Karnataka High Court
Sadruddin Ismail Mulla vs The State Of Karnataka on 19 April, 2022
Author: P.N.Desai
Bench: P.N.Desai
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 19TH DAY OF APRIL, 2022
BEFORE
THE HON'BLE MR. JUSTICE P.N.DESAI
CRIMINAL APPEAL NO.2827/2012
BETWEEN:
SADRUDDIN ISMAIL MULLA
AGE: 32 YEARS, OCC: BUSINESS
R/O.POTE CHAWL, NEAR ATLE GURUJI CHAWL
SHASTRI NAGAR, BELGAUM.
...APPELLANT
(BY SMT. PADMAJA TADAPATRI, AMICUS CURIAE)
AND:
THE STATE OF KARNATAKA
THROUGH POLICE SUB INSPECTOR
KHADE BAZAR POLICE STATION, BELGAUM.
...RESPONDENT
(BY SMT. GIRIJA HIREMATH, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF Cr.P.C. SEEKING THAT THE JUDGMENT AND ORDER OF
SENTENCE PASSED BY THE SPECIAL JUDGE (PRINCIPAL SESSIONS
JUDGE) BELGAUM, IN SPECIAL CASE NO.55/2005 DATED
12.01.2012 & 13.01.2012 MAY KINDLY BE SET ASIDE BY
ALLOWING THIS APPEAL AND THE APPELLANT MAY KINDLY BE
ACQUITTED FOR THE ALLEGED OFFENCES AGAINST HIM, IN THE
INTEREST OF JUSTICE.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
2
JUDGMENT
This appeal is filed against the judgment of conviction dated 12.01.2012 and order of sentence dated 13.01.2012 passed by Special Judge,(Principal Sessions Judge), Belgaum in Spl.Case No.55/2005 wherein, the accused was convicted for the offence punishable under Sections 20 (b) (ii) of Narcotic Drugs and Psychotropic Substances Act, 1985(for short hereinafter referred to as 'NDPS Act').
2. The appellant was the accused before the trial court. He will be referred as such, in this appeal for convenience.
3. Brief case of the prosecution is that on 07.01.2005 in the afternoon at about 2.30 p.m., this appellant was found in illegal possession of 1kg and 100 grams of ganja worth Rs.6,600/- in a plastic bag and 5 plastic chits of ganja powder in all weighing 100 grams worth Rs.6,600/- near Atale Guruji Chawl, Belgaum without any valid licence or authority, thereby contravened section 8 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and committed offence under section 20(b) (i) of the said Act. The Sub-Inspector of Police, Khade Bazar police station 3 filed charge sheet in this regard. Thereafter, charge was framed. The Special Judge by the trial court examined 8 witnesses as PW-1 to PW-8 and got marked 15 documents as Exs-P1 to P15 and six material objects were marked. Thereafter, the statement of the accused as required under section 313(1(b) of Cr.P.C. was recorded. Accused denied the circumstances appearing against him. He has not chosen to lead any defence evidence. After hearing the arguments, the appellant accused was convicted for the said offence. Hence, this appeal.
4. This Court appointed Smt. Padmaja Tadapatri as Amicus Curiae to assist the Court as the learned counsel on record was not appearing.
5. Heard learned Smt. Padmaja Tadapatri, Amicus Curiae for the petitioner and learned HCGP for respondent- State.
6. Learned counsel for the appellant argued that the trial court has not considered the evidence of PWs-1 and 2. The seizure panchas have all turned hostile. PW-1 stated that something is weighed and he cannot say whether it is ganja. PW-3 has given requisition to attend the police station. That 4 itself creates doubt. PW-3 has not seen ganja prior to said date. He has stated that he has not noticed the board Atale Chawl, Shastri Nagar, Belgaum. PW-3 to 8 are all official witnesses. Naturally they may depose in favour of the prosecution. Therefore, the order passed by the trial court is perverse, illegal, capricious. Hence, prayed to set-aside the conviction.
7. Against this, learned HCGP argued that the learned Special Judge after considering the evidence on record and appreciating their evidence and also report of the FSL which is at Ex-P15 has rightly come to the conclusion that the ingredient of the offence are proved.
