Karnataka High Court
Abdul Azeez vs The State on 8 April, 2024
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
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NC: 2024:KHC:14484
CRL.RP No. 1494 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
CRIMINAL REVISION PETITION NO. 1494 OF 2016
BETWEEN:
ABDUL AZEEZ
S/O LATE ABDULLA
AGED ABOUT 23 YEARS,
R/O RUSTHU MAJIL,
BAYARU ROAD, BEKURU POST,
UPPALA, KASARAGOD DISTRICT
...PETITIONER
(BY SMT. POOJA KATTIMANI, ADVOCATE FOR
SRI. R.B. DESHPANDE, ADVOCATE)
AND:
THE STATE OF KARNATAKA
ULLAL POLICE STATION
ULLAL, MANGALURU, D.K-575 020.
...RESPONDENT
(BY SRI. VINAY MAHADEVAIAH, HCGP)
Digitally signed by B
K
MAHENDRAKUMAR
Location: HIGH
THIS CRL.RP IS FILED U/S. 397 R/W 401 CR.P.C
COURT OF
KARNATAKA
PRAYING TO SET ASIDE THE JUDGEMENT AND ORDER OF
CONVICTION AN SENTENCE DATED 13.03.2015 PASSED BY
THE JMFC (III COURT), MANGALURU, D.K., IN
C.C.NO.3266/2009 CONFIRMED BY THE JUDGMENT AND
ORDER DATED 27.10.2016 PASSED BY THE PRL. SESSIONS
JUDGE, D.K., MANGALURU IN CRL.A.NO.107/2015
(CONVICTED FOR THE OFFENCE P/U/S 8(c) R/W 20(b)(ii)(A) OF
NDPS ACT) AND ACQUIT THE PETITIONER OF CHARGES
LEVELED AGAINST HIM.
THIS PETITION, COMING ON FOR DICTATING ORDERS,
THIS DAY, THE COURT MADE THE FOLLOWING:
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NC: 2024:KHC:14484
CRL.RP No. 1494 of 2016
ORDER
Petitioner-accused No.1 who is convicted for the offences punishable under Section 8 (c) r/w 20 (b) (ii) (A) of Narcotic Drugs and Psychotropic Substance Act, 1985 (for short "NDPS") is before this Court.
2. The case of the prosecution is that, on 8.11.2008, on receiving credible information, a raid was conducted, and upon apprehending, accused No.1 and 2 were found in possession of 250 grams of ganja and 200 grams of ganja respectively valued in all a sum of Rs.12,000/-.
3. Ganja was seized in the presence of the panchas by drawing mahazar and accused were arrested on the spot and thereafter the case was registered in Crime No.271/2008. The Police after investigation submitted the charge sheet for the aforesaid offences. During the crime stage, the accused persons were produced before the Court and they were released on bail. Since accused No.2 was absconding, the case was split up and separate C.C. has been registered against accused No.2, and Trial Court after conducting Trial against the accused No.1 passed the judgment of conviction.
4. To prove its case, the prosecution examined P.W.1 to P.W.6 and exhibited documents at Exs.P.1 to P.8(a), and marked material object as M.O.1 and 2. The Trial Court, after appreciating the evidence on record, held that the prosecution has proved the guilt of the accused beyond all reasonable doubt, and convicted the petitioner- accused No.1 for the aforementioned offences of IPC and the same was confirmed by the learned Sessions Judge, against which the present petition is filed.
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5. The Police Sub-Inspector, Ullal Police Station, received credible information on 8.11.2008 of there being in possession of Ganja and selling the same to the public at large. Upon receiving the credible information, the complainant along with P.W.1 and 2 & 4 went to the spot and apprehended the accused and it was uncovered that they were in possession of the ganja.
6. Section 42 of the NDPS Act, 1985 deals with, Power of entry, search, seizure and arrest without warrant or authorization and it states that the Officer prescribed in Section 42 of the NDPS Act, 1985 receives information by any person in respect of the offences punishable under this Act has been committed, must reduce it in writing and thereafter conducts search and seizure.
7. Sub-Section 2 of Section 42 of the NDPS Act, 1985, states that 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.
8. The Apex Court in the case of STATE OF PUNJAB Vs. BALBIR SINGH, (1994) 3 SCC 299, ruled that, the provisions of Section 42 of the NDPS Act are mandatory and contravention of the same would affect the prosecution case and vitiate the trial.
9. In the instant case, the complainant before proceeding to the spot did not produce/record the information in writing by entering the same in the Station House Diary as stated under Section 42(1) of the NDPS Act, and also has not sent information produced in writing or the grounds for his beliefs to his immediate official superior as stated under sub-Section 2 of Section 42 of the NDPS Act. Therefore, the mandatory -4- NC: 2024:KHC:14484 CRL.RP No. 1494 of 2016 provisions contained in Section 42 of the NDPS Act, having not been complied with, the judgment of conviction stands vitiated.
10. Section 2 of the NDPS Act, deals with the definitions, (iii) deals with definition of cannabis and Sub-section (b) states that ganja means the flowering of 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.
11. Ex.P.1 is the mahazar drawn for having seized ganja which was allegedly in possession of accused No.1 indicating that the ganja seized consisted of seeds, leaves and stems but does not specify that it is cannabis seeds consisting of flowering of fruiting tops, so as to bring the seized substance from accused No.1 under the ambit of definition of cannabis as defined under Section 2(3) of the NDPS Act, 1985.
12. In the absence of any conclusive proof that the petitioner- accused No.1 was found in possession of ganja as stated under clause 3(b) of definition 2 of the NDPS Act, 1985, the impugned judgment of conviction is not sustainable in law. The prosecution has failed to establish the guilt of the accused No.1 beyond all reasonable doubt. Therefore, the impugned judgment of conviction and order of sentence is not sustainable in law. Accordingly, I pass the following:
ORDER
i) The Criminal Revision Petition is allowed.
ii) The impugned judgment of conviction and order of sentence dated 13.03.2015 passed by the JMFC (III Court), Mangaluru, D.K., in C.C.No.3266/2009, and impugned judgment -5- NC: 2024:KHC:14484 CRL.RP No. 1494 of 2016 and order dated 27.10.2016 passed by the Prl. Sessions Judge, D.K., in Crl.A.No.107/2015 are hereby set aside. and the petitioner-accused No.1 is acquitted of the aforesaid offence of IPC.
iii) Bail bond executed, if any, stands cancelled.
Sd/-
JUDGE HR