Karnataka High Court

Madlanda P Somanna @ Suju vs The State Of Karnataka on 31 July, 2024

Author: Mohammad Nawaz

Bench: Mohammad Nawaz

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                                                    CRL.A No. 1059 of 2013




                  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                         DATED THIS THE 31ST DAY OF JULY, 2024

                                        BEFORE
                       THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
                          CRIMINAL APPEAL NO. 1059 OF 2013
                BETWEEN:

                    MADLANDA P SOMANNA @ SUJU
                    S/O PONNAPPA,
                    AGED 34 YEARS,
                    AGRICULTURIST,
                    MEGHATHALU VILLAGE,
                    MAKKANDUR POST,
                    MADIKERI TALUK,
                    KODAGU DISTRICT-571201.

                                                              ...APPELLANT
                (BY SRI. T.A.KARUMBAIAH, ADVOCATE)

                AND:

                    THE STATE OF KARNATAKA
                    REPRESENTED BY THE P.S.I.
Digitally
signed by           MADIKERI RURAL POLICE STATION
LAKSHMI T           KODAGU DISTRICT-571201.
Location:           REPRESENTED BY LEARNED S.P.P.
High Court of
Karnataka                                                   ...RESPONDENT
                (BY SRI. K.RAHUL RAI, HCGP)

                     THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO
                SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION
                DATED 25.10.2013 PASSED BY THE DISTRICT AND SESSIONS
                JUDGE, KODAGU, MADIKERI IN SPL. CASE (NDPS) NO.7/2007 -
                CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
                P/U/S 8(b) P/U/S 20(a)(i) OF THE N.D.P.S. ACT.

                    THIS APPEAL IS COMING ON FOR ORDERS, THIS DAY,
                JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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                                                         NC: 2024:KHC:30222
                                                   CRL.A No. 1059 of 2013




CORAM:       HON'BLE MR JUSTICE MOHAMMAD NAWAZ


                               ORAL JUDGMENT

This appeal is by accused No.1, assailing the

judgment and order dated 25.10.2013 passed by the

Court of Sessions Judge, Kodagu at Madikere in

Spl.Case(NDPS) No.7/2007, wherein accused Nos.1 to 5

are convicted for the offence under Section 8(b)

punishable under Section 20(a)(i) of the NDPS Act.

2. Accused Nos.1 to 5 were sentenced to undergo

R.I. for a period of 5 years and to pay a fine of

Rs.50,000/-, in default of payment of fine, further

sentenced to undergo R.I. for 1 year.

3. Briefly stated, case of the prosecution is that on

07.02.2007 PW.1, PSI (Crimes) of Madikeri Rural Police

Station received credible information at about 5.00 a.m.,

that accused No.1 in his land situated at Meghathalu of

Makkandur Village, with the assistance of other accused

persons, has been growing ganja. Immediately, he went

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to the land of accused No.1 along with his staff and

panchas namely Tahsildar of Madikere and the Village

Accountant and conducted a raid. They noticed two

persons watering the ganja plants and two more persons

were filling the pits with mud using spades and one more

person was cooking in a shed covered with a plastic sheet.

Totally, 2415 plants of ganja were found grown in the said

land. Five plants were removed for the purpose of

examination. After registering the case, investigation was

continued. On 08.02.2007, the investigation Officer

destroyed the remaining 2410 plants with the permission

of the Court. On collecting the chemical analysis report

which, confirmed that the sample sent were ganja plants,

charge sheet was filed against accused Nos.1 to 6.

4. The trial Court framed charges against the

accused for the aforementioned offences for which they

pleaded not guilty.

5. Prosecution in all examined 10 witnesses and

got marked 11 documents and MOs1 to 7.

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6. The learned Sessions Judge after considering

the oral and documentary evidence on record convicted

accused Nos.1 to 5 for the offences charged, whereas

accused No.6 was acquitted as he was not found guilty.

7. The learned Sessions Judge while recording the

judgment of conviction has taken into consideration the

evidence of PW.4, father of accused No.1 wherein he has

admitted that he has a land in Survey No.53 and portion

of said land had fallen to the share of accused No.1. It is

observed by the learned trial Court that no suggestion was

put to PW.4 that accused No.1 was not cultivating the land

which has been allotted to his share and even in the 313

Cr.P.C., statement of the accused he has not denied the

said aspect.

