Karnataka High Court
Bhimsheppa S/O Laxmappa Hegdi, vs The State Of Karnataka, on 10 April, 2019
Author: A.S Bellunke
Bench: A.S Bellunke
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 10TH DAY OF APRIL 2019
BEFORE
THE HON'BLE MR. JUSTICE BELLUNKE A.S.
CRL.A.No.2521 OF 2011
BETWEEN:
BHIMSHEPPA S/O LAXMAPPA HEGDI,
AGE: 62 YEARS, OCC: AGRICULTURE,
R/O SATTIGERI, TQ. SAUNDATTI,
DIST. BELGAUM
...APPELLANT
(BY SRI. G.M. BHAT AND
SMT. PADMAVATI BAHUBALI DANAWADE, ADVS.)
AND:
THE STATE OF KARNATAKA,
THROUGH PSI CHIKODI PS,
REP. BY SPP, HIGH COURT
CIRCUIT BENCH BUILDING, DHARWAD
...RESPONDENT
(BY SRI. R. RAVINDRA NAIK, HCGP)
THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF
CR.P.C. SEEKING TO SET ASIDE CONVICTION AND
SENTENCE DATED 14.12.2010 PASSED BY THE SPECIAL
JUDGE (PRL. SESSIONS JUDGE), BELGAUM, IN SPECIAL
CASE NO.28/2009 AND ACQUIT THE APPELLANT FOR
OFFENCES PUNISHABLE U/S 20(a)(i) R/W SEC.8(b) OF
THE N.D.P.S. ACT.
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RESERVED FOR JUDGMENT ON : 21.03.2019
JUDGMENT PRONOUNCED ON : 10.04.2019
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY, THE COURT
DELIVERED THE FOLLOWING :
JUDGMENT
This is an appeal filed by the accused questioning the legality and correctness of the judgment of conviction and sentence dated 14 t h December 2010 passed by the Special Judge (Principal Sessions Judge), Belgaum, in Special Case No.28 of 2009. The accused was prosecuted for the offence punishable under Section 20(a)(i) read with Section 8(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the 'NDPS Act', for brevity). He was sentenced to undergo rigorous imprisonment for a period of four years and to pay fine of Rs.75,000/- 3 in default to undergo rigorous imprisonment for a further period of one year.
2. Brief facts of the case are that the CPI of Saundatti, on a credible information, along with panchas visited the land of the accused in Sy.No.882 of Sattigeri in Saundatti taluk. He removed the ganja plants grown in the said land. He collected and seized the same in three bags, one weighing 12 kgs and the other weighing 15 kgs each. One pack containing 20 Kgs of roots and stems of the seized ganja plants were marked as M.Os.1 to 4 and three samples each containing 500 grams were marked as M.Os.1(a), 2(a) and 3(a)and were sent for analysis. After receiving the report, it was found that the accused had illegally grown the ganja plants. Mahazar was drawn and after completing investigation, charge sheet was filed against the appellant-accused for the aforesaid offence. The learned Sessions Judge 4 secured the presence of the accused. On hearing the accused, charge was framed. The accused pleaded not guilty and claimed to be tried. Learned Sessions Judge held trial. In the trial, the offence committed by the accused was proved. Accordingly, the accused was convicted and sentenced by the learned Special Judge as per the impugned judgment stated supra.
3. Being aggrieved by the impugned judgment of conviction and sentence, the accused has preferred this appeal on the following grounds:
The judgment of conviction and sentence passed by the Special Judge is contrary to law, evidence and probabilities of the case. The trial Court has believed highly on the evidence of the interested, contradictory, unreliable and artificial evidence of the witnesses. As per the contents of Ex.P-2, the sample sent for chemical examination 5 did not contain fruiting and flowering tops of ganja whereas the chemical examiner's report was to the effect that the samples sent for chemical examination contained fruiting and flowering, tops. Therefore, it raises a serious doubt as to whether the plants which were seized under Ex.P-2 were subjected to forensic examination. All the witnesses i.e. PWs.1, 2, 7, 10 and 11 are police officers and sub-ordinate to each other. PWs.3 to 6, who are independent witnesses, have not supported the case of the prosecution. The trial Court committed an error in drawing a presumption in favour of the prosecution. Seizure panchanama has not at all been proved. There was inordinate delay in sending the samples to the FSL. Therefore, the appellant prayed to set aside the impugned judgment of conviction and sentence and to acquit the appellant of all the charges leveled against him.6
4. Learned counsel for the appellant submitted that there is no evidence to show that the land on which ganja plants were grown belonged to the accused or whether he was in exclusive possession of the same. There was no proper seizure of ganja by separating the fruits, flowerings and tops. On the contrary, the whole plant has been weighed, which is illegal. The offence under the provision of NDPS Act are triable based on the weight of the ganja seized. Therefore, the investigation was vitiated. The fruiting, flowering and tops can be seen with the bare eyes. Therefore, the alleged offence was not at all proved by the prosecution. The trial Court committed an error in convicting the appellant for the offence as stated above.
