Mustaq Ahamed Alias Maamu vs State Of Karnataka
2021 Latest Caselaw 6150 Kant

                            1
                                                   R

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 15TH DAY OF DECEMBER, 2021

                        BEFORE

      THE HON'BLE MR.JUSTICE K.SOMASHEKAR

          CRIMINAL APPEAL NO. 624 OF 2011

BETWEEN:
1.  Mustaq Ahamed alias Maamu
    Age: 55 years
    S/o Late Basheer Ahmed
    D.No.206, Beedi Colony
    Mysore.

2.     Siraj Basha alias Siraj alias Gunda
       Aged about 36 years
       S/o Hameer Pasha
       D.No.2669, 1st and 2nd South Cross
       M.K.D.K. Road, Mandimohalla
       Mysore.
                                              ...Appellants

(By Sri. P. Nataraju - Advocate for
    M/s P. Nataraju Associates)

AND:
State of Karnataka
By Udayagiri Police Station
Rep. by State Public Prosecutor
High Court Building
Bangalore.
                                             ...Respondent

(By Sri. Rahul Rai .K - HCGP)
                             2


     This Criminal Appeal filed under Sec.374(2) of
Criminal Procedure Code, by the Advocate for the
appellant praying to set aside the judgment and order of
conviction passed by the Prl. District and Sessions
Judge at Mysore in Special Case No.25/2010 dated
01.06.2011 and acquit the appellants by allowing this
appeal.


     This criminal appeal coming on for dictating
judgment this day, the court delivered the following:

                    JUDGMENT

This appeal is directed against the judgment of

conviction and order of sentence rendered by the Court

of the Principal District and Sessions Judge, Mysore,

(hereinafter referred to as 'trial Court') in Spl.C.

No. 25/2010 dated 01.06.2011, whereby held conviction

for the offence punishable under Section 20(b) of

Narcotic Drugs and Psychotropic Substances Act

(hereinafter referred to as 'NDPS Act') 1985.

2. In this appeal appellant is seeking for

consideration of the grounds urged in the appeal memo

and consequently to set aside the judgment of

conviction and order of sentence rendered by the trial

Court and seeking acquittal of accused Nos.1 and 2 for

the offence punishable under Section 20(b) of the NDPS

Act, 1985, amongst the grounds urged.

3. Heard the learned counsel Sri P. Nataraju for

appellants and so also the learned High Court

Government Pleader for the respondent-State, who are

present before the Court physically.

4. Perused the judgment of conviction and

order of sentence rendered by the trial Court in Spl.C.

No.25/2010 dated 01.06.2011 so also the evidence of

PWs.1 to 8 and the documents at Exs.P1 to P7 and also

MOs 1 to 8.

5. Factual matrix of the appeal is as under:

It is transcribed in the case of the prosecution that

on 12.08.2009 at around 12:30 noon the Police

Inspector of Udaygiri Police Station in Mysuru had

received credible information over the phone that two

persons within the limits of Udaygiri Police Station in

Mahadevpura Main Road near the Mosque situated very

next to the hilt of the ground were involved in the selling

Ganja. On receipt of credible information, the Police

Inspector of Udaygiri Police Station after giving

information to the ACP of Devaraj Police Station has

rushed to the aforesaid spot along with staff members in

order to conduct the raid. There they found two

persons involved in the activities of selling Ganja and

collecting money from the persons who purchase Ganja

found in their possession. The Police Inspector of

Udaygiri Police Station and his team have surrounded

those two persons who being arraigned as accused and

out of that two persons one person who was holding the

bag was apprehended and another person who was

collecting money from the persons in regard to selling of

Ganja has escaped from the scene of crime.

Subsequently, the Police Inspector who lead the team

members to the scene of crime in the presence of the

Panch witnesses has conducted Mahazar and also

seized the Ganja from the possessions of accused No.1

namely Mustaq Ahmed @ Maamu and brought him to

the Police Station. Then he registered a suo moto case

against the accused persons by filing a complaint

report. Accordingly, criminal law was set into motion by

recording the FIR as per Ex.P4 for the offence

punishable under Section 20(b) of NDPS Act, 1985.

After recording FIR by the Police of the jurisdiction they

proceeded in further for investigation and to lead

charge-sheet against the accused persons.

6. It is the further case of the prosecution that

after apprehending of accused No.1 the Police Inspector

conducted search of the bag found in the possession of

accused No.1 and found 500 grams of Ganja and also

found 58 small packets containing Ganja and 5 paper

packets in all it contained 720 grams of Ganja and also

recovered an amount of Rs.1,260/- from the possession

of accused No.1. On enquiry to him in respect of

another person who escaped from the scene of crime, he

revealed that accused No.2 told him to keep money with

him. After registering the case he conducted further

investigation and entrusted the matter to PW7 namely

Sadashiva working as Police-Sub-Inspector of Udaygiri

Police Station, Mysore. After entrusting the further

investigation by the Police Inspector PW2 - Mathews

Thomas who registered the crime against accused on

his complaint report to PW7, thereafter he being the

Police-Sub-Inspector conducted further investigation

thoroughly and lead charge sheet against the accused

persons.

