Karnataka High Court
Manja @ Manjunatha vs The State Of Karnataka on 22 November, 2023
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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CRL.A No. 847 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL NO. 847 OF 2012
BETWEEN:
1. MANJA @ MANJUNATHA
S/O BASAPPA,
AGED ABOUT 32 YEARS,
R/O BESIDES MOOKAMBIKA TEMPLE,
BHOVI COLONY,
HASUDI GRAMA,
SHIMOGA TALUK.
2. NASIQ BABU S/O JATTANNA,
AGED ABOUT 47 YEARS,
R/O HAKKIPPIKKI CAMP,
CHIKKAMARADI GRAMA,
SHIMOGA TALUK.
Digitally
signed by 3. SHIVAKUMAR S/O NANJUNDAIAH,
SUMITHRA R AGED ABOUT 33 YEARS,
Location: HATHIKATTE GRAMA,
High Court of SHIMOGA TALUK.
Karnataka
4. YOGESH S/O NARASHIMHAMURTHY,
AGED ABOUT 37 YEARS,
BOOCHIHALLI GRAMA,
GUBBI TALUK,
TUMKUR DISTRICT.
...APPELLANTS
(BY SRI. P.B.UMESH FOR SRI. R.B. DESHPANDE, ADVOCATES)
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CRL.A No. 847 of 2012
AND:
1. THE STATE OF KARNATAKA
BY OLD TOWN POLICE STATION,
BHADRAVATHI.
...RESPONDENT
(BY SRI. B.LAKSHMAN, HCGP)
THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO
SET-ASIDE CONVICTION AND SENTENCE DATED 31.07.2012
PASSED BY THE SPL. JUDGE, SHIMOGA IN SPL. (NDPS) CASE
NO.1/2010 - CONVICTING THE APPELLANTS/ACCUSED FOR
THE OFFENCE P/U/S 8(c) R/W SEC.20(b)(ii)(B) OF N.D.P.S.
ACT, 1985.THE APPELLANTS/ACCUSED ARE SENTENCED TO
UNDERGO R.I. FOR 5 YEARS AND TO PAY FINE OF RS.30,000/-
EACH AND IN DEFAULT TO PAY FINE, THEY SHALL UNDERGO
R.I. FOR FURTHER PERIOD OF 6 MONTHS FOR THE OFFENCE
P/U/S 8(C) R/W SEC.20(b)(iii)(B) OF NDPS ACT, 1985.
THIS APPEAL IS COMING ON FOR HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The Judgment and Order dated 31.07.2012 passed
by the Court of the Special Judge, Shimoga, is under
challenge in this appeal.
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2. The learned Sessions Judge has convicted the
appellants/accused Nos.1 to 4 for the offence punishable
under Section 8(c) r/w Section 20(b)(ii)(B) of NDPS Act,
1985.
3. The learned Sessions Judge has sentenced
accused Nos.1 to 4 to undergo R.I. for five years and to
pay fine amount of Rs.30,000/- each and in default of
payment of fine, to undergo R.I. for a period of six months
each.
4. I have heard the learned counsel for appellants
and the learned High Court Government Pleader for
respondent-State and perused the evidence and material
on record.
5. It is the case of the prosecution that on
09.08.2009 at about 9.30 p.m., PW8-PSI (L & O), Old
Town Police Station, Bhadravati, received a credible
information that four persons are in illegal possession of
ganja and they are selling the same to the public in front
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of the petrol bunk situated at Seegebagi, Bhadravathi
Town. He passed the information to PW6-Deputy
Superintendent of Police (Dy.SP), Bhadravathi.
Immediately PW6 visited the old Town police station and
secured two panchas and went to the spot along with
PW8-PSi, PW9-CPI, other police personnel and panchas.
They noticed four persons in front of the petrol bunk, who
on seeing the police jeep, started their motorcycles and
tried to escape. Three of them were apprehended and one
of the accused (accused No.1) threw a plastic bag which
he was carrying and fled away. From the possession of the
accused who were apprehended, plastic covers containing
ganja leaves were seized, along with the motorcycle,
under Ex.P3, in the presence of panch witnesses.
6. It is the further case of the prosecution that the
plastic cover thrown by accused No.1 contained 4 kg
100 gms of ganja leaves, the plastic bag held by accused
No.2 contained 2 kg 400 grams of ganja leaves, the plastic
bag held by accused No.3 contained 1 kg 200 grams of
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ganja leaves and the plastic bag held by accused No.4
contained 1 kg 300 gms. of ganja leaves. After taking
100 gms of ganja each from the four plastic bags, the
sample ganja and the remaining ganja were packed and
sealed. The sample ganja was sent to FSL for chemical
analysis.
7. It is alleged by the prosecution that accused
Nos.1 to 4 were in possession of a total quantity of 9 kgs
of ganja worth Rs.30,000/- in four plastic bags and as per
FSL report-Ex.P10, the sample sent for examination tested
positive for cannabis (ganja) and therefore, the accused
have committed the offence punishable under Section 8(c)
r/w Section 20(b)(ii)(B) of NDPS Act.
