Karnataka High Court

The State By The Coastal Security Police ... vs Althaf @ Altha on 11 December, 2023

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                                                     CRL.A No. 1295 of 2017




                 IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                    DATED THIS THE 11TH DAY OF DECEMBER, 2023
                                        BEFORE
                       THE HON'BLE MR JUSTICE G BASAVARAJA
                       CRIMINAL APPEAL NO.1295 OF 2017 (A)
                BETWEEN:

                THE STATE BY THE
                COASTAL SECURITY POLICE STATION,
                MANGALURU
                REPRESENTED BY
                STATE PUBLIC PROSECUTOR
                HIGH COURT BUILDING,
                BENGALURU-560 001.
                                                              ...APPELLANT
                (BY SRI. M.R.PATIL, HCGP)
                AND:

                ALTHAF @ ALTHA
                AGED ABOUT 26 YEARS,
                S/O LATE HUSSAIN @ PODIYAKKA,
                R/O H.NO.MJM 960, KASABA BENGRE
Digitally
signed by       MANGALURU TALUK, D.K.-575001
SANDHYA S                                                   ...RESPONDENT
Location:
High Court of   (BY SRI. ABHISHEK SHETTY, ADV. FOR
Karnataka        SRI. DHANANJAY KUMAR, ADV.)


                     THIS CRL.A. IS FILED U/S.378(1) & (3) CR.P.C PRAYING
                TO GRANT LEAVE TO FILE AN APPEAL AGAINST THE
                JUDGEMENT AND ORDER OF ACQUITTAL DATED 10.04.2017
                PASSED BY THE J.M.F.C.(III COURT), MANGALURU IN
                C.C.NO.4204/2011         THEREBY    ACQUITTING        THE
                RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 8(c) R/W
                20(b)(ii)(A) OF N.D.P.S. ACT.
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                                                     NC: 2023:KHC:45016
                                                 CRL.A No. 1295 of 2017




     THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                               JUDGMENT

Appellant-State has preferred this appeal against the

judgment and order of acquittal dated 10th April, 2017 passed

in CC No.4204 of 2011 by the JMFC (III Court) at Mangaluru,

(for brevity, hereinafter referred to as the "trial Court").

2. For the sake of convenience, the parties in this

appeal are referred to as per their status and rank before the

trial Court.

3. Brief facts of the case are that, on 03rd

September, 2011 at 11.00 am, the accused was found in

illegal possession of 300 grams of ganja on seashore at

Thannirbavi beach, Mangaluru Taluk within the limits of

Coastal Security Police Station, Mangaluru. The accused was

possessing ganja with an intention to sell the same to general

public. He was not having any permit or licence to possess

ganja. Hence, the accused has committed the offence

punishable under Section 8(c) read with Section 20(b)(ii)(A)

of the Narcotic-Drugs and Psychotropic Substances Act, 1985

(for brevity, hereinafter referred to as the "NDPS Act"). After

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filing the charge sheet, the trial Court took cognizance against

accused for the alleged offences and case was registered a

case in CC No.4204 of 2011. Charge was framed against the

accused for alleged commission of offence and the same was

read over to the accused. The accused pleaded not guilty and

claimed to be tried.

4. To prove the case of prosecution, four witnesses

were examined as PWs1 to 4 and twelve documents were

marked as Exhibits P1 to P12 and identified two objects as

MO.1 and MO2. On closure of prosecution side evidence,

statement under Section 313 of Code of Criminal Procedure

was recorded. Accused denied the evidence of prosecution

witnesses and he has not chosen to lead any evidence on his

behalf. On hearing arguments, the trial Court acquitted the

accused. Being aggrieved by the judgment and order of

acquittal, the State has preferred this appeal.

5. Sri M.R. Patil, learned High Court Government

Pleader, submits that the impugned judgment and order of

acquittal passed by the trial Court is contrary to the facts of

the case and material on record and hence, the same is liable

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to be set aside. The reasons assigned by the trial Court while

passing the impugned judgment and order of acquittal is

erroneous. The learned Judge has reached to a wrong

conclusion which resulted in substantial miscarriage of justice.

The trial Court has failed to consider the evidence of PW2-

Investigating Officer, who has conducted the investigation and

collected the prima facie evidence against the accused for

commission of offence. The spot mahazar and spot sketch

fully corroborate with evidence of PWs1, 3 and 4. The trial

Court has not properly appreciated the evidence on record in

accordance with law and facts. The accused was examined

under Section 313 of Code of Criminal Procedure. The

accused has not offered any explanation regarding

incriminating material produced against him. The trial Court

also ignored the provisions of Section 54 of NDPS Act. On all

these grounds sought to allow the appeal.

