Karnataka High Court
Mohammadshiraj vs The State Of Karnataka on 3 June, 2022
Bench: V.Srishananda
-1-
CRL.A No. 2753 of 2013
IN THE HIGH COURT OF KARNATAKA, DHARWAD
BENCH
DATED THIS THE 3RD DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
CRIMINAL APPEAL NO. 2753 OF 2013 (C-)
BETWEEN:
MOHAMMADSHIRAJ HUSSAINSAB DRAKSHI,
AGE: 58 YEARS, OCC: CATTLE BUSINESS,
R/O: DRAKSHI GALLI,
ATHANI, TALUK: ATHANI,
DIST: BELGAUM.
...PETITIONER
(BY SRI. VISHWANATH V BADIGER, ADV.)
AND:
THE STATE OF KARNATAKA
REPRESENTED BY ITS,
STATE PUBLIC PROSECUTOR,
(ATHANI P.S.)
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, AT DHARWAD.
...RESPONDENT
CHANDRASHEKAR
LAXMAN
KATTIMANI (BY SRI.RAMESH CHIGARI, HCGP)
Digitally signed by THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C.
CHANDRASHEKAR
LAXMAN SEEKING TO SET ASIDE THE ORDER OF CONVICTION AND
KATTIMANI
SENTENCE DATED 01.08.2013 PASSED BY THE SPL. (PRL.
SESSIONS) JUDGE, BELGAUM, IN S.C.NO.164/2010, CONVICTING
THE APPELLANT/ACCUSED FOR R.I. FOR 3 YEARS AND TO PAY FINE
OF RS.25,000/- FOR THE OFFENCES P/U/S 20(b)(ii)(B) OF NARCOTIC
DRUGS & PSYCHOTROPIC SUBSTANCES ACT, 1985 AND ACQUIT THE
APPELLANT.
-2-
CRL.A No. 2753 of 2013
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. Heard Sri.Vishwanath V Badiger, learned
counsel for the appellant and Sri.Ramesh Chigari, learned
High Court Government Pleader and perused the records.
2. The present appeal is filed challenging the order
of conviction and sentence dated 01.08.2013 passed in
Special Case No.164/2010 on the file of the Special (Prl.
Sessions) Judge, Belagavi.
3. Brief facts of the case are as under:
3.1 Head of the raid party received a credible
information on 19.07.2010 at about 6.40 p.m. stating that
appellant-accused has stored ganja in his house situated
at Bol rod, Drakshi Galli, Athani town. Immediately, he
formed a raid party and raided the house along with panch
witnesses. In the house, the raid party was able to find 1
kilo 800 grams of ganja stored in a bag and 5 packets of
CRL.A No. 2753 of 2013
10 grams each. The head of the raid party enquired the
accused about licence or permit to possess the same.
Since the accused pleaded in negative, the head of the
raid party decided that it is local ganja and tested the
same and drafted a mahazar. The ganja also weighed in
the presence of panch witnesses and it was weighed in
bulk and apart from bulk quantity the accused had also
possessed five packets of ganja weighing 10 grams each.
In all, 1,850 grams of ganja was seized from the
possession of the accused and he was arrested. Samples
were drawn from the bulk quantity as well as small
packets. Thereafter, the accused was produced before the
Special Court.
3.2 After registering the case, Athani police
investigated the matter in detail and filed charge sheet
against the accused for the offence punishable under
Section 20(b)(ii) and (B) read with Section 8 of Narcotic
Drugs and Psychotropic Substances Act, 1985 (hereinafter
referred to as 'NDPS Act' for brevity). Thereafter, presence
CRL.A No. 2753 of 2013
of accused was secured and charge was framed and
accused not pleaded guilty and trial was held.
3.3 In order to prove the case, the prosecution in
all examined 10 witnesses as PWs.1 to 10 and relied on 17
documents which were exhibited and marked as Exs.P.1 to
P.17. Besides being relying on the samples of ganja, cash
of Rs.180 were seized and marked as MOs.1 to 4. On
securing the prosecution witnesses, statement under
Section 313 of Cr.P.C. was recorded, wherein the accused
has denied all the incriminatory materials that were put to
him. Thereafter, the accused did not choose to offer any
written explanation/submission as is contemplated under
Section 313(5) of Cr.P.C., nor any defence evidence was
adduced on behalf of the accused.
