Karnataka High Court
Shesharaju @ Thomu vs State By Ramapura Police on 12 December, 2023
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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CRL.A No. 282 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL NO. 282 OF 2012
BETWEEN:
1. SHESHARAJU @ THOMU
S/O SELVANAYAGAM
AGED ABOUT 53 YEARS,
AGRICULTURIST,
R/A VADDARADODDI VILLAGE,
KOLLEGAL TALUK,
CHAMARAJANAGAR DISTRICT.
...APPELLANT
(BY SRI MANJUNATHA.N.D, ADVOCATE, ABSENT
MS.ASHRITHA A. SHETTY, AMICUS CURIAE)
AND:
Digitally 1. STATE BY RAMAPURA POLICE
signed by KOLLEGALA TALUK
SUMITHRA
R ...RESPONDENT
(BY SRI. B.LAKSHMAN, HCGP)
Location:
High Court
of Karnataka THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO
SET ASIDE THE ORDER DATED:1.3.12 PASSED BY THE DIST.,
AND S.J., CHAMARAJANAGAR IN SPL.C.NO.129/09 -
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
P/U/S 20(a)(b) OF NDPS ACT 1985.
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CRL.A No. 282 of 2012
THIS APPEAL IS COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The judgment and order dated 01.03.2012 passed by
the Court of the District and Sessions Judge at
Chamarajanagara in Special Case No.129/2009, convicting
and sentencing the appellant/accused for the offence
punishable under Section 20(a)(b) of NDPS Act, is assailed
in this appeal.
2. The trial Court has sentenced the accused to
undergo imprisonment for a period of 4 years and to pay a
fine of Rs.25,000/- and in default of payment of fine
amount, to further undergo S.I. for a period of 5 months.
3. Heard the learned Amicus Curiae Ms. Ashritha
A. Shetty for appellant and the learned High Court
Government Pleader for State and perused the evidence
and material on record.
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4. The case of the prosecution is that on
14.11.2008 at about 2.30 p.m., on receiving a credible
information that the accused is cultivating ganja in his
agricultural land, the police along with the panch
witnesses conducted a raid in the agricultural land of the
accused situated at Vaddaradoddi Village, Kollegala Taluk
and found that he had illegally grown 45 ganja plants
weighing about 4 kgs 200 grams amidst the cattle grass,
without any permit or licence, thereby committed an
offence punishable under Section 20(a)(i) of NDPS Act.
5. Before the trial Court, the prosecution got
examined 6 witnesses and got marked 11 documents and
MOs.1 to 3. Appreciating the oral and documentary
evidence on record, the trial Court came to the conclusion
that the evidence of the raiding party i.e., PWs.4, 5 and 6
is fully corroborated by the testimony of independent
panch witness i.e. PW.2 in all material aspects and the
prosecution witnesses have categorically and consistently
stated regarding the factual aspect of the case.
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Considering the RTC extract - Ex.P8 and the FSL report -
Ex.P3 and the evidence of the prosecution witnesses, the
trial Court held that prosecution is successful in proving
the guilt against the accused for the offence punishable
under Section 20(a)(b) of NDPS Act.
6. It is the specific case of the prosecution that a
credible information was received by the Police inspector -
PW.6 on 14.11.2008 at about 1.30 p.m., that the accused
was cultivating ganja plants in his land illegally.
Immediately he passed on the information to the Dy.SP.
and obtained oral permission and went to the spot along
with his staff and two panchas. According to the
prosecution, the accused had grown 45 ganja plants in his
agricultural land. The said ganja plants were seized under
a mahazar - Ex.P2 in the presence of panchas. Two ganja
plants were taken as sample for chemical examination and
after destroying the remaining 43 ganja plants, sample
ganja plants were sent for chemical examination and as
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per FSL report - Ex.P3, the sample plants sent for
examination were found to be ganja plants.
7. PW.6 - PI has deposed that after passing on the
information to Dy.SP and obtaining oral permission, he
went to Vaddaradoddi village along with staff and secured
two panchas i.e., CWs.2 and 3, who were standing near
the church. Thereafter, they went to the land of the
accused and on inspection, they found that the accused
had grown 45 ganja plants measuring upto 4 ft, having
fruits and flowers. He has stated that the accused was
working in the land and they got the ganja plants uprooted
and weighed it. They seized the ganja plants along with
two spades - MOs.2 and 3. Thereafter, they took two
ganja plants as sample.
8. PW.6 has further stated that he prepared a
report and lodged a complaint as per Ex.P6. On
16.11.2008 he sent the seized ganja to the FSL, Mysuru
for examination. On 19.11.2008 after obtaining permission
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from the Court he destroyed ganja in the presence of
panchas, as per panchnama -Ex.P7.