8. I have perused the judgment passed by the trial Court. Learned Sessions Judge has framed two points for consideration. Learned Sessions Judge has referred to Sections 42 and 43 of the NDPS Act, evidence of prosecution witnesses i.e., PW.3-S.G.Gangareddy, PW.4-Basalingappa M.Goudar, PW.5-J.M.Karunakar Shetty, who received the information, PW.6-Haroon Imamsab Dange, PW.7- Harischandra Narayan Shettigar, the inspector, who received the FSL which is marked at Ex.P.15, PW.8-Dayappa 5 Shivagouda Magdum, who is head constable and found that the accused was found in possession of said Ganja though he was not holding license and convicted him for contravention of Section 8 of the NDPS Act.
9. I have perused the evidence of prosecution witnesses and documents. PW.5-J.M.Karunakar Shetty, the CPI of Sirsi has stated that he has credible received the information on 7.1.2005, when he was the station officer, that a person is carrying a bag containing Ganja and his description was also given. Accordingly, he noted the same and wrote a letter to Dy.S.P, Khade Bazar, Belagavi as per Ex.P.5. It is evident that PW.5 secured the panchas to the police station and sought their information. He has produced notice as per Ex.P.3. He also secured Gazetted officer i.e., PW.4 and requested him to act as a pancha. Ex.P.6 is the request letter, which is signed by PW.4 as per Ex.P.6(a). He also procured PW.1 and asked him to bring weighing scale and weights to the Police station. He has received permission from Dy.S.P. He proceeded along with police constable and staff. Then they came to Shashtri Nagar and parked the vehicle. At that time, they found a person coming with the 6 same description holding one plastic bag at Atle Chawl, Shastrinagar, Belgaum at about 2:30 p.m. Then they encircled him and enquired him. They informed him about the credible information and also informed him whether he can be search by Gazetted officer. They gave intimation as per Ex.P8. Accused gave his consent. Accordingly, accused also gave a letter as per Ex.P9. Then the accused was found possessing one plastic bag. There was one more plastic bag inside the first plastic bag. In that plastic bag, there were five packets containing Ganja. There were stems and flowering fruits of Ganja in the said plastic bag along with Ganja powder. The Ganja powder etc., was duly weighed and it was 1100 Grams. Out of 5 packets of Ganja, one packet of Ganja was taken as sample. Then he conducted panchanama and took the photographs. The said packets are marked as MO's. MO No.1 is a bulk Ganja of 1000 grams and MO No.2 is a sample Ganja of 100 grams. He has identified photo. Accordingly, filed a complaint and registered the case. Thereafter, statements of witnesses were recorded and as the witnesses i.e., CWs.16 and 13 are no more, the investigating officer has stated about it. In the cross- examination, he has stated that accused is an habitual 7 offender. Though he was cross-examined, there is nothing in his cross-examination so as to disbelieve his evidence. Even he has identified the accused in the photo which is marked at Ex.P.1. Some suggestions were made and he has denied the same. Some suggestions were made regarding covering the distance and not seizing the property, which are all denied. So any amount of denial will not help the prosecution in any way as they are neither admissions nor contradictions.
10. PW.1-Firoj Dharwadkar has stated about accompanying the police and weighing the object, which is seized from the accused. He has admitted Ex.P.1-photo. Simply because he has not stated the name of accused, his evidence cannot be disbelieved, though he has not supported the case of prosecution to some extent, but his evidence corroborates the evidence of PSI. He identified the accused in the photograph. Though, some suggestions are made, he denied the same.
11. PW.2-Prashant Malagi is the another pancha, who accompanied the PSI. He has stated that the accused was found with one plastic bag and one photograph was taken. The police have enquired and arrested the accused. He 8 admitted his signature on seizure panchanama-Ex.P4 as per Ex.P4(a). The prosecution treated him as partly hostile. But his evidence also supported the case of prosecution. But he denies rest of the contentions. His evidence that accused was apprehended by the police in said place is proved.
12. PW.3-Shripati Hanamantappa Gangareddy, is the Dy.S.P. He corroborated the evidence of PSI regarding giving information.
