Prabhu S/O Babu Lavate vs The State Of Karnataka
2022 Latest Caselaw 2016 Kant

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           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

       DATED THIS THE 9TH DAY OF FEBRUARY, 2022

                            BEFORE

       THE HON'BLE MR. JUSTICE V. SRISHANANDA

         CRIMINAL APPEAL NO.200038/2016


BETWEEN:

Prabhu S/o Babu Lavate,
Age : 39 years, Occ: Agriculture,
R/o Almel, Tq : Sindagi,
Dist : Vijayapur.
                                                ... Appellant

(By Sri Shivanand V.Pattanshetti, Advocate)


AND:

The State of Karnataka
R/by Addl. SPP,
High Court of Karnataka,
Kalaburagi Bench.
(Through PSI Zalaki P.S.,
Dist : Vijayapur)
                                              ... Respondent

(By Sri Gururaj V.Hasilkar, HCGP)


      This Criminal appeal is filed under Section 374(2) of
Criminal Procedure Code praying to set aside the judgment
of conviction and order of sentence dated 03.03.2016 and
04.03.2016 respectively passed by the Special Judge/
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Principal Sessions Judge at Vijayapur in Special (NDPS)
Case No.4/2014 and acquit the appellant/accused in the
interest of justice and equity.

      This appeal coming on for Final Hearing this day, the
Court delivered the following:

                       JUDGMENT

Heard Sri Shivanand V.Pattanshetti, learned counsel

for the appellant and learned High Court Government

Pleader for respondent/State.

2. The accused who suffered an order of

conviction in Special (NDPS) Case No.4/2014 by judgment

dated 03.03.2016 passed by the Special Judge/Principal

District and Sessions Judge, Vijayapur has preferred this

appeal.

3. The brief facts of the case are as under :-

Jalaki Police on 29.10.2013 when on patrolling duty,

received a credible information that somebody is illegally

transporting ganja and formed a team to nab him.

Accordingly, they were waiting near Halsangi Cross and

they were watching for the suspected vehicle as per the

credible information. At about 12.30 p.m. on the same

day, one person came there with one bag each on each of

the hands. On being suspicious about his body language,

the raid party immediately apprehend him and asked him

what is there in the bags. The said person did not properly

answer the raid party and he tried to run away from the

clutches of the raid party. Immediately, the raid party

chased him and apprehended him. On enquiry he revealed

his name as Prabhu S/o Babu Lavate. On further enquiry

they found wet ganja weighing 10 kilograms in each of the

bag. There was no licence or permit to carry the same.

Accordingly, the raid party considered as the illegal

possession and transport of ganja and seized the same in

presence of panch witnesses and also arrested the accused

and drafted the mahazar.

4. Based on the said mahazar, head of the raid

party filed a report to the Jalaki Police and the same was

registered in Crime No.110/2013 by the Jalaki Police for

the offence punishable under Sections 20(b)(ii) of Narcotic

Drugs and Psychotropic Substances Act, 1985 (for brevity

hereinafter referred to as 'NDPS Act' for short). Thereafter,

a detailed investigation has been conducted and a charge-

sheet came to be filed against the accused.

5. The presence of the accused was secured

before the Special Court and charge was framed. Accused

pleaded not guilty and trial was held.

6. In order to prove the case of the prosecution,

in all six witnesses have been examined by the prosecution

as PWs.1 to 5 and five documents were relied on which

were exhibited and marked as Exs.P1 to P5 and four

material objects were also marked as MOs.1 to 4.

7. On conclusion of the prosecution evidence,

accused statement as contemplated under Section 313 of

Cr.P.C has been recorded wherein the accused has denied

all the incriminatory materials found against him in the

prosecution evidence. Accused did not chose to place his

version about the incident on record either by examining

himself or by placing any written submissions as is

contemplated under Section 313(5) of Cr.P.C. Thereafter,

trial Judge heard the parties in detail and passed an order

of conviction and sentenced to undergo rigorous

imprisonment for five years and to pay a fine of

Rs.10,000/- and in default of payment of fine to undergo

simple imprisonment for one year for the offence under

Section 8(c) punishable under Section 20(b)(ii)(B) of the

NDPS Act.

8. Being aggrieved by the same, the appellant

has preferred this appeal. In the appeal memorandum,

following grounds have been raised :-

x That, the judgment of conviction & order of sentence passed by the learned judge is contrary to the facts of the case, evidence on record & against the settled principles of law.

x That, the learned Special Judge has committed a serious error in convicting the appellant without properly appreciating the evidence in its right prospective manner.

x That, independent pancha witnesses PW-1/CW-2 and PW-

2/CW-3 have not supported the prosecution case in regard to the seizer of ganja and that evidence of official witnesses does not inspire the confidence of the court and

special statute providing for harsher NDPS Act is a punishment and therefore mandatory provisions of the act will have to be strictly complied with and further non compliance of mandatory provisions of the act would make the case of the prosecution untrustworthy. So, trial court failed to appreciate the evidence of pancha witnesses and mandatory provisions has contemplated under in NDPS Act.