8. It is contended by the learned counsel for the
appellants that except the official witnesses, the other
witnesses including the panch witnesses have not
supported the case of the prosecution and PW9 being one
of the member of the raiding team has himself conducted
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the investigation and filed charged sheet and therefore,
the entire case of the prosecution appears to be doubtful.
He contends that the procedure contemplated under the
NDPS Act has not been followed while conducting the
seizure mahazar. The independent witnesses from the
locality have not been either secured as panchas or
examined by the prosecution. Further, the evidence of
PWs.4, 6, 8 and 9 suffers from material discrepancies and
the trial Court has committed a grave error in accepting
their evidence and convicting the accused. The learned
counsel further contends that what is alleged to have been
seized from the accused in this case is ganja leaves and
not ganja as defined under the Act. It is further contented
that against accused No.1 there is no material and he has
been arraigned as an accused in this case on the alleged
confession statements of the co-accused, which is not
admissible. He, therefore, contends that the learned
Sessions Judge has committed a grave error in convicting
the accused.
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9. Per contra, the learned High Court Government
Pleader has contended that the evidence of PWs.4, 6, 8
and 9, the official witnesses is trustworthy and there is no
reason to disbelieve their evidence. He contends that
their evidence is corroborated with each other. He further
contends that as per Ex.P10-FSL report, the sample which
was sent for examination was found to be ganja and
therefore, the trial Court has rightly convicted and
sentenced the accused for the charged offence. He,
therefore sought to dismiss the appeal.
10. The prosecution has got examined 09 witnesses
and got marked 10 documents as Exs.P1 to P10 and
MOs.1 to 10 to establish the charges levelled against the
appellants/accused Nos.1 to 4.
11. It is the specific case of the prosecution that on
09.08.2009 at about 9.30 p.m., PW8-PSI (L& O) at
Bhadravathi Old Town Police Station on receiving a
credible information that in Seegebagi, Bhadravathi Town,
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opposite to Petrol Bunk, four persons are selling ganja to
the public, he passed on the information to the Deputy
Superintendent of Police, Bhadravathi. As such,
PW6-Deputy Superintendent of Police rushed to
Bhadravathi Old Town Police Station and secured panchas
and went to the spot along with PWs.4, 8, 9 and other
police personnel to the spot. According to prosecution,
there were four accused standing by the side of two
motorcycle. On seeing the police they tried to escape but
three of them were apprehended, however, accused No.1
escaped from the spot throwing away the packet
containing ganja.
12. It is pertinent to mention that insofar as
accused No.1 is concerned, no description of his identify
has been given in the FIR or in their evidence by the
official witnesses i.e., PWs.4, 6, 8 and 9. A perusal of
their evidence and the report marked as Ex.P7 goes to
show that it is on the basis of the statement of the
co-accused, they have arraigned him as an accused in the
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charge sheet. There is no other material placed by the
prosecution except the statement of the co-accused to
arraign him as an accused. There is no legal evidence to
show that he was either present at the spot or it was he
who threw the plastic cover containing ganja and ran
away. PW9-Investigating Officer has stated that he filed
charge sheet showing accused No.1 as absconding. He has
further stated in the cross-examination that he was not
able to identify the persons who ran away and he is seeing
accused No.1 for the first time in the Court.
13. The learned Sessions Judge has come to the
conclusion that the evidence of PWs.4, 6, 8 and 9 is
consistent with regard to the raid conducted on
09.08.2009, seizure of ganja and motorcycles from the
possession of the accused, quantity contained in the
plastic bags held by each of the accused, which are
marked as MOs.1 to 6. It is held that even though the
panch witnesses to the seizure mahazar have turned
hostile, the evidence of PWs.4, 6, 8 and 9 are consistent
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and therefore the prosecution has duly proved seizure of
MOs.3 to 6 from the possession of the accused. It is
further held that in Ex.P10-Chemical Examiner's Report
issued by the Scientific Officer, FSL, Bengaluru, there is a
clear description of the articles sent and the Scientific
Examiner has reported that the examination has
responded positive to the presence of cannabis (ganja) in
the article Nos.1 to 4 and therefore, it is clear that MOs.3
to 6 ganja packets were found in the possession of the
accused.
14. Under Ex.P3, four packets of ganja in all
weighing about 09 kgs were seized and from the said 04
packets 100 gms. each of the ganja is said to have been
taken for the purpose of sample. Further, two motorcycles,
one bearing registration No.KA KA 14-W-8586 and another
bearing registration No.KA 14-X-6057 were also seized in
the presence of panch witnesses namely PWs.3 and 7.
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15. The prosecution has got examined PWs.1 and 2,
the registered owners of two motorcycles. According to
prosecution as per the registration extracts, the said
PWs.1 and 2 are the owners of the motorcycles. Both the
said witnesses have turned hostile and not supported the
case of the prosecution.
