Karnataka High Court

Siddunaika vs The State Of Karnataka on 31 January, 2022

Bench: Rajendra Badamikar

                              1



   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 31ST DAY OF JANUARY 2022

                         BEFORE

       THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR

            CRIMINAL APPEAL No.523/2011
                        C/W
            CRIMINAL APPEAL No.369/2011


IN CRL.A No.523/2011

BETWEEN:

STATE BY RAMPURA POLICE
STATION
                                        ... APPELLANT
(BY SRI.RAHUL RAI K., HCGP)


AND:
SIDDUNAIKA
S/O BODIYANAIKA,
AGED ABOUT 54 YEARS,
AGRICULTURIST,
R/O FARM HOUSE,
DOMMANAGADDE VILLAGE,
KOLLEGAL TALUK.
                                       ...RESPONDENT

(BY SMT. NEERAJA KARANTH, ADVOCATE FOR
    SRI. K.S.N.KARANTH, ADVOCATE )

     THIS CRL.A. FILED U/S.377 CR.P.C PRAYING TO
MODIFY THE SENTENCE IMPOSED ON 24.2.11 PASSED BY
THE DIST. & S.J., CHAMARAJANAGAR IN SPL.C.NO.152/09
                            2



AND ENHANCE THE SENTENCE ON THE ACCUSED FOR THE
OFFENCE P/U/S 20(b)(ii)(B) OF NDPS ACT.
                        *****
IN CRL.A No.369/2011


BETWEEN:
SIDDUNAIKA
S/O SODIYANAIKA
AGED ABOUT 52 YEARS,
AGRICULTURIST
R/AT FARM HOUSE
DOMMANAGADDE VILLAGE
KOLLEGALA TALUK                        ...APPELLANT

(BY SMT. NEERAJA KARANTH, ADVOCATE FOR
    SRI. K.S.N. KARANTH, ADVOCATE)

AND:
THE STATE OF KARNATAKA
THROUGH RAMAPURA POLICE
                                      ..RESPONDENT
(BY SRI. RAHUL RAI K., HCGP)


     THIS CRL.A. FILED U/S. 374(2) CR.P.C PRAYING TO
SET ASIDE THE ORDER DT:24.2.11/1.3.11 PASSED BY THE
DIST. AND S.J., CHAMARAJANAGAR IN SPL.CASE NO.152/09
- CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
P/U/S 20(b)(ii)(B) OF THE NARCOTIC DRUGS AND
PSYCHOTROPIC SUBSTANCES ACT, 1985.


       THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR    JUDGMENT   ON   13.01.2022,   COMING   ON      FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
                             3



                      JUDGMENT

These two appeals are directed against the

judgment and order of conviction passed by the

District & Sessions Judge, Chamarajnagar, in Special

Case No.152/2009 dated 24.02.2011 whereby the

learned Sessions Judge convicted the accused for the

offences punishable under sections 20(b)(ii)(B) of The

Narcotic Drugs and Psychotropic Substances Act, 1985

('NDPS Act' for short).

2. Criminal Appeal No.369/2011 is filed by the

accused challenging the conviction, while Criminal

Appeal No.523/2011 is filed by the State aggrieved by

quantum of sentence seeking enhancement of

sentence.

3. Since both these appeals are arising out of

the same judgment, they are clubbed, heard and

common order is being pronounced.

4. For the sake of convenience, the parties

herein are referred with their original ranks occupied

by them before the Trial court.

5. The brief factual matrix leading to the case

is that the Ramapura police have submitted a charge

sheet against the accused for the offences under

Sections 20(a)(b)(i) of NDPS Act. The brief facts of

the case are that on 20.7.2008 at about 3.55 p.m. the

complainant has received a credible information

regarding accused transporting ganja illegally near

Forest Department residential quarters in Ramapura of

Kollegal Taluk. The complainant after obtaining the

necessary permission from Dy.SP, secured

immediately the gazetted officer and panchas and

went to the spot at about 4.15 p.m. wherein they

found that the accused was waiting by holding a

plastic bag and he did not answer properly when

questioned. On verification, it is found that the said

bag was containing 3 kg. 800 gms. of ganja and the

same was seized by the complainant by drawing a

mahazar. Then immediately he along with the seized

property returned to the police station and lodged a

complaint. At the time of drawing the mahazar he has

also taken sample and then the same was sent to FSL

laboratory and it is reported that the said property is

ganja. The investigating officer thereafter recorded

the statement of material witnesses and found that,

as there is sufficient material against the accused,

submitted the charge sheet. The accused was

arrested and was produced before the learned

Sessions Judge. He was initially remanded to judicial

custody and subsequently he was enlarged on bail.

