Karnataka High Court
Sri. Kumar Dhanapal Kallol vs The State Of Karnataka on 21 July, 2017
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
Dated this the 21st day of July 2017
Before
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
Criminal Appeal No.2704/2010 C/w
Crl.A. Nos.2719/2010 & 2718/2010
In Crl.A. No. 2704/2010
Between
Sri. Kumar Dhanapal Kallol,
Age: 45 Years,
Occ: Agriculture,
R/o Kagwad,
Tal. Athani,
Dist. Belgaum. ...Appellant
(By Sri. Santosh B Malagoudar, Advocate)
And
The State of Karnataka,
Through PSI,
Kagawad Police Station,
Rep. By State Public Prosecutor,
SPP Office, Circuit Bench,
Dharwad. ...Respondent
(By Sri. Raja Raghavendra Naik, HCGP)
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This Criminal Appeal is filed U/S 374(2) of Cr.P.C.
seeking to set aside the impugned judgment of
conviction dated 26.06.2010, and order of sentence
dated 30.06.2010, passed in Special Case No.19/2008,
by the Special Judge (Principal Sessions Judge),
Belgaum.
---------
In Crl.A. No.2719/2010
Between
Sri. Ramrao Jairam Pawar,
Age: 24 Years, Occ: Coolie,
R/o Siddahangarga, Tq. Narayanpet,
Dist. Medak, Andra Pradesh, ...Appellant
(By Sri. Srinand A. Pachchapure, Advocate)
And
The State of Karnataka,
Through PSI, Kagawad Police Station,
Rep. By State Public Prosecutor,
SPP Office, Circuit Bench,
Dharwad. ...Respondent
(By Sri. Raja Raghavendra Naik, HCGP)
This Criminal Appeal is filed under Section 374(2)
of Cr.P.C. seeking to set aside the impugned judgment
of conviction dated 26.06.2010 and order of sentence
dated 30.06.2010 passed in Special Case No. 19/2008,
by the Special Judge (Prl. Sessions Judge) Belgaum, by
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allowing this appeal, consequently acquit the
appellant/accused of the charge leveled against him.
-------
In Crl.A. No.2718/2010
Between
Allarakh Dastagir Mulla,
Age: 22 Years, Occ: Tailor,
R/o: Madhabhavi,
Tq & Dist: Bijapur. ...Appellant
(By Sri. S. B. Deyannavar, Advocate)
And
The State of Karnataka,
Through Kagawad PS,
R/B State PP,
Circuit Bench,
Dharwad. ...Respondent
(By Sri. Raja Raghavendra Naik, HCGP)
This Criminal Appeal is filed under Section 374 of
Cr.P.C. seeking to set aside the judgment and order
dated 30.06.2010 passed by the Principal Sessions
Judge (Special Judge) Belgaum, in Special Case
No.19/2008.
These Criminal Appeals coming on for Hearing
this day, the Court, delivered the following:
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JUDGMENT
Criminal Appeal No.2719/2010 is preferred by accused No.1, Criminal Appeal No. 2718/2010 is by accused No.2 and Criminal Appeal No.2704/2010 is by accused No.3. Since all the above three appeals are arising out of judgment dated 26.06.2010 in Special Case No.19/2008 and since common questions of law and facts are involved in all the above three appeals, they were taken together to dispose of them by this common judgment.