7. On receipt of summons issued by the trial

Court, accused Nos.1 and 2 put their appearance

through their counsel and on hearing prosecution and

the defence counsel, the trial Court framed the Charge

against accused Nos.1 and 2 for the offence punishable

under Section 20(b)(i) of the NDPS Act, 1985. Accused

Nos.1 and 2 have not plead and claimed to be tried.

Accordingly, pleas of the accused were recorded by the

trial Court.

8. Subsequent to recording the pleas of the

accused the prosecution has lead evidence by subjecting

PWs.1 to 8 so also got marked Exs.P1 to P7 inclusive of

MOs.1 to 8. After closure of the evidence on the part of

prosecution, the accused were subjected to examination

under Section 313 of Cr.P.C., regarding the statements

made by the prosecution witnesses against them,

whereby accused declined the truth of the evidence

adduced. Accordingly it was recorded. Subsequently

accused were called entering into defence as

contemplated under Section 233 of Cr.P.C., but they did

not adduce any defence evidence.

9. Thereafter, the trial Court heard the

arguments adduced by the learned Public Prosecutor for

the complainant and the defence counsel and being

convinced with the evidence of PWs.1 to 8, so also the

documents at Exs.P1 to P7 inclusive of MOs.1 to 8,

Court arrived for a conclusion that prosecution has

found guilty of the accused and rendered the judgment

for the offence punishable under Section 20(b) of NDPS

Act, 1985. The said judgment is challenged in this

appeal urging various grounds.

10. Learned counsel for the appellant Sri P.

Nataraju, has taken me through the evidence of PW2

Mathews Thomas who is the Police Inspector, wherein

he has deposed that on 12.08.2009 at around 12:30

noon he got some credible information that within the

limits of Udayagiri Police Station, Mysore that is in

Mahadevapura Main Road, near the Mosque situated

very next to the hilt of the ground two persons are

involved in the activities of selling Ganja; therefore, he

forwarded written information to the jurisdictional ACP,

Mysore and secured oral order from him; thereafter he

secured Panch witnesses to the Udaygiri Police Station,

apprised them about the credible information which he

got and lead the team to the spot, there in a little

distance they found two persons involved in the

activities to sell the Ganja and also noticed some

packets in the bag which was in their possession and he

identified the accused persons who were present before

the Court as they are the same persons who were

involved in the activities of selling Ganja on the date of

incident in the scene of crime. He has further deposed

that accused No.1 was apprehended at the spot and

accused No.2 was escaped from the spot and they found

a rexine bag with accused No.1; on enquiry accused

No.1 disclosed about possession of the Ganja in the said

bag and when asked about License or Permit for

possession of the Ganja, he replied that they are not

having any License. Thereafter, they made personal

search of accused No.1 and also made search of the

regzin bag found in his possession and found 500

grams of Ganja and plastic cover and 58 small plastic

packets and also 5 paper packets in all it contained 720

grams of Ganja in his bag. Out of 500 grams of Ganja

found in the plastic cover they took some Ganja

separately in 4 pockets of 10 grams each as sample.

This process has been done by him in the presence of

the team members inclusive of Panch witnesses who

have been secured and he drew a Mahazar as per Ex.P2

and also seized an amount of Rs.1,260/- found in his

possession. Subsequent to registration of crime based

upon his complaint report the criminal law was set into

motion by recording the FIR as per Ex.P4 so also he

entrusted the further investigation of the case to PW7 -

R. Shankar, who is Police-Sub-Inspector and PW7

proceeded in further and after completion of

investigation, he laid charge sheet against the accused

persons.

11. As per the evidence of PW2 - Police Inspector

of Udaygiri Police Station, he got some information

about the persons who were arraigned as accused in the

charge sheet case that they involved in the activities of

selling the Ganja and after conducting personal search

of accused No.1 they conducted seizure Mahazar in

accordance with the provisions of Section 50 of NDPS

Act, 1985. But the trial Court had given more

credibility to the evidence of PW2 and so also Mahazar

at Ex.P2 inclusive of evidence of PW.7 who being the

Investigation Officer laid charge sheet against the

accused. For the same, whether there are proper

evidence on record or the prosecution has improved its

case during the course of trial and whether raid

conducted by Police Inspector who is examined as PW2

along with his team and also the evidence of PW7 -

Investigation Officer and whether thereby they have

followed the mandatory provisions of Section 50 of the

NDPS Act, 1985 are all the grounds require intervention

in this appeal for re-appreciation of the evidence and if

it is not done, the appellant being the gravamen of the

accusation who has suffered, there shall be some

miscarriage of justice as contended by the appellant

counsel.