6. After submission of the charge sheet, the

learned Sessions Judge has taken cognizance of the

offence and issued process against the accused. The

accused appeared through his counsel and the

prosecution papers were furnished to him as

contemplated under Section 207 of Cr.P.C. Then the

learned Sessions Judge has framed charge against the

accused for the offences punishable under section

20(b)(ii)(B) of NDPS Act. The same was read over and

explained to the accused. He pleaded not guilty. Then

the prosecution has examined in all seven witnesses

as PWs 1 to 7 and further the prosecution has also

relied five documents as per Exs.P1 to P5 and one

material object as per M.O.1.

7. After completion of the evidence of the

prosecution, the statement of accused under Section

313 of Cr.P.C. is recorded to explain the incriminating

evidence appearing against him in the case of the

prosecution. The case of accused is of total denial and

he did not choose to lead any oral or documentary

evidence in support of his defence.

8. After having heard the arguments and after

appreciating the oral and documentary evidence

placed on record, the learned Sessions Judge has

convicted the accused for the offence under Section

20(b)(ii)(B) of NDPS Act and sentenced him to

undergo imprisonment for a period of two months with

fine of Rs.2,000/- with default clause.

9. Being aggrieved by the judgment of

conviction and order of sentence, the accused has

filed Criminal Appeal No.369/2011 to set aside the

judgment of conviction and order of sentence, while

the State has preferred Criminal Appeal No.523/2011

seeking enhancement of sentence on the ground that

sentence imposed is inadequate.

10. The records of the Trial Court are also

secured.

11. Heard the arguments advanced by the

learned counsel for the appellant-accused and the

learned High Court Government Pleader. Perused the

records.

12. The learned counsel for the accused-

appellant would contend that the entire approach of

the Trial Court is erroneous. It is further submitted

that the Trial Court has ignored the fact that the

material witnesses i.e., panch witnesses being turned

hostile and all other witnesses are being official

witnesses, their evidence ought not to have been

believed. She would further contend that the entire

case of the prosecution creates suspicion, as after

getting information, within 15 to 20 minutes, the

entire process was over and hence she would contend

that the evidence of the prosecution is not

trustworthy. She would further highlight that the

material seizure witnesses have turned hostile and the

accused-appellant is aged more than 62 years and

hence she would seek for leniency.

13. Per contra, learned HCGP supports the

impugned judgment of conviction. However, he would

contend that the sentence of imprisonment is

inadequate looking at the gravity of the offence and

he would contend that the maximum sentence of 10

years and fine of Rs.1,00,000/- ought to have been

imposed on the accused. Hence, he would request for

allowing the appeal preferred by the State to this

extent.

14. Having heard the arguments and perusing

the records, the following point would arise for my

consideration:

Whether the judgment of conviction and order of sentence passed by the learned Sessions Judge is erroneous, illegal and capricious so as to suffer from any

infirmities so as to call for any interference by this court?

15. According to the prosecution, on 20.7.2008

at about 3.55 p.m. the complainant has received a

credible information and he immediately secured a

gazetted officer and along with two panchas went near

Forest Department residential quarters in Rampura

village of Kollegal Taluk wherein at about 4.10 or 4.15

p.m., they apprehended the accused as he was found

transporting illegal ganja weighing about 3.800 kgs in

a plastic bag. According to the prosecution, the same

was seized by drawing a mahazar under Ex.P1 and

sample was also taken in the presence of panchas and

gazetted officer and then the case came to be

registered.