6. On the other hand, Sri Ahishek Shetty, learned

counsel appearing for the respondent-accused submits that

the trial Court has properly appreciated the evidence on

record in accordance with law and facts, that there are no

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grounds to interfere with the judgment and order of acquittal

and hence sought to dismiss the appeal.

7. Having heard the learned counsel for the parties

and on perusal of records, the following points would arise for

my consideration in this appeal:

1. Whether the prosecution has made out a ground

to interfere with the impugned judgment and

order of acquittal?

2. What order?

8. My answer to the above points is as under:

Point No.1: in the negative

Point No.2: as per final order

Regarding Point No.1:

9. Before adverting to the actual facts of the case

and appreciation of evidence, it is necessary to refer the

dictum of Hon'ble Supreme Court with regard to scope and

power of Appellate Court in appeal against the order of

acquittal.

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10. In the case of MOTIRAM PADU JOSHI & OTHERS v.

STATE OF MAHARASHTRA reported in 2018 SCC ONLINE SC

676, at paragraph 23 of the judgment, it is held thus:

"23. While considering the scope of power of the appellate court in an appeal against the order of acquittal, after referring to various judgments, in Chandrappa v. State of Karnataka, (2007)4 SCC 415, this Court summarised the principle as under:-

"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

(1) An appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in

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the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

11. In the case of MUNISHAMAPPA & OTHERS v.

STATE OF KARNATAKA & CONNECTED APPEALS reported in

2019 SCC ONLINE 69, at paragraph 16 of the judgment it is

held as under:

"16. The High Court in the present case was dealing with an appeal against acquittal. In such a case, it is well settled that the High Court will not

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interfere with an order of acquittal merely because it opines that a different view is possible or even preferable. The High Court, in other words, should not interfere with an order of acquittal merely because two views are possible. The interference of the High Court in such cases is governed by well-established principles. According to these principles, it is only where the appreciation of evidence by the trial court is capricious or its conclusions are without evidence that the High Court may reverse an order of acquittal. The High Court may be justified in interfering where it finds that the order of acquittal is not in accordance with law and that the approach of the trial court has led to a miscarriage of justice. ..."

12. In the case of HARI RAM & OTHERS v. STATE OF

RAJASTHAN reported in 2000 SCC ONLINE 933, at paragraph 4

of the judgment, it is observed thus:

"4. Mr. Sushil Kumar Jain, the learned Additional Advocate General for the State of Rajasthan on the other hand contended that the power of the High Court while hearing an appeal against an order of acquittal is in no way different from the power while hearing an appeal against conviction and the Court, therefore was fully justified in re-appreciating the entire evidence, upon which the order of acquittal was based. The High Court having examined the reasons of the learned Sessions Judge for discarding the testimony of PWs 6 & 7 and having arrived at the

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conclusion, that those reasons are in the realm of conjectures and there has been gross miscarriage of justice and the mis-appreciation of the evidence on record is the basis for acquittal, was fully entitled to set aside an order of acquittal and no error can be said to have been committed. It is too well settled that the power of the High Court, while hearing an appeal against an acquittal is as wide and comprehensive as in an appeal against a conviction and it had full power to re- appreciate the entire evidence, but if two views on the evidence are reasonably possible, one supporting the acquittal and the other indicating conviction, then the High Court would not be justified in interfering with the acquittal, merely because it feels that it would sitting as a trial court, have taken the other view. While re- appreciating the evidence, the rule of prudence requires that the High Court should give proper weight and consideration to the views of the learned trial Judge. But if the judgment of the Sessions Judge was absolutely perverse, legally erroneous and based on wrong appreciation of the evidence, then it would be just and proper for the High Court to reverse the judgment of acquittal, recorded by the Sessions Judge, as otherwise, there would be gross miscarriage of justice...."

13. In the case of STATE OF RAJASTHAN v. KISTOORA

RAM reported in 2022 SCC ONLINE 684, at paragraph 8 of the

judgment it is held as under:

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"8. The scope of interference in an appeal against acquittal is very limited. Unless it is found that the view taken by the Court is impossible or perverse, it is not permissible to interfere with the finding of acquittal. Equally if two views are possible, it is not permissible to set aside an order of acquittal, merely because the Appellate Court finds the way of conviction to be more probable. The interference would be warranted only if the view taken is not possible at all."