2. Brief facts of the prosecution case before the trial Court, the complaint is as per Ex.P-17 and PW-4 is the complainant. It is alleged on 03.01.2008 wherein, he has stated that, on the said day at 6.30 a.m. when he was in the Police Station, he received credible information informing that, some persons who were traveling in Tata Sumo vehicle bearing No.KA-22 M- 6429 carrying the ganja and they are proceeding from 5 Bidar to Pune via Kagawad. In view of the said credible information he forwarded the same to the District and Sessions Judge, Superintendent of Police, Belagavi, ASP Chikodi and CPI Athani for their information. As per instruction of ASP Chikodi at 6-35 a.m., complainant sent CPC 2384 to secure two pancha witnesses, at 6-50 a.m. these two witnesses were present in the Police Station and by giving notice to them also they informed about the information and asked them with in their presence vehicle is going to be investigated and they have to present during the panchanama, they agreed for the same. And at about 7.05 a.m. he informed about the same to Taluka Executive Magistrate, Athani by sending a letter requesting him at the time of verification of the said vehicle he has to be present, the said letter was sent through CPC-2059. Thereafterwards the complainant, the panch witnesses, the staff who are all mentioned in the complaint left the Kagawad Police Station at 8.30 a.m. and they came nearby Maribaba 6 Temple at Kagawad Channamma Circle and they have stopped the Jeep near by the humps and at 8.40 a.m. CPI Athani along with TEM came to the said place, they all standing by the side of the road kept watch at 9.15 a.m. from the side of Athani and after the Bus-stand towards the Channamma Circle they saw one white colour Tata Sumo, then the complainant informed the driver of the said Tata Sumo vehicle to stop it and take it by side of the road. Accordingly, he took the said vehicle on the left side of the road, it bearing No.KA- 22/M-4629, there was one driver and two persons sitting by the side of the driver, total they were three in numbers. When he enquired the name of those three persons, they told their names (1) Ramarao son of Jairam Pawar, (2) Driver-Allarkha son of Dastageer Mulla, and (3) Kumar.Dhanapal Kallol, then he told the said persons that, they have received credible information that, they were carrying ganja in their vehicle and they are going to check the vehicle in the 7 presence of Taluka Executive Magistrate and also the two panch witnesses in that regard he issued the notice and when they also gave in writing shown their consent for the same. Then the raiding party themselves conducted the personal search to show that, they not carried any Material with them. After three persons alighting, started to search the vehicle at about 9.20 a.m., in the middle seat of the said vehicle there was one big ganja bag and behind that there were three such ganja bags, which were tied and when they were untied and saw there was green color semi dried leaves and also the seeds and they have smelled and confirmed that, it is a ganja. Then they have send the CPC No.946 at 9.30 a.m. to secure the weigh-men to the said place, also to get the photographer then enquired about the said three persons about the ganja and asked whether they were having any documents in that regard, they told there were no any such documents in that regard, when they were asked where from they have brought it, 8 and where to taking, they answered that brought it from Bidar going to Pune for the purpose of selling, in the mean time, weigh-men came along with the scale and butts, photographer also came and gunny bags were weighed and each bag weighed 27 Kg roughly worth Rs.54,000/-, when the ganja from all the four bags totally weighed 108 Kg worth Rs.2,16,000/- was assigned the number 1, 2, 3 and 4 to the said bags and from out of each bag took out 20 grams ganja for the purpose of sample, and they put the samples in the brown paper, packed it in the white cloth and then they put the wax-seal in the presence of panch witnesses and also the Gazetted Officer, they all put the signatures on the slips pasted to the sample ganja and the sample seal was given to panch witnesses with instruction that, they have to produce the same during the course of trial before the Court. They took the vehicle and also the three persons into their custody and when the personal search was conducted and the 9 accused No.1 Ramarao son of Jairam Pawar having Rs.650/- cash and also one Motorola Company Mobile- Phone and driver Allarakha Dastgeer Mulla was having Rs.100/- cash and another person Kumar Dhanapal Kallol was having Rs.160/- cash with him. Hence along with seized material the TATA Sumo vehicle, the cash of Rs.920/-, the mobile phone which were seized in the presence of pancha witnesses and at 11.00 a.m. they apprehended the accused persons and they recorded their voluntary statements, then at 11.30 a.m. they came to the Police Station and handed over all these things to the Station House Officer and obtained the receipt from him and case was registered for the alleged offences under Section 8 read with Section 20(B)(1) of the Narcotics Drugs and Psychotropic Substances Act, 1985.
3. After conducting and completing it, investigation officer filed the charge sheet against the above mentioned accused persons for the said offences. 10 Then charge was framed after hearing both sides by the trial Court then the matter was fixed for trial. The prosecution in order to prove its case in all examined 8 witnesses as PW-1 to PW-8 and produced documents at Ex.P-1 to Ex.P-23 and also got marked material objects at MO-1 to MO-13 on the side of the defence no witnesses examined, nor any documents got marked.
4. After considering all the materials placed before the trial Court, ultimately the Trial Court convicted all the above three appellants/accused for the said offences.
5. Being aggrieved by the judgment and order of conviction, so also the sentence imposed on them, all the above appellants preferred the above appeals challenging legality and correctness of the same on the grounds as mentioned in the respective appeal memorandums.