3.4 Thereafter, the Special Judge heard the parties
and passed an order of conviction against the accused and
sentenced the accused to undergo rigorous imprisonment
for a period of three years and to pay fine of Rs.25,000/-
CRL.A No. 2753 of 2013
with default sentence of simple imprisonment for three
months.
4. Being aggrieved by the said order of conviction
and sentence the appellant has preferred this appeal on
the following grounds:
1. The order of conviction and sentence passed by the
court below is opposed to law, facts and probabilities of the
case.
2. The trial court convicting the appellant/Accused without
cogent evidence and facts of the case.
3. The trial court failed to consider that, the main
prosecution pancha witnesses PW. 1 and PW.2 are turned
hostile and not supported the prosecution case, hence the trial
court ought to have acquitted the appellant.
4. The trial court convicted the appellant only on the
evidence of complainant PW.8, Investigation Officer PW.10,
Gazzetted officer PW.5 Dr. Mahesh Annappa Teradal.
5. It is submitted that the complainant has not fallowed
the procedural aspects in the case and Sec. 50 of the NDPS.
Act has not been meticulously observed and complied. Further
the seized bulk ganja was not produced before the trial court
and there is lot of discrepancies with regard to the inventory
as per Ex.P. 17 alleged to have been conducted in the
presence of the Magistrate, and the original copy of the
inventory was not produced before the trial court.
CRL.A No. 2753 of 2013
6. The evidence of the witnesses are totally contradictory
to each other, and if meticulously observed the evidence of
PW.5 and PW.8 they do not repose confidence, hence their
evidence are liable to discarded, when the pancha witnesses
not supported the case of prosecution.
7. It is submitted that Sec. 52-A (2) of the NDPS Act, has
also not been strictly fallowed, and the PW.8 and PW.10 are
never adhered to the procedural aspects which are mandatory
in nature under the Act. hence the accused may be acquitted
for all the charges against him.
8. It is submitted that there is serious lapse on the part of
the complainant in not explaining the right of the accused
u/sec. 50 of the Act, that he has right to be searched in the
presence of Gazetted Officer or the Magistrate, therefore the
entire proceedings and recovery is vitiated by the serious
procedural irregularities and the same amounts to illegality.
9. On going through the pancha witnesses PW.2 deposed
that when they went to the house of the accused and there is
Ganja in front of the door of house of the accused in the
paper, and police brought back witnesses to the police station
and weighed the ganja and it was weighing 800 grams, hence
there is contradictory in weigh of the prosecution case and
evidence of the PW.2.
10. On going through the evidence there is substantiate
evidence of PW.8 and PW.2, and PW.8 wastold to the PW.2
pancha witness that accused is possessing ganja and the said
ganja is 800 grams. Therefore whether the ganja was
weighing 800 grams or 1 kilogram 800 grams, hence there is
doubt on recovery of said ganja.
CRL.A No. 2753 of 2013
11. The evidence of PW.2 deposed that when they reached
spot, the accused was presents in the house, and when the
PW.8 CPI was called the accused the accused came outside
and accused was not having anything in his hand.
12. It is submitted that, it is admitted in the evidence of
PW.8 that as per the diary entry produced along with charge
sheet it shows that after conducting the mahazar proceedings
and after registering the FIR and the said entry is made at
17.00 hours, hence it reveals that the police not made an
entry in the diary while conducting the raid.
13. It is submitted that after filing of the charge sheet
inventory has been conducted as per Sec. 52-A of the Act,
during the investigation the inventory has to be done. And the
trial court held that on looking into the file whether the bulk of
ganja was still available or it is disposed off, and as per
Ex.P.17 there is no signature of the magistrate. Hence the
mandatory provision Sec. 52-A of the Act was not complied by
the investigation officer.