12. The second limb of the argument advanced by

the learned counsel is by referring to the Seizure

mahazar at Ex.P2 and also in respect of fulcrum of

mahazar inclusive of seizure of ganja. Insofar as 720

grams but the prosecution did not prove the fact

relating to the mahazar at Ex.P2. The trial Court has

given more credentiality in respect of fulcrum of

mahazar at Ex.P2 and erroneously convicted the

appellants who are arraigned as accused.

13. The judgment of conviction has been

challenged under this appeal and whereby the trial

Court did not consider the mandatory provision of

Section 50 of NDPS Act, 1985 relating to the search of

the accused and also conducting seizure mahazar at

Ex.P2 even though it bears the signature of PW.2 and

also signatures of PW.4 to 7. But when the mandatory

provision of Section 50 of NDPS Act, 1985 has not been

followed by investigating agency whereby the raiding

team got credible information that accused were

indulging in the activities of selling ganja which was

found in the MO.2-regzine bag in possession of accused

No.1 and MO.7 - 10 grams of ganja in 3 packets and

also currency notes of Rs.1,260/- which got marked at

MO.8, the prosecution should establish the case for

following the mandatory requirement of Section 50 of

NDPS Act, 1985.

14. The entire evidence which finds place on

record on part of the prosecution and even if taken as a

whole on face value, the prosecution has miserably

failed to prove the guilt of the accused and facilitating

worthwhile evidence and also has failed to comply with

the mandatory provision of section 50 of NDPS Act,

1985. Therefore, under this appeal it requires for

intervention as where the trial Court was misdirected

and also misinterpreted the evidence of PW.2 and 7

inclusive of the evidence of PW.4 to 6. But entire case

of the prosecution is revolving around the fulcrum of

mahazar of Ex.P2 for having seized ganja found with

accused No.1 which seizure mahazar was drawn by

PW.2 by following mandatory provision of Section 50 of

NDPS Act, 1985 as contended.

15. In support of this contentions, learned counsel

has placed reliance on a judgment of the Hon'ble

Supreme Court in the case of Arif Khan @ Agha Khan

Vs. State of Uttarakhand ((2018) 18 SCC 380).

Whereas in this reliance, Hon'ble Supreme Court of

India has extensively addressed the scope and object of

Section 50 of NDPS Act and also principles in

accordance with the aforesaid mandatory provision. It

has been extensively addressed in Para Nos.18 to 20,

which reads as follows:

"18. What is the true scope and object of Section 50 of the NDPS Act, what are the duties, obligation and the powers conferred on the authorities under Section 50 and whether the compliance of requirements of Section 50 are mandatory or directory, remains no more res integra and are now settled by the two decisions of the Constitution Bench of this Court in State of Punjab vs. Baldev Singh (1999) 6 SCC 172 and Vijaysinh Chandubha Jadeja (supra).

19. Indeed, the latter Constitution Bench decision rendered in the case of Vijaysinh Chandubha Jadeja (supra) has settled the aforementioned questions after taking into considerations all previous case law on the subject.

20. Their Lordships have held in Vijaysinh Chandubha Jadeja (supra) that the requirements

of Section 50 of the NDPS Act are mandatory and, therefore, the provisions of Section 50 must be strictly complied with. It is held that it is imperative on the part of the Police Officer to apprise the person intended to be searched of his right under Section 50 to be searched only before a Gazetted officer or a Magistrate. It is held that it is equally mandatory on the part of the authorized officer to make the suspect aware of the existence of his right to be searched before a Gazetted Officer or a Magistrate, if so required by him and this requires a strict compliance. It is ruled that the suspect person may or may not choose to exercise the right provided to him under Section 50 of the NDPS Act but so far as the officer is concerned, an obligation is cast upon him under Section 50 of the NDPS Act to apprise the suspect of his right to be searched before a Gazetted Officer or a Magistrate. (See also Ashok Kumar Sharma vs. State of Rajasthan, 2013 (2) SCC 67 and Narcotics Control Bureau vs. Sukh Dev Raj Sodhi, 2011 (6) SCC 392)."

16. In the aforesaid reliance, Sections 50 and 20

of NDPS Act, 1985 relating to search and seizure and

recovery of contraband not made in the presence of any

Magistrate or Gazetted Officer and non-compliance with

the mandatory procedure under Section 50 of NDPS

Act,1985 has been held as fatal to the prosecution case.

