Karnataka High Court
Palaswami S/O Laxmanan Devar vs State Of Karnataka on 22 August, 2011
IN THE HIGH COURT OF KARNATAKA A
CIRCUIT BENCH AT DHARWAD "
DATED THIS THE 22nd DAY 01? AUGUSf1:"", '
BEFORE;
THE HON'BLE MR.JUS'I;'iCI§f-A.A_1§;V.i5I1§'Pf) «.
CRIMINAL APPEALfNo.2é34/ 291.
BETWEEN:
Palaswami S/0.Laxmanan'Dé*«'éu'V, b
Age 42 years, Occ; C1VO"Eh'»S:(:i']1V€'f., . _ «V .
R/o.V\/ard No,--1i;vK§:--mb:eya Rbadj"
Rq.: Uttampdl.ۤ*eifj:'1, ~Dj:ist;-:_V Te__ni .
State Tamf1N.is%§4C11l1'.' , " . . -
V__'af'a,_ """ _ _ ._ , u.APPELLANT
(By Shfi. _v HOV'i4<--:5ya4f1'D'ax/ar; /Adv.)
AND:
State; 'Of A.Karr1at.a_Vkev{
* 52/ :33» S._.--._P. ciréuitgench,
,(H~L1bii u3L1.b:4iirban Police Station)
M . U ¢ RESPONDENT
--$ri."g~'%i";.a_nC;1"i?{. Navalgimath, HCGP)
'1'h__}As criminal appeal is filed under Section 374(2)
ig.,C1':P,C. seeking to set aside the order of <:<>m«*1'c:i:ion and
= j " st*r1_té.nce order dated 22/24.03.2011 passed by the
Pjesiding Officer, Pris Dist. 82; Sessions Judge <35 Special
.,VJ.€1dg€, Dharwad, in Speciai NDPS C.C.N<:).OI/2010 and
acquit the accused/appeflant for the chargs framed
against him:
%
This criminal appeal coming on for hearir;eé"'»this
day, the Court delivered the following: «
JUDGMENT
This appeal is filed chatll1enpgip;;"«.e;h:+.' dated 22.03.2011 passed by.4__thellPrjlficipal~'b'lsdt:flctl:;atid ff. Sessions Judge and Special Special l\l.D.P.S for an offence under Drugs And ("The Act' for short) and: R1. for 10 years and toiapay in default to undergo R1. for tW'o'__3.7eare'._ themcase of the Prosectltion that on ll{at:l.l*'about l9.3O hours, the accused was fot11':r._d iijl' 'poesession of 21 kgs of Ganja in two air bags the old bus stand, lelublip without any permission and llp._l3ef:ce is charged for having committed the offence "'uflder Section 20 {b)(li}(c) of the Act. The prosecution in order to prove the case has examined in all ll} witnesses % and got marked E3><:s.P1 to P14 and produced to
4. The defence of the accused was one of The learned Special Judge after hearing and the defence, found the accused gti1j'ztJl\7_a"nd'--«co*mzrlct.e.df him as aforesaid. The convicted accused ,}1'ast.fj1ed:;th'is _ appeal
3. Heard Sri. G. learned Counsel for the apP_€l.'\fl1t_ Navalgimath, learned r'e;s;oon_dlent>~State. 4, The Croluneelj for the appellant submits that the»,L'cornpl.ai'rlanti'pVo"lllce have not followed the man{:latory prmiisilonsl prescribed under Sections 50 and of the_A.rct«--._and therefore the judgment and conviction llfl--able' aside. He has further stated that the indeperildent witnesses togthe mahazer PWS 2 and 3 turned hostile to the ease of the prosecution and ~ therefore, the case is based only on the evidence of the hlllgdolice officials. lt is farther submitted by him that the complaint - EXP? does not refer to the fact that before //5' searching the appellant, the police have informefclihim his right to be searched in the presence of Officer. Hence the entire proceeding_s..,ei:i*=eVviiitiatecl'; Therefore, he submits that fthe...ee{:ct1»s'e,cl'----. acquitted by allowing this' a__ppeeil,_ He following rulings:
L 2005 CRI.lilLlL.j.' Prasad Vs. State of BiheJi)_,:=theAl?atn'a Court held as '*"3C1€r: ~ i V 'V and Psychotropic llll _, 1985), SS. 20(2)), 22 of ganja -- Conviction "and,sehteht?e'"+'AZZegatioh that three bags i""eohtaii2,irig_il ljaarzja were seized from u poss'e«ss_io2vt of accused v Most of % -l4i?'i?osecatiort witnesses had turned hostile -- Qfilthoagh. official witness stated that three were seized from possession of V accused --~ There was no evidence ':0 show that those bags were kept in safe custody and sample was sent for chemical examination -- Prosecutions failed to establish its ease beyond all reasonable doubts -~ As article seized from possession /% of accused was less than commerc"i'al quantity and was not psi/chio:t:r*opfi--z;.l'-. substance. conviction and S€flI_C"'I:'.C€_rL<';.'_CZ8 * illegal."
