Karnataka High Court
The State Of Karnataka vs Sri M K Mahesha on 27 November, 2023
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CRL.A No. 1741 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO.1741 OF 2019 (A)
BETWEEN:
1. THE STATE OF KARNATAKA
REPRESENTED BY THE POLICE SUB INSPECTOR
SHANIVARASANTHE POLICE STATION
SHANIVARASANTHE
REPT BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU-01
...APPELLANT
(BY SRI M.R. PATIL, HCGP)
AND:
1. SRI M K MAHESHA
S/O LATE KENCHAIAH
Digitally AGED ABOUT 36 YEARS,
signed by
SANDHYA S MADRE VILLAGE,
Location: SHANIVARSANTHE HOBLI
High Court SOMWARPET TALUK-571236
of Karnataka
2. SRI C SHANNABASAPPA @
CHANNABASAVA
S/O CHIKKANNA
AGED ABOUT 31 YEARS,
OCC:MECHANIC
RESIDING AT TENANT IN THE
HOUSE OF NARAYANA
CHOWDESHARI NAGARA
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CRL.A No. 1741 of 2019
LAGGERE BENGALURU-560058
NATIVE OF THAMMASI VILLAGE,
HIRIYOOR POST
MARIKANIVE ROAD,
CHITTRADURGA DISTRICT-572143
3. SRI H R SUDHAKARA @ SUDHA
S/O H S RAJAIAH
AGED ABOUT 26 YEARS,
SUPPLIER IN BAR RESIDENT OF
HADALALLI VILLAGE AND POST
HETHUR HOBLI
SAKALESHPUR TALUK
HASSAN DISTRICT-573127
...RESPONDENTS
(BY SRI S.N. SAMEER, ADVOCATE)
THIS CRL.A IS FILED U/S.378 (1) AND (3) OF CR.P.C
PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE
IMPUGNED JUDGMENT AND ORDER OF ACQUITTAL DATED
11.06.2019 ON THE FILE OF SESSIONS JUDGE, KODAGU,
MADIKERI IN SPL.C.NO.30/2014, ACQUITTING THE
ACCUSED/RESPONDENTS FOR THE OFFENCE P/U/S 22(C) OF
N.D.P.S. ACT.THE SPP/STATE PRAYS THAT THE ABOVE ORDER
OF ACQUITTAL MAY BE SET ASIDE; AND ETC.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though this matter is listed for admission, with the
consent of the learned counsel for the parties, the same is
taken up for final disposal.
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2. The State has preferred this appeal against the
judgment of acquittal passed by the Principal Sessions Judge,
Kodagu, Madikeri in SC No. 30 of 2014 dated 11th June, 2019
(for brevity hereinafter referred to as the "trial Court").
3. For the sake of convenience, the parties in this
appeal are referred to as per their status and rank before the
trial Court.
4. Brief facts of the prosecution case are that, on 06th
February, 2017 PW1-B.R. Pradeep along with Gazetted Officer
CW2-PW2, panch witnesses PWs3 to 5 and his staff PWs6 to 9,
16 and 17 conducted raid at forest gate, Dundalli village within
the jurisdiction of Shanivarasante, and found that the accused
was in possession of diazepam worth Rs.30.00 lakh without any
valid licence or permit and for the purpose of making unlawful
gain and thereby committed offence punishable under Section
22 of Narcotic Drugs and Psychotropic Substances Act, 1985.
After filing of charge sheet, the Special Court has taken
cognizance and case was registered in SC No.30 of 2014. In
pursuance of summons, accused appeared before the trial
Court and charge was framed by the special Judge and same
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was read over to the accused. Accused pleaded not guilty and
claimed to be tried.
5. To prove the case of prosecution, thirteen witnesses
were examined as PWs1 to 13 and 21 documents were marked
as Exhibits P1 to P21. On closure of prosecution side evidence,
Statement under Section 313 of Code of Criminal Procedure
was recorded. Accused have totally denied all the incriminating
evidence adduced against them and have not chosen to adduce
defence evidence on their behalf. Having heard the arguments
on both sides, the trial Court has passed the judgment of
acquittal. Being aggrieved by the impugned judgment of
acquittal, the State has preferred the present appeal.
6. Sri M.R. Patil, learned High Court Government
Pleader submits that the impugned judgment of acquittal
passed by the trial Court is contrary to the oral and
documentary evidence on record, probabilities of case and the
same is liable to be set aside. The trial Court has not properly
appreciated the evidence on record in accordance with law and
facts. Learned High Court Government Pleader submits that,
The complaint was filed on 06.02.2014 at 18.15 hours. On the
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basis of this compliant, police have registered a case in Crime
No.24/2014 against accused Nos.1 to 3 for the commission of
offence punishable under Section 22 of NDPS Act, 1985 and
submitted the FIR as per Ex.P16 to the Court on 07.02.2014 at
1.25 a.m. Mahazar was also conducted by the Investigating
Officer on 06.02.2014 between 14.20 and 17.30 hours under
Ex.P11 in presence of panchas and also gazetted officers.
Ex.P17 is the PF.24/2014 dated 06.02.2014 which was
submitted to the Court on 07.02.2014. The sealed properties
are 700 grams diazepam and one Hero Honda Splendor Motor
Bike and one TVS Apache Bike bearing Reg.No.KA-04-EQ-5782.