Hence, it was held that the conviction as held by the

High Court is set aside and appellant is acquitted. This

reliance is squarely applicable to the present case on

hand, in given facts and circumstances relating to

drawing of seizure mahazar as per Ex.P2 in the

presence of PWs.4 to 7 whereby subscribed their

signatures inclusive of PW.2 being Police Inspector. But

PW.2 did not follow the mandatory provision of Section

50 of NDPS Act relating to drawing of mahazar in the

presence of responsible Gazetted Officer. But on these

premises, learned counsel for the appellants contend

that the trial Court has erroneously given more

credentiality to the evidence of PW.2 and so also

evidence of PW.7 inclusive of evidence of PWs.4, 5 and 6

who subscribed their signatures at Ex.P2 and also given

more credentiality to the evidence of PW.1 wherein

subjected to chemical examination at MO.1 - sample

ganja and MO.7 - 10 grams (3) packets and issued

report at Ex.P1 by authority even for subjecting

chemical examination. On all these contentions learned

counsel for the appellants is seeking to consider the

grounds as urged under this appeal and consequently

set aside the judgment of conviction and order of

sentence rendered by the trial Court and further

seeking for acquittal of accused for the offence

punishable under Section 20 (b) of NDPS Act, 1985.

17. Per contra, learned HCGP for the State has

taken me through the evidence of PW.2 - Police

Inspector of Udayagiri Police Station and PW.7 being

Police Sub-Inspector who laid the charge sheet against

the accused. Based upon the complaint report, criminal

law was set into motion by recording an FIR as Ex.P3

which bears signature of PW.2 who conducted seizure

mahazar at Ex.P2 in the presence of PWs.4, 5 and 6

who are the team members and lead them to the scene

of crime situated in the limits of Shantinagar of hilt of

the ground in Mysuru city. But on receiving credible

information by PW.2 - Mathews Thomas who is a Police

Inspector, he has in turn informed the Assistant

Commissioner of Police in the limits of Udayagiri Police

Station that some persons were involved in selling ganja

at the scene of crime situated in the limits of

Shanthinagar, hilt of the ground. Further PW.2 had

formed a team and led the team to the scene of crime

and found two persons were involved in activities of

selling ganja and thereafter Police Inspector swung into

operation and apprehended by accused No.1 - one of the

team members, but other person who was with him in

the scene of crime, had escaped. But on enquiry of the

accused, he disclosed his name as Siraj Pasha @ Siraj @

Gundal who was also involved with accused No.1 for

selling ganja found in ragzine bag and also black colour

plastic cover containing 58 packets of ganja at MO.5

and MO.7 is 10 grams (3) packets of ganja and in all

total 720 grams of ganja was in possession of accused

No.1 - Mustaq Ahamed @ Maamu. PW.2 - Mathews

Thomas drew mahazar at Ex.P2 in the presence of

PWs.4, 5 and 6 and subscribed their signatures

inclusive of signature of PW.7 who is the investigating

officer who laid the charge sheet by taking up the case

for further investigation and investigation has been

done by him and even conducted panchanama at Ex.P6

which bears signatures of PW.3 - Nagesha, PW.7 - R.

Srikanth and PW.6 - Syed Mujamil and also signature

of PW.8 - Sadashiva. These are all the evidence which

have been let in by the prosecution to prove the guilt of

the accused. Therefore, the trial Court has appreciated

the evidence and came to the conclusion that

prosecution has proved the guilt of the accused with

beyond all reasonable doubt.

18. MO.2 - Regzine bag and MO.3 - White plastic

cover including paper packets which are marked as

MOs.2 to 5 which containing ganja in all 720 grams and

also found amount of Rs.1,260/- which was seized from

accused No.1 and when enquired with him, he revealed

the name of accused No.2 and he asked him to keep

money with him. Therefore, PW.2 who conducted

seizure mahazar at Ex.P2 and after conducting seizure

mahazar he had entrusted further investigation to

PW.7. PW.7 conducted investigation and after

completion of investigation laid the charge sheet against

the accused. But accused Nos.1 and 2 have been

identified and also that PWs.4, 5 and 6 have subscribed

their signatures. It is the evidence of those witnesses

inclusive of the evidence of PW.1 who issued FSL report

at Ex.P1 relating to subjecting to examination of MO.1 -

sample ganja. It was detected and found that it is ganja

and accordingly issued FSL report that it was ganja.

PW.1 who has subscribed her signature on the part of

prosecution and even subjected to examination and it is

elicited that as where the accused was apprehended it is

public place it is the scene of crime. But he did not give

notice to panch witnesses even though it is noticed that

he did not take signature of persons who were present

in the scene of crime. PW.4 - Purushotham being Police

constable and PW.5 - head constable have been

subjected to examination on part of the prosecution

relating to personal search of accused No.1 and this

personal search was made by Police Inspector and that

PW.4 - Purushotham who had given writing contents of

the seizure mahazar. But he has denied the suggestion

made he did not accompany the Police Inspector to the

scene of crime and also he did not got writing contents

of seizure mahazar. Similarly PW.5 - Puttegowda being

head constable he is also one of the team members who

accompanied the Police Inspector - PW.2 but he has

stated in his evidence that PW.4 - Purushotham and he

has himself had got written the contents of the Ex.P.2

which is the seizure mahazar and they had subscribed

their signatures and they identified MOs.2 to 8. But he

had denied the suggestion relating to drawing the

seizure mahazar at Ex.P2 by Police Inspector - PW.2

who led the team to scene of crime. But PW.5 has

stated in his evidence that scale to weigh ganja was

secured through one Nandeesha but he has stated that

he could not tell from which shop it was bought. Merely

because of this evidence as stated by PW.5, it cannot be

a ground for intervention in the judgment of conviction

rendered by the trial Court. PW.7 who is the

investigating officer who took up the case for further

investigation from PW.2, has conducted the entire

investigation thoroughly by conducting panchanama at

Ex.P6 which bears signatures of PW.3 - Nagesha and

also PW.6 - Syed Mujamil, but did not support the case.