14. It is submitted that the trial court directed the D.G.P to
enquire into the matter as to ascertain where bulk ganja
seized in this particular case has gone and what happened to
the said ganja, and also directed to the D.C to take action
about the bulk ganja in the case is traced and destroyed.
Hence on looking to the observation by the trial judge it fully
creates a doubt regarding seizing of the ganja and the weight
of the seized ganja. If at all bulk of the ganja was seized but
the same was not produced before the trial court, therefore
the appellant may be acquit for the all the charges leveled
against him.
CRL.A No. 2753 of 2013
15. In the cross examination of PW.8 he has made a entry
of the credible information in his own handwriting, but he has
not produced the same.
16. The PW.5 I Dr. Mahesh who is contract based doctor
hence he is not a Gazetted officer, hence the investigation
officer not complied the mandatory provision of the Act.
17. It is submitted that there is no mention in the raid
mahazar that after seeing the police the accused started to
run and police caught hold of the accused.
18. On looking from any angle the prosecution has not
proved the recovery of the contraband article from the
possession of the accused.
19. It is submitted that the accused already served the
sentence during investigation for a period of 5 months and the
age of the accused is 58 years, hence on looking into the
same he may be acquit the appellant.
20. The order of the trial court suffers from for want of
cogent evidence against the appellants and the same is liable
to be set aside the order of trial court.
21. The appellant is leave to urge the additional grounds at
the time of hearing of the appeal.
5. Reiterating the above grounds, Sri.Vishwanath
Badiger, learned counsel for the appellant contended that
the prosecution case has not proved beyond all reasonable
doubt. Further, he contended that the entire seized ganja
CRL.A No. 2753 of 2013
is not produced before the Court and therefore, the trial
Court convicted the accused for the offence under Section
20(b)(ii)(B) of NDPS Act cannot be countenanced in law.
6. He also contended that the prosecution
witnesses namely PWs.1 to 4, 6 and 7 have not supported
the case of the prosecution and as such there is no proper
evidence placed on record. PWs.1 to 4, 6 and 7 have
turned hostile to the case of the prosecution and
therefore, the prosecution case is doubtful and thus,
sought for allowing the appeal.
7. As an alternative submission, he contended that
since the evidence on record goes to show that only 800
grams of ganja was seized from the custody of the
accused, the case would fall under Section 52(A) of NDPS
Act and thus, sought for reduction of sentence.
8. Per contra, learned High Court Government
Pleader opposes the appeal grounds contending that mere
PWs.1 to 4, 6 and 7 turning hostile to the case of the
- 10 -
CRL.A No. 2753 of 2013
prosecution would not give serious dent to the case of the
prosecution, inasmuch as the other material evidence on
record is sufficient enough to convict the appellant. He
further contended that the panchanama specifically
mentions that seized ganja was weighed 1 kg 800 grams
and there were 5 packets of 10 grams each which were
seized on the spot from the house of the accused and the
same is deposed to by the independent witness namely
Dr.Mahesh Annappa Terdal who is examined as PW.5 and
he did not have any enmity against the accused so as to
depose falsely against him and falsely implicate him in the
case and thus, the prosecution is successful in convicting
the accused for offence punishable under Section
20(b)(ii)(B) of NDPS Act. Thus, he sought for dismissal of
the appeal in toto.
9. In view of the rival contentions of the parties,
the following points would arise for consideration:
1. Whether the prosecution has successfully
established that on 19.07.2010 at about 6.40
- 11 -
CRL.A No. 2753 of 2013
p.m. ganja to the tune of 1 kilo 800 grams
worth Rs.7,400/- was seized from the custody
of the accused whereby he has committed the
offence punishable under Section 20(b)(ii)(B)
of NDPS Act?
2. Whether the impugned judgement is suffering
from legal infirmity and perversity and thus
calls for interference?
3. Whether the sentence ordered by the learned
Special Judge is excessive?
10. In the case on hand, in order to prove the case
of the prosecution, in all examined 8 witnesses. Among
them, PWs.1 to 4, 6 and 7 have not supported the case of
the prosecution and having been treated as hostile
witnesses and cross-examined on behalf of prosecution.