16. It is the case of the prosecution that from the
possession of accused No.3 the motorcycle bearing
registration No.KA 14-W-8586 was seized and motorcycle
bearing registration No. KA 14-X-6057 was seized from
accused No.2. PW1, owner of the motorcycle bearing
registration No.KA 14-W-8586 has stated that accused
No.3 is not known to him and he has never parted his
motorcycle to the said accused. Similarly, PW2 has stated
that about an year prior, the police came to his house and
took his motorcycle. Both the said witnesses have denied
having given statements to the police as per Exs.P1 and
P2.
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17. PWs.3 and 7 are the panch witnesses to Ex.P3
and seizure mahazar, examined by the prosecution. Both
the said witnesses have turned hostile and not supported
the case of the prosecution.
18. PW3 has deposed in his evidence that his
signature was taken in the police station and in his
presence the police have not conducted any mahazar.
Similarly, PW7 has deposed that he was called to the
police station wherein his signatures were taken by the
police. Both the witnesses have stated that the police have
not conducted seizure mahazar/Ex.P3 in their presence.
19. PWs.4, 6, 8 and 9-the police officials have
deposed about proceeding to the spot and conducting
seizure mahazar as per Ex.P3 under which two
motorcycles and four packets containing total quantity of 9
kgs. of ganja was seized. According to them, the plastic
cover which was thrown by accused No.1 contained 04 kgs
100 gms. of ganja leaves. The plastic packets which was
in possession of accused No.2 to 4 contained 02 kgs 400
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gms., 01 kg 200 gms. and 1 kg 300 gms. of ganja leaves.
In Ex.P6, the report submitted by PW6, it is stated that
mahazar was drawn between 10.15 p.m. to 11.15 p.m. on
09.08.2009. It is not stated in Ex.P6 or in Ex.P3 as to
from where the weighing scale was secured to weigh the
ganja leaves. It is not stated that the police took the
weighing scale from the police station before proceeding to
the spot. In the cross-examination of PW8, he has stated
that the Deputy Superintendent of Police i.e., PW6 asked
the staff of Old Town Police Station to get the weighing
scale and after the weighing scale was brought, they
weighed the ganja leaves. However, PW4-Police Constable
has stated that he is not aware as to who brought the
weighing scale and as to whether the weighing scale was
brought before proceeding to the spot or subsequently.
According to PW9, the weighing scale was secured from a
nearby shop, which is not stated by PWs.4, 6 and 8. It is
not forthcoming as to from which shop the weighing scale
was secured to weigh the ganja leaves. The said shop
keeper has not been examined and the weighing scale has
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not been marked in evidence.
20. It is the specific case of the prosecution that the
accused were in possession of ganja leaves totally
weighing about 09 kgs. As per Ex.P10-Chemical report
the samples which were sent for stereo microscopic
examination responded positive for the presence of
cannabis (ganja). It is nowhere stated that the ganja
leaves alleged to have been seized from the possession of
the accused contained flowering of fruiting tops of the
cannabis plant. The weight of the entire ganja leaves
cannot be taken as the weight of ganja. Further, though
the seizure was conducted on 09.08.2009, according to
PW9 on 13.08.2009, 04 ganja packets and 04 sample
packets were sent to FSL, Davanagere for examination.
However, as per Ex.P10, only 04 packets were received.
Even though the seized articles were sent to FSL on
13.08.2009, as per Ex.P10, the articles were received in
the laboratory for examination on 16.09.2009. There is
no explanation for the delay in receiving the articles by the
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FSL. It is also not forthcoming as to where was the
articles kept till it was received by the FSL on 16.09.2009.
Hence, a reasonable doubt arises in the genuineness of
the prosecution case.
21. PWs.4, 6, 8 and 9 have admitted in their
cross-examination that there were other persons present
at the spot and the incident has taken place just opposite
to the petrol bunk. As per PW9, 15 to 20 persons had
gathered at the spot. None of those witnesses have been
cited in the charge sheet or examined before the trial
Court. PW6 has admitted that on either side of the petrol
Bunk there are shops etc., but he has not recorded the
statements of the staff or manager of the petrol bunk.
The independent panch witnesses namely PWs.3 and 7
have not supported the case of the prosecution. In view
of the above discussion, the evidence of PWs.4, 6, 8 and 9
do not inspire the confidence of the Court to come to a
conclusion that the prosecution has established the
charges levelled against the accused beyond reasonable
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doubt. The accused are entitled to the benefit of doubt.
Accordingly, the following:
ORDER
i. The appeal is allowed.
ii. The judgment and order dated 31.07.2012
passed by the Special Judge, Shimoga, in
SPl.(NDPS) Case No.1/2010 is set aside.
iii. The accused Nos.1 to 4 /appellant Nos.1 to 4
are acquitted of the offence punishable under
Section 8(c) r/w Section 20(b)(ii)(B) of N.D.P.S.
Act, 1985. Their bail bonds stand cancelled.
iv. If the fine amount is deposited, the same shall
be returned to the accused.
Sd/-
JUDGE
TL
