Karnataka High Court
Mallappa S/O Satappa Sathe vs The State Of Karnataka on 6 October, 2023
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE VENKATESH NAIK T.
CRIMINAL APPEAL NO.200012 OF 2021
BETWEEN:
MALLAPPA
S/O. SATAPPA SATHE
AGED ABOUT 50 YEARS
OCCUPATION: AGRICULTURE
RESIDENT OF GADYAL VILLAGE,
TQ: JAMAKHANDI
BAGALKOT-587 103.
...APPELLANT
(BY SRI R.S. LAGALI, ADVOCATE)
AND:
Digitally signed THE STATE OF KARNATAKA
by SHILPA R BY THE STATION HOUSE OFFICER
TENIHALLI EXCISE POLICE STATION,
Location: HIGH VIJAYAPURA
COURT OF
KARNATAKA REPRESENTED BY
THE ADDITIONAL STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
KALABURAGI BENCH.
...RESPONDENT
(BY SMT. ANITA M. REDDY, H.C.G.P.)
***
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF THE CR.P.C., PRAYING TO SET ASIDE THE
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JUDGMENT AND ORDER OF CONVICTION DATED 04.01.2021
PASSED BY THE PRINCIPAL SESSIONS JUDGE/SPECIAL JUDGE,
VIJAYAPURA, IN SPECIAL (NDPS) CASE NO.3/2018 AND
ACQUIT THE APPELLANT OF ALL THE CHARGES.
THIS CRIMINAL APPEAL IS COMING ON FOR FURHTER
DICTATION, THIS DAY, THE COURT MADE THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellant/accused under Section 374(2) of the Code of Criminal Procedure, 1973, (for short, 'Cr.P.C.') praying to set aside the judgment of conviction and order on sentence dated 04.01.2021 passed by the Principal Sessions Judge/Special Judge, Vijayapura, (for short 'trial Court') in Special (NDPS) Case No.3/2018, wherein the trial Court convicted the appellant and sentenced him to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.1,00,000/- and in default, he shall undergo simple imprisonment for one year for the offence punishable under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act').
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2. For the sake of convenience, the parties are referred to as per their ranking before the trial Court. The appellant is the accused and the respondent-State is the complainant.
3. The brief facts of the prosecution case are that on 20.05.2017 at about 2.00 p.m., PW3-Excise Inspector received credible information that, the accused is transporting ganja on Bajaj Kawasaki motorcycle, bearing Registration No.KA-23/EF-1977, from Kannur Village side to Tidagundi side. Hence, he informed the same to his higher officer, secured a Gazetted Officer, sub-staff and pancha in order to conduct raid and kept watching the movements of the vehicles. At that time, when the said Bajaj Kawasaki came, they stopped the said bike and on enquiry, the rider of the vehicle i.e., the accused, revealed his name as Mallappa and on being inspection, they found 17 plastic bags containing ganja and said plastic bags were weighing about 750 grams each in total 12.750 Kgs. and the accused revealed that he has grown said ganja -4- NC: 2023:KHC-K:8028 CRL.A No. 200012 of 2021 and he would sell the same to one customer of Horti Village. Therefore, they seized the ganja by taking 34 samples of 30 grams each from the plastic bags by drafting panchanama, apprehended the accused and registered the case. Later, PW8 conducted investigation and filed charge-sheet against the accused for the offences punishable under Sections 20(b) and 60 of the NDPS Act.
4. After receipt of the charge-sheet, the trial Court took cognizance of the offence under Section 190(1)(b) of the Cr.P.C., secured the presence of the accused and supplied a copy of the charge-sheet to the accused by complying Section 207 of the Cr.P.C. After hearing both the parties, framed charge for the aforesaid offences, read over to the accused, he pleaded not guilty to the charge and claimed to be tried.