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6. Heard arguments of Sri Santosh B. Malagoudar, learned counsel appearing for appellant/accused No.3, Sri Srinand A. Pachchapure, learned counsel appearing for appellant/accused No.1 and Sri S.B.Deyannavar, learned counsel appearing for appellant/accused No.2. So also, I have heard the arguments of the leaned High Court Government Pleader for the respondent-State in respect of all the three appeals.
7. Sri Santosh B. Malagoudar, learned counsel appearing for the appellant/accused No.3, made the submission that though it is the case of the prosecution that on the said day, P.W.4-complainant received the credible information, the same was not reduced into writing and hence, there is no compliance of mandatory provisions of Section 42 of the NDPS Act. He also made the submission that though P.W.6-police constable deposed in his evidence that the said information was entered in the station house diary, a copy of the same 12 was not produced before the Court during the course of the trial and not tendered in evidence. Hence, on this point, he made the submission that the requirements of Section 42 of NDPS Act are not complied with by the prosecution. It is also his contention that even the seizure-cum-spot mahazar-Ex.P.1 is also not satisfactorily proved by the prosecution.
He submitted that both the panch witnesses have not supported the case of the prosecution and though the Taluka Executive Magistrate was secured by sending a letter requesting him to be present during the course of the said mahazar proceedings, and though it is their case that he was present and in his presence only the seizure-cum-spot mahazar proceedings were conducted, the Tahsildar, who is C.W.13, was not examined before the Court during the course of trial. Hence, the learned counsel submitted that sofar as the alleged seizure is concerned, except the oral evidence of 13 P.W.4, the complainant, and P.W.6, the police constable, there is no other material placed on record.
Counsel submitted that only on the basis of the evidence of police witnesses regarding seizure mahazar for seizing the ganja, it is not safe to base conviction and, in this connection, learned counsel relied upon the decision of the Hon'ble Apex Court rendered in the case of Bahadur Singh Vs. State of Madhya Pradesh reported in AIR 2002 SC 289. He made the further submission that though it is the case of the prosecution that when they (police along with other staff) reached the spot, they sent a C.P.C. to secure a weigh-man and also a photographer and that the photographer came to the spot, but the photographer, in his evidence, has clearly deposed that whatever photographs he had taken was in front of the police station and not at the spot. Hence, counsel submitted that when, according to the prosecution, the photographer had accompanied and was very much present with the raiding party at the 14 spot, he could have taken the photographs at the spot itself when the raid was conducted. Therefore, learned counsel submitted that this also raises a doubt in the mind of Court as to whether the seizure mahazar proceedings were really conducted at the place as narrated by the prosecution.
Counsel also made the submission that the weigh- man, who is said to have weighed the seized ganja, was examined before the Trial Court as P.W.5, he has also not supported the case of the prosecution.
Counsel submitted that sofar as the evidence of P.W.4-complainant is concerned, on the previous day, his duty was upto 8.30 p.m. and his normal duty hours on the next day morning will be after 8'o clock, then looking to his evidence, he mentioned in the complaint as well as in his oral evidence that when he was in the police station, in the morning at about 6.30 p.m., he received a credible information. In this regard, learned counsel submitted that when his duties are at 8.00 15 a.m., what made the complainant to go to the police station much earlier i.e., at about 6.30 a.m. on that particularly day, and there is no explanation from the complainant in this regard. Counsel submitted that these are the things which are planted for the purpose of prosecution case and, in fact, P.W.4 was not at all present at the police station, otherwise, he could have reduced the information into writing.
Counsel further made the submission that looking to the prosecution material even with regard to the evidence of P.W.4 and P.W.6, there is no consistency in their evidence and their evidence is totally inconsistent with each other sofar as the material aspects of they going to the said place, the accused persons coming in the car and they seizing the narcotic drug i.e. ganja. He also submitted that with regard to the vehicle is concerned, though the said vehicle is standing in the name of one Huvakka but investigation was not conducted in that regard. Hence, he submitted that in 16 view of such evidence, it is difficult for the Court to believe that the said vehicle was used for committing such offence.