16. It is to be noted that the initial burden is on

the prosecution to prove the allegation made against

the accused beyond all reasonable doubt. But since

the offence is under the NDPS Act, if the prosecution

is able to prove the possession of contraband articles

by accused, then the presumption under Section 54 of

the NDPS Act is required to be drawn along with

presumption under Section 35 of the said Act

regarding culpable mental state of mind for

transporting contraband goods.

17. The prosecution to prove the case has

examined PWs 1 and 2 who are the panchas. Both

these witnesses have turned hostile and denied the

case of the prosecution in respect of they

accompanying the investigating agency and seizure of

the ganja in their presence. However, they have

admitted their signatures on Ex.P1 seizure mahazar as

per Exs.P1(a) and (b). They have not explained as to

where exactly they have singed on Ex.P1. They have

simply denied drawing mahazar in their presence and

it is important to note here that both of them have

signed in English language. They did not explain the

compulsion for signing this document and the defence

counsel did not cross examine these two witnesses.

Hence it is evident that these two witnesses are

deposing falsehood being wonover.

18. PW-3 is a Medical/Gazetted officer who has

accompanied the raiding party as per the request of

the complainant. In his examination-in-chief he has

specifically deposed that on 20.7.2008 at about 4.00

p.m. police came to his hospital and requested to

accompany for a raid as a gazetted officer by

narrating the information and he accompanied them

near Forest Quarters, Rampura. He further stated

that below a tamarind tree, the accused was standing

holding a plastic bag and on verification it was found

that the bag contained 3.800 kgs of ganja and 250

gms of ganja was taken as sample. This witness was

cross-examined by the defence counsel at length, but

nothing worthy was elicited so as to impeach his

evidence. In his cross- examination he has

specifically asserted that the mahazar was written

between 4.15 p.m and 5.45 p.m.. Though this

witness was cross examined at length, nothing was

elicited on behalf of the accused to show that he is

deposing falsehood before the court or he had any

grievance with accused or he had any nexus with the

police. No reasons are forthcoming to discard the

evidence of PW-3.

19. PW-4 - Nagaraju R is a member of raiding

party and a police constable. He has also deposed

regarding raid being conducted, accused being

apprehended, drawing mahazar etc., Though PW-4

was cross examined, nothing was elicited so as to

impeach or discard his evidence. He has also

identified M.O.1 - ganja seized from the custody of the

accused.

20. PW-5 is the Chief Chemist and Public

Analyst, Public Health Institute. He has deposed

regarding examining the sample and certified that it

contains ganja and gave a report as per Ex.P2.

Except formal denial, nothing was elicited from his

cross examination by the defence counsel.

21. PW-6 - T. Mallesh is the complainant and

he deposed regarding he receiving a credible

information regarding transporting of ganja and

immediately he seeking permission from the Dy.S.P.,

Kollegal over telephone to conduct the raid and

securing gazetted officer and panchas, reaching the

spot, apprehending the accused along with

contraband article/ganja. This witness was also cross

examined at length. But nothing was elicited so as to

impeach his evidence. A simple suggestion was made

to him that the accused was not carrying any ganja

and no ganja was seized from the possession of the

accused, but the same was denied by this witness.

22. PW7 - H.K.Shivaswamy is the investigating

officer and he deposed regarding investigation.

23. The arguments advanced by the learned

defence on the ground that entire process was

concluded within 15 to 20 minutes as the information

was secured at 3.55 p.m. itself. But, the cross

examination of PWs 3, 4 and 6 disclose that the

hospital is situated at a distance of half a kilometer

from the police station and the place of offence is

situated at a distance of two kms. from police station.

Hence, this distance could be easily covered within ten

minutes. Merely because the entire process was

concluded in 15 to 20 minutes alone cannot be a

ground to suspect the case of the prosecution.

Further, PWs 3, 4 and 6 had no vested interest to

depose falsehood against the accused in favour of the

prosecution.