9. PW.4 - head constable and PW.5 -PSI have
deposed about going to the spot along with PW.6 and two
panchas and inspecting the land wherein 45 ganja plants
were alleged to have been grown by the accused and
deposed about the seizure of ganja and two spades,
marked as MOs.1 to 3 and taking two ganja plants as
sample for the purpose of examination.
10. According to the prosecution, before the police
went to the spot, they secured two panchas and along
with the said panchas seized the ganja and prepared the
seizure mahazar. CWs.2 and 3 are the panchas cited in the
charge sheet. CW.2 is examined as PW.2. CW.3 is not
examined. A perusal of his cross-examination shows that
when they went to the land of the accused, three police
were already present there and even before he went
there, the ganja plants were already removed and
collected. He has stated that the mahazar was written
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after they went there. The said evidence of independent
panch witness give raise to doubt as to whether the ganja
plants were actually grown in the land of the accused and
it was seized in the presence of panch witnesses.
11. According to PW.6, when they went to conduct
a raid, the accused was present in the land. PW.2 in his
deposition has stated that when they went near the land,
the accused was watering the land by using mumti and
guddali (MOs.2 and 3). PW.4 has stated that there was a
house in the land and the accused was in the house. When
they asked him about the ganja, accused told that he has
not grown any ganja. Then they searched the land and
found ganja plants in the midst of green grass. As per
PW.5, the accused was irrigating the land when they went
to conduct the raid. Whereas, PW.2 has given a different
version in the chief examination stating that when they
went to the land, the accused ran away, seeing the Police.
12. There is no consistency in the evidence of the
prosecution witnesses. The witnesses are not definite as
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to whether the accused was irrigating the land when the
police went to conduct a raid, or whether he was in his
house or he tried to escape seeing the Police. The
prosecution has to establish that the accused is the
exclusive owner of the agricultural land where the ganja
plants are alleged to have been grown. PW.6 has not
stated in his evidence that when they went to the spot the
accused was found cultivating the land. It is not the case
of prosecution that the accused was seen cultivating ganja
plant by any one. The case of the prosecution is that a
credible information was received that the accused was
cultivating ganja plants in his agricultural land. On
receiving that information, the raid was conducted and 45
ganja plants are alleged to have been seized.
13. The learned High Court Government Pleader
has contended that the credible information was entered in
the station house diary by PW.6 and Ex.P11 confirm that
the said information was entered in the diary by PW.6 and
only then PW.6 has conducted the raid. He has contended
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that as per Ex.P3, FSL report issued by PW.3, the sample
plant which were sent for examination was found to be
ganja. He therefore contends that, minor discrepancies in
the prosecution case is not a ground to discard the
evidence of the prosecution witnesses.
14. The learned Amicus Curiae on the other hand
has contended that the prosecution has to establish the
guilt of the accused beyond reasonable doubt and in the
instant case the prosecution has failed to establish its
initial burden that the accused is the exclusive owner of
the land and it was he who has grown the ganja plants.
She has pointed out to the RTC extract -Ex.P8, to contend
that there are other persons who are in possession of the
land and no one has seen the accused cultivating ganja
plant and even the land in question was not fenced. She
further contends that the evidence of PW.2 goes to show
that before he went to the land, already the police were
present and the ganja plants were removed.
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15. I have perused the RTC extract - Ex.P8. Apart
from the name of the accused, the names of other persons
are also found in Ex.P8. The prosecution has failed to
show that the accused is the exclusive owner of the land in
question from where the ganja plants are alleged to have
been seized. PW.4 has admitted in the cross-examination
that he cannot say the extent of the land and its Survey
Number. Further, he has stated that there were no fence
to the said land on all four sides. In fact, a specific
question was put to the witnesses that the land is not
standing in the name of the accused. Even PW.6 has
admitted in the cross-examination that there was no fence
for the land of the accused. He has stated that the land
was measuring about ½ acre, whereas, PW.2 has stated
that the total extent of the land may be about 5 acres.
Hence, the prosecution has utterly failed to establish that
the accused is the exclusive owner of the land in question
and it was he who cultivated ganja plants in the said
agricultural land. The reasons assigned by the trial Court
to convict the accused for the offence punishable under
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Section 20(a)(b) of NDPS Act are not in accordance with
law. The conviction and sentence passed by the Court of
District and Sessions Judge, Chamarajanagara in Special
Case No.129/2009, is therefore liable to be set aside.
Accordingly, the following:
ORDER
Appeal is allowed.
The judgment and order dated 01.03.2012 passed by
the District and Sessions Judge, Chamarajanagara in
Special Case No.129/2009, convicting and sentencing the
accused for the offence punishable under Section 20(a)(b)
of NDPS Act is hereby set aside. The accused is acquitted
of the said offence. His bail bonds are discharged.
Learned Amicus Curiae Ms.Ashritha A. Shetty is
entitled for a honorarium of Rs.5000/- (Rupees Five
Thousand only) and it shall be paid by the High Court
Legal Services Committee.
SD/-
JUDGE
HB