13. PW.4-Goudar Mahadevappa Basavalingappa is the BEO, who is Gazetted officer. He has deposed in his evidence that police called him and he went to the Khade Bazar Police Station and met the police inspector-CW.1. The police have apprehended the accused and accused told that he has no objection for holding a search before Gazetted officer. Accordingly, the bag which the accused was holding was duly opened. There was Ganja in the said bag. The Ganja was duly weighed and weight of the Ganja etc., was 1100 Grams worth Rs.6,500/-. Out of 1100 grams of Ganja, the I.O took 100 grams of Ganja as sample. The weight of 5 packets was 100 grams, each packet containing 20 grams of Ganja and sent to FSL. He stated about marking identifying 9 the property i.e., MOs.1, 2, 3, 4 and 5, identified the photographs as per Ex.P.1 and also a person weighing the said Ganja and panchanama as per Ex.P.4. Though he was cross-examined, there is nothing in his cross-examination to disbelieve his evidence. Simply, because, he has not stated the name of person, who has written the panchanama, simply because some other persons, whose photos not appeared in the photos, his evidence cannot be disbelieved. Absolutely, he has no reason to falsely implicate the accused. Simply because, he has not stated that he has not seen the Ganja prior to conducting the raid and he cannot say whether the material things seized is Ganja or not, his evidence cannot be disbelieved.
14. PW.6-Haroon Imamsab Dange has delivered the FIR to Court as per Ex.P.4. PW.7-Harishchandra, the PSI has done part of investigation.
15. PW.8-Dayappa Magdum, the Head Constable. He has stated about accompanying the panchas and CPI, for apprehending and arrest of the accused and seizing bag, which contains leaves of Ganja, flower and etc., He has also identified the property. Some questions were asked, as to 10 other persons and vehicles. He has expressed his ignorance about it that will not make his evidence doubtful. He himself has identified the photo as per Ex.P.1. The other evidence is not denied. Ex.P.15 is the report of FSL, which shows that the test sample is positive for the presence of Ganja i.e., the packets contain cannabis.
16. It is true that in the evidence of PW.1 has not stated actually what he has weighed, but he has weighed something. He has denied that it was not 1kg 100 grams of Ganja. PW.2 has stated that accused was found with one plastic bag, but he has not stated about the panchanama. PW.3 has not stated anything about the weight of the Ganja. PW.4 has stated that on that day, the police apprehend the accused and he has stated in his chief-examination itself that there was Ganja power, seeds, flowers of ganja, total weight is 1100 grams. PW.5, who actually seized the property has also stated when they found the plastic bag. There were 5 packets containing Ganja. There were stems and flowering fruits of the Ganja in the said plastic bag along with Ganja powder. So, Ganja powder etc., was duly weighed and weight of the said Ganja power etc., was 1100 grams. Even in 11 Ex.P.10-complaint it is stated that when the accused was apprehended and plastic bag was found there is a Ganja power at consisting of flower, leaves and stems and also Rs.50/- was seized. Even in Ex.P.4-Panchanama it is mentioned that when they were searched by Gazetted officer, it is found Ganja powder in plastic bag and it consisted of flower, small leaves and stems and also dry stems. There were 5 small packets and Ganja power and Rs.50/- was seized. Accordingly to them, entire Ganja at plastic bag weighs 1100 grams and in 5 packets 100 grams was taken and sample was sent.
17. In the FIR, the same is mentioned. Even in Ex.P.15 i.e., the letter issued from Forensic Science Laboratory it is stated that two sealed white cloth packet containing ganja sample of light green colour dried leaves, seeds, fruitening and flowering tops smell of cannabis (ganja). So it appears weight of the Ganja totally 1100 grams is the weight of said property seized, they are together weighed. There is no separate measurement or weighing of Ganja powder. Ex.P1-photo also shows that the entire plastic bag was weighed by keeping it on the said weighing machine. 12 So, it appears quantity seized from the petitioner and as per the definition of Ganja defined under Section 2(3) (b) of the NDPS Act, ganja, is exactly not forthcoming.