x That, the photocopy of the seized ganja was produced and marked without producing negative copy. It is settled principles of law that, photographs not primary evidence and same will have to be proved by producing negatives.

x That, looking in to the allegations leveled in the charge sheet materials and evidence before the court clearly discloses the fact that appellant was not in a possession of the allegedly seized contraband that to conscious possession of the allegedly seized ganja.

x That, as per the prosecution, they seized wet ganja material of 20 Kg. So, as per the definition provided in Sec 2(b), the so called seized ganja not comes under within the said definition.

x That, as per the Apex Court Judgment, the best evidence in a case arising out of NDPS Act would be produce the very seize materials before the trial court and getting them marked as material object. Near oral evidence of the officer concerned and production of panchanama is not sufficient and that to in the event independent panchas having

turned hostile, the panchanama is nothing but a document written by the concerned police officer.

x That, mere seizure of the drug or substance would not be sufficient. The seized articles will have to be produced before the SHO or concerned authorized officer. After receipt of the drug or substance, the officer in charge of the case in the police station or officer empowered under section 53 will have to make an inventory containing all the details relating to description, quantity, quality, mode of packing, or such other particulars and the manner in which it is packed, the country of origin and other particulars as may be relevant. In this regard the concerned officer in charge of the police station may make an application to any magistrate in order to get the correctness of the inventory so prepared, certified, or photographs may be taken in the presence may magistrate. It also provides for allowing to draw representative samples of drugs or substances in the presence of the magistrate and certifying the correctness of the list of samples so drawn. If such certificate is made by the magistrate and the photos taken in his presence relating to the inventory, they could be treated as primary evidence. In the present case, no such procedure has been conducted. This is a serious lapse committed by PW-3/Cw-4, PW-5/CW-13 & PW- 6/CW-1 they have stated to have seized the ganja and put 20 Kg, in a paper while registering the case. the

x That, looking in to the material collected by prosecution there is no evidence with regard to sending of FSL report for test at the earliest and the author of the FSL report is

not been examined to prove the contents of FSL report. Hence, serious lacuna on the part of the prosecution is not been properly appreciated by the trial court.

x That, looking in to the charge sheet materials and evidence before the trial court there is a serious lapse on the part of the prosecution to comply the provisions of Sec 42, 52(A) & 55 of the NDPS Act.

x That, great care must be taken in evaluating evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. But this principle is not been properly appreciated by the court below.

x That, there is no legal evidence collected by the prosecution during investigation as well as during the trial, even then trial court convicted the appellant is bad-in-law.

x That, court below failed to put the questions regarding the incrementing materials & circumstances against the accused while recording the 313 statements.

x That, court below ought to have disbelieved the say of witnesses who are very much interested in convicting the appellant.

x That, it is respectfully submitted that, the learned Special Judge has not at all appreciated the case of the appellant in the light to human probabilities and the same has vitiated the findings. The reasons assigned by court in convicting the appellant is illegal and incorrect. The same has resulted in miscarriage of justice to the appellant.

9. Reiterating the above grounds, learned counsel

for the appellant Sri Shivanand V.Pattanshetti, vehemently

contended that the trial Judge has grossly erred in

recording an order of conviction against the accused

resulting in miscarriage of justice and sought for allowing

the appeal. He pointed out that panch witnesses namely

Vittal and Prasad Kamble have turned hostile to the case of

the prosecution and therefore the very seizure

panchanama is not properly proved by the prosecution and

in such circumstances, placing reliance on the testimony of

the head of the raid party and the official witness alone

would not be sufficient enough to record an order of

conviction against the accused for the aforesaid offences

and sought for allowing the appeal.

10. Per contra, learned High Court Government

Pleader Sri Gururaj V.Hasilkar vehemently contended that

there is no bar in placing reliance on the testimony of the

official witnesses in a matter of this nature for recording an

order of conviction and trial Judge has rightly appreciated

the same by following the dictum of the Hon'ble High Court

of Karnataka in the case of K.K.Rejji and others v.

State by Murdeshwar Police Station, Karwar reported

in 2010 (5) Kar.L.J. 279 and rightly convicted the

accused and sought for dismissal of the appeal.

11. In the light of the arguments put forth on

behalf of the parties, following points would arise for

consideration are ;-

(i) Whether the prosecution is successful in establishing all ingredients to attract the offence punishable under Sections 8(c) punishable under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985?

(ii) Whether the impugned judgment is suffering from legal infirmity or perversity and thus calls for interference?

(iii) Whether the sentence is excessive?

Regarding point Nos.1 and 2 :-

12. In the case on hand, in order to prove the

incident that occurred on 29.10.2013, the prosecution

relied on seizure panchanama and the oral testimony of

the panch witnesses. However, PWs.1 and 2 have turned

hostile to the case of the prosecution and they did not

support the case of the prosecution in entirety.