But PW.7 also one of the member of raiding team and

subscribed their signature, PW.2 - Police inspector who

is superior authority, lead the team to the scene of

crime of hilt of the ground in Shanthinagar, Mysuru city

and there was no impediment in bringing the persons

who were in the shop to admit that MOs.4 and 5 ganja

which was weighed in electronic scale has been secured

through one Nandeesha and also it is admitted by PW.7

in his evidence that he did not enquire the owner of the

electronic scale during the course of investigation.

Further, he had denied the suggestion made by the

defence counsel that accused No.1 was not

apprehended at the spot and accused No.2 had took to

heel from the scene of crime. But the other independent

witnesses such as PW.3 and 8 have been secured by the

Police Inspector who was examined as PW.2 and also

PW.7 being the investigating officer who laid the charge

sheet against the accused. But on 13.09.2009, PW.3

has been secured and in his presence they have

appraised him relating to removal of 50 grams of ganja

from the packet and identified the MO.1 - sample ganja

and also bears his signature at Ex.P.6. PWs.3 and 8

though have been examined on the part of examination,

but nothing worthwhile has been elicited in their

evidence to disbelieve the evidence of the prosecution.

But PW.8 who is the eyewitness has stated in his

evidence that about one year ago when he was

proceeding near Udayagiri Police Station he was called

near the police jeep and he was made to accompany the

Police Inspector PW.2 near hilt of the ground situated in

the limits of Shanthinagar. However, team members

have apprehended accused No.1 but the other accused

had escaped from the scene of crime and the team

members found black colour plastic cover containing 58

packets of ganja and 5 paper packets containing 10

grams of ganja and they have secured an electronic

scale and weighed it and found a total quantity of 720

grams of ganja and whereby he has certified MOs.1 to 7

and also seized cash of Rs.1,260/- from the possession

of accused No.1. These are all the evidence let in by the

prosecution to prove the guilt of the accused, that

PWs.2, 4, 5 and 7 have been subjected to examination

and even they are official witnesses PW.2 who

conducted raid along with the team members and he

drew seizure mahazar at Ex.P2 and also having seized

sample ganja - MO.1 and inclusive of MOs.4 and 5

which are the packets containing ganja and also

weighing scale of ganja and also found in the possession

of accused No.1 and also secured the electronic scale

which is marked as MO.6. But MOs.4, 5 and 7 are

plastic covers and packets containing ganja inclusive of

MO.1 which were found in the possession of accused

No.1 where the prosecution has been subjected to

examination PWs.2, 4 5, and 7 being official witnesses,

which evidence cannot be discarded. No doubt that

PW.2 who is the Police Inspector who got information

and based upon the information he had formed a team

consisting of team members and led the team to the

scene of crime situated at Shanthinagar in Mysuru on

the hilt ground area and found two persons involved in

the activity of selling ganja which was found in rezgine

bag in the possession of accused No.1. Therefore, PW.2

- Police Inspector who conducted raid drew seizure

mahazar at Ex.P2 and he had categorically stated in his

evidence that soon after he got information he informed

to the ACP of Udayagiri Police Station in Mysuru and

secure his oral permission and formed a raiding team

and led the team to scene of crime on hilt ground area

and succeeded in the raid made by him and also seized

ganja found in possession of accused No.1 and inclusive

of MO.8 - Nine currency notes of 100 denomination, five

currency notes of 50 denomination, eleven currency

notes of 10 denomination. In total Rs.1,260/-. These

are all the evidence let in by the prosecution to prove

the guilt of the accused. There is no ill-will between the

accused and police officials and there is no enmity

between them or any incriminating evidence to set up a

theory as regards offences lugged against the accused.

But nothing is elicited from the aforesaid witnesses even

though they have been subjected to cross examination

on the part of defence side for having considered these

material evidence both oral and documentary evidence

even official witnesses of PWs.4, 5, 7 coupled with

evidence of PW.8 inclusive of PW.1 who issued FSL

report at Ex.P1 by chemical examination of ganja which

was detected in the material object seized and also

forwarded to FSL. But it is at the instance of the

accused persons only for having seized the ganja under

Ex.P2 of seizure mahazar. These are all the evidence

which have been appreciated by the trial Court to come

to the conclusion of convicting the accused. Hence,

under this appeal, it does not arise to call for any

intervention since there are no warranting

circumstances arise. On all these premises learned

HCGP in the appeal seeks for dismissal of this appeal as

being devoid of merits by confirming the judgment of

conviction and order of sentence rendered by the trial

Court.