18. But, here the said ganja itself contains leaves even some sticks stems, flowers along with fruiting tops. Therefore, the total weight of the Ganja must definitely be 1100 gram. The prosecution has proved the apprehension of the accused and seizing the ganja, which the learned Sessions Judge has rightly observed by referring to Sections 42 and 43 of the NDPS Act. But the learned Sessions Judge has not stated anything, as to the total weight of the ganja. Only in para No.24, it is stated that it is found that he was possession 1100 of Ganja and he was not holding the license, which is based on the evidence on record. Therefore, the ganja seized must be less than a small quantity and not of commercial quantity. As per Sl.No.54 of the schedule 'A' of the notification under NDPS Act, dated 19.10.2001, the ganja if it is weighing 1000 grams then it is a small quantity and if it is weighing 20kg then it is a commercial quantity. Here evidence show that this ganja weighs more than 1100 grams, as stated by the prosecution. Therefore, though the 13 prosecution has proved its case regarding accused possessing the Ganja. But the punishment prescribed as per Section 22(a) of the NDPS Act, the punishment is rigorous imprisonment for a term, which may extend to one year or with fine which may extend to ten thousand rupees or with both. Learned Sessions Judge has taken into consideration the quantity as 1100 grams and imposed punishment under Section 20(ii) (b) of NDPS Act for four years. Therefore, in view of the evidence on record, the punishment imposed needs to be modified, as argued by learned amicus curiae. The appellant is also present. The learned amicus curiae argued that it is evident that the accused was in judicial custody from 07.01.2005 and on 01.02.2005, he was released on bail. The order of conviction was passed on 12.1.2012 and sentence was imposed on 13.1.2012. Earlier the accused is in custody and he was secured in this case by the trial Court on 05.1.2012. The order of suspension of sentence was passed by this Court on 27.9.2012. The learned counsel brought to the notice of court the affidavit filed by the wife of the appellant-Aminabi, wherein accused is convicted and she pleads for suspension of sentence. Therefore, the appellant is already in custody for nearly more 14 than year, even if as per the records he is in custody from 5.1.2012 till suspension of sentence and earlier he was in judicial custody for 26 days. It is seen that the accused was in judicial custody in Special Case No.106/2009, as mentioned in para No.7 of the judgment dated : 12.01.2012 in Spl.Case.No.55/2005 and he was under trial prisoner. The appellant is in judicial custody as per records 8 months 22 days. Therefore, if the same period of imprisonment is imposed, that will meet the ends of justice.
19. So keeping in mind, as the case is of the year 2005 and the appeal is of the year 2012, the appellant has undergone agony of pendency of this appeal for nearly more than 16 years and i.e., from the filing of original case and the appeal pendency of nearly 10 years. Therefore, keeping in mind the principles regarding sentencing and the nature of the property seized from the accused and its quantity and the punishment prescribed, which is one year, in my considered view, the sentence of imprisonment of four years and fine was passed by the learned Sessions Judge needs to be modified to the one of imprisonment for the period already undergone by him in judicial custody in this case and fine to 15 be modified to amount of Rs.5,000/- only instead of Rs.10,000/-. Accordingly, I pass the following;
ORDER The appeal is allowed in part.
(ii) The judgment of conviction and order of sentence passed on 13.1.2012 in Special Case No.55/2005 by the learned Special Judge (Prl. Sessions Judge), Belagavi convicting the accused is upheld.
(iii) However, the order of sentence passed is hereby modified as under;
(iv) The accused is sentenced to undergo imprisonment for a term 8 months 22 days, which he has already undergone during pendency of this case in judicial custody.
(v) Since, the appellant has already undergone the said period of imprisonment, he shall be set at liberty forthwith.
(vi) The sentence of fine amount imposed is hereby modified. The appellant is sentenced to pay a fine of Rs.5,000/- in default of payment of fine amount of Rs.5,000/- 16 before the trial Court within a period of 6 weeks, in default of payment, he shall undergo simple imprisonment for a period of two months.
(vii) The Court places on record its appreciation to Shri Padmaja S. Tadapatri for assisting the Court as an Amicus Curiae and Amicus Curiae fee is fixed at Rs.10,000/-.
Sd/-
JUDGE mn/Am/-