Karnataka High Court
Hanamanthraya vs The State Of Karnataka on 30 August, 2023
Bench: Venkatesh Naik T
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CRL.A No. 200070 of 2020
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 30TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.200070 OF 2020
BETWEEN:
HANAMANTHRAYA
S/O. SANNA BHEEMANNA
AGED ABOUT 48 YEARS
OCCUPATION: AGRICULTURE
RESIDENT OF JERABANDI VILLAGE
DEODURG, RAICHUR-584 101.
...APPELLANT
(BY SRI J. AUGUSTIN, ADVOCATE)
AND:
THE STATE OF KARNATAKA
THROUGH EXCISE POLICE STATION, MANVI
RAICHUR
PRESENTLY REPRESENTED BY
THE ADDITIONAL STATE PUBLIC PROSECUTOR
HIGH COURT BUILDINGS
Digitally signed by KALABURAGI-585 107.
SHILPA R
TENIHALLI
Location: HIGH
...RESPONDENT
COURT OF
KARNATAKA (BY SRI J. SHAHABUDDIN, H.C.G.P.)
***
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
THE CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION DATED 12.06.2020 AND ORDER ON SENTENCE DATED
15.06.2020 PASSED BY THE PRINICPAL DISTRICT AND SESSIONS
JUDGE, RAICHUR, IN SPL.(NDPS) CASE NO.343/2017.
THIS CRIMINAL APPEAL IS COMING ON FOR FURTHER
ARGUMENTS, THIS DAY, THE COURT MADE THE FOLLOWING:
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JUDGMENT
The appellant/accused has filed this appeal to set
aside the judgment of conviction dated 12-6-2020 and
order on sentence dated 15-6-2020 in Special (NDPS) Case
No.343 of 2017 passed by the Principal District and
Sessions Judge, Raichur, wherein the trial Court convicted
the appellant and sentenced him to undergo rigorous
imprisonment for four years with a fine of Rs.25,000/- and
in default of payment of fine, to undergo simple
imprisonment for two months for the offence punishable
under Section 20(1)(b) of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (for short, 'NDPS Act').
2. For the sake of convenience, the parties are
referred to as per their ranking before the trial Court.
3. The brief facts of the prosecution case are that,
on 25-11-2016 at 12.30 p.m., when PW.4-Excise Sub-
Inspector, Manvi, Sub Range, along with his sub-staff were
on patrolling duty at Sunkeshwaral Village, he received
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credible information of illegally raising the ganja plants in
his land bearing Survey No.80 of Jerabandi Village,
Devadurga Taluk. Therefore, he informed the same to the
Excise Deputy Superintendent and in turn, he directed him
to visit the intended place. Hence, they proceeded to the
spot and at Neermanvi bus stand, they secured two
panchas and proceeded to the spot at 12.25 p.m. and
came to know that the accused has raised cannabis plants
along with cotton plants. The accused told that he is the
owner of land bearing Survey No.80 of Jerabandi Village
and his name is Hanamantharaya. On being inspection,
the complainant, his staff and panchas found cannabis
plants along with the cotton plants. Therefore, they
uprooted one cannabis plant of six feet height and it was
about 3.6 kgs. and thus, half-a-kilogram was taken out for
sample. Thereafter, PW.4 conducted seizure panchanama
in the presence of witnesses; he packed and sealed the
remaining ganja in a separate packet. Thereafter, PW.4
returned to the Police Station along with accused, seized
article and lodged first information to the Station House
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Officer. On the basis of the first information, a case was
registered in Crime No.19 of 2016 for the aforesaid
offence and submitted F.I.R. to the Court. Later, the
Investigating Officer recorded the statement of witnesses,
sent seized ganja to RFSL for examination and report, and
filed the charge-sheet against the accused.
4. After filing of the charge-sheet, the Special Court
took cognizance of the offence against the accused under
Section 190(1)(b) of the Code of Criminal Procedure,
1973, (for short, 'Cr.P.C'). The trial Court after hearing
both the parties, framed the charge for the aforesaid
offence, read over to the accused, he pleaded not guilty
and claimed to be tried.
