Karnataka High Court
The State Of Karnataka vs Sadiq S/O. Rajesab Danyanavar on 20 February, 2024
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
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CRL.A No. 100057 of 2024
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 20TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE S.VISHWAJITH SHETTY
CRIMINAL APPEAL NO. 100057 OF 2024 (A)
BETWEEN:
THE STATE OF KARNATAKA
REPRESENTED BY
THE POLICE SUB INSPECTOR
MUNDAGOD POLICE STATION,
MUNDAGOD, THROUGH
THE ADDL. STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA DHARWAD BENCH,
DHARWAD.
...APPELLANT
(BY SRI T. P. MALIPATIL, AGA)
AND:
1. SADIQ S/O. RAJESAB DANYANAVAR,
AGE: 23 YEARS, OCC: AGRICULTURE,
ANNAPURNA R/O. KODANBI BHARATH MILL,
CHINNAPPA MUNDAGOD-581349.
DANDAGAL
Digitally signed by
ANNAPURNA
2. HALIMA W/O. NIYAZ AHMAD MULLA,
CHINNAPPA
DANDAGAL
AGE: 36 YEARS, OCC: AGRICULTURE,
Date: 2024.02.22
11:28:46 +0530
R/O KODANBI MUNDAGOD TALUK,
P/R SANSHI, KUNDAGOL,
DHARWAD DISTRICT-581117.
...RESPONDENTS
THIS CRIMINAL APPEAL IS FILED U/S 378(1) AND (3) OF
CR.P.C., SEEKING TO GRANT LEAVE TO APPEAL AGAINST THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 16.11.2022, PASSED
BY THE PRL.DISTRICT AND SESSIONS JUDGE AT UTTARA KANNADA,
KARWAR IN SPL.C.NO.55/2016 AND TO SET ASIDE THE JUDGMENT
AND ORDER DATED 16.11.2022, PASSED BY THE PRL. DISTRICT AND
SESSIONS JUDGE AT UTTARA KANNADA, KARWAR IN SPL.CASE
NO.55/2016 AND TO CONVICT AND SENTENCE THE
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CRL.A No. 100057 of 2024
RESPONDENTS/ACCUSED NO. 1 AND 2 FOR THE OFFENCES
PUNISHABLE U/S 8, 20(A) (B), 25 AND 46 OF THE NDPS ACT, 1985
R/W 34 OF IPC.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal under Section 378(1) and (3) of the
Cr.P.C. is filed by the State challenging the Judgment and
order of acquittal dated 16.11.2022 passed by the
Principal District and Sessions Judge at Uttara Kannada,
Karwar (for short, 'the Trial Court') in Special Case
No.55/2016, wherein the respondent/accused have been
acquitted for the offence punishable under Sections 8,
20(a) (b), 25 and 46 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (for short, 'the NDPS
Act') read with Section 34 of IPC.
2. Heard the learned HCGP on behalf of appellant-
State.
3. Respondents herein were charge sheeted for
the offences punishable under Sections 8, 20(a) (b), 25
and 46 of the NDPS Act, 1985 read with Section 34 of IPC
by the Mundagod Police Station, Uttara Kannada District.
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Since the accused pleaded not guilty, they were tried for
the charge sheeted offences before the Special Court in
Special Case No.55/2016. The prosecution in order to
substantiate its case and prove its charges against the
accused persons beyond reasonable doubt had examined
13 witnesses as P.W.1 to 13 and also had got marked 20
documents as Ex.P.1 to Ex.P.20. The seized ganja plants
were produced before the Court and marked as Material
Object No.1. On behalf of defence, no evidence was led.
The Trial Court after hearing the arguments addressed on
both sides, vide the impugned Judgment and order, had
acquitted the accused of the offences alleged against
them. Being aggrieved by the same, the State is before
this Court.
4. Learned HCGP having reiterated the grounds
urged in the memorandum of appeal, submits that the
Trial Court was not justified in acquitting the accused. He
submits that the oral and documentary evidence clearly
prove the guilt of the accused beyond reasonable doubt.
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5. The prosecution in order to establish its charges
against the accused beyond reasonable doubt has
examined 13 witnesses before the Trial Court as P.W.1 to
P.W.13 and also got marked 20 documents as Ex.P.1 to
Ex.P.20. P.W.1 is the Tahashildar, who received the
credible information from P.W.3. He had joined P.W.3 in
the raid to the property allegedly belonging to the
respondent/accused. During the course of his
examination-in-chief, he has stated that only 08 ganja
plants were seized from the property of the accused.
Therefore, this witness was treated as partially hostile by
the prosecution and he was cross-examined by the Public
Prosecutor. He has stated that the total weight of the
ganja plants was approximately about 08 Kgs. P.W.2 is the
Police Head Constable and P.W.3 is the Police Inspector.
