Karnataka High Court
Manjunath @ Scientist Manjaya S/O vs State Of Karnataka on 13 March, 2020
R
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 13TH DAY OF MARCH 2020
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
CRL. A. NO. 2665/2011
BETWEEN:
1. MANJUNATH @ SCIENTIST MANJYA,
S/O KRISHNAPPA BHANDARI,
AGE: 19 YEARS, OCCUP: AUTO DRIVER,
R/O: RAJEEV GANDHI NAGAR,
NEAR KMF, DHARWAD.
2. NASHIR S/O SATTARSAB KHAJI,
AGE:-18 YRS, OCCUP: AUTO DRIVER,
R/O: GADAG ROAD, HUBLI.
3. ARJUN S/O MALLESHI BHANDIWADDAR,
AGE:- 19 YRS, OCCUP:- PAINTER,
R/O:- KULKARNI HAKKAL
4TH CROSS, HUBLI.
- APPELLANTS
(BY SRI V.G. HOLEYANNAVAR, ADVOCATE)
AND:
STATE OF KARNATAKA
R/P BY SPP, CIRCUIT BENCH
(HUBLI RAILWAY POLICE STATION)
- RESPONDENT
(BY SRI. V. M. BANAKAR, ADDL. SPP)
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THIS CRIMINAL APPEAL IS FILED U/S 374 (2) OF
CR.P.C. AGAINST THE JUDGMENT OF CONVICTION AND
ORDER OF SENTENCE DATED 21/23.04.2011 PASSED BY
THE PRESIDING OFFICER PRL. DIST. & SESSIONS JUDGE
& SPL. JUDGE, DHARWAD IN SPL. NDPS C.C. NO. 4/2008
& ETC.
THIS CRIMINAL APPEAL COMING ON FOR FINAL
HEARING THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
Appellants 1 to 3 assailing the judgment of conviction and order of sentence passed by the learned Prl. Dist. & Sessions Judge Special Judge, Dharwad in Spl. NDPS CC No.4/2008 dated 21.04.2011 are before this Court.
2. I have heard the learned counsel for the appellants and the learned Addl. SPP for the respondent-State.
3. The case of the prosecution in brief is that, on 07.01.2008 at about 2.45 p.m. the Police received a credible information that the accused Nos.1 to 3 are carrying ganja in card board box without there being any permit or licence in the Hubballi railway station on :3: platform No. 2. Immediately the said information has been passed over to the superior and thereafter they secured the panch witnesses and went to the place wherein they saw accused Nos.1 to 3 were sitting. In front of them card board box were there. They were questioned and thereafter they came to know, the said card board box contains 1 kg each ganja. The same was seized by drawing a mahazar and thereafter they have been apprehended and brought. A complaint was registered in Crime No. 2/2008 under section 20(b)(1) of NDPS Act.
4. The learned Sessions Judge took the cognizance of the case and after hearing the learned PP and the learned counsel for the accused, charge was framed. The accused pleaded not guilty. They claimed to be tried and as such the trial was fixed.
5. The prosecution in order to bring home the guilt of the accused got examined 7 witnesses and got :4: marked 10 documents and also got marked six material objects. Thereafter the statement of accused was recorded by putting incriminating material. The accused have not led any evidence and not got marked any documents. After hearing the learned counsel for the accused and the learned Public Prosecutor, the Court came to the conclusion that the accused have committed the offence and they were convicted. Challenging the legality and correctness, the accused persons are before this Court.
6. The main grounds urged by the learned counsel for the appellants-accused are that the judgment of conviction and order of sentence is contrary to law and evidence and material placed on record. It is his further submission that while doing the personal search the I.O. has not followed the mandate of Sec. 50 of the Act. It is his further submission that no notice has been given and even PW4 has clearly admitted that the notice is not signed and not served to the accused. When the :5: mandate of the law has not been followed, then under such circumstances the accused is entitled to be acquitted for the alleged offence. It is his further submission that there is 18 days delay in sending the seized articles to the FSL. No explanation has been given by the I.O. and even the said seized articles have not been kept in Malkhana as per Sec. 55 of the Act. If the seized articles were not properly sealed and sampling was not done under such circumstances the accused is entitled to be acquitted. In order to substantiate the said contention, he relied upon the decision in the case of Yogesh Kumar Vs. State of Bihar reported in 2020 Crl.L.J. 238.