2009 cR1.L.J.3284 :":.(Siifih*zirt}3'a. ' Tttebi Vs. State of CFx--hattisgarh).;A Chhattisgarh High'C_ourt"heid_asV_u'oCi'e:<:
"Narcotic it Psycliotropic Substanceslact Jiof 20(b){ii)(c) -- Illegal posseVs'si_orilV__of_' ~ Proof - Allegeid r:'ecot'e..ry'«. guriny sacks 5' 'co',2__tai2t'i?_nQ «.L3.a"rija '-l,'il§e~ substance inside produced before Court Witnesses not supporting = proseciiti_or'a~._:§¥~'Whereas prosecution. failed °~to'proz._2e 'preserzmtion of sanctity of sealed sarnples till they reached to Forensic Science Laboratory (FSL) - Report of FSL bl cianlnot form basis for conviction of accused iii.
llslpersons who are entitled to benefit of V doubt -- Also order of confiscation of Santro ear be set aside, "
201! CRLLJ. 3407 (Jagdish 85 Ant. Vs. State of Rajasthan), Rajasthan High Court held as under:
:-
iv; 1 "Narcotic Drugs and Psgchotr\«:)}aic Substances Act (61 of 2985}, Sending of information to superioi':*~officei*' ' Proof --~ Prosecution failed to pr'oducf_egjo'olicAe personnel who rribightu jhaaue '--.cari7i_ed.iiAg_g f information at police 'istation tQ";_sup'erior'z V officer -- Adverse-v._inference__ cal? against prosecu_t.i.o:n.._ ugireless information. no*--ifn,diication that said information iise-nth.'*i§i'zi..l--l*' writing - Ma'ridatorg_ thus, not
4 'Police Officer not dulg to belief of police .io]_fiCe.rfor*«sie«a_rchi_ng house of accused as '--plroz2ide_d._iii"uri'de~r proviso to 842(2) W °~ACcused 'cleseirued to be acquitted."' (Crimir1a1)SE>8 (State of
--,_R'a,j__asthan Vs. Tara Singh), the Hon'ble if " S'z1preme Court held as under:
. P P' if Narcotic V Substances Act, Drugs and Psychotropic 2985 «-- Sec. 8/Z5 --~ In a prosecution relating to the Act the question as to how and where the samples had been stored or as to when they had despatched or received in the laboratory is o matter ofgreat importance ~ Pespondenit '-- " e!\1'c2 :i;et2:_7:z:_ '4 I3r75gs «.3 was searchhed and the bag ihcjiii', he Carrying was feund fie c:(mta2Tn opium » Conviction by Zrzfczi Court allowed the appeal (>n:"'iive:"§h9e:L:r':gZ C' that there was no evzflchleheeh sample had been se:v1f".:jo Zahertz'£o'rQ Hence this V.v"'izeeth,erV Court wasV_.jusZifie_d_xii;hiejdinff serletity of the sVcar2ig)Ze*_ had "~--.b'eV(2h_ compromiseci which east Ci a::¢l"f§heprosecution S_ZC/7"§;1_V¥f.['[€Zd Yes, ahiszzzhzfssed. "
(}§a'iegrath Nasser x"t_ei'te*1::::,--0'f 'KcV17_a1éw),--..._:Vh»e Hhorfble Supreme 'C::L1rt heidz as under:
cmd Psychoz',ropz§C 2C"5§u'Z?St<2_z1eee"Anet {6} of 3985} ~-- Section 50 -- E?eq*ui.rfe_h_f:enZs of -- Accused not irrfomzeed of _Ah::.'_s right ':0 be searched before gazeitecf CV or Magz"strozze ~ 1'VOfZ/-C()Wi}')ZZ'CZ/27,66? LLJEAEEY. vi .