They have spoken about the raid conducted by them along
with P.W.1, who is a Gazetted Officer and they have stated
that 24 ganja plants were seized from the property of
accused. P.W.4 and 6 are independent pancha witnesses
to Ex.P.1 seizure mahazar. These witnesses have
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completely turned hostile to the case of prosecution.
Though they were cross-examined by the Public
Prosecutor, nothing material has been elicited from their
mouth by the prosecution.
6. P.W.7 and 8 are the neighbors of the accused,
who were present at the time of seizure of contraband
article ganja plants from the property of the accused.
PW.7 and 8 have also turned hostile to the case of
prosecution. P.W.9 is the Deputy Tahashildar, who had
issued the Pahani Certificate of the land pertaining to the
accused persons. Ex.P.15 is report given by this officer.
Ex.P.16 and 17 are the Pahani Certificates issued by this
officer pertaining to the land of the accused. P.W.10 is the
Sub-Inspector of Police attached to Mundagod Police
Station. He has stated that P.W.3 had submitted the
report, based on which he had registered the FIR in Crime
No.188/2015 against the accused persons for the alleged
offences. Ex.P.5 is the complaint/report and Ex.P.18 is the
first information report registered by P.W.10. He has
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spoken about arresting the accused and producing them
before the Court.
7. P.W.11 is the Officer of Forensic Science
Laboratory, but this officer disputed that Forensic Science
Laboratory Certificate was issued by her. Thereafter,
P.W.12 was examined as additional witness and this
witness has identified the certificate issued by the
Laboratory, which is marked as Ex.P.20. P.W.13 is the
Inspector of Police, who has completed the investigation
and filed the charge sheet. He has spoken about
forwarding of contraband article to the Forensic Science
Laboratory for the purpose of chemical examination.
8. From the over all re-appreciation of the material
on record, it is seen that none of the independent
witnesses examined by the prosecution have supported
the prosecution case. P.W.4 and 6 who are independent
pancha witnesses have turned hostile to the case of
prosecution. P.W.7 and 8 who are the neighborers of the
accused allegedly present at the spot while contraband
article was seized and subjected to panchanama Ex.P.1,
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have also turned hostile to the case of prosecution. During
the course of cross-examination of these witnesses,
nothing has been elicited from their mouth by the
prosecution.
9. The material on record would go to show that
after the ganja plants were subjected to seizure
panchanama Ex.P.1, the Investigating Officer has not
produced the seized contraband article before the
jurisdictional Magistrate. In compliance of Section 52A of
the NDPS Act, inventory of the seized contraband article
has not been prepared. The certification of such inventory
which is required to be done as provided under Section
52A of the NDPS Act was also not done in the present
case. The sample of contraband article, which is
forwarded to the Forensic Science Laboratory, was also not
taken by the Investigating Officer in the presence of
jurisdictional Magistrate as required under Section 52A of
the NDPS Act. Considering the non compliance of Section
52A of the NDPS Act coupled with the evidence of P.W.4,
6, 7 and 8, a serious doubt arises with regard to the
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genuineness of the seizure made by the prosecution in the
present case. Section 52A of the NDPS Act is introduced
with an object of providing fair play in the investigation of
the case. Material on record would also go to show that
the seized contraband article in the present case are ganja
plants which included, the root, stem, leaves and other
parts of the ganja plants. A serious doubt also arises as to
whether the seized contraband article can be considered
as ganja within the meaning of Sections 2(iii)(b) of the
NDPS Act.
10. The material on record would also go to show
that there is no compliance of Section 42 of the NDPS Act
in the present case. P.W.3 who had received the credible
information with regard to accused growing ganja plants in
their property, has not complied with the mandatory
requirements as provided under Section 42 of the NDPS
Act before conducting a raid to the property of the
accused. The Trial Court having appreciated the oral and
documentary evidence available on record, has acquitted
the accused of the offences alleged against accused on the
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grounds that the prosecution has failed to prove its
charges leveled against accused beyond reasonable doubt.
The impugned Judgment and order of acquittal passed by
the Trial Court is sound and well reasoned. In an appeal
filed against the order of acquittal, unless the appellate
Court finds that the Judgment and order of acquittal is
patently illegal and perverse, even if two views are
possible the order of acquittal cannot be disturbed. Under
the circumstances, I do not find any good ground to
interfere with the impugned Judgment and order of
acquittal passed by the Trial Court. Accordingly, the
following :
ORDER
(i) Appeal is dismissed.
(ii) Consequently, pending application, if
any also stands dismissed.
Sd/-
JUDGE
CKK
CT:GSM