Learned counsel also made the submission that sofar as accused No.1 is concerned, he is from Andhra Pradesh and he knows only Hindi language and he does not know Kannada language, and looking to the notice under Ex.P.10, which is said to have been issued by the police before conducting the search and the consent letter issued by the said accused No.1 as per Ex.P.13, there is no endorsement by the Investigating Officer that the contents of the said notice-Ex.P.10 were explained to accused No.1 in Hindi and that accused No.1 understood the contents of the said notice. He also made the submission that even at theime when the charge was framed, there was no specific mention that the charge was read over sofar as accused No.1 is concerned in Hindi and he (accused No.1) understood the charge. Hence, the counsel submitted that this 17 raises a reasonable doubt in the mind of the Court about the proceedings conducted as against the accused persons.
Counsel also made the submission that looking to the complaint, it is mentioned that even the personal search of all the three accused persons was conducted and the mobile phone and cash from accused No.1 and cash from other two accused persons were also seized from them. In this connection, learned counsel made the submission that when personal search was conducted, there should be compliance of Section 50 of the NDPS Act which is also not done in this case and even there is no material on record to show that, sofar as their personal search is concerned, the complainant explained the accused persons that they were having a legal right to chose one of the two options i.e., whether search was to be conducted in the presence of a Gazetted Officer or in the presence of a Judicial Magistrate. Hence, he submitted, without doing these 18 things, complainant violated the mandatory requirements of Section 50 of the NDPS Act. Hence, the learned counsel submitted all these material aspects, both legal and factual, were not at all considered by the Trial Court and the Trial Court wrongly proceeded to hold that the prosecution proved its case beyond all reasonable doubt and thereby wrongly convicted accused No.3. Hence, he submitted to allow the appeal and to set aside the judgment and order of conviction passed by the Trial Court.
Sri Santosh B.Malagoudar, learned counsel in support of his arguments, relied upon the following decisions mentioned at Sl. Nos.1 to 5 which are produced by way of filing a memo dated 01.09.2010:
1) Bahadur Singh Vs. State of Madhya Pradesh and another reported in AIR 2002 SC 289
2) K. Mohanan Vs. State of Kerala reported in (2000)10 SCC 222
3) Abdul Rahman Vs. State of Kerala reported in (1997)11 SCC 93 19
4) Jitendra and Another Vs. State of M.P. reported in AIR 2003 SC 4236
5) Mohan Parida Vs. State reported in 2001 Crl.L.J. 410 (Ori)
8. Sri Srinand A.Pachchapure, learned counsel representing appellant/accused No.1, during the course of his arguments, firstly, made the submission that he adopts the arguments advanced by the counsel for accused No.3 and, in addition, he submitted that sofar as accused No.1 is concerned, he came from Andhra Pradesh to Kagwad and he was doing the work of cutting sugarcane and loading the sugarcane into the vehicles. The Police Officer had been to the work place of accused No.1 and when he (accused No.1), along with the driver, was cutting and loading the sugarcane crop into the vehicles, the police officer demanded Rs.1,000/- from accused No.1 and accused No.1 refused to pay and, thereafter, the police took all the details of accused No.1 and went away and then he included the name of 20 accused No.1 also in this particular case. Hence, he also made the submission that the entire prosecution material produced in the case is not sufficient to hold that the accused persons committed the alleged offences and he also submitted to allow the appeal and to set aside the judgment and order of conviction in respect of accused No.1.
9. Sri S.B. Deyannanavar, learned counsel appearing for appellant/accused No.2 also submitted that he too adopts the arguments of the learned counsel appearing for accused No.1 and accused No.3 and submitted to allow the appeal and to set aside the judgment and order of conviction in respect of accused No.2.