19. In the context of the contentions made by the

learned counsel for the appellants and also vehement

contentions advanced by the learned HCGP for the

State, it is relevant to refer to Section 50 of NDPS Act,

1985 which relates the conditions under which search

of persons shall be conducted :

(1) When any officer duly authorized under Section

42 is about to search any person under the provisions

of Section 41, Section 42 or Section 43, shall, if such

person so requires, take such person without

unnecessary delay to the nearest Gazetted Officer of any

of the departments mentioned in Section 42 or to the

nearest Magistrate.

20. The contraband seized as a result of search

and seizure made in contravention of Section 50 of

NDPS Act, the said fact has to be established by the

prosecution beyond all reasonable doubt. The

mandatory provision of Section 50 has been extensively

addressed by in the judgment of Ali Mustafa Abdul

Rahman Moosa Vs. State of Kerala AIR 1995 SC 244.

Insofar as Section 20 of NDPS Act, 1985 relating to

punishment for contravention in relation to cannabis

plant and cannabis - individual rights of accused are

undoubtedly important but equally important was

societal interest for bringing offender to book and for

system to send right message to all in society be it law-

abiding citizen or potential offender. Criminal justice

delivery system could not be allowed to veer exclusively

to benefit of offender making it uni-directional exercise,

it was held in the case of Varinder Kumar Vs. State of

Himachal Pradesh LNIND 2019 SC 128.

21. Whereas, in the instant case the trial Court

had held conviction for the offence punishable under

Section 20(b) of NDPS Act, 1985. But FIR at Ex.P3

which bears signature of PW.2 indicates as offence

under Section 20(b) of the NDPS Act, 1985 but Section

20 of NDPS Act, 1985 deals with punishment for

contravention in relating to cannabis plant and

cannabis - Whoever, in contravention of any provisions

of this Act or any rule or order made or condition of

license granted there under - (a) Cultivates any

cannabis plant; or

(b) produces, manufactures, possesses, sells,

purchases, transports, import inter-State, exports inter-

State or uses cannabis, shall be punishable -

(i) where such contravention relates to clause (a)

with rigorous imprisonment for a terms 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 sub-clause

(b) -

(A) and involves small quantity, with rigorous

imprisonment for a term which may extend to one year

or with fine, which may extend to ten thousand rupees,

or with both;

(B) and involves quantity lesser than commercial

quantity but greater than small quantity, with rigorous

imprisonment for a term which may extend to ten years

and with fine which may extend to one lakh rupees;

(C) and involves commercial quantity, with

rigorous imprisonment for a term which shall not be

less than ten years but which may extend to twenty

years and shall also be liable to fine which shall not be

less than one lakh rupees but which may extend to two

lakh rupees.

22. But section 50 of NDPS Act, it is mandatory

provision relating to search of persons shall be

conducted by following mandatory provisions.

(1) When any officer duly authorized under Section

42 is about to search any person under the provisions

of Sections 41, section 42 or section 43, he shall, if such

person so requires, take such person without

unnecessary delay to the nearest Gazetted Officer of any

of the departments mentioned in Section 42 or to the

nearest Magistrate.

Section 42 of NDPS Act, 1985 deals with Power of

entry, search, seizure and arrest without warrant or

authorization.

Section 43 of NDPS Act, 1985 deals with power of

seizure and arrest in public place - Any officer of any of

the departments mentioned in Section 42 may -

(a) seize in any public place or in transit, any

narcotic drug or psychotropic substance or controlled

substance in respect of which he has reason to believe

an offence punishable under this act has been

committed. But Section 50 of NDPS Act, it is

mandatory provision for conditions under which search

of persons shall be conducted. But contraband seized as

a result of search and seizure made in contravention of

Section 50 cannot be used to fasten the liability of

unlawful possession of the contraband on the person

from whom the contraband had allegedly been seized in

a illegal manner. "Unlawful possession" of the

contraband is the sine-quo-non for conviction under the

Act and the fact has to be established by the

prosecution beyond a reasonable doubt.