5. The prosecution to bring home the guilt of the
accused has examined in all six witnesses as PW.1 to
PW.6, got marked nineteen documents as per Ex.P.1 to
P.19 and got marked one material object as per
MO.1. The statement of the accused was recorded under
Section 313 of the Cr.P.C. by the trial Court by explaining
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the incriminating material available in the prosecution
case. The case of the accused was of total denial and he
did not enter the witness box.
6. The learned Sessions Judge framed the following
point for consideration:
"1. Whether the prosecution has established
beyond reasonable doubt that accused on
25-11-2016 at about 12.30 p.m. while CW-5
conducted raid at the land of accused bearing
Sy.No.80 located at Jerabandi village in
Devadurga Taluk was found in possession of 3
Kg 600 grams of ganja grown knowing fully well
that consumption of ganja causes severe health
problems without obtaining appropriate license
from the concerned authority and thereby,
committed the offence punishable
u/sec.20(1)(b) of Narcotic Drugs and
Psychotropic Substances, Act 1985?"
7. Based on the oral and documentary evidence on
record, the trial Court held that the prosecution proved its
case beyond reasonable doubt that, on 25-11-2016 at
about 12.30 p.m., PW.4 conducted raid at the land of the
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accused bearing Survey No.80 located at Jerabandi Village
in Devadurga Taluk and found in possession of 3.6 kgs. of
ganja grown knowing fully well that consumption of ganja
causes severe health problems without obtaining
appropriate license from the concerned authority and
thereby, he committed the aforesaid offence. Accordingly,
the trial Court convicted the accused and sentenced him to
undergo rigorous imprisonment for a period of four years
and to pay a fine of Rs.25,000/-. Aggrieved by the
impugned judgment of conviction and order on sentence
passed by the trial Court, the appellant/accused has
preferred this appeal.
8. Heard the arguments of the learned counsel for
the appellant and the learned High Court Government
Pleader for the respondent-State.
9. Learned counsel for the appellant has vehemently
contended that, the judgment of conviction and order on
sentence passed by the trial Court is contrary to law and
facts of the case, there are full of contradictions and
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omissions in the prosecution evidence which goes to the
very root of the case and the same has not been
considered by the trial Court. Independent pancha
witness has not supported the case of the prosecution.
Exact quantity of ganja is also not proved and in fact, the
ganja in question is seized by PW.4 includes flowers,
seeds, leaves, etc. The mandatory provisions under
Sections 42 and 50 of the NDPS Act are not complied with.
Further, none of the local witnesses or neighboring land
owners are cited as witness in the charge-sheet. Hence,
he prayed to allow the appeal by setting aside the
judgment passed by the trial Court.
10. Learned High Court Government Pleader submits
that the judgment of conviction and order on sentence
passed by the trial Court is in accordance with law. PW.4,
his sub-staff seized six feet ganja plant from the land of
the accused and the oral evidence of PW.1 to PW.6 are in
corroborative in nature. Therefore, he justifies the
judgment passed by the trial Court.
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11. In view of the rival contentions urged by the
learned counsel for the appellant-accused and the learned
High Court Government Pleader for the respondent-State,
the point that arises for my consideration in this appeal is:
i. Whether the accused has made out a case
to set aside the judgment of conviction
and order on sentence passed by the trial
Court in Special (NDPS) Case No.343 of
2017 for the offence punishable under
Section 20(1)(b) of the NDPS Act?
12. Admittedly, the Investigating Officer has filed
charge-sheet against the accused for the offence
punishable under Section 20(1)(b) of the NDPS Act
alleging that PW.4 and his staff conducted raid in the land
of the accused and seized ganja plant weighing 3.6 kgs.
13. I have given my anxious consideration to the
arguments advanced by the learned counsel for the
accused as well the learned High Court Government
Pleader and perused the material available on record.
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14. In order to re-appreciate the evidence on record,
it is relevant to consider the evidence of the prosecution
witnesses and the documents relied upon:
a. PW.1-Muzahir Mustafa, Excise Guard, has deposed
that, on 25-11-2016, when PW.4-Excise Sub-Inspector,
Manvi, along with his staff were on patrolling duty,
received credible information of illegally raising cannabis
plants along with cotton plants at Jerabandi Village in a
land of the accused, Hanamantharaya. Therefore, on the
same day at 12.25 p.m., they visited the land of the
accused and found cannabis plant. Thus, they uprooted
the same, which was weighing 3.6 kgs., which includes
flowers, seeds, leaves, etc. Therefore, PW.4 conducted
seizure panchanama as per Ex.P.9, arrested the accused
and remanded the accused to judicial custody. In the
cross-examination, he has admitted that he does not know
the survey number of the land, he did not try to ascertain
the survey number of the land and the land in question is
situated by the side of Arakera of Jerabandi Road.