10. Per contra, learned High Court Government Pleader, during the course of his arguments, made the submission that sofar as the credible information is concerned, P.W.4, the complainant, as well as the 21 evidence of P.W.6, they are very clear that immediately he (complainant) sent the information received by him to his superior officers whose names are mentioned in the complaint and in his evidence. Hence, he submitted that though the complainant has not reduced the information into writing, the said information received by him was transmitted to the higher officers without loss of time and therefore, not reducing the information into writing is not fatal to the prosecution case. He also submitted that the evidence of P.Ws.4 and 6 is consistent; they deposed in detail about stopping of the car, seizing the ganja packets, conducting the seizure- cum-spot mahazar proceedings under Ex.P.1 and making weighment of the same at the spot; they have also stated in their evidence that even personal search of all the three accused persons was conducted by issuing prior intimation under Exs.P.10, 11 and 12 and, in turn, all the accused persons gave their consent in writing under Exs.P.13, 14 and 15. Hence, the learned 22 Government Pleader made the submission that before seizure of the alleged ganja gunny bag and conducting personal search of the accused persons, the procedural aspects were complied with by the complainant and other police and then only the seizure of ganja took place. He also made the submission that even if the panch witnesses turned hostile, the complainant as well as P.W.6, the police constable, have deposed about the seizure of ganja and there is no reason to disbelieve their version only on the ground that they are the police officers. He submitted that, during the course of cross- examination of the witnesses, the defence has not made out a case as to any enmity of P.W.4 and P.W.6 with the accused persons so as to implicate the accused persons falsely in the case. Hence, he submitted that the evidence of the police witnesses is to be accepted. It is also his contention that if at all the mandatory requirements were not complied with as required under Sections 42 and 50 of the NDPS Act, and there is false 23 implication of the accused persons in this case and the accused persons have been falsely involved in this case, they could have raised these points at the time of framing of the charge and even during their (accused persons) examination-in-chief, under Section 313 of Cr.P.C., but, looking to these materials they have not raised any such objection. Hence, he submitted that a presumption can be raised that they were having the culpable state of mind when they were carrying the ganja in the said car. The learned Government Pleader also made the submission that as per Section 35 of the NDPS Act presumption is to be raised and in this connection, he too relied upon two decisions of the Hon'ble Apex Court in the case of Baldev Singh Vs. State of Haryana, decided on 4th November 2015, reported in 2016 Cri.L.J. 154, and Shivaji Sahabrao Bobade and Another Vs. State of Maharashtra decided on 27th August 1973, reported in (1973)2 SCC 793. It is also his contention that if the mandatory provisions of Section 24 50 of the Act are not complied with, it will not vitiate the proceedings and in this connection also he relied upon another decision of Hon'ble Apex Court in the case of Kulwinder Singh and another vs. State of Punjab reported in 2015(4) Crimes 153 (SC) = 2015 Crl.L.J. 3160. Hence, he submitted that the Trial Court has taken into consideration all the materials, both oral and documentary, and appreciated the same in a right perspective, there is no wrong reading of the evidence of the prosecution by the Trial Court and hence, he submitted that the judgment and order of conviction passed by the Trial Court is to be confirmed by dismissing all the above three appeals.
11. I have perused the grounds urged in all the above three appeal memorandums, judgment and order of conviction passed by the Trial Court, oral evidence of the prosecution witnesses i.e., P.Ws.1 to 8 and the documents Ex.P.1 to P.23, the citations relied upon by 25 both the sides which are referred to above and also considered the oral submissions made by the learned counsel on the appellants' side and also by the learned Government Pleader at the Bar.
12. Regarding the first and foremost contention of the learned counsel on the appellants' side regarding receipt of credible information is concerned, undisputedly, it was not reduced into writing and, as per the evidence of P.W.6, the police constable, even if it is stated that it is reduced into writing in the SHD, the same was not produced before the Trial Court nor it was tendered in evidence by the prosecution. Even referring to the contents of the complaint and also the oral evidence of P.W.4-complainant, he never stated in his evidence that he, immediately after the receipt of the said information, reduced it into writing in the SHD and whatever he had written in the complaint after receipt of the said information, he sent it to his higher officers and 26 had taken their oral consent to proceed with the matter. So, only on the basis of this, it cannot be assumed by this Court that the intimation was given by the complainant as per the documents Exs.P.5 and P.6 produced by the prosecution, but, sofar as seeking their approval to proceed with the matter is concerned, the complainant himself has deposed that he got their oral permission. Whether such permission was there or not, no material, apart from the oral evidence, is produced in the case. Therefore, looking to Section 42 of NDPS Act is concerned, the said provision reads as under:
"42. Power of entry, search, seizure and arrest without warrant or authorisation. (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) 27 of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,-
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such entry;
(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act 28 and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and
(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:
Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances, granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of sub-inspector:
Provided further that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.