5. The prosecution in order to bring home the guilt of the accused, got examined in all eight witnesses as PW.1 to PW.8, got marked fourteen documents as per Ex.P1 to Ex.P14 and got marked two material objects as -5- NC: 2023:KHC-K:8028 CRL.A No. 200012 of 2021 per MOs.1 and 2, and closed its side. The statement of the accused as contemplated under Section 313 of the Cr.P.C., was recorded by the trial Court by explaining the incriminatory material, the case of the accused was of total denial and he did not enter the witness box.
6. The trial Court, on the basis of the material available on the record, framed the following point for consideration, which reads as under:
"Does the prosecution prove to the hilt that on 20.05.2017 at about 4.00 p.m., in front of the Basaveshwar Devastan on Kannur - Tidagundi Road, the accused was found in possession of 12.750 kg of ganja being grown by him in his land and transporting the same on the motorcycle bearing Regn. No.KA-23/3F-1977 for the purpose of sale, punishable U/s.20(a) and (b) of the NDPS Act as alleged?"
7. The trial Court, based on the oral and documentary evidence on record, held that the prosecution proved its case beyond all reasonable doubt -6- NC: 2023:KHC-K:8028 CRL.A No. 200012 of 2021 that, on 20.05.2017 at 04.00 p.m., the accused was found to have stored 12.750 Kgs. of ganja in his bag. Thus, he committed the offence punishable under Section 20(b)(ii)(B) of the NDPS Act and accordingly, the trial Court convicted and sentenced the accused to undergo imprisonment as aforestated. Aggrieved by the impugned judgment of conviction and order on sentence passed by the trial Court, the appellant/accused has preferred this appeal.
8. Heard the arguments of the learned counsel for the appellant and the learned High Court Government Pleader for the respondent-State.
9. Learned counsel for the appellant has contended that, the judgment of conviction and order on sentence passed by the trial Court is contrary to law, facts and evidence; the trial Court has committed serious error in convicting the accused on the basis of the uncorroborated testimonies of the prosecution witnesses; though the prosecution has not complied with the -7- NC: 2023:KHC-K:8028 CRL.A No. 200012 of 2021 mandatory provisions of Sections 42, 50 and 57 of the NDPS Act, the trial Court has wrongly appreciated this aspect and wrongly assumed that those mandatory provisions are complied with. He further contended that, there is no material to show that, in the absence of any material with regard to involvement of the accused in the alleged crime, it would create doubt regarding the veracity of the prosecution case. Further, all the prosecution witnesses pertain to Excise Department and none of the independent witnesses have cited as witness and examined by the prosecution. Further, PW2 though cited as independent witness, but he was working in the Excise Department and he stood as pancha witness in five to six cases and the same has been clearly admitted by him in his cross-examination. Therefore, PWs.1 to 8 are interested witnesses and their testimonies cannot be believed. Hence, he prayed to allow the appeal.
10. Learned High Court Government Pleader has contended that, the accused has committed a serious -8- NC: 2023:KHC-K:8028 CRL.A No. 200012 of 2021 offence punishable under Section 20(b) of the NDPS Act; the complainant has conducted investigation in a proper manner, seized contraband in the presence of independent witness, who have supported the case of the prosecution and seizure was conducted in the presence of a Gazetted Officer and thereby, the Investigating Officer has complied with the mandatory requirements of Sections 42, 50 and 57 of the NDPS Act. The prosecution witnesses have clearly deposed about the manner of ride conducted and therefore, no fault can be found in their testimonies and in fact, their evidence inspires the confidence of the Court and thus, their testimonies are cogent and corroborative in nature. Therefore, the trial Court has rightly convicted the accused and thus, no interference can be called for. Hence, she prayed to dismiss the appeal.
11. Having heard the learned counsel for the appellant/accused and the learned High Court Government Pleader for the respondent-State, the points that arise for my consideration in this appeal are:
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NC: 2023:KHC-K:8028 CRL.A No. 200012 of 2021 i. Whether the prosecution proved its case beyond reasonable doubt that on 20.05.2017 at about 4.00 p.m. the accused found in possession of
12.750 Kgs., of ganja being grown by him in his land and transporting the same on his motorcycle, bearing Registration No.KA-23/EF-
1977, thereby committed the offence punishable under Section 20(b) of the NDPS Act?
ii. Whether the judgment of conviction and order on sentence passed by the trial Court is in accordance with law?
iii. What order?
12. Points Nos.1 and 2: Since point Nos.1 and 2 require common discussion, I take these points for common discussion in order to avoid repetition of facts and evidence.
13. As per the charge framed by the trial Court, on 20.05.2017 at 4.00 p.m., the complainant and his sub- staff conducted raid on the accused and found 12.750 kgs.
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NC: 2023:KHC-K:8028 CRL.A No. 200012 of 2021 of ganja, which was grown by the accused in his land and he was transporting the same to sell.
14. In order to prove this aspect, the prosecution examined:
a. PW.1-Jagadish Rajappa Inamdar, Excise Dy.S.P., who accompanied the complainant as a Gazetted Officer. He has stated that, on 20.05.2017 at 2.00 p.m., the Excise Inspector/complainant requested him to conduct raid in his presence and accordingly, on the same day at 4.00 p.m., they conducted raid on the accused and found 17 plastic bags containing ganja weighing 750 grams each. Hence, the complainant conducted seizure panchanama as per Ex.P.2. In the cross-examination, he admits that, he does not know the contents of the complaint and panch witness, who has stood as witness in other five to six cases, they did not secure independent pancha at the alleged spot and the alleged spot was very busy road and rest of the suggestions were denied by him.
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b. PW.2-Rudrappa Laxman Kumbar is an
independent panch witness. He has reiterated the
averments made in deposition of PW.1. In the cross- examination, he admits that, earlier to the present case, he stood as pancha in other five to six cases.
c. PW.3-Abubakar Abdulgani Mujawar, Excise Inspector, reiterates the evidence of PW1. In the cross- examination, he admits that, he did not collect the RTC extract of the land of the accused and he has not mentioned the name of pancha in the complaint. Though he weighed the ganja, but said aspect has not been incorporated in the complaint. He did not enquire about the owner of the motor vehicle seized in this case.
d. PW.4-Kumar Basavennappa Madivalar, a witness to seizure panchanama. He reiterates the evidence of PW2.
e. PW.5-Iragond Rayagond Hatti, Excise Guard. He reiterates the evidence of PW1.
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NC: 2023:KHC-K:8028 CRL.A No. 200012 of 2021 f. PW.6-Balasaheb Sidramappa Tadakal, Excise Guard. He reiterates the evidence of PWs.1 and 5.
g. PW.7-Vadiraj Narayan Ashrit, Excise Guard. He also reiterates the evidence of PWs.1, 5 and 6.
h. PW.8-Mahantesh Devendrappa Kabade, Excise Inspector, who registered the case, investigated the case and filed the charge-sheet against the accused. In the cross-examination, he admits that, the owner of MO.2- motorcycle is one Annasaheb and he is not the accused in this case and he has not recorded the statement of Annasaheb. He further admits that, the alleged spot is very busy area, but he did not call any independent witness to stand as pancha and he sent MO.1-sample packets to Forensic Scientific Laboratory after one month and seven days and till then, the ganja was kept in Malcana and rest of the suggestions were denied by him.
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15. Based on the evidence of PWs.1 to 8, the trial Court convicted the accused. On perusal of evidence of prosecution witnesses; PW1 - Jagadish is Excise Superintendent, he has attended the raid as Gazetted Officer; PW2 - Rudrappa and PW4 - Kumar are mahazar witnesses, they have stated that the Excise Police conducted raid on the accused person and seized ganja of 12 Kgs., 750 grams in their presence. But in cross- examination PWs.2 and 4 have categorically stated that, PW2 stood as panch in all 5-6 cases as per the instructions of the Excise Officer. But they have clearly admitted that they have not seen the documents of MO2 - Motorcycle and they also do not know the owner of MO2. Further, they have admitted that, PW3 - Excise Inspector has not conducted raid in the presence of Tahsildar or Magistrate and he has not seized any amount from the accused.
16. Admittedly, PW3 received credible information about transporting ganja, but he has not made any record or any ground on the basis of which he had the reasonable
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NC: 2023:KHC-K:8028 CRL.A No. 200012 of 2021 belief that the offence under NDPS Act is being committed before proceeding to search the accused persons. Further PW3 has not obtained any search warrant in this regard. Therefore, provisions of Section 54 of NDPS has not been complied with. This renders the entire search without jurisdiction and as a logical corollary, it vitiates the proceedings. Sections 53 and 54 of the NDPS Act contain valuable safeguards for the liberty of citizen in order to protect them from ill-founded or frivolous prosecution or harassment. Therefore, there has been a direct non- compliance of the provisions of Section 54 of the NDPS Act, which renders the search completely without jurisdiction.
17. Further, the first informant did not reduce the credible information in writing and he has not registered said credible information as F.I.R. As per Section 42(2) of the NDPS Act, where an Officer takes down any information in writing under Sub-Section (1) or grounds for his belief he shall within 72 hours send a copy thereof
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NC: 2023:KHC-K:8028 CRL.A No. 200012 of 2021 to his immediate superior official. The compliance with Section 42(2) of the NDPS Act is mandatory and failure of the Excise Officer to take down the information received by him in writing and shall forthwith send a report to his immediate Officer would cause prejudice to the accused. Under this Section, if there is total non-compliance in the provisions, the same would adversely affect the prosecution case and to that extent, it is mandatory. Whereas in the instant case, no information was taken down in writing by the Excise Officer or conveyed to the immediate Excise Officer. Further, any oral evidence of Excise Officer will not be in compliance with the provisions of Section 42(2) of the NDPS Act. But, the trial Court in its judgment has wrongly appreciated that there is compliance of Sections 42 and 50 of the NDPS Act and held that there is no material to show that there is violation of mandatory provisions provided under Sections 42 and 50 of the NDPS Act. The Trial Court has not assigned any reasons as to compliance of mandatory provisions, and merely on the basis of interested witnesses
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NC: 2023:KHC-K:8028 CRL.A No. 200012 of 2021 and official witnesses convicted the appellant. Further, on perusal of the oral and documentary evidence on record, it appears that the requirements of Section 50 of the NDPS Act have not been complied with. In fact, the accused ought to have been informed that he has the option of being search in the presence of a Gazetted Officer or a Judicial Magistrate First Class. Whereas, PW3, the first informant, ought to have complied with the requirements of Section 50 of the NDPS Act. In fact, the accused ought to have informed that he has the option of being search in the presence of a Gazetted Officer or a Judicial Magistrate First Class. The obligation of a raiding party under Section 50 of the NDPS Act has been settled in VIJAYASINH CHANDUBHA JADEJA v. STATE OF GUJARAT reported in (2011) 1 SC 609, wherein, the Hon'ble Apex Court has held that "the requirement of Section 50 of the NDPS Act is a mandatory requirement and the provision of Section 50 must be very strictly construed". From perusal of the ratio laid down in the decision cited supra, in the case on hand, the requirement of Section 50 of the NDPS Act is not
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NC: 2023:KHC-K:8028 CRL.A No. 200012 of 2021 complied with by informing the accused of his option to be searched either in the presence of a Gazetted Officer or a Judicial Magistrate First Class. The mandatory requirement continues even after that and it is required that the accused person is actually brought before the Gazetted Officer or the Magistrate in order to impart authenticity, transparency and creditworthiness to the entire proceedings.
18. In the instant case, PW3 ought to have laid an endeavour to produce the accused before the Magistrate or he ought to have conducted raid in the presence of independent Gazetted Officer. Though PW3 conducted raid on the accused, he never gave any option to the accused either to conduct a raid before the Magistrate or in the presence of independent Gazetted Officer. PW3 brought the Gazetted Officer, who is none other than higher superior Officer of PW3 termed as Superintendent of Excise. Thus, PW3 has not complied with the requirements of Section 50 of the NDPS Act.
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19. On perusal of the Ex.P8 - FSL report the material object examined was ganja, which includes small branches with leaves, flowers and fruit tops. Admittedly, the raiding party seized ganja which includes branches with leaves, flowers and fruit tops.
20. A Co-ordinate Bench of this Court, in the case of K.K. REJJI v. STATE BY MURDESHWAR POLICE STATION, KARWAR, reported in 2010 (5) KAR. L.J. 279, has held as under:
"Ganja is defined under the provision of NDPS Act as follows:
"2(iii)( b) Ganja, that is, 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".
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21. In the instant case, the Investigating Officer has not examined any independent witness and independent seizure mahazar witness, though PW1 appears to be independent witness, but he was attached with the office of Excise Department. Except PW1, the other witnesses are Excise officials. Though there were chance of availability of independent Gazetted Officers from other Departments, but PW3 failed to call the independent Gazetted Officers available in the said area.
22. In the instant case the Investigating Officer has not examined any independent witness and the seizure mahazar witness appears to be independent witness, but PW2 is a panch who stood as panch in 5-6 others cases registered by Excise Officer. Except PWs.2 and 4 the other witnesses are Excise Officers. Though, there were chances of availability of Gazetted Officer from other departments, which PW3 failed to call independent Gazetted Officers who were available in the said area. Except the oral testimony of Excise officials, the other locality of the
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NC: 2023:KHC-K:8028 CRL.A No. 200012 of 2021 witness and independent witness have not made as eyewitness. Moreover, the raiding party has not at all complied with the requirements of Sections 42 and 50 of the NDPS Act. The obligations under Sections 42 and 50 of the NDPS Act have not been discharged statutorily. Further, as per the evidence of PW3 - the first informant, obtained search warrant as per Ex.P1. But on perusal of Ex.P1 it appears that it is only information submitted to the Court in order to search of person and property, but PW3 has not obtained any search warrant as required under Section 93 of Cr.P.C.:
"93. When search-warrant may be issued._ (1)(a) Where any Court has reason to believe that a person to whom a summons or order under section 91 or a requisition under Sub-Section(1) of section 92 has been, or might be, addressed, will not or would not produce the document or thing as required by such summons or requisition, or
b) where such document or thing is not known to the Court to be in the possession of any person, or
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c) where the Court considers that the purposes of any inquiry, trial or other proceeding under this Code will be served by a general search or inspection, it may issue a search-warrant; and the person to whom such warrant is directed, may search or inspect in accordance therewith and the provisions hereinafter contained. (2) The Court may, if it thinks fit, specify in the warrant the particular place or part thereof to which only the search or inspection shall extend; and the person charged with the execution of such warrant shall then search or inspect only the place or part so specified. (3) Nothing contained in this section shall authorise any Magistrate other than a District Magistrate or Chief Judicial Magistrate to grant a warrant to search for a document, parcel or other thing in the custody of the postal or telegraph authority."
23. On perusal of the above proposition of law, whenever a person receives credible information about commission of cognizable offence and intending to conduct raid on such person, he must seek search warrant from the Magistrate under Section 93 of Cr.P.C., and the
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NC: 2023:KHC-K:8028 CRL.A No. 200012 of 2021 Magistrate shall issue warrant of search in Form No.10, which is as under:
" FORM No. 10
WARRANT TO SEARCH AFTER INFORMATION OF A PARTICULAR OFFENCE (See section 93) To................................ (name and designation of the police officer or other person or persons who is or are to execute the warrant). WHEREAS information has been laid (or complaint has been made) before me of the commission (or suspected commission) of the offence of ....................... (mention the offence concisely), and it has been made to appear to me that the production of ...................... (specify the thing clearly) is essential to the inquiry now being made (or about to be made) into the said offence (or suspected offence);
This is to authorise and require you to search for the said ................ (the thing specified) in the .............. (describe the house or place or part thereof to which the search is to be confined), and, if found, to produce the same forthwith before this Court, returning this warrant, with an endorsement certifying what you have done under it, immediately upon its execution."
24. Whereas, in the instant case PW3 has not obtained Ex.P1 - Search Warrant in the manner stated under Section 93 and Form No.10 of Cr.P.C.
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25. Further, failure to comply with the requirements under section 42 of the NDPS Act would affect the prosecution's case and vitiates the trial. The court referred to the deposition of the I O who despite having knowledge of the possession of ganja by the accused and the whereabouts of the same, did not reduce the information into writing as required under section 42. The court made further reference to his deposition, noting that he had written the said information in the station diary and communicated the same via telephone to his immediate officer. The court noted that mere entry of the information does not suffice and reasons for the belief must also be reduced to writing.
26. The co-ordinate Bench of this Court held in 2021 (5) KHC 491 / 2021 KHC Online 617, which is as under:
"Failure to inform accused that he had a right u/s 50 of NDPS Act to be searched in the presence
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NC: 2023:KHC-K:8028 CRL.A No. 200012 of 2021 of a Gazetted Officer or A Magistrate, vitiates the search."
27. The Hon'ble Apex Court in case of Sanjeev & Anr, vs State of Himachal Pradesh in Crl. A- 870 OF 2016 D/d: 9 March 2022, at para 9 has held as under:
"Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 50 - Personal search did not result in recovery of any contraband material but the non-compliance of requirement of affording an option to be searched before a Magistrate of a competent Gazetted Officer - Accused acquitted."
28. Hence, the Supreme Court acquitted accused in an NDPS case on the ground of non-compliance of requirement of affording an option to be searched before a Magistrate of a competent Gazetted Officer. In this case, the accused was convicted by the Trial Court observing that the Police gave an option to him to be searched before a Gazetted Officer. In appeal filed by the accused, the court noted that arrest memos, do not reflect that any
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NC: 2023:KHC-K:8028 CRL.A No. 200012 of 2021 option or choice was given to the accused before their personal search was undertaken.
29. Thus, looking into any angle the prosecution has failed to prove its case beyond all reasonable doubt that accused has committed an offence. The trial Court without looking into the statutory and mandatory provisions of NDPS Act, has convicted the accused only on the basis of uncorroborated testimony of official witnesses and in the absence of any independent witness. Hence, I answer point No.1 in the negative.
30. Further, though the prosecution failed to prove its case beyond all reasonable doubt, but, on an uncorroborated testimony of prosecution witnesses, the Trial Court convicted the accused, which requires interference by this Court. Hence, I answer point No.2 in the affirmative.
31. Point No.3: In view of foregoing discussion on point Nos.1 and 2, I pass the following:
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ORDER
i. Criminal appeal is allowed;
ii. The judgment of conviction and order on
sentence dated 04.01.2021 in Special (NDPS) Case No.3 of 2018 passed by the Principal District and Sessions Judge/Special Judge, Vijayapura, is hereby set aside;
iii. The appellant/accused is set at liberty and his bail bonds, if any, shall stand cancelled; and iv. The fine amount deposited, if any, shall be returned to the accused within four weeks from the date of receipt of a certified copy of this order.
Registry is directed to return the Trial Court Records, forthwith.
Sd/-
JUDGE KVK (Paragraph Nos.1 to 14) SBS (Paragraph Nos.15 till end) List No.: 1 Sl No.: 34