However, in such cross-examination there is no useful
material elicited by the prosecution. However, the
evidence of PWs.1, 5 and 8 assumes great importance.
- 12 -
CRL.A No. 2753 of 2013
PWs.1, 5 and 8 are the persons who did not nurture any
enmity or animosity as against the appellant-accused.
11. PW.8 is the head of the raid party. He deposed
that between September 2009 to September 2012 he
worked as PSI in Athani police station and that on
19.07.2010 at about 5.00 p.m. when he was in police
station he received a credible information that the accused
is possessing ganja in a bag without licence or permit and
he is in the process of selling it to the others. Accordingly,
he made an entry of the same in his dairy and gave a
wireless message to the superior officers and obtained oral
permission from the higher officers to conduct search and
formed raid party comprising of 13 gazetted officers.
PW.5, photographer PW.3 and PW.4 Shailesh were also
accompanied the team to the spot where the ganja was
seized. After forming a team he proceeded to the spot.
Thereafter, he entered the house at Bol rod, Drakshi Galli,
Athani town. Thereafter, he went to the spot and stopped
the jeep near Drakshi Galli. After seeing the raid party
- 13 -
CRL.A No. 2753 of 2013
accused started running away from the spot and he was
caught by the raid party and on enquiry he revealed his
name as Mohammadshiraj Hussainsab Drakshi. He
identified accused before the Court and in the presence of
gazetted officer, he conducted the personal search.
Accused was holding a bag and inside the bag there was
ganja and there were also five packets containing ganja.
He was also having cash of Rs.180/- in his pocket. All
those things were seized, the bag containing ganja
weighed 1 kg 800 grams and five packets weighed 10
grams each. The head of the raid party seized all those
ganja and drafted a mahazar and also took out
photographs on the spot vide Exs.P.3 and P.4. He took out
samples from the bulk quantity bag and also from five
packets, identified the sample ganja as MOs.1 to 3 and
cash was identified as MO.4. Thereafter he arrested the
accused and lodged report with the Athani police. Athani
police thereafter registered the case.
- 14 -
CRL.A No. 2753 of 2013
12. In his detail cross-examination, it has been
suggested that the accused did not ran away from the spot
as the same is not mentioned in the raid mahazar which
was also admitted by the witness. Rest of the suggestions
were denied by him.
13. PW.5 is the gazetted officer who had
accompanied the raid party and he supported the case of
the prosecution. In his cross-examination also no useful
material is elicited so as to doubt the very raid itself. He
also deposed about head of the party explaining to the
accused that whether he should be searched in the
presence of PW.5 or mahazar should be drafted, for which
accused has agreed to get searched in the presence of
gazetted officer and thereafter thorough search of the
accused has taken place.
14. PW.9 is the ASI who conducted part
investigation and PW.10 is the further investigation officer.
In their cross-examination also no useful material is
elicited.
- 15 -
CRL.A No. 2753 of 2013
15. The above evidence is sought to be re-
appreciated by the learned counsel for the appellant.
Sri.Vishwanath Badiger contended that there is no proper
compliance of mandatory requirement of Sections 42 and
50 of NDPS Act. He contended that the right of the
accused as is contemplated under Section 50 of the NDPS
Act is not complied by the head of the raid party and so
also there is no compliance of Sections 41 and 42 or 43 of
NDPS Act and therefore, raid is illegal and further
proceedings thereof is incorrect and therefore, the appeal
needs to be allowed.
16. In this regard it is pertinent to note that similar
contentions were taken before the trial Court and the
learned trial Judge in the impugned judgement has
bestowed his attention in para 17 onwards. For ready
reference para 17 and 18 are culled out hereunder:
"17. Before adverting to the cross-examination
of this witness and the evidence of other witnesses, learned
counsel for the accused strenuously contended that even
the entire evidence is accepted as it is, there is
serious lapse on the part of the complainant in not
- 16 -
CRL.A No. 2753 of 2013
explaining the right of the accused under Section 50
of the Act, that he has got every right to be searched in the
presence of Gazetted Officer or the Magistrate.