(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior."29
13. The material placed on record clearly go to show that such mandatory requirements are not at all complied with by the complainant immediately after the receipt of the said credible information. The object of law and the requirement of Section 42 of the NDPS Act with regard to giving the correct information to the Court is, what exactly the information that is received at the first instance has to be reduced into writing so that there should not be any scope for manipulation of the things by the police at the subsequent stage. The requirement of this provision is that immediately after receipt of the information it has to be reduced into writing in the station house diary and then he (complainant) has to inform the same to his higher officers and then he has to proceed in the matter. But, looking to the materials placed on record, there is no compliance of such mandatory requirements in this case. Therefore, it is difficult for this Court, only on the basis of the oral evidence of P.W.4, the complainant and 30 P.W.6, the police constable, to believe that such information was received by the police and it is also difficult for this Court or the Trial Court, now to ascertain as to what exactly was the information received. This aspect of the matter was not considered by the Trial Court while appreciating the evidence during the course of trial. Even with regard to the evidence of these two witnesses, about which the learned High Court Government Pleader made the submission that their evidence cannot be rejected only on the ground that they are the police officers, there is inconsistency because the complainant never deposed, on oath, or has mentioned in the complaint that he reduced the information into writing, whereas P.W.6 deposed in his evidence that it was reduced into writing in station house diary by P.W.4. Hence, because of this inconsistency also, the defence is justified in making the submission that there is no compliance of the said provision.
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14. Regarding seizure-cum-spot mahazar -Ex.P.1 is concerned, it is the case of the prosecution that after receiving the credible information, the police constable- C.W.8 was asked to secure two panch witnesses and accordingly, he secured the panch witnesses in the case. But, C.W.8 is not at all examined in the case before the Trial Court. The panch witnesses P.W.1 and P.W.2 also not supported the case of the prosecution and both of them turned hostile, and even when treated as hostile witnesses and cross-examined by the Public Prosecutor, there is nothing elicited to show that they were very much present at the spot and in their presence the seizure-cum-spot mahazar Ex.P.1 was conducted. Looking to their evidence, they simply admitted their signatures and except that they have not at all admitted of having acted as panch witnesses to the said mahazar proceedings. Apart from that, during the course of evidence, it has come on record that the place where they were waiting nearby Maribaba temple 32 by the side of the road, is a public place where good number of people move and the prosecution could have taken any such person either as panch witness of that locality or they could have examined any such independent witness about the mahazar proceedings conducted in the said place, but the same was not done by the police in this case. Though the Taluka Executive Magistrate is said to have secured to the place by sending a requisition and though he has said to have been present at the spot and in his presence only, the seizure-cum-spot mahazar proceedings as per Ex.P.1 were conducted, the Tahsildar (C.W.13) is also not examined during the course of the trial before the Trial Court. It is for the prosecution to prove the case by placing acceptable and cogent material before the Court. Therefore, sofar as conducting the seizure mahazar proceedings about the seizure of ganja is concerned, it is only the evidence of the complainant, who himself is the complainant as well as the Investigating Officer, and 33 the police constable (P.W.6) and, apart from their evidence, there is nothing on record to show that such proceedings were conducted under Ex.P.1. It is contended by the learned Government Pleader that their evidence cannot be rejected only on the ground that they are the police officers and, in this regard, he has relied upon the decision in the case of Baldev Singh, which is referred to above. In para 10 of the said decision, it is observed as under:
" 10. There is no legal proposition that evidence of police officials unless supported by independent evidence is unworthy of acceptance. Evidence of police witnesses cannot be discarded merely on the ground that they belong to police force and interested in the investigation and their desire to see the success of the case. Prudence however requires that the evidence of police officials who are interested in the outcome of the result of the case needs to be carefully scrutinized and independently appreciated. Mere fact that they are police officials does not by itself give rise to any doubt about their creditworthiness."34
In this connection, learned counsel appearing for accused No.3 also relied upon the decision of the Hon'ble Apex Court, in Bahadur Singh's case (supra). The relevant paragraphs 7 and 8 of the said decision read as under:
" 7. The appellant cannot be made to suffer on prosecution failure to prove as to who made the entries in exhibit P-15 regarding the amount and as to when the same were made.
8. Under the aforesaid circumstances the appellant cannot be convicted on the sole testimony of policy witnesses, PW3. The question of applicability of Section 35 of the Act will not arise in the present case when the recovery itself is doubtful. The appellant had disputed the recovery of contraband. There are serious discrepancies in its recovery, seizure and deposit in the Maalkhana. The prosecution has thus failed to prove its case beyond all reasonable doubts against the appellant who is accordingly entitled to benefit of doubt."