5. Learned High Court Government Pleader supported the impugned judgment of conviction and sentence. He contended that the evidence on 7 record prove the guilt of the accused beyond all reasonable doubt. Hence, the trail Court rightly convicted the appellant-accused. Hence, learned Government Pleader prayed to confirm the impugned judgment of conviction and sentence passed against the accused.
6. Heard both the counsel and perused the records.
7. First of all, the prosecution has to prove beyond all reasonable doubt that survey number of the land on which the alleged ganja plants were grown was in exclusive possession of the accused. Admittedly, as per the RTC produced by the prosecution, the said land measures 10 acres 39 guntas including 4 guants of kharab land. The said land stands in the name of 4 persons including the accused. Therefore, it was incumbent on the investigating officer to find out as to the extent of land on which the ganja plants 8 were grown was in exclusive possession of the accused. There is no explanation from the prosecution as to why the other persons named in the revenue records were not prosecuted. The land in question is surrounded by other land owners having sugar crops and other produce. Therefore, naturally, other workers might had been working in their fields and none of them were examined. The ganja plants were uprooted with leaves, stems and branches. They were stored in 3 separate bags one weighing one 12 kgs and the other 2 bags weighing 15 kgs each. Out of that, samples were collected and sent for chemical analysis.
8. On perusal of the evidence on record, it is clear that the major portion of the investigation has been taken up by the investigating Officer-Pw-
10. Merely because the accused was present in the land by itself would not prove the guilt of the 9 accused. The roots and stems are also taken into consideration to find out that the total weight of ganja was 62 kgs as against 50 kgs mentioned in the mahazar. There appears to be no proper segregation and legal weighing of the ganja plants. In this regard, learned Single Judge of this Court in th case of K.K. Rejji, v. State by Murdeshwar Police Station, Karwar, reported in LAWS(KAR) 2009 7 63, at para 5 elaborating on the word "Ganja" has observed as under:
"5. in the first instance , we have to go on the premise that prosecution charge against the accused is based on alleged seizure of ganja. Ganja is define d unde r the provision of NDPS Act a fo llows:
"2(iii)( b) Ganja, that is, the flowering or fruiting to ps o f the cannabis plant (excluding the seeds and le aves whe n not accompanie d by the tops) , by whatever name they may be known or designated."
From this de finition it is celar that 'Ganja' would mean only the flowe ring o r fruiting to ps excluding the leaves as also seeds. IN the instant case , the prosecution has pro duced 10 seizure panchanama Ex.P-5, to sho w what was seized. I t reads as fo llo ws"
(1)..... ( 2)..... ( 3) ....... (matter in ve rnacular language omitte d) From the extracted portion it is see n what the officers have seized are cannabis plants. The description of seized product sho ws it had stems, leaves, branches and, perhaps even the fruiting parts. But the question is can the stem, le aves, branches be termed as ' Ganja' in vie w of definitio n referred to above . The answer is o bvio usly in the ne gative , bcasue the Act itself defines what is Ganja. N ot ony the raiding party but the Investigation Officer has not separated fruiting tops of flowering from the Ganja plants begfore we ighing. What has been do ne is the y have weighed the entire plants to record the we ight as 10 kgs. Since the leaves, stems and branches were also part o f the weight (mass) the re was no definite weight of actual flowering or fruiting part of the plant (de fine d as Ganja) . Hence the evide nce produce d be fore the prosecutio n to sustain the charge is to tally vague. I f the whole plant is seized, then it will only be a cannabis plant and not Ganja."11
The proceedings initiated under NDPS Act are under the special enactments. Therefore, the punishment depends upon the weight of the contraband seized. PW-2 in his evidence has stated who has stated that the plants did not contain flowering or fruiting and even in the samples also. That portion of the evidence is ignored by the trial Court and has not been relied on.
9. The learned Single Judge of this Court, in the case of Chandrasheakar v. State of Karnataka, in Criminal Appeal No.2551 of 2010 decided on 15 t h March 2018, at para 16 has observed as under:
"16. From the above evidence, it is clear that the substance examined by PW-9 were leaves, seeds, fruiting and flowering tops along with ganja stalks.
But the articles seized from the
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possession of the accused was
readymade ganja. This aspect of the
case of the prosecution is not considered by the trial Court. The trial Court failed to note that the certificate issued by PW.9 relates to a substance which is different form the substance seized from the possession of the accused, as a result the substratum of the case of prosecution is rendered doubtful and the benefit thereof should go to the accused. The prosecution has also failed to prove that the substance seized from the accused is "ganja" within the meaning of Section 2(iii)(b) of the Act. The weight of the substance is also not determined. These defects in my opinion go to the very root of the matter vitiating the entire trial and the consequent conviction recorded by the Court below."