23. Whereas, in the instant case insofar as in

given facts and circumstances even for conducting

seizure mahazar at Ex.P2 by PW.2 who is Police

Inspector of Udayagiri Police Station, Mysuru. PW.2 got

some credible information about person being arraigned

as accused having possession of ganja and also having

involvement of the activities of selling ganja found in

regzine bag which were found in possession of accused

No.1. Therefore PW.2 who is responsible Police

Inspector having been appraised to the concerned ACP

in the limits of Udayagiri Police Station, Mysore and

obtaining oral permission had proceeded for the

purpose of raid. Therefore, he formed a team consisting

of team members who are official witnesses and

accordingly PWs.2, 4, 5 and 7 have conducted raid as

according to the instruction given to PW.2 being

responsible Police Inspector. But PW.8 even though he

is panch witness has been secured but Section 50 and

20 of NDPS Act relating to the search and seizure even

recovery of the contraband articles from the possession

of the accused even not made in the presence of

Magistrate / Gazetted Officer and hence, non-

compliance with the mandatory procedure under

Section 50 of NDPS Act, 1985 is certainly fatal to the

prosecution case. Consequently case of the prosecution

ought to be ended in acquittal. As such counsel for the

appellant has placed reliance in respect of his

contention on a judgment rendered by the Hon'ble

Supreme Court of India in (2018) 18 SCC 380 Arif

Khan @ Agha Khan Vs. State of Uttarakhand which is

stated supra. However, in the instant case though

prosecution has let in evidence and subjected to

examination of PWs.2, 4 and 5 inclusive of PW.7. But

PW.2 who is police inspector had received the credible

information and he formed a team consisting his staff

members and PW.2 led the members to the scene of

crime situated in the limits of Shanthinagar of hilt

ground area and found two persons who are arraigned

as accused were about to sell ganja. Accused No.1

namely Mustaq Ahmed @ Maamu was apprehended by

the team members in the scene of crime. But accused

No.2 - Siraj Pasha @ Siraj @ Gundal had escaped from

the spot but PW.2 being responsible police inspector

who drew seizure mahazar as per Ex.P2 and also seized

MO.1 - sample ganja and MO.4 - Black colour plastic

cover containing 58 packets of ganja, MO.5 - 5 paper

packets containing 10 grams ganja and MO.7 - 10

grams (3) packets of ganja inclusive of MO.8 - currency

notes of Rs.1,260/- from the possession of accused

No.1. Subsequent to drawing the seizure mahazar at

Ex.P2, that PW.2 had entrusted the case for further

investigation to PW.7 being investigating officer and who

conducted investigation thoroughly and laid charge

sheet against the accused.

24. PW.1 is chemical examiner and subjected to

examination and issued FSL report at Ex.P1 and she

did not give any specific opinion and even PW.2

categorically admits in his evidence that he took oral

permission from ACP in order to lead the team to the

scene of crime as he got some credible information

about two persons who are arraigned as accused being

involved in selling of ganja even though it was seized by

the team members. But PW.2 in his cross-examination

he has categorically stated that for first time he had

seen the accused persons. Even this suggestion made

has been denied but prosecution has given more

credence upon the evidence of PW.1 in respect of Ex.P1

- FSL report relating to the chemical examination of the

contraband articles which were seized under Ex.P2 -

seizure mahazar. PW.1 in terms of 3 tests that is

microscopic test, chemical test and physical test and

examiner opined that presence of ganja is confirmed by

the test methods adopted by her. Further prosecution

has given more credentiality on evidence of PW.1 who is

chemical examiner and she has reported in Ex.P1 and

whereby she had conducted three tests relating to ganja

which were found in possession of accused not in

regzine bag. PW.1 who is responsible chemical

examiner has stated in her evidence that the contents of

the report were written by one of her staff member. But

prosecution given more credence upon evidence of

PWs.2, 4, 5 and 7 who are raiding parties being cited as

witnesses even PW.3 have subjected to examination on

the part of prosecution relating to the mahazar at Ex.P6

drawn by PW.7 who is the investigating officer and laid

the charge sheet against the accused but 50 grams of

ganja was seized by drawing mahazar at Ex.P6 in the

presence of PW.3 even it finds place in the evidence of

PW.3 namely - Nagesha. But PW.6 - Syed Mujamil who

is also one of the panch witnesses secured but he did

not completely support the case of the prosecution.

Even fulcrum of mahazar at Ex.P6 of the panchanama

which has been drawn by PW.7 who being investigating

officer, which is contrary to each other. But PW.2 -

Mathews Thomas who is police inspector and whereby

got some credible information and thereafter formed a

team consisting of staff members inclusive of PW.4 -

police constable and PW.5 - head constable and they

are raiding members and whereby accompanied with

the Police Inspector - PW.2 according to their evidence

they found two persons who were involved in selling

ganja and one person who was holding the bag was

apprehended and the person who was collecting the

money had escaped from the clutches of raiding team

members. But this information has given by accused

No.1 and amount of Rs.1,260/- was recovered from the

possession of accused No.1. Even MO.2 and 7 were

taken along with PWs.2, 4, 5 and 7 when apprehending

the accused No.1 at the scene of crime. But PW.2 who

is responsible Police Inspector shall follow the

mandatory provision of Section 50 of NDPS Act, relating

to search and seizure and also recovery of the

contraband articles from the possession of the accused,

if not, it is fatal to the prosecution of case.

