Karnataka High Court

Sri Sagarappa @ Shankara vs State Of Karnataka on 2 August, 2024

Author: Mohammad Nawaz

Bench: Mohammad Nawaz

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                                                       NC: 2024:KHC:30781
                                                   CRL.A No. 757 of 2014




                    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                       DATED THIS THE 2ND DAY OF AUGUST, 2024

                                        BEFORE
                      THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
                           CRIMINAL APPEAL NO. 757 OF 2014
               BETWEEN:

               1.    SRI SAGARAPPA @ SHANKARA
                     AGED ABOUT 41 YEARS,
                     S/O RAMAPPA,
                     R/O MANNIKERI HOUSE,
                     NEAR DEVI TEMPLE,
                     MANNIKERI VILLAGE AND POST,
                     BILAGI TALUK,
                     BAGALKOT-587117.
                                                             ...APPELLANT
               (BY SRI. JEEVAN K., ADVOCATE)

               AND:

               1.    STATE OF KARNATAKA
                     BY THE SUB INSPECTOR OF POLICE,
Digitally            MANGALORE SOUTH
signed by            POLICE STATION,
LAKSHMI T            MANGALORE-575001.
Location:
High Court           REPRESENTED BY THE
of Karnataka         SPECIAL PUBLIC PROSECUTOR,
                     HIGH COURT BUILDINGS,
                     BANGALORE-560 001.
                                                           ...RESPONDENT
               (BY SRI. RANGASWAMY R., HCGP)

                    THIS CRL.A. IS FILED U/S. 374(2) CR.P.C PRAYING TO
               SET ASIDE THE ORDER DATED 6.8.14 PASSED BY THE
               LEARNED    PRL.    SESSIONS    JUDGE/SPL.JUDGE,    D.K.,
               MANGALORE IN SPL.C.NO.34/2009 - AND TO ACQUIT
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                                         NC: 2024:KHC:30781
                                      CRL.A No. 757 of 2014




APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 8(c) R/W 20(b)
OF N.D.P.S ACT.

     THIS APPEAL IS COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:


CORAM:     HON'BLE MR JUSTICE MOHAMMAD NAWAZ


                     ORAL JUDGMENT

This appeal is directed against the Judgment dated

6.8.2014 and Order dated 7.8.2014 passed by the Court of

the Principal Sessions Judge/Special Judge, D.K.,

Mangalore, whereby the accused/appellant has been

convicted for the offence under Section 8(c) r/w Section

20(b) of the Narcotic Drugs and Psychotropic Substance

Act, 1985, (for short 'NDPS Act').

2. The trial Court has sentenced the accused to

undergo rigorous imprisonment for 2 years and to pay a

fine of Rs.10,000/- in default of payment of fine, to

undergo further rigorous imprisonment for 6 months.

3. Heard the learned counsel for the appellant and

the leaned High Court Government Pleader for the

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respondent-State. Perused the evidence and material on

record.

4. Prosecution has alleged that on 30.07.2009 at

about 7.30 a.m., near Mangaluru City Service Bus stand,

the accused was found in illegal possession of ganja

weighing about 2 Kgs. 100 gms. without any permit and

he was intending to sell ganja to the general public.

5. The complainant/Police Inspector of DCIB,

Mangaluru, on receiving the credible information on

30.07.2009 at 7.00 a.m. about a person in possession of

ganja, traveling from Suratkal to Mangaluru Service Bus

Stand, secured his staff and went to the service bus stand.

He secured two tempo drivers to act as panchas. They

noticed the accused proceeding from service bus station

towards Lady Goschen Hospital, holding a plastic bag. He

was surrounded and enquired. A notice was issued as per

Ex.P3. The accused permitted the complainant to conduct

personal search. On search, ganja was found in the plastic

bag which the accused was carrying and the same was

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weighed in the nearby shop and it weighed 2 Kgs.

100 gms. The same was seized and DCIB seal was put

and the signatures of the panch witnesses were taken.

Further, a mobile phone belonging to the accused was also

seized.

6. PW.6-ASI of Mangalore South Police Station

registered a case on receiving the complaint-Ex.P4 and

issued FIR-Ex.P6. On completion of investigation, charge

sheet was filed.

7. The prosecution in all examined 7 witnesses

and got marked 7 documents and Mos.1 and 2. The

learned Sessions Judge placed reliance on the evidence of

PWs.2, 4 to 7 and held that the prosecution has

successfully proved that the accused was found in

possession of 2 Kgs. 100 gms of ganja without any permit

or licence and accordingly, convicted him for the charged

offence under Section 8(c) r/w Section 20(b) of the NDPS

Act.

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8. Ex.P1 is the mahazar prepared by PW2 after

seizure of ganja which was in possession of the accused.

As per the said mahazar, on 30.07.2009 at about

7.00 a.m., when PW2 was in his office, received a credible

information about a person traveling in a bus from

Suratkal to Mangaluru with a plastic bag containing ganja.

9. In Ex.P1, it is stated that the said information

was informed to the higher officer i.e., S.P. It is nowhere

stated in Ex.P1 that the said information was taken down

in writing. PW2, in his deposition has stated that he

entered the information in his diary. He has stated that he

informed the information to the S.P., D.K., who orally

permitted him to conduct raid. The prosecution has not

placed any material on record to show that the information

was reduced into writing and it was entered in a diary.

