Karnataka High Court
The State Rep By Sub Inspector Of Police vs Mohammed Sadiq @ Sadiq on 8 October, 2012
R
1 Crl.A.NO.1247/06
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 08TH DAY OF OCTOBER, 2012
BEFORE
THE HON'BLE MR. JUSTICE A.S. PACHHAPURE
CRIMINAL APPEAL No.1247 OF 2006
BETWEEN:
The State represented
By Sub-Inspector of Police
Surathkal Police Station
Mangalore, D.K.
... APPELLANT
[By Sri: Bhavani Singh, SPP]
AND:
1. Mohammed Sadiq @ Sadiq
S/o. Adbul Raheman
R/at 5 cents Colony
Near K E B Kolnad
Karnad Village
Mangalore.
2. Mayyadi
Aged about 27 years
S/o. Ismail
R/at Mubarak Manzil
Near Kulaigudde Masjid
Kulai Village
Mangalore.
... RESPONDENTS
[By Sri: Sandesh Shetty T, Adv]
This Crl.A. is filed under Section 378(1) &
(3) Cr.P.C. praying to grant leave to file an appeal
against the judgement dated 23.01.2006 passed by the
JMFC-II Court, Mangalore, D.K. in C.C. No.5785/2004
2 Crl.A.NO.1247/06
- acquitting the respondent/accused for the offences
punishable under Sections 8(c) read with 20(b) of
NDPS Act, 1985.
This Crl.A. coming on for Hearing this day,
the Court delivered the following
J U D G M E N T
The State has challenged the judgment and order of acquittal of the respondents for the charges under Section 8(c) read with Section 20(b) of NDPS Act, 1985 (hereinafter referred to as 'the Act' for short) on a trial held by JMFC, Mangalore.
2. The facts relevant for the purpose of this appeal are as under:
On 16.07.2004 at about 10.30 a.m., the police received a credible information that few persons were in illegal possession of Ganja and therefore they proceeded to Kulai Gudde alongwith the officials, attesting witnesses and the gazetted officer and on search found 145 grams of Ganja with the first respondent. The search of the accused was in the presence of Gazetted Officer and mahazar Ex.P1. was drawn. They registered a complaint and on apprehending the accused, first information report 3 Crl.A.NO.1247/06 was sent to the Magistrate and the samples of Mos.1 to 20 were sent for chemical examination to PW7 who submitted a report Ex.P5 and after recording the statement of the witnesses filed chargesheet against the accused (respondents) for the aforesaid charges.
3. During the trial, prosecution examined PWs.1 to 7 and got marked documents Exs.P1 to P5 and Mos.1 to 23. Statement of the accused was recorded under Section 313 Cr.P.C. They took the defence of total denial and they got marked Ex.D1 - a portion of FSL report. The Trial Court heard the respective counsel and on appreciation of the material on record, acquitted the accused. Aggrieved by the acquittal, the present appeal has been filed.
4. I have heard Sri.Bhavani Singh, learned State Public Prosecutor and Sri.Sandesh Shetty, learned Counsel for the respondents.
5. It is the submission of learned State Public Prosecutor that the learned Magistrate had no jurisdiction to try the offender and it is the Special Judge who has to try such cases under 4 Crl.A.NO.1247/06 Section 36(A) of NDPS Act, therefore, he claims that the matter has to be remitted back to the Special Judge. It is also his submission that PWs.1 and 3 - the police constable and the PSI have supported the case of prosecution and there was no reason for the learned Magistrate to reject their evidence and grant an order of acquittal.
6. Sri.Sandesh Shetty, learned Counsel for the respondents submits that as the quantity alleged to have been seized from the respondents is less than 1000 grams, the Magistrate was justified in conducting the trial against the respondents. He submits that the independent witness - PW2 and gazetted officer -PW4 have turned hostile to the prosecution, therefore, he contends that the Trial Court was justified in granting an order of acquittal.