It is his further submission that the learned Sessions Judge has not kept into view the quantity of the ganja which has been seized. As per the said notification specifying the small quantity and commercial quantity in so far as item no. 55 is concerned the ganja seized is 1 kg and if it is 1000 grms :6: then itself it is considered to be a small quantity. If it is a small quantity, then under such circumstances the trial Court ought to have convicted the accused u/s 20(a)(1) of the Act. The sentence which has been imposed is contrary to the law. It is his further submission that the accused are first offenders and there are no bad antecedents. On these grounds he prayed to allow the appeal and to set aside the judgment of conviction and order of sentence by acquitting the accused.
7. Per contra, learned Addl. SPP vehemently argued and submitted that though there is some irregularity in following Sec. 50 of the Act but Sec. 50 of the Act is not applicable to the present case on hand. No personal search of the accused has been done so as to attract the provisions of Sec. 50 of the Act. It is his further submission that non keeping of the seized articles in Malkhana is not in anyway going to affect the case of the prosecution. Nowhere a case has been made out to :7: show that there is tampering or misutilization of the seized articles. Unless he makes out a case of such nature, then the provisions of Sec. 55 is not made applicable.
8. It is his further submission that PW4 is a Gazatted Officer and in his presence the Police Officials have personally searched the box and there it was containing 10 kg ganja and they have specifically stated that it was containing seeds, buds, flowers and stems. The FSL report-Ex.P.1 substantiates the case of the prosecution that the accused persons were carrying ganja. There is no illegality and irregularity while passing the judgment of conviction and order of sentence. On these grounds he prayed to dismiss the appeal.
9. I have carefully and cautiously gone through the statements made by the learned counsel for the parties and perused the records.
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10. The first and foremost contention which has been taken up by the learned counsel for the appellant is that the I.O. has not followed the mandate of Sec. 50 of the Act and in order to substantiate his contention he has relied upon the decision in the case of State of Rajasthan Vs. Permananda & Another reported in 2014 (5) SCC 345 and also the decision of this Court in the case of State of Karnataka by Police Sub Inspector, Bantwal Rural Police Station Vs. Imtiyaz @ Mohammad Imtiyaz in Criminal Appeal No. 179/2018 dated 30.08.2019.
11. I have given my thoughtful consideration to the said decisions. The factual matrix existing in the said decision is not applicable to the present case on hand.
12. It is well settled proposition of law that the provisions of Sec. 50 of the Act can be invoked only in cases where the drug/ narcotic/ NDPS substances is recovered as a consequence of the body search of the :9: accused. In case recovery of the narcotic is made from a container being carried by the individual the provision of Sec. 50 of the Act would not be attracted. This proposition of law has been laid down by the Hon'ble apex Court in the case of Jarnail Singh V. State of Punjab reported in AIR 2011 SC 964. At paragraph No. 12(a) it has been observed as under:
12.A This apart, it is accepted that the narcotic/opium, i.e., 1 kg. and 750 grams was recovered from the bag (thaili) which was being carried by the appellant. In such circumstances, Section 50 would not be applicable. The aforesaid Section can be invoked only in cases where the drug/narcotic/NDPS substance is recovered as a consequence of the body search of the accused. In case, the recovery of the narcotic is made from a container being carried by the individual, the provisions of Section 50 would not be attracted. This Court in the case of Kalema Tumba Vs. State of Maharastra2 discussed the provisions pertaining to `personal search' under Section 50 of the NDPS Act and held as follows;
"....... if a person is carrying a bag or some other article with him and narcotic drug or psychotropic substance is found from it, it cannot be said that it was found from his person.": 10 :
Similarly, in the case of Megh Singh Vs. State of Punjab3, this Court observed that;
"A bare reading of section 50 shows that it applies in case of personal search of a person. It does not extend to a search of a vehicle or container or a bag or premises."
The scope and ambit of Section 50 was also examined by this Court in the case of State of Himachal Pradesh Vs. Pawan Kumar4. In paragraphs 10 and 11, this Court observed as follows:-
"10. We are not concerned here with the wide definition of the word "person", which in the legal world includes corporations, associations or body of individuals as factually in these type of cases search of their premises can be done and not of their person. Having regard to the scheme of the Act and the context in which it has been used in the section it naturally means a human being or a living individual unit and not an artificial person. The word has to be understood in a broad common-sense manner and, therefore, not a naked or nude body of a human being but the manner in which a normal human being will move about in a civilised society. Therefore, the most appropriate meaning of the word "person" appears to be - "the body of a human being as presented to public view usually with its appropriate coverings and clothing". In a civilised society appropriate coverings and clothings are considered absolutely essential and no sane human being comes in the gaze of others without appropriate coverings and clothings. The appropriate coverings will include footwear also as : 11 : normally it is considered an essential article to be worn while moving outside one's home. Such appropriate coverings or clothings or footwear, after being worn, move along with the human body without any appreciable or extra effort. Once worn, they would not normally get detached from the body of the human being unless some specific effort in that direction is made. For interpreting the provision, rare cases of some religious monks and sages, who, according to the tenets of their religious belief do not cover their body with clothings, are not to be taken notice of. Therefore, the word "person"
would mean a human being with appropriate coverings and clothings and also footwear.