25. But in the instant case in all PWs.1 to 8 have

been subjected to examination but the evidence of PW.6

and 8 runs contrary to the evidence of PWs.2, 4, 5 and

7 who are official witnesses. PW.2 who is police

inspector got some credible information and thereafter

criminal law was set into motion by recording FIR as per

Ex.P3 but he formed a team consisting of official

witnesses and lead to scene of crime in Mahadevpura

main road, near the Mosque which is situated next to

the hilt of the ground and conducted raid by PW.2 and

even drew mahazar at Ex.P2 but he is required to follow

the mandatory provision of Section 50 of NDPS Act. If

the mandatory provision of the Act is not followed, it is

fatal to the prosecution case and consequently accused

are deserving for acquittal.

26. Whereas in the instant case PWs.1 to 8 have

been subjected to examination and PW.2 who is police

inspector being official witness and PW.4 police

constable and PW.5 head constable and PW.7 -

Sadashiva PSI who is investigating officer and after

thorough investigation has been done laid the charge

sheet against the accused. Ex.P3 - FIR recorded by

PW.2 and whereby subscribed their signatures at

Ex.P3(a) who initially recorded the FIR and wherein the

substance of the FIR reveals as offence under Section

20(b) of NI Act, 1985. The trial Court has held

conviction against the accused under Section 20(b) (A)

of the NDPS Act, 1985 even in that provision it indicates

when a smaller quantity of contraband article alleged to

be found in the possession of accused, the punishment

insofar as 20(b) (A) it is indicated that there shall be

some imprisonment term which has specifically stated

but in the instant case, conviction has been held by the

trial Court for the offence punishable under Section

20(b) of NDPS Act, 1985. Punishment as regards the

said section reads thus:

(A) and involves small quantity, with rigorous

imprisonment for a term which may extend to one year

or with fine, which may extend to ten thousand rupees,

or with both;

(B) and involves quantity lesser than commercial

quantity but greater than small quantity, with rigorous

imprisonment for a term which may extend to ten years

and with fine which may extend to one lakh rupees;

(C) and involves commercial quantity, with

rigorous imprisonment for a term which shall not be

less than ten years but which may extend to twenty

years and shall also be liable to fine which shall not be

less than one lakh rupees but which may extend to two

lakh rupees.

This is the object of the aforesaid A, B and C

relating to the punishments for contravention in relation

to cannabis plant and cannabis, which reveals in

Section 20 of NDPS act, 1985.

27. Though prosecution has examined PWs.1 to 8

and more so PW.2 being police inspector, PW.7 - PSI

who is the investigating officer and who laid the charge

sheet against the accused after completion of

investigation. But PWs.4 and 5 are police official

witnesses and PW.6 / Syed Mujamil, he did not

withstand the mahazar at Ex.P6. PWs.4, 5 and 7 who

are raiding members who accompanied PW.2 - Mathew

Thomas who got some credible information and criminal

law was set into motion and the said witnesses have

been subjected to examination on the part of

prosecution and though they have deposed in their

evidence but the search and recovery which was made

should be in the presence of any Magistrate or Gazetted

Officer. It is the mandatory provision of Section 50 of

NDPS Act, 1985 but non-compliance of the said

mandatory provision prescribed under Section 50 of

NDPS Act, is fatal to the prosecution case.

28. In the instant case, it is found that the

prosecution has failed to prove the said mandatory

compliance as required in law, i.e., the mandatory

provision of Section 50 of NDPS Act, 1985. Therefore,

appellants who are accused are entitled to claim benefit

to seek acquittal. In terms of aforesaid reasons and

findings and so also in view of the warranting

circumstances re-appreciation of the evidence and also

exhibited documents on part of the prosecution as

where the trial Court did not appreciate the evidence in

proper perspective manner. Keeping in view Section 50

of mandatory provision of NDPS Act if not re-

appreciation of the evidence, certainly the appellants

who are accused before the trial court being gravamen

of the accusation made by the prosecution being the

sufferers and certainly there shall be a miscarriage of

justice. Therefore, in view of the aforesaid reasons and

findings it is opined that accused who are appellants

before this Court ought to be acquitted by setting aside

the judgment of conviction and order of sentence

rendered by the trial Court. Accordingly, I have to

proceed the following:

ORDER

Appeal preferred by the appellants / accused

under Section 374(2) of Cr.P.C is hereby allowed and

consequently judgment of conviction and order of

sentence rendered by the trial Court in

Spl.C.No.25/2010 dated 01.06.2011 is hereby set aside.

Consequent upon setting aside the judgment of

conviction and order of sentence rendered by the trial

Court, accused are acquitted for the offence punishable

under Section 20(b) of NDPS Act, 1985 for which they

were held charge. If accused had executed any bail

bond, the same shall stand cancelled.

However, keeping in view the peculiar facts and

circumstances of case, if the appellants / accused have

deposited any fine amount, the same shall be returned

to them on proper identification in accordance with law.

Accordingly ordered.

Sd/-

JUDGE

SBS/RJ