Looking to the decision relied upon by the learned Government Pleader, it is no doubt true that the 35 evidence of the police officials placed on record has to be carefully scrutinized by the Court and it has to be independently appreciated, and merely because they are police officials that itself does not give rise to any doubt about their credit worthiness. The said principle cannot be disputed by anybody. But, looking to the materials placed on record and the circumstances of the case, the question is whether in the case on hand the evidence of the police witnesses is trust-worthy and it is acceptable. In this connection, I have already examined above that there is no consistency in the evidence of these two witnesses and there are contradictions with reference to the material particulars. Under such circumstances, and as per the decision of the Hon'ble Apex Court in Bahadur Singh's case (supra) at paragraph Nos.7 and 8, which is relied upon by the learned counsel for accused No.3, it is not safe for this Court to rely upon the only evidence of P.W.4-complainant and P.W.6-police constable. The prosecution could have, at least, 36 examined the Tahsildar who is said to have been present during the course of seizure mahazar proceedings. That was also not done. Though it is their case that photographer was secured at the spot and photos were taken, they could have produced the photographs to show that this seizure mahazar proceedings when conducted, the photographer has taken the photographs. No doubt some photographs are produced, but the photographer who has been examined has clearly deposed that he has taken those photographs in front of the police station. I have perused the two photographs-Ex.P.3 and P.4. Looking to these photographs, the writing made in the Kannada "¥Éưøï oÁuÉ PÁUÀªÁqÀ" (Police Station, Kagawad) is very much visible and the police station can also be seen in both the photographs and the things are systematically arranged while taking the photographs along with ganja in the gunny bags. Therefore, these two photographs Ex.P.3 and Ex.P.4 are also not pertaining to the spot 37 where the proceedings are conducted under Ex.P.1. Therefore, even these two photographs will not come to the aid and assistance of the prosecution.
15. Looking to the complaint Ex.P.17 in the end portion of the said complaint, it is also mentioned that after the seizure of the gunny bags containing ganja leaves, the personal search of the three accused persons was conducted. When that is so, Section 50 of the NDPS Act is made applicable for conducting such personal search. So, as per the requirements of Section 50 of the NDPS Act, before conducting such personal search, the accused persons must be explained about the legal right of personal search which they are having i.e., whether they wanted their personal search to be conducted in the presence of gazetted officer or it should be in the presence of a judicial Magistrate. But, looking to the prosecution material, there is nothing on record to show that before conducting personal search and the seizure 38 of the mobile phone and the cash, they were explained of their legal right and their right to chose either of any one. In the absence of such material placed on record even the proceedings regarding the personal search cannot be said to be in accordance with the mandatory provisions of Section 50 of the NDPS Act. In this connection, the learned counsel appearing for accused No.3 relied upon the judgment of the Hon'ble Apex Court reported in K.Mohanan's case referred to above. The relevant paragraphs 5 and 6 of the said decisions reads as under:
" 5. The Constitution Bench of this Court in State of Punjab vs. Baldev Singh has considered various aspects of the compliance with Section 50 of the Act. The Bench has laid down the propositions of law of which the first and second are extracted below: (SCC pp.208-09, para 57) " 57. (1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under sub-section (1) of Section 50 of being taken to the nearest gazetted officer or the nearest Magistrate for making the search.39
However, such information may not necessarily be in writing.
(2) That failure to inform the person concerned about the existence of his right to be searched before a gazetted officer or a Magistrate would cause prejudice to an accused."
6. If the accused, who was subjected to search was merely asked whether he required to be searched in the presence of a gazetted officer or a magistrate it cannot be treated as communicating to him that he had a right under law to be searched so. What PW1 has done in this case was to seek the opinion of the accused whether he wanted it or not. If he was told that he had a right under law to have it (sic himself) searched what would have been the answer given by the accused cannot be gauged by us at this distance of time. This is particularly so when the main defence adopted by the appellant at all stages was that Section 50 of the Act was not complied with."
He has also relied upon another decision of the Supreme Court in Abdul Rahman's case which is referred to above. Perusing the principles enunciated in the said decisions, the mandatory requirements of 40 Section 50 of the NDPS Act are not at all complied with in this particular case. Hence, even those proceedings regarding seizure of mobile phone as well as the cash from the person of the accused, as projected by the prosecution, cannot be accepted.