11. A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act." : 12 :
It has come in evidence that although the body search of the appellant was conducted but no recovery of any narcotic was made. The body search only led to the recovery of Rs.25/-from his pocket.
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13. Earlier the Hon'ble apex Court had an occasion to decide the issue in question before a larger bench in the case of State of H.P. Vs. Pavankumar reported in 2005 (4) SCC 350 wherein while interpreting the word "person" it has been held that it would mean, a human being with proper coverings and clothing and also foot wear and apart from that a bag or briefcase or any such article or container can under no circumstances can be treated as a body of a human being. At paragraph Nos.7 to 11 it has been observed as under:
7. The word "person" has not been defined in the Act. Section 2(xxix) of the Act says that the words and expressions used herein and not defined but defined in the Code of Criminal Procedure have the meanings respectively assigned to them in that Code. The Code of Criminal Procedure, however, does not define the word "person".
Section 2(y) of the Code says that the words and expressions used therein and not defined but defined in the Indian Penal : 13 : Code have the meanings respectively assigned to them in that Code. Section 11 of the Indian Penal Code says that the word "person" includes any Company or Association or body of persons whether incorporated or not. Similar definition of the word "person" has been given in Section 3(42) of the General Clauses Act. Therefore, these definitions render no assistance for resolving the controversy in hand.
8. One of the basic principles of interpretation of Statutes is to construe them according to plain, literal and grammatical meaning of the words. If that is contrary to, or inconsistent with, any express intention or declared purpose of the Statute, or if it would involve any absurdity, repugnancy or inconsistency, the grammatical sense must then be modified, extended or abridged, so far as to avoid such an inconvenience, but no further. The onus of showing that the words do not mean what they say lies heavily on the party who alleges it. He must advance something which clearly shows that the grammatical construction would be repugnant to the intention of the Act or lead to some manifest absurdity (See Craies on Statute Law, Seventh ed. page 83-85). In the well known treatise - Principles of Statutory Interpretation by Justice G.P. Singh, the learned author has enunciated the same principle that the words of the Statute are first understood in their natural, ordinary or popular sense and phrases and sentences are construed according to their grammatical meaning, unless that leads to some absurdity or unless there is something in the context or in the object of the Statute to suggest the contrary (See the Chapter - "The Rule of Literal Construction" p.78 9th Edn.). This Court has also : 14 : followed this principle right from the beginning. In Jugalkishore Saraf v. M/s Raw Cotton Co. Ltd. AIR 1955 SC 376, S.R. Das, J. said:
"The cardinal rule of construction of statutes is to read the statute literally, that is, by giving to the words used by the legislature their ordinary, natural and grammatical meaning. If, however, such a reading leads to absurdity and the words are susceptible of another meaning the Court may adopt the same. But if no such alternative construction is possible, the Court must adopt the ordinary rule of literal interpretation."
A catena of subsequent decisions have followed the same line. It, therefore, becomes necessary to look to dictionaries to ascertain the correct meaning of the word "person". 9 The dictionary meaning of the word "person" is as under :
Chambers's Dictionary :
"An individual; a living soul; a human being; b: the outward appearance, & c :bodily form; a distinction in form; according as the subject of the verb is the person speaking, spoken to or spoken of."
Webster's Third New International Dictionary:
"an individual human being; a human being as distinguished from an animal or thing; an individual having it specified kind of bodily appearance; the body of human being as presented to public view usually with its : 15 : appropriate coverings and clothing; a living individual unit; a being possessing or forming the subject of personality;"
Black's Law Dictionary:
"In general usage, a human being (i.e. natural person), though by statute term may include a firm, labour organizations, partnerships, associations, corporations."
Law Lexicon by P. Ramanatha Aiyar:
"The expression 'person' is a noun according to grammar and it means a character represented as on the stage, a human being; a self-conscious personality."