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b. PW.2-Hussain Sab is a seizure witness and also
independent witness. He has deposed that he cannot
identify the Village, where ganja plant was situated and he
has not stated about the procedures followed during the
raid.
c. PW.3-Moinuddin, Deputy Superintendent of Excise,
has deposed that on 26-11-2016 at about 10.45 a.m.,
PW.4, Monappa, Excise Inspector, contacted him over
telephone and informed him that he has received
information that at Devadurga Taluk in Jerabandi Village
illegally cannabis plants are grown in the field and
requested him to accompany in the raid and accordingly,
he accompanied him. Further, this witness has reiterated
the averments made in the evidence of PW.1.
d. PW.4-Monappa, Excise Inspector, has deposed
that as per the directions of Deputy Superintendent of
Excise, he secured two panchas at Neermanvi bus stop
and they proceeded along with panchas towards
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Sunkeshwaral, where PW.3 along with staff joined him and
they visited the land of the accused and found six feet
ganja plant, they uprooted it, which was weighing 3.6 kgs.
and conducted seizure panchanama in the presence of
pancha witnesses.
e. PW.5-Duryodhan-Regional Assistant Chemical
Examiner, Raichur, examined the articles sent by the
Investigating Officer and issued FSL report as per
Ex.P.19. In the cross-examination, he admits that 500
grams of ganja sample was sent, but he did not weigh the
same and verified it.
f. PW.6-Mohammad Hussain, Excise Guard, has
reiterated the evidence of PWs.1, 3 and 4.
15. Admittedly, PW.4, Excise Inspector, who
conducted raid in the land of the accused, has not made
any record of any ground on the basis of which, he had a
reasonable belief that the offence under the NDPS Act is
being committed before proceeding to conduct raid in the
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land of the accused. PW.4 conducted raid in the land of the
accused, but he had not obtained search warrant.
Therefore, the provisions of Section 54 of the NDPS Act
have not at all complied with. Therefore, this renders the
entire search, raid without jurisdiction and as a logical
corollary, it vitiates the proceedings. Sections 53 and 54 of
the NDPS Act contain valuable safeguards for the liberty of
citizen, in order to protect them from ill-founded or
frivolous prosecution or harassment. Therefore, there has
been a direct non-compliance of the provisions of Section
54 of the NDPS Act, which renders the search completely
without jurisdiction.
16. Further, as per Section 42(2) of the NDPS Act,
where an Officer takes down any information in writing
under Sub Section (1) or grounds for his belief, he shall
within 72 hours send a copy thereof to his immediate
superior official. The compliance with Section 42(2) of the
NDPS Act is mandatory and failure of the Excise Officer to
take down the information received by him in writing and
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shall forthwith send a report to his immediate Officer
would cause prejudice to the accused. Under this Section,
if there is total non-compliance in the provisions, the same
would adversely affect the prosecution case and to that
extent, it is mandatory. Whereas in the instant case, no
information was taken down in writing by the Excise
Officer or conveyed to the immediate Excise Officer.
Further, any oral evidence of Excise Officer will not be in
compliance with the provisions of Section 42(2) of the
NDPS Act. Apart from this, the first informant did not
reduce the credible information in writing and he has not
registered said credible information as F.I.R.