16. I have perused the judgment of the Hon'ble Apex Court in the case of Kulwinder Singh's case relied upon by the learned High Court Government Pleader in connection with compliance of Section 50 of the NDPS Act and the relevant paragraphs 18 and 20 of the said judgment read as under:
" 18. The next contention that has been raised by the learned counsel for the appellants relates to non-compliance of section 50 of the NDPS Act. It is undisputed that the bags containing poppy husk were seized from the truck. Thus, it is not a case of personal search of a person. In Megh Singh vs. State of Punjab, it has been held that Section 50 only applies in case of personal search of a person, but it is not 41 extended to a search of a vehicle or a container or a bag or premises."
" 20. In view of the aforesaid, the submission that non-compliance of Section 50 vitiates the conviction, leaves us unimpressed."
On perusal of the said decision, in the case on hand, it is not only on the said aspect that the case of the prosecution cannot be believed, but it is also because of other circumstances brought on record along with which those circumstances can also be appreciated together to know what is the cumulative effect of the case of the prosecution witnesses, and it clearly goes to show that the prosecution still not able to make out a case that conducting of personal search was in accordance with Section 50 of the NDPS Act.
17. Sofar as framing of the charge and recording the plea is concerned, I have perused the materials. The charge was framed by the Special Court, Belgaum on 09.01.2009. In the certificate of the plea form, it is 42 mentioned in general that it is explained to the accused in the language known to him. But, there is no mention that sofar as accused No.1 is concerned, the charge was explained to him in Hindi language. In all the three plea forms, it is mentioned that the charge is explained to the accused person in the language known to him. The notices said to have been issued before conducting seizure mahazar proceedings are also produced in the case as per Exs.P.10, P.11 and P.12. I have perused the said notice forms. The notice form-Ex.P.10 pertains to accused no.1; it is in Kannada language and there is no endorsement by the PSI, Kagwad, who is said to have served this notice to accused No.1, that the contents of this notice were explained to accused No.1 in Hindi language. So also, Ex.P.13, which is the consent letter from accused No.1, it is also written in Kannada and there is no mention that accused No.1 told him (PSI) in Hindi language about his consent and the same was translated as it is by the PSI Kagwad, because looking 43 to Ex.P.13, it is mentioned as "£À£Àß ªÀÄÄAzÉ" means in his presence below that there is signature of PSI Kagwad. Therefore, even with regard to that also, it creates a doubt in the mind of the Court as to whether it was told by accused No.1 in Hindi language and then it was reduced into writing in Kannada language.
18. Sofar as accused No.1 is concerned, during the course of defence/evidence, the prosecution witnesses were cross-examined to the effect that accused No.1 came to Kagwad from Andhra Pradesh to do coolie work and he was doing the work of cutting sugarcane and loading the sugarcane into the vehicles. It is also the defence suggested to the prosecution witnesses that the police came to the said land, wherein accused No.1 was working, and demanded Rs.1,000/- from accused No.1 for which accused No.1 denied, and then he has taken all the details including the name of accused No.1 and thereafter, accused No.1 was involved 44 in the said case with false allegations. Therefore, looking to these materials and the legal aspect involved in the case and looking to the judgment of the learned Special Judge about these things, there is no discussion made by the learned Special Judge and he simply relied upon the evidence as deposed by P.W.4 and P.W.6 in their examination-in-chief and accepted that there is a case established by the prosecution for the alleged offences. The judgment and order of conviction passed by the Trial Court is not in accordance with the materials placed on record, both by way of oral evidence as well as documentary evidence. There is non-compliance of mandatory provisions of the NDPS Act. Hence, the judgment and order of conviction is not sustainable in law. There is a perverse and capricious approach of the learned Special Judge.
19. Accordingly, all the three appeals are allowed. The judgment of conviction dated 26.06.2010 and order 45 of sentence dated 30.06.2010, passed by the Special Judge (Principal Sessions Judge), Belgaum, in Special Case No.19/2008, convicting the accused persons for the offences leveled against them is hereby set aside and all the three appellants/accused Nos.1 to 3 are acquitted of the said offences.
The bail bonds executed by the appellants/accused No.1 to 3 stands cancelled, and the fine amount, if any, paid by any of the appellants/accused No.1 to 3 be refunded to them.
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JUDGE Kms