10. We are not concerned here with the wide definition of the word "person", which in the legal world includes corporations, associations or body of individuals as factually in these type of cases search of their premises can be done and not of their person. Having regard to the scheme of the Act and the context in which it has been used in the Section it naturally means a human being or a living individual unit and not an artificial person. The word has to be understood in a broad commonsense manner and, therefore, not a naked or nude body of a human being but the manner in which a normal human being will move about in a civilized society. Therefore, the most appropriate meaning of the word "person" appears to be "the body of a human being as presented to public view usually with its appropriate coverings and clothings". In a civilized society appropriate coverings and clothings are considered absolutely essential and no sane human being comes in the gaze of others : 16 : without appropriate coverings and clothings. The appropriate coverings will include footwear also as normally it is considered an essential article to be worn while moving outside one's home. Such appropriate coverings or clothings or footwear, after being worn, move along with the human body without any appreciable or extra effort. Once worn, they would not normally get detached from the body of the human being unless some specific effort in that direction is made. For interpreting the provision, rare cases of some religious monks and sages, who, according to the tenets of their religious belief do not cover their body with clothings, are not to be taken notice of. Therefore, the word "person" would mean a human being with appropriate coverings and clothings and also footwear.
11. A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to : 17 : include these articles within the ambit of the word "person" occurring in Section 50 of the Act.
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14. Keeping in view the ratio laid down in the above said decisions I am of the considered opinion that, admittedly when the said ganja which has been seized was containing in light cartoon box and admittedly as per the case of the prosecution there was ganja in the cartoon box and was kept in front of them and at that time they have been apprehended and the search was done. In that light, search of a person as contemplated u/s 50 of the Act is not necessary. Though during the course of arguments the learned counsel for the appellants brought to my notice that no notice is given and the one which has been given is not signed by PW4 and even during the course of evidence the same has been admitted, is not going to throw any light on the case of the accused so as go give the benefit. : 18 :
15. Under the said facts and circumstances I am of the considered opinion that the contentions which have been raised by the learned counsel for the appellants is not acceptable and is not having any force.
16. The second contention which has been raised by the learned counsel for the appellant is that the seized article has not been kept in Malkhana as contemplated u/S 55 of the Act. But, no evidence has been brought to the effect that there is tampering or adulteration of the seized articles in the hands of police. Even no suggestion has been made in this behalf during the course of cross-examination. Under the said facts and circumstances, the decisions quoted by the learned counsel for the appellant is not applicable to the present case on hand.
17. As could be seen from the records, admittedly the seized article of Ganja has been sent to FSL as per Ex.P.1 and PW3 the Scientific Officer who has given her opinion that the seized article is ganja. It is the : 19 : contention of the learned counsel for the appellant that as per the notification specifying the small quantity and commercial quantity, if seized Ganja is 1000 grms, is considered to be a small quantity. By going through Sec. 20 of the Act if it is a small quantity, then under such circumstances the provisions of Sec. 20(1)(A) of the Act is applicable and not (B). This aspect has been lost sight of by the learned Sessions Judge and has wrongly sentenced the accused for imprisonment for three years and to pay a fine of Rs.10,000/-.
18. The said provision itself clarifies that if the cannabis involves small quantities, the punishment is with rigorous imprisonment for a term which may extend to one year or with fine which may extend to Rs.10,000/- or with both. That itself shows that the accused cannot be convicted for a period of one year. But the trial Court convicted for three years, the same is not justifiable.
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19. On perusal of the evidence of PWs 1, 4 and 5 it indicates that when the accused was found in the Railway platform No. 2 and they were in conscious possession of the cartoon box and it was containing 1 kg ganja, the same was seized in accordance with law. During the course of cross-examination of this witness nothing has been elicited so as to discard their evidence. Though they are official witnesses and no independent witnesses have been examined, unless and until some animosity or interest is shown in the case, it cannot be rejected. For the reasons best known to the parties before the trial Court, no such suggestions have been made in the cross-examination. In that light, the judgment of the trial Court deserves to be interfered with in so far as the sentence is concerned.
20. In that light, the conviction entered into by the trial Court is confirmed but the sentence is modified to one u/S 20(1)(A) and the accused Nos.1 to 3 have been sentenced to undergo imprisonment the period which : 21 : they have already undergone and they have to pay a fine of Rs.10,000/- each. The fine amount which has been already deposited be confiscated to the State.
Sd/-
JUDGE bvv