~ Fact;
'S56 ~ Prejvzdice caused --A Seeaech, uiiéated that accused did he: mafie 5:, request, on his 02, *2/2 deee moi eZis,:>eh,se zmzh, J?
requirements qfeempiiahnece wz'z'h, 3,50. AIR 2800 SC 2798 {Ahmed Stargee sf Gujarat), the Eéorflyie Supfeme Cour': heid Lmder:
/ "It cannot be said that the requirementef Compliance of 850 will not Search is going to be made" V' empowererd officer who» hap,o'e'h's.?_to Vhbeo gazetted officer. To ensure fairriees. irz't.heV.,.e f Search itself and for eomp--Ziance..tgf:S.5O V the Act, no difier:er2ttiation.. .e<::.n, whether the sea:rC.h:'is_ 'b--etng the empowered_x:offitjer;_b' oiously is an officer of a ?jar':kv.oi»*j.,'Zh'e authorised b'<8.A'z'C.i":S_'L!.t.Vb_._C}V7:':}'jl;7"LCZZ€ officer to 'i;u'h.r)V7172~-t'j7'_;eV et_n;oo.?12e%ecZ' ojjficer authorises. "
hT}1'e.o}1earr'f{:'d High CotiftVGovernme11t Pleader on the other «.handVé_tuth'In§tt'3.'that PW]O is the Assistant Commissiohef a{'t'.P'o11¢e", Hubh, who is the Gazetted He s§b:>'m"ts that E2x.P2, which is the spot indicates that AC? was present at the time__ of.~C~et'ifi;ure of Narcotic Drug and therefore, it is 'A compliance of Section 50 of the Act, E3X,P8 is 't.Vhe-- .€i:'OCU1T}E3E'1t showing the option giver: to the accused u bi? Searched by the Gazetted Officer and therefore, the mandatory provision under Section 50 of the said Act is complied with. He further submits that, on the of the evidence of PWS l to l0, the prose«:'ot«i.o'n_l__:' successfully proved that the accused was..i.t1_:"pos--session of a Narcotic Drug. EX.P5 is thelzbcertifoicfjate Forensic Science Laboratory which" clear"ly_' i1j1_dic§ates_Vlli» that the material possessecl"«.llh'§/r,V\the"'alpp:ellant is a Narcotic Drug. Henlcefiiie the conviction recorded by theale based on the evidence on for interference and "the appeal may be dismissed«.. '
6. Thler pi"o.s'ecuvtion case is commenced on the i-v_basi..sC'o§'-ea co_mplairi't'"registered as per EXP9. lt is stated in ::saidllllcaovri.iplaint filed by the lnspector of Police, Upa4nagai*l_P:'olice Station, Hubli that on ii.oi.2oio at pm, when he was in the police station, he 'received a credible information that one person of = Tamilnadu region is holding two black coloured air bags in the old bus stand and the said bags contained Ganja. 32' // -10- Immediately; he recorded the same in his statione'.'d.iary and after informing the A.C.P of Hubh he went to the scene of occurrence. It was..fou.nVd..:th<_at at ' about 19.25 pm at a place where stopping in the old bus stand, adperson with two black air bags in his Hence they went near the said thar the said person did not V and was knowing his name as Palaswarn ,'*~ . I: village, Tam iln ad U. Wh€I1 "did not give proper answer regardin«g"r:_'rhe_' hands. When he was questioned redpeatvedly, he revealed that bags contain ~GVanja., "{7he_reafter, the bags were searched and it was ronrzd contained Ganja. When the Ganja was found wet, {he accused was questioned for which ~i"*fhed"aeeused answered that he had sprinkled water over ' the Ganja in order that it will not emanate any odour. Thereafter, the inspector summoned the weighing X?
-13- machine and on weighing the contents of the it was found that one bag contained Ganja kgs valued at Rst5,000/--. Another bag ,_ weighing 11 kegs Valued at sample of 200 gms was rernoyed and'"packedjse_parate1y_ and sealed by Government The 'fcrnaining Ganja was also sealed and packed. fI'he"Vacc'utsed was arrested and thereaftensa casefis.§"egi--stered;_ completion of investigationgvthge"hc_harge'sheet [cfameto be filed.