Except the oral testimony of PW2, there is no other

evidence which corroborates the evidence of PW2. Though

PW4 a police constable who accompanied PW2 to the spot,

in the cross-examination has stated that credible

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information was entered in a diary, but the prosecution

has not produced and marked the said diary to show that,

infact a credible information was received on 30.07.2009

at about 7.00 a.m., and permission was obtained from the

higher Officer to conduct a raid.

10. According to PW2, he went to the spot along

with his staff i.e., CWs.4 to 11 and secured two panchas

namely the tempo drivers who were in the bus stop. He

saw a person with a plastic bag proceeding from service

bus stand towards Lady Goschen Hospital. CW7 is

examined as PW4. According to him, they saw one person

alighting from the bus and moving out of the bus stand.

PW2 has not at all stated that they saw a person alighting

from the bus. Further, as per PW2, on enquiry, the

accused revealed that the plastic bag which he was

holding contained ganja and the said plastic bag was

weighed in the nearby shop, whereas PW4 has stated that

they secured a scale from the nearby shop and weighed

the plastic bag containing ganja. Hence, there are

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contradictions in the evidence of PWs.2 and 4. Neither the

shop keeper from where the scale was secured has been

examined nor the scale which was used to weigh the ganja

was produced and marked. The evidence of PWs.2 and 4

that they went to the bus stand, on credible information

and found the accused in possession of 2 Kgs. 100 grams

of ganja appears to be doubtful. Hence, requires

corroboration from independent witnesses.

11. In the present case, the prosecution has

examined PWs.1 and 3, panch witnesses who are the

signatory to Ex.P1-mahazar. Both the said witnesses

have not supported the case of prosecution. PW.1 has

stated that the police took his signature when he was

sitting in his tempo and he has not seen the police seizing

ganja packet from the accused and he has not given

statement to Police about the seizure of ganja from the

accused. Similarly, PW.3 has stated that the Police took

his signature on Ex.P1 when he was sitting in his tempo

and he did not know the reason as to why they took his

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signature and he has not seen the Police seizing the ganja

packet from the accused and he has not given any

statement to the Police about seizure of ganja from the

accused.

12. According to PW2, after seizure of ganja, he put

a seal as 'DCIB' and affixed his signature and the

signatures of panchas. The said seizure was on

30.07.2009. The seized contraband was sent to forensic

laboratory for examination on 11.08.2009 after 10 days.

It is not forthcoming as to why and where the seized

material was kept till 11.08.2009. The learned High Court

Government Pleader has placed reliance on Ex.P7, report

of the chemical examiner, to contend that the presence of

cannabis was detected in the sample. As per Ex.P7, the

sample sent contained the plant including leaves, stem,

seeds etc. Hence, it is not forthcoming as to what was the

exact quantity of ganja, which is alleged to have been

seized from the accused.

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13. According to PW5-Head Constable, on

03.08.2009 the seized article was handed over to her so

as to take it to the FSL for chemical examination. She has

stated that she submitted the same to the FSL on

11.08.2009. In the cross-examination she has stated that

she received the ganja on 06.08.2009.

14. PW.7-I.O. has stated that he has handed over

the seized articles to the Head Constable on 11.08.2009,

whereas in the cross-examination, PW.5 has stated that

she received the articles on 06.08.2009. According to

prosecution, the ganja was seized on 30.07.2009 and

sealed on the same day itself. Further, on the very same

day it was handed over to PW.6. The I.O.-PW.7 took over

the investigation on 03.08.2009. However, according to

him he has sent the articles for chemical examination on

11.08.2009. Hence, a serious doubt arises about the

seizure of ganja from the possession of the accused on

30.07.2009 in the presence of the panch witnesses and

sealing and sending it to the FSL, as claimed by the

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prosecution. There are contradictions in the evidence of

PWs.2 and 4. The prosecution has not produced the case

diary to show that the credible information received by

PW.2 was reduced into writing. Except the oral evidence

there is no material to show that permission from the

higher Officer, as stated by PW.2, was taken. There is

non-compliance of Section 42 of the NDPS Act. The

independent panch witnesses have not supported the case

of prosecution. Hence, it cannot be held that the

prosecution has proved the charges levelled against the

accused beyond all reasonable doubt. The accused is

entitled to benefit of doubt.

14. For the foregoing reasons, the appeal deserves

to be allowed. Accordingly, the following:

ORDER

i. Appeal is allowed.

ii. The Judgment dated 06.08.2014 and Order on

Sentence dated 07.08.2014 passed by the

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Court of the Principal Sessions Judge / Special

Judge, D.K., Mangalore, in Special Case

No.34/2009, convicting and sentencing the

accused for the offence under Section 8(c) r/w

Section 20(b) of NDPS Act, is hereby set aside.

iii. Appellant/accused is acquitted of the offence

charged against him. He shall be released

forthwith, if not required in any other case.

iv. If any fine amount is deposited, the same shall

be refunded to the appellant.

The operative portion of the order shall be

communicated to the concerned jail authority.