Therefore, entire proceedings and recovery is vitiated
by the serious procedural irregularity and same amounts to
illegality. Therefore, without going to the merits of
the case, Court can acquit the accused on this ground
alone. In support of his contention, learned counsel has relied
upon the ruling reported in (2011) 1 Supreme Court Cases
609 in the case of Vijaysinh Chandubha Jadeja Vs. State of
Gujarat and (2002) 4 Supreme Court Cases 229 in the case of
Beckodan Abdul Rahiman Vs. State of Kerala and
another decision of the Hon'ble Supreme Court in Ashok
Kumar Sharma Vs. State of Rajasthan (Criminal Appeal
No.817 of 2008) [(2013) 2Supreme Court Cases 67].
Sum and substance of the of these rulings is that,
Search of person of accused/suspect
by authorized officer acting under S.50 -
Procedure to be followed as to -Obligation on part of
authorized officer in respect of that procedure -Non-
compliance with said procedure -Effect of -Held,
empowered officer is legally obliged to inform
suspect/accused of his right under S.50 to be
searched before a Gazetted Officer or a
Magistrate -It is only if suspect/accused does not
choose to exercise his said right, can empowered
officer conduct search of person of suspect/accused
himself -Non-compliance with said mandatory
procedure vitiates entire proceedings initiated
against accused and entitles him to acquittal if
conviction is based solely on recovery of
contraband from person of accused.
- 17 -
CRL.A No. 2753 of 2013
Of course, rulings of the Hon'ble Supreme Court is
consistent through out so far as this procedure is concerned
and the Hon'ble Supreme Court consistently held that this
obligation under Section50 of the Act is mandatory and not
directory.
18. Section 50 of the Act also mandates the
authorized officer to follow the procedure contemplated
under the said Spl. Case 164/2010.provision. Here, it is
just and necessary to reiterate the above said provision under
Section 50 of the Act.
50. Conditions under which search o
fpersons 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, he shall, if such person so
requires, take such person without unnecessary
delay to nearest Gazetted Officer of any of the
departments mentioned in section 42or to the nearest
Magistrate.
(2) If such requisition is made, the
officer may detain the person until he can
bring him before the Gazetted Officer or the
Magistrate referred to in sub-section (1).
(3) The Gazetted Officer or the Magistrate
before whom any such person is brought shall,
if he sees no reasonable ground for search,
forthwith discharge the person but otherwise shall
direct that search be made.
(4) No female shall be searched by
anyone excepting a female.
- 18 -
CRL.A No. 2753 of 2013
On combined reading of the above said rulings and the
provision of law, of course, if the police officer wants to search
the person under the provisions of Section 41, 42 or 43, he
shall, if such person so requires, take such person without
unnecessary delay to nearest Gazetted Officer of any of the
departments mentioned in section 42 or to the nearest
Magistrate. Of course, this particular procedure appears to
have not been followed in this particular case. From facts of
the case, it is clear that even before meeting the accused the
Investigating Officer has predetermined to search the
accused, if necessary, in the presence of the Gazetted Officer.
Perhaps, that may be the reason he took Gazetted Officer
along with him. It shows that, even if the accused asks that
he should be searched in the presence of the Magistrate, the
officer predetermined to have the search in the presence of
the Gazetted Officer. But though there is some lapse on the
part of the complainant PW.8 in this particular case, whether
Section 50 is applicable or not in this particular case is to be
looked into. In this regard, it is worth to mention the
decision of the Hon'ble Supreme Court reported in
(2005) 4Supreme Court Cases 350 rendered by the
Bench consisting of three Hon'ble Supreme Court
Judges, in the case of State of Himachal Pradesh Vs.