Hence, I find that the prosecution has miserably failed to prove the guilt of the accused. The land in question is not exclusively proved to be belonging to the accused. In this regard, High 13 Court of Rajasthan in the case of Raya vs. State of Rajasthan reported in LAWS(RAJ) 1997 5 44 at para 6 has observed as under:
" 6. I have no hesitation to agree with the contention raised by the learned counsel for the appellant that the [prosecution has not been able to establish the exclusive possession of the field in question where the alleged opium poppy was cultivated and the plants were seized and sample was also sealed. Ex.P-5 and Ex.P-7 Khasra Girdawaries show that four Khatedares of the land are Rama, Bhagga, Gautam Deo Ji and Kachriya. The other witnesses are police officials and they have not sufficient knowledge. It transpires from their statements that they do not know the Khasra numbers and they also do not now whether the land is in joint possession of all the Khatedars. In view of the above description of the prosecution evidence, I am firmly of the view that the prosecution has not 14 succeeded in proving the recovery of the opium poppy plants from the field of or in the exclusive possession of the appellant Raya. The learned trial Court has not taken into consideration the above facts brought on record in statements of the prosecution witnesses."
Further the Hon'ble Supreme Court in the case of Mohan Lal v. State of Punjab, reported in 2018 SCC 974, with respect of Section 55 of the NDPS Act has held as under:
"8. The view taken by the High Court that under Section 55 of the NDPS Act, that PW-1 was empowered to keep the case property and sample in his individual safe custody is completely erroneous on the face of it. The provision reads as follows:
"55. Police to take charge of articles seized and delivered- An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the rodes of the 15 Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in- charge of the police station.
9. A plain reading of the provision makes it manifest that it is the duty of the police officer to deposit the seized material in the police station malkhana.
10. Standing order No.1 of 88 issued by the Narcotics Control Bureau in clause 1.13 reads as follows:
"Mode and time limit for dispatch of sample to Laboratory.
The samples should be sent either by insured post or through special messenger duly authorized for the purpose. Dispatch of samples by registered post or ordinary mail should 16 not be resorted to. Samples must be dispatched to the Laboratory within 72 hours of seizure to avoid any legal objection.
11. The Drug Law Enforcement-Field officer's Hand Book issued by the Narcotics Control Bureau also provides that:
28. Were the seized goods and samples deposited in the Malkhana at the earliest opportunity after seizure, an acknowledgement receipt obtained from the Malkahna-in-charge?
29. were the samples sent to the designated laboratory for analysis and report within 72 hours of seizure.
12. xxxxx
13. Unlike the general principle of criminal jurisprudence that an accused is presumed innocent unless proved guilty, the NDPS Act carries a reverse burden of proof under Sections 35 and 54. but that cannot be understood to mean that the moment an allegation is made and the FIR 17 recites compliance with statutory procedures leading to recovery, the burden of proof from the very inception of the prosecution shifts to the accused, without the prosecution having to establish or prove anything more. The presumption is rebuttable. Section 35(2) provides that a fact can be said to have been proved if it is established beyond reasonable doubt and not on preponderance of probability. The stringent provisions of the NDPS Act, such as Section 37, the minimum sentence of ten years, absence of any provision for remission, do not dispense with the requirement of the prosecution to establish a prima facie case beyond reasonable doubt after investigation, only after which the burden of proof shall shift to the accused. The case of the prosecution cannot be allowed to rest on a preponderance of probabilities.
14. A fair trial to an accused, a constitutional guarantee under Article 21 of the Constitution, would be a hollow promise if the investigation in a NDPS 18 case were not to be fair or raises serious questions about its fairness apparent on the face of the investigation. In the nature of the reverse burden of proof, the onus will lie on the prosecution to demonstrate on the face of it that the investigation was fair, judicious with no circumstances that may raise doubts about its veracity. The obligation of proof beyond reasonable doubt will take within its ambit a fair investigation, in absence of which there can be no fair trial. If the investigation itself is unfair, to require the accused to demonstrate prejudice will be fraught with danger vesting arbitrary power in the police which may well lead to false implication also. Investigation in such a case would then become an empty formality and a farce. Such an interpretation therefore naturally has to be avoided.
15. xxx
16. The duty of the prosecution under the NDPS Act, considering the reverse 19 burden of proof, was noticed in Noor Aga (Supra) observing:-
58 xxxxx
59. With a view to bring within its purview the requirements of Section 54 of the Act, element of possession of the contraband was essential so as to shift the burden on the accused. The provisions being exceptions to the general rule, the generality thereof would continue to be operative, namely, the element of possession will have to be proved beyond reasonable doubt."
In view of the aforesaid observations Natural growth of plants could not have been doubted. Independent witnesses have not been examined. Major part of the investigation has been done by the compliant himself. That has affected the rights of the accused. Therefore, based on such investigation and evidence, it is unsafe to convict the accused for such a serious offence. 20
In view of the aforesaid reasoning, I pass the following order:
The appeal is allowed. The judgment of conviction and sentence dated 14 t h December 2010 passed by the Special Judge (Principal Sessions Judge), Belgaum, in Special Case No.28 of 2009, is hereby set aside. The accused is acquitted of the offence punishable under Section 20(a)(i) read with Section 8(b) of the NDPS Act.
Fine amount, if any, deposited/paid by the accused, the same shall be refunded to him.
Registry is directed to send back the lower court records for taking needful action in the matter.
Bail bond stands cancelled.
Sd/-
JUDGE kmv