14. In the case of MAHAVIR SINGH v. STATE OF

MADHYA PRADESH reported in (2016)10 SCC 220, at

paragraph 12 of the judgment, it is observed thus:

"12. In the criminal jurisprudence, an accused is presumed to be innocent till he is convicted by a competent court after a full-fledged trial, and once the trial court by cogent reasoning acquits the accused, then the reaffirmation of his innocence places more burden on the appellate court while dealing with the appeal. No doubt, it is settled law that there are no fetters on the power of the appellate court to review, re-appreciate and reconsider the evidence both on facts and law upon which the order of acquittal is passed. But the court has to be very cautious in interfering with an appeal unless there are compelling and substantial grounds to interfere with the order of acquittal. The appellate court while passing an order has to give clear reasoning for such a conclusion."

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15. It is the case of prosecution that, on 03rd

September, 2011 when PW2-Mukunda Naika was in station, at

about 11.00 am, he received a call from Lokesh PC No.2096,

as to the selling of ganja by one person near Tannirbavi

beach, Panambur village. Immediately, he recorded the same

under Section 42(2) of NDPS Act, secured two panchas and

informed the same to the higher officer over phone at 11.10

hours and proceeded with panchas along with staff in the

department jeep bearing Registration No.KA-20/G-285 and at

about 11.20 hours he reached the spot and enquired about

the person who was shown by Lokesh-PC 2096. On enquiry,

he revealed his name as Althaf @ Altha, aged 20 years,

resident of No.MGM 960, Kasaba Bengre, Mangaluru. Upon

enquiry of the bundle possessed by him, he revealed that he

is having ganja and possess the same to sell to customers

and is not having documents or licence. The same is

weighing about 300 grams and worth about Rs.6,000/-. The

PW2 has issued notice to the accused under Section 50 of

NDPS Act and took the signature of the accused and searched

him. Then, he has informed as to the arrest of the accused to

his friend through phone and then took the accused to the

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Police Station and registered a case in Crime No.4 of 2011 for

the commission of offence under Section 8(c) read with

Section 20(b)(ii)(b) of NDPS Act and also submitted First

Information Report to the court as per Exhibit P5. Exhibit P5

reveals that on 03rd September, 2011, the Magistrate has

received the First Information Report along with one

enclosure i.e. Exhibit P6 at 6.45 pm. The distance to the

police station from the place of crime is 2.5 kms. In First

Information Report Column No.13, the date and time of

dispatch of First Information Report to the Court through PC

No.878 is shown as 03rd September, 2011 at 14.15 hours.

The delay in reaching the First Information Report to the

Court is not explained by the prosecution.

16. Exhibit P3 is the letter addressed by PW2-Police

Inspector, Coastal Area Security Police Station to the

Superintendent of Police, Udupi, which is compliance of

Section 42(2) of NDPS Act. Exhibit P3 is submitted to the

Court at the time of filing charge sheet, i.e. on 02nd

November, 2011. Accordingly, the prosecution has failed to

prove that the Investigating Officer has complied with the

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mandatory provisions of Sub-section (2) of Section 42 of

NDPS Act.

17. With regard to Section 50 of the said Act is

concerned, in paragraphs 22 to 28 of the judgment, the

learned Magistrate has observed as under:

"22. In a ruling reported in 2012 CRI.L.J 2262 Myla Venkateswarlu/State, where in it was held that "Requirement of informing accused of his right to be searched before Gazetted Officer or Magistrate needs to be strictly complied with. Mere asking accused whether they wanted any Gazetted Officer for their search does not amount to clear communication of accused of his right to be searched before Gazetted Officer or Magistrate. Hence any search and seizure made in contravention of Section 50 vitiates entire proceedings".

23. In the case of State of Punjab Vs. Balbir Singh (1994)3 SCC 299] the Hon'ble Court considered an important question that whether failure by the empowered or authorized officer to comply with the conditions laid down in Section 50 of the Act while conducting the search, affects the prosecution case. In para 16 of the said judgment, after referring to the words "if the person to be searched so desires", the Court came to the conclusion that a valuable right has been given to the person, to be searched in the presence of the Gazetted Officer or Magistrate if he so

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desires. Such a search would impart much more authenticity and creditworthiness to the proceedings, while equally providing an important safeguard to the accused. It was also held that to afford this opportunity to the person to be searched, such person must be fully aware of his right under Section 50 of the Act and that can be achieved only by the authorized officer explicitly informing him of the same. The statutory language is clear, and the provisions implicitly make it obligatory on the authorized officer to inform the person to be searched of his right. Recording its conclusion in para 25 of the judgment, the Hon'ble Court clearly held that non-compliance with Section 50 of the Act, which is mandatory, would affect the prosecution case and vitiate the trial. It is also noticed that after being so informed, whether such person opted for exercising his right or not would be a question of fact, which obviously is to be determined on the facts of each case.