24. The evidence of the witnesses clearly

establishes that 3.800 kgs of cannabis (ganja) was

recovered from the custody of the accused while he

was carrying the same in a plastic bag. When the

possession is established by the prosecution, the

presumption under Section 54 of the Act comes in

place and Section 54 of the Act reads as under:

"54. Presumption from possession of illicit articles. - In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of -

(a) any narcotic drug or psychotropic substance or controlled substance;

(b) any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated;

(c) any apparatus specially designed or any group of utensils specially

adopted for the manufacture of any narcotic drug or psychotropic substance or controlled substance; or

(d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured,

for the possession of which he fails to account satisfactorily."

25. When the possession was established, the

presumption is required to be drawn unless and until

the contrary is proved by the accused.

26. Further, Section 35 of the NDPS Act

mandates that the court shall presume the mental

state of accused when possession of any narcotic

substance was recovered. No doubt, the presumption

available under Sections 35 and 54 of the Act are

rebuttable presumption. For rebutting the

presumption, the accused need not enter into the

witness box and even he can rebut the presumption

by way of cross-examination. Further, for rebutting

the presumption, the theory of preponderance of

probability is applicable.

27. But, in the instant case, except denial, the

accused has not at all made any attempt to explain his

possession of narcotic drugs. The evidence on record

does establish that the ganja was recovered from the

custody of the accused and his 313 statement

discloses that it is a total denial. Nothing was elicited

in the cross examination of any of the witnesses.

Though PWs 1 and 2 have turned hostile, they admit

their signatures and there is no explanation where

they signed on the mahazar. Therefore, it is evident

that the accused has not rebutted the presumption

and as such the evidence of PW-5 establishes that the

seized property contains ganja. Hence, the

prosecution has established the guilt of the accused

for the offence under section 20(b)(ii)(B). The learned

Sessions Judge is justified in convicting the accused

for the said offence and this Court cannot take any

view other than the view taken by the learned

Sessions Judge and as such, the appeal filed by the

accused is devoid of any merits. Further it is argued

that a lenient view may be taken considering the age

of accused. The learned Sessions Judge has already

shown sufficient leniency. Further, the act of accused

is against society at large, especially the younger

generation. Hence, accused requires to be punished.

28. However, the State has also filed appeal

on the ground that the sentence imposed is

inadequate and mandatory sentence of ten years

imprisonment with fine of Rs.1,00,000/- ought to have

been imposed. Admittedly, seized quantity is more

than small quantity and lesser than the commercial

quantity. Section 20 of the NDPS Act states as under:

"20. Punishment for contravention in relation to cannabis plant and cannabis

- Whoever, in contravention of any provisions of this Act or any rule or order made or condition of licence granted thereunder, -

(a) cultivates any cannabis plant; or

(b) produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable -

(i) where such contravention relates to clause(a) - with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine which may extend to one lakh rupees and

(ii) where such contravention relates to 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 of 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.

Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.

29. This section clearly establishes that no

minimum sentence is prescribed by the statute and

the maximum sentence imposed can be ten years with

fine which may extend to rupees one lakh.

30. The learned Sessions Judge considering the

quantity of ganja seized i.e., 3.800 kgs and

considering the age of the accused has chosen to

impose imprisonment for a period of two months with

fine of Rs.2,000/-. Now admittedly, the accused is

aged about more than 62 years. Lot of water has

already flown in between. Under these circumstances,

this is not a fit case wherein the sentence of

imprisonment can be enhanced as sought by the

State. The learned Sessions Judge has appreciated

the oral and documentary evidence and looking into

the facts and circumstances of the case has proceeded

to impose the sentence of two months with fine of

Rs.2,000/- and the same appears to be reasonable

and no other special reasons are forthcoming to

enhance the said sentence.

31. In these circumstances, the contention of

the State that the learned Sessions Judge has erred in

imposing minimum sentence holds no water at all. As

such, the appeal filed by the State is also without any

merits.

32. Considering all these facts and

circumstances and after appreciating the oral and

documentary evidence, it is evident that the learned

Sessions Judge is justified in convicting and

sentencing the accused with reasonable sentence

which does not call for any interference. As such, I

answer the point under consideration in the negative

and proceed to pass the following:

ORDER:

Both the appeals are dismissed by confirming the Judgment of conviction and order of sentence dated 24.2.2011 passed by the learned District & Sessions Judge, Chamarajanagar, in Spl. Case No.152/2009.