Pawan Kumar and State of Rajasthan Vs. Bhanwar Lal,
clubbing the two Criminal Appeals. Therein, Hon'ble Supreme
Court held that:
A. Intoxicants -Narcotic Drugs &
Psychotropic Substances Act, 1985 -S.50 -Applicability
of -Search of a person -Word "person" meaning and
scope of -Search .a bag, briefcase or any such article
or container, etc. which is being carried by accused,
held, is not a search of the person -Hence, S.50 would
not apply in such a case -Word "person" would
- 19 -
CRL.A No. 2753 of 2013
mean a human being with appropriate
coverings, clothing's and footwear -The aforesaid
articles (bag, briefcase, etc.) cannot be treated as
body of a human being -Hence these would
not come within the ambit of the word "person"
occurring in S.50 -One of the tests to be applied is,
where in the process of search the human body comes
into contact or shall have to be touched by the person
carrying out the search, it will be search of the person
-Some indication in this regard is provided in
S.50(4) -State of confusion and practical
difficulties which may arise if S.50 is made applicable
to the aforesaid search, noticed -Considering ill
effects of drug trafficking, further held, those
indulging in these nefarious activities should not
go scot-free on technical plea as to non-compliance
with S.50 -Words and phrases-"Search of person",
"person", "inextricable" -Interpretation of Statutes
-External aids -Dictionaries or dictionary meaning -
Consideration of, holding that Section 50 is not
applicable when there was no personal search of the
accused
While surfing the Supreme Court online I also found
that, this ruling has been consistently followed by the
Hon'ble Supreme Court in the latest judgments in Criminal
Appeal No.1327 of 201015 between Ram Swaroop Vs.
State (Govt. NCT) Delhi Hon'ble Justices B.S. Chauhan
and Deepak Mishra, delivering the judgment on May 21, 2013
held that:
'A. Criminal Law-Narcotic Drugs &
Psychotropic Substances Act, 1985 -Section 50
-Non-compliance -Search -32 bags of poppy
- 20 -
CRL.A No. 2753 of 2013
straw powder weighing 64 Kilograms had been
seized from two bags belonging to the appellant -
Accused was not informed of his right to be searched
in presence of a Gazetted Officer or a Magistrate-
Search conducted by the Investigating Officer
and the evidence collected not found to be illegal.
At Head Note -B it is further held that:
'B. Criminal Law-Narcotics & Intoxicants -Evidence -
No independent witness -Police officers are
competent witnesses - Held : There is no absolute
rule that Police Officers cannot be cited as witnesses
and their depositions should be treated with suspect.
In another decision by the Hon'ble Supreme
Court in Criminal Appeal No.1576 of 2010 in the case of
Kashmiri Lal Vs.State of Haryana, rendered on May 16, 2013,
same Bench of the Hon'ble Supreme Court laid down that:
'A. Narcotics, Intoxicants & Liquor -
Narcotic Drugs & Psychotropic Substances Act, 1985 -
Section 50 -Right for search in the presence of
Gazetted Officer or .Magistrate -The seizure taken
place from the tool box of the scooter -There is
ample evidence on record that scooter belongs to
the appellant -Held: when a vehicle is searched and
not the person of an accused, needless to emphasize
-Section 50 of the Act is not attracted.
At Head Note -B it is further held that :
'B. Narcotics, Intoxicants & Liquor -Narcotic Drugs
&Psychotropic Substances Act, 1985 -Section
118 -Absence of independent witness -
credibility of the evidence tendered by Police
- 21 -
CRL.A No. 2753 of 2013
Officers -The police officials had requested the
people present in the 'dhaba' to be witness but
they declined to co-operate and in fact did not make
themselves available -Held: If the testimony
of police official is found to be reliable and trustworthy,
the Court can definitely act upon the same -
There is no absolute command of law that police
officials cannot be cited as witnesses and their
testimony should always be treated with suspicion.
On comparative study of the above said rulings on
either side, also on meaningful understanding of Section 50, it
is clear that whenever there was a search of a person of the
accused, then the mandatory provision of Section 50 is to be
strictly and meticulously to be complied. otherwise, if the
seizure of the contraband article or narcotic drug from
any place, from a bag, briefcase scooter etc., other
than the person of the accused then Section 50 is not at all
applicable. Therefore, in this particular case, as per the case
of the prosecution, as per the evidence of PW.8 and
as per mahazarEx.P.1, contraband article was recovered
from a bag which was with the accused near his house.