7. As could be seen from the table, the notification specifying the small quantity and commercial quantity of the Narcotic drugs at Sl.NO.55 relates to Ganja and the small quantity (in 5 Crl.A.NO.1247/06 grams) is mentioned as 1000. As the prosecution case is that only 145 grams of Ganja was seized from the person of respondent No.1 and as it is a small quantity, the Magistrate has jurisdiction to try such offenders. On this aspect of the matter, learned Special Public Prosecutor has invited the attention of this Court to Section 36(A) of the Act relating to the 'offences triable by Special Courts'. The relevant portion is extracted hereunder for the sake of convenience:
"36-A. Offences triable by Special Courts:- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 -
(a) all offences under this Act which are punishable with imprisonment for a term of more than three years shall be triable only by the Special Court constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the Government.6 Crl.A.NO.1247/06
(b) ......
(Emphasis supplied)
So, as could be seen from the aforesaid
provisions, if the offence is punishable with
imprisonment for a term of more than three years, it is the Special Court constituted for the area in which the offence has been committed has the authority to try the offender.
8. Now, as could be seen from the provisions of Section 20 of Act, the relevant portion of the provision is extracted hereunder for the sake of convenience:
"20. Punishment for contravention in relation to cannabis plant and cannabis:- Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder:-
(a) cultivates any cannabis plant;
or
(b) produces, manufactures, possesses, sells, purchases, transports, 7 Crl.A.NO.1247/06 imports inter-state, exports inter-state or uses cannabis, shall be punishable:-
(i) where such contravention
relates to clause (a) with rigorous
imprisonment for a term which may extend to ten years, and shall also be liable to fine which may extend to one lakh rupees; and
(ii) where such contravention relates to clause (b):-
(A) and involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both;
(B) ......
(C) ......."
(Emphasis supplied)
As could be seen from the aforesaid
provisions, in case, if the contravention involves small quantity as enumerated in the table annexed to the Act and if the punishment is rigorous imprisonment for a term which may extend to 6 months or with fine which may extend to Rs.10,000/- or with 8 Crl.A.NO.1247/06 both, as the punishment is less than three years, Section 36(A) aforesaid has no application and as the quantity is a small quantity, the case is triable by the Magistrate.
9. Hence, I do not find any error or illegality so far as the jurisdiction of the Magistrate is concerned in trying the offenders from whom it is alleged that small quantity of Ganja was seized.
10. The scrutiny of evidence led by the prosecution reveals that the Gazetted Officer in whose presence Ganja was seized from the person of respondent No.1 has turned hostile, even the independent witness PW2 has also not supported the case of prosecution so far as the proof of seizure is concerned. It is only the evidence of PW1 - Police Constable and PW3 - PSI who after receiving credible information went to the place of incident and said to have apprehended the respondents and seized 145 grams of Ganja from the person of respondent No.1. The provision of Section 42 of the 9 Crl.A.NO.1247/06 Act is mandatory and it is necessary for the prosecution to examine the Gazetted Officer who is said to be an impartial person and as the said witness has turned hostile and even PW2 - the independent witness for the seizure has also turned hostile, the Trial Court was of the opinion that it is improper to rely upon the interested testimony of official witnesses i.e., PWs.1 and 3 who are police constable and PSI. It is in these circumstances that the learned Magistrate has granted an order of acquittal. The provisions of NDPS Act contain stringent provisions though technical are mandatory and in the absence of any material and as the gazetted officer and the independent witness have turned hostile to the case of prosecution, it appears that the Trial Court did not believe the evidence of PWs 1 and 3. It is well established principle of law that in an appeal against acquittal, when two views are possible, the one accepted by the Trial Court cannot be disturbed. So, when the independent witness and the Gazetted Officer have not supported the case of prosecution, 10 Crl.A.NO.1247/06 the evidence of PWs.1 and 3 at the most, just creates a doubt and that itself is not sufficient to award conviction. In that view of the matter, I do not find any merit in this appeal.
In the result, the appeal fails and is dismissed accordingly.
Sd/-
JUDGE *bgn/-