Hanumanthappa Gutteppa Godai vs State Of Karnataka
2022 Latest Caselaw 9671 Kant

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                                                       CRL.A No. 2714 of 2013


                     IN THE HIGH COURT OF KARNATAKA, DHARWAD
                                             BENCH

                          DATED THIS THE 27TH DAY OF JUNE, 2022

                                            BEFORE
                          THE HON'BLE MR JUSTICE V.SRISHANANDA
                          CRIMINAL APPEAL NO. 2714 OF 2013 (C)
                   BETWEEN:

                   HANUMANTHAPPA GUTTEPPA GODAI
                   AGE: 61 YEARS,
                   OCC: AGRICULTURIST
                   R/O. BADA, TQ: SHIGGAON
                   DIST: HAVERI

                                                                  ...APPELLANT

                   (BY SRI. ARAVIND D KULKARNI, ADVOCATE)

                   AND:

                   STATE OF KARNATAKA
                   THROUGH SHIGGAON POLICE STATION,
                   R/BY STATE PUBLIC
                   PROSECUTOR HIGH COURT OF KARNATAKA,
                   CIRCUIT BENCH DHARWAD

                                                                ...RESPONDENT
Digitally signed
by                 (BY SRI. PRAVEEN UPPAR, HCGP)
ANNAPURNA
CHINNAPPA
DANDAGAL                 THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C.
Location: HIGH     SEEKING TO SET ASIDE THE JUDGMENT DATED 25.06.2013 PASSED
COURT OF
KARNATAKA          BY THE SPL. JUDGE, HAVERI, SPL (NDPS) C.NO.4/2010, THEREBY
DHARWAD            CONVICTING AND SENTENCING THE APPELLANT FOR THE OFFENCES
                   P/U/S   20(B)(II)(B) NAROTIC  DRUGS    AND   PSYCHOTROPIC
                   SUBSTANCES ACT, 1985 CONSEQUENTLY ACQUIT THE APPELLANT
                   HEREIN FROM THE ABOVE SAID OFFENCES.
                        THIS APPEAL COMING ON FOR FURTHER HEARING THIS DAY,
                   THE COURT DELIVERED THE FOLLOWING:
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                                             CRL.A No. 2714 of 2013


                            JUDGMENT

1. Heard Sri.Aravind D Kulkarni, learned counsel

for the appellant and Sri.Praveen Uppar, learned High

Court Government Pleader for respondent-State.

2. The present appeal is filed with the following

prayer:

"To set aside the judgment dated 25.06.2013 passed by the Spl. Judge, Haveri, Spl (NDPS) C.No.4/2010, thereby convicting and sentencing the appellant for the offences P/u/s 20(b)(ii)(B) Narcotic Drugs and Psychotropic Substances Act, 1985 consequently acquit the appellant herein from the above said offences."

3. Brief facts of the case are as under:

A charge sheet came to be filed by Shiggaon Police

against the appellant for the offence punishable under

Section 20(b)(ii)(B) of The Narcotic Drugs and

Psychotropic Substances Act, 1985 (for brevity 'NDPS

Act'). The gist of the charge sheet is that on 15.04.2010 at

about 4.00 p.m. on credible information, the respondent

police raided on the house of the appellant herein and

seized 5 kg 100 grams of Ganja as there was no licence or

CRL.A No. 2714 of 2013

permit to possess the said Ganja in the house of the

appellant. After thorough investigation charge sheet came

to be filed for the offence punishable under Section

20(b)(ii)(B) of NDPS Act.

4. After securing the presence of the accused,

charges were framed and accused pleaded not guilty and

therefore, trial was held. In order to prove the case of the

prosecution, in all eight witnesses have been examined as

PWs.1 to 8 and fifteen documents got marked as Exs.P.1

to P.15 besides marking seven material objects as MOs.1

to 7. On behalf of the defence, Ex.D.1 which is arrest

notice and Ex.D.2-PF list are marked.

5. After conclusion of evidence of the prosecution,

statement of the accused as is contemplated under

Section 313 of Cr.P.C. was recorded, wherein accused

denied all incriminatory circumstances and did not choose

to file any rebuttal evidence nor filed any written

submission as is contemplated under Section 313(5) of

Cr.P.C. Thereafter, the learned Special Judge heard the

CRL.A No. 2714 of 2013

parties and passed an order of conviction for the aforesaid

offence and sentenced the accused to undergo rigorous

imprisonment for a period of three years and to pay a fine

of Rs.10,000/- with default sentence of rigorous

imprisonment for six months. The accused was granted

the benefit of set of as provided under Section 428 of

Cr.P.C.

6. Being aggrieved by the same, the appellant has

preferred the present appeal.

7. Reiterating the grounds urged in the appeal

memorandum, learned counsel for the appellant,

Sri.Aravind D Kulkarni vehemently contended that head of

the raid party is not at all examined by the prosecution

which exposes serious doubt as to the veracity of the

prosecution case. He also pointed out that panch

witnesses having turned hostile to the case of the

prosecution, in the absence of head of the raid party being

examined and only members of the raid party being

examined who supported the case of the prosecution,

CRL.A No. 2714 of 2013

serious prejudice has been caused to the rights of the

appellant and thus, sought for allowing the appeal.

8. Per contra, leaned High Court Government

Pleader supports the impugned judgment stating that due

to oversight head of the raid party is not examined and in

the interregnum he has also retired from service and

sought for dismissal of the appeal.

9. This Court after hearing the parties for some

time, noted that seizure of Ex.P.1 mahazar, wherein 5 kg

100 grams of Ganja is seized, is not proved by the

prosecution in accordance with law as the panch witnesses

have turned hostile and head of the raid party has not

been examined and directed the learned High Court

Government Pleader to find out whether the head of the

raid party-Sri.S.S.Khot is alive or not.

10. The learned High Court Government Pleader, on

enquiry submitted that the head of the raid party is very

much alive and one more chance be given to the

CRL.A No. 2714 of 2013

prosecution to examine him and prove the case of the

prosecution in accordance with law.

11. Accordingly, without expressing much opinion

on the merits or demerits of the grounds urged in the

appeal memorandum, this Court is of the considered

opinion that the impugned order needs to be set aside and

the matter needs to be disposed of afresh in accordance

with law by permitting the prosecution to examine the

head of raid party-Sri.S.S.Khot, by filing necessary

application.

12. Hence, the following:

ORDER

The appeal is allowed.

Impugned judgment passed in Special (NDPS)

C.No.4/2010 on the file of Special Judge at Haveri dated

25.06.2013 is hereby set aside.

The matter is remitted to the trial Court with a

direction to examine the head of the raid party-

CRL.A No. 2714 of 2013

Sri.S.S.Khot, the then D.S.P. of Shiggaon and thereafter

dispose of the case in accordance with law.

Necessary application needs to be filed by the

prosecution to lead further evidence and if such application

is filed, the trial Court shall allow the application and

permit the prosecution to examine the head of the raid

party, as the counsel for the appellant-accused has no

objection for the same.

The appellant had the benefit of bail and the said

benefit shall continue till the disposal of the case in

accordance with law.

The fine amount deposited if any, as ordered by the

trial Court is ordered to be refunded to the appellant-

accused forthwith under due identification.

Sd/-

JUDGE SH