8. According to prosecution, the ganja plants were

grown in the land belonging to accused No.1 and he was

cultivating the ganja plants along with other accused

persons.

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9. PW.4 has stated that he has a land in Survey

No.53 but he does not know the sub number. Though he

has deposed that a portion of the land had fallen to the

share of accused and he was cultivating the same, he has

not stated that accused No.1 has grown ganja in the said

portion of the land.

10. The learned counsel for appellant has

contended that the RTC extracts, Exs.P9 and P10 does not

stand in the name of either PW.4 or the accused herein,

on the other hand it stands in the name of one Madlanda

B. Devaiah i.e., the brother of PW.4. Hence, he has

contended that the prosecution has not established

beyond reasonable doubt that the land in question where

the ganja plants were found belong to accused No.1 or

that he was either cultivating the said land or grown the

ganja plants.

11. As per RTC extracts Exs.P9 and P10, the owner

of the land is one Madlanda B. Devaiah. He has not been

examined. The said RTC extracts are in respect of Survey

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No.53/1A and 53/1. The extent shown in Ex.P9 is 61.84

acres and Ex.P10 is 59.64 acres. The said land in Survey

No.53/1 is a land having a very large extent. Merely

because a portion of the land belongs to accused No.1 and

he was cultivating the same, does not lead to a conclusion

that the said accused has grown ganja plants in the land,

when admittedly the land has a very large extent.

12. It is pertinent to mention that accused No.2, 3

and 5 have also challenged the judgment and order of

conviction and sentence passed against them, in Crl.A

No.1052/2013 and Crl.A No.1054/2013. A coordinate

Bench of this Court vide its judgment dated 04.03.2024

has allowed the said appeals and set aside the impugned

judgment of conviction and sentence passed by the trial

Court. It is relevant to extract paras 21 to 23:

"21. On perusal of the evidence of PWs.1 to 3 and 6 to 9, it appears that there is contrary to the evidence as to seizure of ganja, its measurement, weight and the manner of seizure conducted by

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them. Admittedly, the Investigating Officer has not examined any cannabis plants and sample plants. The owner of land, Sri Madlanda B. Devaiah, is not cited as witness in charge-sheet or made as accused in this case, however, son of PW4 has been arraigned as accused No.1. Admittedly, the Investigating Officer has not examined other independent witnesses or neighbouring land owners though available in the locality. Further, PW5, being independent mahazar witness, has not supported the case of the prosecution.

22. From perusal of the prosecution witnesses, it appears that the entire raid has been conducted by them in the absence of any independent witnesses and the manner of conduct of raid on the accused is also contrary to the provisions of the NDPS Act. The mandatory provisions of the NDPS Act have not been complied with and the raiding party has not given any opportunity to choose or gave an option to conduct raid in the

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presence of the Magistrate or independent Gazetted Officer. In the absence of any material, the Investigating Officer falsely implicated the accused.

23. Under such circumstances, the evidence of official witnesses requires corroboration of independent witnesses and based on the oral testimonies of official witnesses, conviction cannot be imposed. Further, except the oral evidence of PWs.1 to 3 and 6 to 9, other locality witnesses or independent witnesses have not supported the case of the prosecution. Hence, looking into any angle, the prosecution has failed to prove its case beyond reasonable doubt against accused Nos.2, 3 and 5, but the trial Court based on uncorroborated testimonies has wrongly convicted the accused. Hence,

deserves to be allowed and point No.1 is answered in the affirmative."

13. The appeals preferred by accused Nos.2, 3 and

5 are already allowed by this Court. Hence, in the light of

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the observations made therein and for the reasons stated

supra, the present appeal deserves to be allowed.

Accordingly, the following:

ORDER

Appeal is allowed.

The judgment and order dated 25.10.2013 passed by

the Court of Sessions Judge, Kodagu at Madikeri in Spl.

Case (NDPS) No.7/2007, convicting the appellant/accused

No.1 for the offence under Section 8(b) punishable under

Section 20(a)(i) of the NDPS Act, 1985 is hereby set

aside.