The I.O. has recorded the voluntary statements of accused as
per Exs.P18 to P20 on 06.02.2014. Ex.P21 is the Forensic
Science Laboratory report. In paragraph 35 of the impugned
judgment, the trial Court has observed that the prosecution has
failed to prove the quantity of diazepam and the procedure of
NDPS Act was not complied with. Hence, he submits that the
trial Court has not properly appreciated the Section 35 of NDPS
Act under which there is presumption that whatever drugs that
were seized from the possession of the accused and when the
recovery of the same is proved, the Courts have to presume
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that the accused has committed the offence. Instead of
considering this aspect, the trial Court has passed the
judgment of acquittal. On all these grounds the learned High
Court Government Pleader sought to allow the appeal. To
fortify his submissions, he relied on the judgment of the
Hon'ble Supreme Court in the case of HIRA SINGH v. UNION OF
INDIA reported in (2020)20 SCC 272 and place reliance on
paragraph 10 of the judgment.
7. As against this, Sri K. Ravishankar, learned counsel
appearing for respondent No.1 submits that, PWs.4 and 5 who
attesters to the panchanama, have not supported the case of
prosecution. The provisions of Sections 42 and 50 of NDPS Act
were not complied with. He submits that in paragraph 26 of the
impugned judgment, the trial Court has observed as to the
non-compliance of Section 50 of NDPS Act. He further submits
that samples were not sent to FSL in time. In paragraph 31 of
the impugned judgment, same has been observed by the trial
Court. Trial Court has relied on the decision in the case of
MOHAN LAL v STATE OF PUNJAB, reported in AIR 2018 SC
3853 and observed that two sealed articles from PSI,
Shanivarasanthe Police were submitted to the FSL office on
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10.03.2014. The I.O. retained the same till 10.03.2014, there
is more than one month delay. PWs.10 and 12 have not
explained the delay in submitting the sealed articles to FSL.
8. Sri K.P. Chandrashekar Reddy, learned counsel
appearing for the respondent No.1 submits that PWs4 and 5,
who are attestors to panchanama, have not supported the case
of prosecution. He submits that the provisions Sections 42 and
50(3) of NDPS Act are not complied with. In paragraph 26 of
the impugned judgment, the trial Court has observed as to
non-compliance of Section 50(3) of NDPS Act. Samples were
not sent to the Forensic Science Laboratory in time. In
paragraph 31 of the impugned judgment, it is observed that the
trial Court has relied on the decision in the case of MOHAN LAL
(supra) wherein it is observed that sample of recovered object
having not been deposited and non-examination of private
witnesses lead to adverse inference against the case of
prosecution. It is further observed that, in view of delay of
nine days in sending sample for chemical analysis the
investigation is said to be vitiated for want of fair trial. In the
case on hand, there is a delay of one month four days. PWs10
and 12 have not explained the delay in submitting the articles
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to Forensic Science Laboratory. The trial Court has properly
appreciated the evidence on record in accordance with law and
facts and that there are no grounds to interfere with the
impugned judgment of acquittal and hence sought to dismiss
the appeal. It is further submitted that based on the statement
of accused No.1, accused No.2 was arrested. Except that,
prosecution has not collected any materials to prove the guilt of
accused No.2. The Investigating Officer has not seized any
property from the possession of accused No.2 and hence,
sought for dismissal of the appeal.
9. Respondent No.3 served, unrepresented.
10. Having heard the arguments on both sides, the
following points would arise for my consideration:
1) Whether the appellant/State has made out a
ground to interfere with the impugned judgment of
acquittal?
2) What Order?
11. My answer to the above points are as under:
Point No.1: in the negative
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Point No.2: as per final order.
Regarding Point No.1:
12. I have carefully examined the materials placed
before this Court. It is the case of the prosecution that 06th
February, 2017, PW1-B.R. Pradeep along with Gazetted Officer
PW2, panch witnesses-PWs3 to 5 and his staff-PWs6 to 9, 16
and 17 conducted raid at the forest gate of Dundalli village
within the jurisdiction of Shanivarasante, and found that the
accused were in possession of diazepam worth Rs.30.00 lakh
without any valid licence or permit and for the purpose of
making unlawful gain and thereby committed offence
punishable under Section 22 of Narcotic Drugs and Psychotropic
Substances Act, 1985. After filing of charge sheet, the Special
Court has taken cognizance and case was registered in SC
No.30 of 2014. In pursuance of summons, accused appeared
before the trial Court and charge was framed by the special
Judge and same was read over to the accused. Accused
pleaded not guilty and claimed to be tried. To prove the case of
prosecution, thirteen witnesses were examined as PWs1 to 13
and 21 documents were marked as Exhibits P1 to P21.
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13. In paragraphs 26 to 36, the trial Court has observed
as under:
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36.
14. On careful re-examination, re-consideration and re-
appreciation of the evidence on record, I do not find any legal
infirmities/illegalities in the impugned judgment of acquittal.
The trial Court has properly appreciated the materials placed
before it in its proper perspective and has arrived at a
conclusion in acquitting the accused. The same cannot be
found fault with. Hence, I answer point No.1 in the negative.
Regarding Point No.2:
15. For the aforesaid reasons and discussions, I
proceed to pass the following:
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ORDER
1. Appeal dismissed;
2. Judgment of acquittal dated 11th June, 2019
passed in SC No.30 of 2014 by the Principal
Sessions Judge, Kodagu, Madikeri, is confirmed;
3. Send the copy of this judgment along with trial
Court records to the trial Court.
Sd/-
JUDGE
LNN