"P'W.1;iiiAnaif1d iusthe constable working under the Inspector' of has stated regarding the contents o'f*thVeVcoInp1ai"nt as mentioned above and the '~v.,sei'2u{'re..A'-not 'G.anja«f1*o'n*i the possession of the accused. It is evidence of PW1 that the accused was qLis._stio_nedd'fwhether he could be searched by the Officer was present before him or he desires to be '' --sea;r.ched in the presence of a Gazetted Officer. Since '' = ....the accused gave his permission for search being made by the ACE', search was conducted, whereafter, the //7% Ganja was recovered from the possession olfllthe accused. PWl has been cross~eXarnined suggested to him that no such case has.Vbe:é'nid.etectevd by the Inspector and that he instance of the lnspector.
8. PW2 Ravi is,--the EtLi"L'()i:..ii_C:l?"1;iV"€:_Tfl. turned hostile to the case of 3 Shripad is a business the case of the proseoiiltiloi1.il""iilV\l4':~.l§§olti*eslhilllharashurarnappa is the Assistantiii at Regional Assistant Lab (RACEL), Dharwad.
He has sta"t'e(_li that ithecontents sent by the lnspector 'v.,for~-V€§{arnin'aition isliiitfianja and has issued his report as i..pe;;. ii=.F'l\_?v'5 Narayan is the constable who has carried the Court. PW6 Fakirappa is another who has carried the Ganja bags to the i.llRegie5nal Forensic Science Laboratory, Dharwad. PW'? = Basappa is the constable who was present along with PW} and the inspector. However? he has not stated -13- regarding the presence of Gazetted Officer at the i;ime of seizure of the Narcotic Drug from the pOSS€S'SiOfi'.Ql«V~:vLh"@' accused. PW8 Rajugouda is the lnspeetor.o:f=Polliee_who, had Conducted the raid, seized the a.rgtAifelies itl9'e._!Cllir;Lig and has arrested the .»tao_euse'd.._h' ln.""th¢_v (:_iJ'oss~_'*. examination, it is suggestedililjithat islfia public place where several and there are shops in the surroundtinig::are--asi_. to him that in the, it stated regarding the has stated that in the is made regarding the preseneellofGaiietterl PW9 Sandeep is the PSI, tvhofihlas regist'erei;l___the ease as per Crime No.8/20lO on ' li,ll';€)li has conducted part of investigationgin this"lease;i-jjPl?x/llO Ninganagouda is the AC?) Hubli North Diviisi.ori«5_ He has stated that on ll.Ol.2{)lO, at about pm, he was present when the accused was apprehended along with Narcotic Drug, namely; Ganja and that the accused was searched in his presence. He
-14"
has stated that he is a Gazetted Officer andfiss an Authorised Officer under Section 50 of i}.'?\{§:t._ He has conducted investigation and sheet in this case. In the croseseeexamiination;~~..c_it..,c.is elicited from PWIO that .it-._f_wasi"n_oif dis;:1'osAed the}. accused sttaight away Officer and that no questioiri..iitras'i.ias;ifieid~.._:¢itithe accused as to whether he can vma1:<eiiperson of the accused. the accused did not 'he had talked to the accused 7. It is suggested to him that the about his right to he seafichveid in the"--pif_e_sence of Gazetted Officer. iis_Vii_from the evidence of the prosecution wit;nesses_it'i~1at the learned Special judge has convicted the accused and sentenced him as aforesaid.
10. On a carefui consideration of the entire 'materials en record, it is seen that, in the complaint it is not stated that the raiding party had informed the accused about his right to be searched in the preis'ence of a Gazetted Officer. It is only found in the mahazer that he was questioned as to bias, any objection to be searched is.' Officer.
1 1. Nevertheless 'wproisecution papers it is not found was informed about his rigjhtitol-be Officer and therefore, 50 of the Act is not isihifiandatory as observed by the the decisions cited above.
In that vies? of the n'viat'ter, I am of the opinion that the "'«..,,ap'p.eiflajnt entitlediifor an order of acquittaf for non- co_rnp1i_an_ce of the mandatory provisions of law. O' the result appeal is aiiowed and the order if of'ic-oénviiction and sentence passed against the appeiiant aside. The appellant is acquitted of the offence if hitznder Section 2C){b)(ii}(c} of Act and as the appellant is in custody, he shall be set at iibertj; forthwith, if not /1 -16- required in any other case. Office is directed to tr1%;n»smit the operative portion of the judgment to th_cf""cé.n~C'éI5i§_<§d« Sessiens Judge and Central Jail, ' ddd %"5g/a "JEDGE Gab/V np""