17. On perusal of the oral and documentary evidence
on record, it appears that the requirements of Section 50
of the NDPS Act have not been complied with. In fact, the
accused ought to have been informed that he has the
option of being searched in the presence of a Gazetted
Officer or a Judicial Magistrate of First Class. Whereas in
the instant case, PW.4, the first informant, ought to have
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complied with the requirements of Section 50 of the NDPS
Act. The obligation of raiding party under Section 50 of
the NDPS Act has been settled in VIJAYASINH
CHANDUBHA JADEJA v. STATE OF GUJARAT reported
in (2011) 1 SC 609 wherein, the Hon'ble Apex Court held
that "the requirement of Section 50 of the NDPS Act is a
mandatory requirement and the provision of Section 50
must be very strictly construed." From perusal of the ratio
laid down in the decision cited supra, on the case on hand,
the requirement of Section 50 of the NDPS Act is not
complied with by informing the accused of his option to be
searched either in the presence of a Gazetted Officer or a
Magistrate. The mandatory requirement continues even
after that and it is required that the accused person is
actually brought before the Gazetted Officer or the
Magistrate in order to impart authenticity, transparency
and creditworthiness to the entire proceedings. In the
instant case, PW.4, Excise Inspector, ought to have made
an endeavour to produce the accused before the nearest
Magistrate or he ought to have conducted raid in the
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presence of Gazetted Officer. Though PW.4 conducted raid
on the accused, he never gave any option to the accused
either to conduct a raid before the Magistrate or in the
presence of Gazetted Officer. PW.4 conducted raid in the
presence of PW.3, who is none other than superior Officer
of PW.4, termed as Superintendent of Excise. Thus, PW.4
has not complied with the requirements of Section 50 of
the NDPS Act.
18. On perusal of the evidence of PWs.1, 3, 4 and 6,
it appears that PW.4 received credible information about
the cultivation of ganja plants by the accused in his land
bearing survey No.80. Admittedly, PW.4 has not recorded
the information received in his diary.
19. PW.5, Regional Assistant Chemical Examiner,
issued Ex.P.19-FSL report and stated that he examined
the samples sent to him in a different methods and
according to him, the material object examined by him
was ganja/cannabis plant. Admittedly, the raiding party
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recovered/seized ganja/cannabis plant which include stem,
leaves, branches, fruiting tops, etc.
20. A Co-ordinate Bench of this Court, in the case of
K.K. REJJI v. STATE BY MURDESHWAR POLICE
STATION, KARWAR, reported in 2010 (5) KAR.L.J 279,
has held as under:
"Ganja is defined under the provision of NDPS
Act as follows:
"2(iii)(b) Ganja, that is, the flowering or
fruiting tops of the cannabis plant
(excluding the seeds and leaves when
not accompanied by the tops), by
whatever name they may be known or
designated".
21. Admittedly, the Investigating Officer has
examined the independent witness, but he has not
supported the case of the prosecution. Though the Office
of PW.4 is situated in Manvi, there were chance of
availability of Gazetted Officers, but PW.4 failed to call the
Gazetted Officer, who was available in the vicinity of his
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Office. In the instant case, except the Excise officials, the
other locality of the witness and independent witness have
not made as eyewitness. Moreover, the raiding party has
not at all complied with the requirements of Sections 42
and 50 of NDPS Act. The obligations under Sections 42
and 50 of the NDPS Act have not been discharged
statutorily.
22. In the instant case, the manner of seizure of
ganja plant from PW.4, in the presence of his men is not
established, since PW.4 has not seized any ganja plant in
the presence of Gazetted Officer and independent pancha
witness. Hence, the mandatory provisions of Sections 42
and 50 of the NDPS Act have not been complied
with. Further, the ganja in question seized include
flowers, branch, stem, leaves, fruiting tops, etc. but in
view of the decision cited supra, except flowering and
fruiting tops, the rest are not considered as ganja.
Therefore, looking into any angle, the prosecution has
failed to prove its case beyond all reasonable doubt that
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the accused has committed the offence. However, the trial
Court, without looking into the statutory and mandatory
provisions as contemplated under Sections 42, 50 and 54
of the NDPS Act, has convicted the accused based on
uncorroborated testimony of official witnesses and in the
absence of independent pancha witness. Hence, the issue
raised in the appeal is answered in the affirmative.
Accordingly, I pass the following
ORDER
i. Criminal appeal is allowed;
ii. The judgment of conviction dated 12-6-2020 and
order on sentence 15-6-2020 in Special (NDPS)
Case No.343 of 2017 passed by the Principal District
and Sessions Judge, Raichur, is hereby set aside;
iii. The appellant/accused is set at liberty and his bail
bonds, if any, shall stand cancelled, and
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iv. The fine amount deposited, if any, shall be returned
to the accused within four weeks.
Sd/-
JUDGE
KVK