24. Coming to the case on hand, where, it is the specific evidence of P.W-1 to PW-4 that, on 03.09.2011, they had been to Thannirbavi at 11.20.a.m, at that time they caught hold and arrested and searched the accused. He had possessed Ganja of 300 grams in a polythene bag. PW-2 informed the right of accused being search and there after accused had given consent to search him, but their testimony in examination-in- chief clearly indicates that, prior to search, accused was not at all informed his right of being searched in the presence of a Gazetted officer or Magistrate. In Ex.P-2

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also silent about the right of accused is concerned. On the contrary, they have deposed that, prior to search, accused was questioned as to whether he wishes him to be taken to Gazetted officer or Magistrate. PW-1 to PW- 4 stated that, notice in terms of Ex.P-2 was issued to accused, who in turn consented in writing signifying assent for search by the police. Accordingly, search was carried out and the material objects, viz., M.O-1 ganja weighing 300 grams with a polythene bag was seized. Thus, the prosecution asserts that Ex.P-2 was issued to accused in terms of Section 50 of the Act before him being searched. During cross examination P.W-2 admits that the search should be carryout in front of Gazetted officer under NDPS Act. But the Contents of Ex.P-2 make the thing very clear and indicate that Pw-2 not at all informed to accused of his right. Hence, he would not satisfy the requirements of Section 50 of the Act.

25. Non compliance of mandatory provision under sub- section(1) of Section 50, would render the alleged recovery of the contraband from accused is unsustainable in law. The evidence on record does not in any way makes out that there was substantial compliance of the provisions of Section 50 of the Act. Contents of notice at Ex.P-2 would no way fulfill the statutory requirement as contained in Section 50 of the Act. Thus, the evidence on record does not inspire the confidence of the Court to record a finding that the requirements of Section 50 of the Act fully complied with letter and spirit. Non-compliance of the provisions of Section 50 of the Act caused prejudice to accused,

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which amounts to the denial of a fair trial. An illegal search cannot entitle the prosecution to raise a presumption of validity of evidence under Section 50 of the Act. As is obvious from the bare language of Ex.P- 2, accused was not made aware of his right. Thus, this court is of the considered opinion that the alleged recovery of contrabands itself is illegal and the accused cannot be held guilty and not liable for acquittal.

26. The Learned APP vehemently argued that PW- 2 had complied the mandatory provisions of Section 50 of NDPS Act. In the arguments he has contend that the provisions did not prescribe any set of format for such notice. The essence is to appraise accused of his legal right of being searched either by a gazetted officer or a magistrate. After giving notice with the consent of accused Pw-2 searched him. In this regard rely upon the judgment reported in 2013(1) Crimes 213S.C. In this case I.O. searched the scooter of accused and not accused. Therefore, Section 50 would not apply to that circumstance. In the present case PW-2 searched the pocket on hand of accused as well as accused person. Therefore, the facts of that case are not applicable to this case.

27. Another glaring aspect that should not be lost sight is that, P.W-2 arrested accused search was conducted by him and the contrabands were recovered by him first information report was registered and recorded statement of the witnesses. After the receipt of analyst's report field charge sheet against accused.

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PW-2 himself is a complainant and investigation officer. Hon'ble Supreme Court in the decision of Megha Singh V/s State of Haryana (AIR 1995 SC 2339) disapproved such practice. In that case the Investigating Officer was the very person who had lodged the complaint which was treated as the FIR and the starting point of the investigation. Hon'ble Supreme Court has indicated that where the Investigating Officer happens to be the complainant that it would be perhaps difficult to uphold the position that the investigation was impartial. An impartial investigation is also one of the important aspects in proving the case of the prosecution.

28. The learned counsel for the accused argued that PW-2 after receipt of the information he did not registered the case against the accused. As per Section 154 of Cr.P.C, the officer receiving the information of the possession of any contraband by any person had to record it in writing in the concerned registers and forthwith send a copy of it to the immediate Official Superior before proceeding to take action. In this regard rely upon the judgment in 2016(1)KCCR 47, Suraj V/s State of Karnataka. It was observed that investigation proceeded without registration of first information report in violation of mandatory provision of section 154 of Cr.P.C. No explanation is forthcoming as to why the FIR was not registered upon receipt of credible information disclosing the cognizable offence."

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18. On re-examination, re-appreciation and

reconsideration and keeping in mind the aforesaid decisions of

the Hon'ble Supreme Court as to the scope of the appellate

court, and on evidence on record, I do not find any

illegality/legal infirmity in the impugned judgment and order

of acquittal. Accordingly, I answer point No.1 in the negative.

Regarding Point No.2:

19. For the aforesaid reasons and discussions, I

proceed to pass the following: