold 02 kgs of brown sugar to accused No.3 for Rs.60,000/-.
3. On an enquiry with accused No.3 he disclosed that accused No.4 asked him to help to sell the same, accordingly he agreed to sell it to him for Rs.1,00,000/- and he told that he would give the amount after its sale. After the arrest, PW.1 recovered 01 Kg of brown sugar from accused No.2 and 01 kg 900 grams from accused No.4 and they recovered and seized mobile hand sets and motor bikes from accused Nos.3 to 9. Thereafter, PW.1 lodged the complaint before the Rural Police Station, Gulbarga along with recovery panchanama and material objects and handed over the accused to the police.
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4. The police after conducting investigation, laid the charge sheet for the offences punishable under Sections 22, 23 and 24 of the NDPS Act.
5. The learned Sessions Judge framed the charge for the offence punishable under Section 22(c) of the NDPS Act and the same was read over and explained to the accused, to which, the accused pleaded not guilty and claimed to be tried.
6. The prosecution, to prove its case, examined PWs.1 to 7 and exhibited documents at Exs.P1 to P3 and marked the material objects at MO.1 to MO.3. After conclusion of the evidence of the prosecution, the incriminating circumstances in the evidence adduced by the prosecution was put to the accused herein as contemplated under Section 313 of Cr.P.C. The accused herein denied the said incriminating circumstances.
7. The learned Sessions Judge, after appreciating the evidence on record, passed the impugned judgment of conviction and order of sentence.
8. Learned counsels for the appellants-accused Nos.2 to 9 would make the following submissions:
a) Though PW.1 is the Gazetted Officer, has conducted the search without complying with Section 50 of the NDPS Act.-9-
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b) PW.1 after arresting and seizing the psychotropic substance has not made a full report of all the particulars of such arrest or seizure to his immediate official superior within forty-eight hours next after such arrest or seizure as specified under Section 57 of the NDPS Act.
c) The charge was framed for the offence punishable under Section 22(c) of the NDPS Act, however, the learned Sessions Judge has convicted the accused for the offence punishable under Section 20(b) of the NDPS Act and for the said reason, the impugned judgment of conviction is not sustainable in law.
d) The psychotropic substance recovered was methamphetamine. However, the contents of the drug has not been proved.
9. On the other hand, learned High court Government Pleader for the respondent-State would submit that PW.1, who conducted the search and seizure was the Gazetted Officer and there was no requirement for compliance of Section 50 of the NDPS Act. He further submits that the evidence on record clearly establishes that the appellants herein were in possession of the psychotropic substance. The learned Sessions Judge after appreciating the evidence on record in a proper perspective has rightly passed the impugned judgment of
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10. Considered the submissions made by the learned counsel for the parties and perused the records.
11. Admittedly, the search and seizure was made by PW.1, who is the Gazetted Officer. Section 42 of the NDPS Act deals with the power of entry, search, seizure and arrest without warrant or authorisation and specifies that, any such officer not below the rank to a peon, sepoy or constable of the departments concerned may enter into and search any building upon information given by any person that any psychotropic substance is concealed in any building, conveyance or enclosed place.
12. Section 43 of the NDPS Act deals with the power of seizure and arrest in public place and specifies that, any officer of any of the departments mentioned in Section 42 may seize in any public place, any narcotic drug or psychotropic substance. In other words, the power to search is vested with the officer not below the rank of the officers enumerated in Section 42.
13. Section 50 of the NDPS Act deals with the conditions under which search of persons shall be conducted. Sub-section (1) of Section 50 specifies that, when any officer duly authorised under Section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he
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14. The Hon'ble Supreme Court in the case of Arif Khan v. State of Uttarakhand, (2018) 18 SCC 380 at paragraphs 20, 22 and 25 has held as follows:
"20. Their Lordships have held in Vijaysinh Chandubha Jadeja [Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609 : (2011) 1 SCC (Cri) 497] that the requirements of Section 50 of the NDPS Act are mandatory and, therefore, the provisions of Section 50 must be strictly complied with. It is held that it is imperative on the part of the police officer to apprise the person intended to be searched of his right under Section 50 to be searched only before a gazetted officer or a Magistrate. It is held that it is equally mandatory on the part of the authorised officer to make the suspect aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him and this requires a strict compliance. It is ruled that the suspect person may or may not choose to exercise the right provided to him under Section 50 of the NDPS Act but so far as the officer is concerned, an obligation is cast upon him under Section 50 of the NDPS Act to apprise the suspect of his right to be searched before a gazetted officer or a Magistrate. (See also Ashok Kumar Sharma v. State of Rajasthan [Ashok Kumar Sharma v. State of Rajasthan, (2013) 2 SCC 67 : (2013) 1 SCC (Cri) 829] and Narcotics Control Bureau v. Sukh Dev Raj Sodhi [Narcotics Control Bureau v. Sukh Dev Raj Sodhi, (2011) 6 SCC 392 : (2011) 2 SCC (Cri) 981].
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22. In our considered view, the evidence adduced by the prosecution neither suggested and nor proved that the search and the recovery was made from the appellant in the presence of either a Magistrate or a gazetted officer.
25. Though, the prosecution examined as many as five police officials (PW 1 to PW 5) of the raiding police party but none of them deposed that the search/recovery was made in presence of any Magistrate or a gazetted officer."
15. Admittedly, in the instant case, though PW.1 is the Gazetted Officer, he was required to appraise the accused, if they wanted to be searched in the presence of a Gazetted Officer. The provision contained in sub-section (1) of Section 50 is mandatory and PW.1, who is the informant having not complied with the said mandatory requirement, the conducting of the search culminating in laying the charge sheet stands vitiated.
16. Non framing of the charge against the accused would vitiate the conviction only if failure of justice has been caused to the accused. In the instant case, the charge framed against the accused reads thus:
"That, on 1-12-2013 at about 1.00 p.m. near Raneshpeer Dargha on the Katta of Baniyan tree, you accused No.2 was found in possession of 1 KG. Methamphetamine (Brown Sugar) and you accused No.4 was found in possession of 1 KG. 900 Grams of Methamphetamine (Brown Sugar) for the purpose of sale without possessing any valid licence and all of you in contravention of provisions of this Act were engaged in selling Methamphetamine (Brown Sugar) without valid licence or permit and thereby all of you have committed
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And I hereby direct that you be tried by this Court for the said charges."
17. The learned Sessions Judge framed the charge for the offence punishable under Section 22(c) of the NDPS Act, however, has convicted the accused for the offence punishable under Section 20(b) of the NDPS Act. The offence punishable under Section 20(b) of the NDPS Act is in relation to possession of cannabis and not psychotropic substances.
18. Section 464 of Cr.P.C. reads thus:
"464. Effect of omission to frame, or absence of, or error in, charge.--(1) No finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.
(2) If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may--
(a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommenced from the point immediately after the framing of the charge;
(b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit:
Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be
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19. The Hon'ble Supreme Court in the case of K. Prema S. Rao v. Yadla Srinivasa Rao, (2003) 1 SCC 217 at para 22 has held as follows:
"22. Mere omission or defect in framing charge does not disable the criminal court from convicting the accused for the offence which is found to have been proved on the evidence on record. The Code of Criminal Procedure has ample provisions to meet a situation like the one before us. From the statement of charge framed under Section 304-B and in the alternative Section 498-A IPC (as quoted above) it is clear that all facts and ingredients for framing charge for offence under Section 306 IPC existed in the case. The mere omission on the part of the trial Judge to mention Section 306 IPC with Section 498-A IPC does not preclude the court from convicting the accused for the said offence when found proved. In the alternate charge framed under Section 498-A IPC, it has been clearly mentioned that the accused subjected the deceased to such cruelty and harassment as to drive her to commit suicide. The provisions of Section 221 CrPC take care of such a situation and safeguard the powers of the criminal court to convict an accused for an offence with which he is not charged although on facts found in evidence, he could have been charged for such offence. Section 221 CrPC needs reproduction:
"221. Where it is doubtful what offence has been committed.--(1) If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences.
(2) If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of sub-section (1), he may be convicted of the
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20. Therefore, on reading section 464 and the observation made by the apex court in the case of K. Prema S. Rao supra, it is made out that the Court is empowered to convict the accused under specific provision even in the absence of framing the charge and absence of charge would vitiate the conviction only if it had caused prejudice to the accused.
21. PW.1 was required to make a full report of all the particulars of the arrest or seizure to his immediate official superior as contemplated under Section 57 of the NDPS Act. However, PW.1 has not submitted a report of all the particulars of the arrest or seizure to his immediate official superior.
22. PWs.2 and 3, who are the witnesses to the seizure panchnama have turned hostile and they did not support the case of the prosecution.
23. The Senior Scientific Officer, FSL Bengaluru, who was examined as PW.7 has deposed that, two sealed articles were sent for chemical analysis and on opening of the seal, white colour stones were found in plastic packet and on weighing and chemical examination, no brown sugar was found in both the articles and the said articles contain Methamphetamine chloro hydrate which is an encouraging drug. However, the contents of the said drug has not been disclosed in the FSL report.
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24. Sl.No.91 in the list of psychotropic substances to the Schedule indicates that 'delta-9-tetrahydrocannabinol and stereochemical variants' is a psychotropic substance. At Sl.No.71 in the notification issued under clauses (viia) and (xxiiia) of section 2 of the NDPS Act, the psychotropic substance 'Methyldihydromorphine' indicates that possession of 2 gm. is small quantity and possession of 50 gm. is commercial quantity. However, the prosecution has not established the actual possession of the subject psychotropic substance, as to whether the accused were in possession of the small quantity or commercial quantity or intermediary quantity. On this ground also, the impugned judgment of conviction is not sustainable in law.
25. On appreciating the evidence on record, I am of the view that the prosecution has failed to prove that the appellants herein were in possession of the subject psychotropic substance, so as to constitute an offence punishable under Section 22(c) of the NDPS Act. Accordingly, I pass the following:
ORDER i. All the criminal appeals are allowed.
ii. The impugned judgment of conviction and order of sentence dated 29.08.2020 passed by the Principal Sessions Judge and Special Judge at Kalaburagi in
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iii. The appellants-accused Nos.2 to 9 are hereby acquitted of the offence punishable under Section 20(b) of the NDPS Act.
iv. The learned Sessions Judge is hereby directed to release the fine amount which is deposited by the appellants-accused Nos.2 to 9.
v. The bail bonds executed, if any, stand cancelled.
Sd/-
JUDGE LG List No.: 1 Sl No.: 77