Therefore, I am of the opinion that, Section 50 of the Narcotic
Drugs & Psychotropic Substances Act,1985 is not at all
applicable in this particular case."
17. On a bare perusal of the above finding recorded
by the learned Special Judge and in the light of the
arguments put forth on behalf of the appellant, this Court
is of the considered opinion that the learned Special Judge
- 22 -
CRL.A No. 2753 of 2013
has bestowed his best attention to the contentions urged
on behalf of the appellant that the raid is improper and
illegal. At the most, in view of the admission made by
PW.8 in his cross-examination that he has not mentioned
that accused tried to ran away from the spot and they
caught hold of him. Being present in the raid panchanama
is only a remedy and the same would not improve the
case of the appellant to any extent. In the raid
panchanama though panch witness have turned hostile to
the case of the prosecution in establishing the contents of
panchanama, there is no bar for the trial Court to record
an order of conviction based on the testimony of the
doctor, gazetted officer and PW.8 who have participated in
the raid.
18. In para 28 of the impugned judgement, learned
Special Judge has bestowed his attention to the said
aspect of the matter in detail. Further, as could be seen
from the material evidence on record after receipt of the
credible information, the head of the raid party has
- 23 -
CRL.A No. 2753 of 2013
informed the official superiors and obtained permission for
the intended search of the accused in his house. It is also
found from his evidence on record that the accused tried
to run away from the spot when he saw the raid team.
Immediately he was caught hold of and enquiry made,
ganja was seized from his possession and from the bag
which was held by him. The bag contained bulk quantity of
ganja to the extent of 1 kilo 800 grams and five packets
weighing 10 grams each as is found in the raid
panchanama. As absolutely no explanation is offered by
the accused as to the possession of the ganja with him.
Admittedly, he did not have any licence to possess the
ganja with him. Admittedly, no defence evidence is
adduced on behalf of the defence nor any explanation is
given by the accused at the time of recording the accused
statement under Section 313 of Cr.P.C. At least written
submission should have been filed under Section 313 of
Cr.P.C. as is contemplated under Section 313 (5) of
Cr.P.C. as to the version to be placed by the accused in
- 24 -
CRL.A No. 2753 of 2013
the absence of previous enmity or animosity nurtured by
PWs.5 and 8, the defence put forth on behalf of the
accused that the raid is a fictitious raid and thus it is illegal
cannot be countenanced in law.
19. Technical objections insofar as raid being raised
by the learned Special Judge and no reasons are
forthcoming to hold that the raid is illegal or perfunctory in
view of the non-compliance of statutory requirements
cannot be countenanced in law as there is sufficient
compliance carried out by PW.8 before the raid. Under the
said circumstances, this Court is of the considered opinion
that prosecution has successfully established all
ingredients to attract the offence alleged against the
accused. Hence, point No.1 is answered in Affirmative and
point No.2 is answered in Negative.
20. As regards point No.3 is concerned, for the
offence under Section 20(b)(ii)(B) of NDPS Act, the
maximum punishment is ten years. However, the learned
Special Judge has taken into account and by discussing
- 25 -
CRL.A No. 2753 of 2013
the contentions urged on behalf of the appellant as well as
the State in detail and after referring the same, has
convicted the accused for the aforesaid offence and
sentenced to under to rigorous imprisonment of three
years and to pay fine of Rs.25,000/- using his discretion.
No mitigating circumstances are placed before this Court
to interfere with the well reasoned order of conviction and
sentence passed by the learned Special Judge. In fact in
the absence of any appeal filed by the State seeking
enhancement of sentence, this Court is of the considered
opinion that the sentence ordered by the learned Special
Judge is just and proper and requires no further
reconsideration. Accordingly, point No.3 is answered in
Negative.
21. In view of the foregoing discussions, this Court
pass the following:
ORDER
The appeal is dismissed.
- 26 -
CRL.A No. 2753 of 2013
The appellant is granted time till 30th June, 2022 to
surrender himself before the learned Special Court to
serve the remaining part of sentence.
Sd/-
JUDGE
SH