13. The head of the raid party is examined as

PW.3. He deposed categorically that he received the

credible information on the date of incident about the

person carrying the ganja and based on that he formed the

team by securing PWs.1 and 2 as panchas and actual raid

has taken place around 12.45 p.m. near Halsangi Cross

and apprehending the accused and enquiring him about

the contents of the two bags carried by him and on enquiry

he came to know that the person who has been

apprehended by the raid party is Prabhu and he was

carrying wet ganja weighing 10 kilograms each in each of

the bags.

14. He has also drafted the mahazar and

thereafter lodged the report to the Jalaki Police Station.

He has identified the accused and the seized ganja sample

before the court.

15. In his cross-examination, it has been elicited

that he got the credible information at 11.30 a.m. He has

answered that he has left the police station around 12.30

a.m. and along with him, he has taken doctor and two

mahazar witnesses.

16. The doctor is examined as PW.4. He has also

supported in line with the examination in chief of PW.3. it

is pertinent to note that in his cross examination also, no

useful material has been elicited so as to disbelieve the

very raid itself.

17. It is also pertinent to note that PW.3 and PW.4

are the officials, who did not posses any previous enmity

or animosity against the accused so as to falsely implicate

in the case. Further, 20 kgs. of wet ganja was seized

under Ex.P2 - mahazar and its photograph is marked as

Ex.P1. the sample of ganja was also taken and the same

was sent to the FSL examination. The FSL report has been

issued and it shows that seized sample is ganja.

Allabaksha is the person, who registered the case and

Manjunatha is the further investigation officer, who filed

the charge sheet.

18. These evidence has been properly appreciated

by the trial Court while passing an order of conviction. The

learned trial Judge in paragraph No.29 has relied on the

judgment of this Court reported in 2010 (5) Kar.L.J. 279

in the case of K.K.Rejji (Supra), wherein it has been held

as under:

"(A) 1985 ACT SUBSTANCES PSYCHOTROPIC Section 20 (b) (i) read with Section 36 - A Penal Offences punishable under Indian Penal Code. 1860, Sections 147, 447 and 427 read 'cannabis with section 149 Seizure of plants' - Definition of Ganja' clearly means only the flowering or fruiting taps excluding Punishment and seeds the leaves prescribed under Sec. 20 (b) of the NDPS Act depends on the quantity of the contraband seized - Act prescribes three quantities Small quantity,

lesser than commercial quantity but greater than small quantity, and Commercial quantity Investigation officer weighing the whole plant If flowering or fruiting part was to be removed as actually defined in the Act. quantity would have been much less than the total weight of the product seized, - Depending upon the punishment that is prescribed, the jurisdiction of the court also varies as also varies as prescribed under provisions of Section 36 -A of NDPS Act -Provisions are mandatory in nature and non compliance to such provisions renders conviction for offences punishable under Section 20(b)(i) unsustainable."

19. The seized ganja is weighing 20 kgs. and same

would not be available free in the market. When there is

no previous enmity or animosity between the raid party

and the accused/appellant, why would PW.3 falsely

implicate the accused in a matter of this nature by

implanting 20 kgs. of wet ganja is a question that remains

unanswered.

20. If the version of the appellant is to be

accepted, 10 kgs. of the ganja could have been implanted

in the case and a case could have been filed by PW.3.

These are all the matters, which remains unanswered and

when the prosecution enjoyed the presumption under the

provisions of the NDPS Act, it was expected that the

accused/appellant is required to rebut the presumption by

placing his version on record.

21. In the case on hand, the accused has simply

denied all incriminatory materials found against him in the

prosecution evidence and did not offer his version about

the case. Mere PWs.1 and 2 not supporting the case of the

prosecution alone is not sufficient to disbelieve the

prosecution case either.

22. Accordingly, this Court is of the considered

opinion that the material evidence on record is sufficient

enough to attract the offence alleged against the appellant

beyond reasonable doubt and hence, point Nos.1 and 2 are

answered in the affirmative and negative respectively.

23. Regarding Point No.3: The trial Judge has

sentenced the appellant as referred to supra. No mitigating

circumstances are found to reduce the sentence imposed

by the trial Court. Further, if any leniency shown for the

people like the appellant, it would send wrong message to

the society. Further, the provisions of the NDPS Act are to

be construed as is curbing the stringent enough menace in

the society. Young persons are attracted for consuming

drugs and the cases are raising. Under such

circumstances, such menace is to be dealt with stern

hands. Taking note of these aspects of the matter, this

Court is of the considered opinion that no leniency can be

shown to the appellant. Accordingly, point No.3 is

answered and pass the following:

ORDER

The appeal sans merit and hereby dismissed.

The accused/appellant is granted time till

28.02.2022 to surrender before the trial Court for serving

the remaining part of the sentence.

Sd/-

JUDGE sn/Srt