Karnataka High Court
P K Jinson vs The State Of Karnataka on 4 March, 2024
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CRL.A No. 1052 of 2013
C/W CRL.A No. 1054 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.1052 OF 2013
CONNECTED WITH
CRIMINAL APPEAL NO.1054 OF 2013
IN CRL.A. NO.1052/2013:
BETWEEN:
MAVANGAL PRABHAKARA
@ AUTO PRABHA
S/O LATE VELAYUDHAN
AGED ABOUT 56 YEARS
DRIVER OF AUTO NO.KA-12-4118
CHENNANGOLLI PAISARY
BALAJI VILLAGE
GONIKOPPA, VIRAJPET TALUK
KODAGU DISTRICT-571 201.
...APPELLANT
(BY SRI R. K. MAHADEVA, ADVOCATE)
Digitally signed by AND:
MOUNESHWARAPPA
NAGARATHNA
Location: HIGH THE STATE OF KARNATAKA
COURT OF
KARNATAKA REPRESENTED BY THE PSI
MADIKERI RURAL POLICE STATION
KODAGU DISTRICT-571 201.
...RESPONDENT
(BY SRI VINAY MAHADEVAIAH, H.C.G.P.)
***
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CRL.A No. 1052 of 2013
C/W CRL.A No. 1054 of 2013
IN CRL.A. NO.1054/2013:
BETWEEN:
1. P. K. JINSON
S/O. KUNJAN
AGED ABOUT 35 YEARS
AGRICULTURIST AND BUSINESSMAN
PANDANCHERI HOUSE, KELAGAM VILLAGE
NEAR MANCHALKAVU TEMPLE
TALLICHERI TALUK
KANNANUR DISTRICT
KERALA STATE - 571 201.
2. NIJU
S/O. KURIAN
AGED ABOUT 44 YEARS
MEENPET
FAROOQ FURNITURE & SAW MILL
VIRAJPET, MADIKERI DISTRICT - 571 201
NATIVE OF KOTTEYUR PUDUMATTATHIL
CHUNGAKUN POST
VENAGALAVADI VILLAGE
KELAGAM PS, KANNANUR DISTRICT
KERALA STATE.
...APPELLANTS
(BY SRI R. K. MAHADEVA, ADVOCATE)
AND:
THE STATE OF KARNATAKA
REPRESENTED BY THE PSI
MADIKERI RURAL POLICE STATION
KODAGU DISTRICT - 571 201.
...RESPONDENT
(BY SRI VINAY MAHADEVAIAH, H.C.G.P)
***
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CRL.A No. 1052 of 2013
C/W CRL.A No. 1054 of 2013
THESE CRIMINAL APPEALS ARE FILED UNDER SECTION
374(2) OF THE CR.P.C. PRAYING TO SET ASIDE THE
JUDGMENT OF CONVICTION AND ORDER ON SENTENCE DATED
25-10-2013 PASSED BY THE SESSIONS JUDGE, KODAGU,
MADIKERI, IN SPECIAL CASE (NDPS) NO.7 OF 2007
CONVICTING ACCUSED NO.5 AND ACCUSED NOS.2 AND 3 FOR
THE OFFENCES PUNISHABLE UNDER SECTIONS 8(b) AND
20(a)(i) OF THE NDPS ACT.
THESE CRIMINAL APPEALS ARE COMING ON FOR
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
JUDGMENT
Criminal Appeal No.1052 of 2013 is filed by accused
No.5 and Criminal Appeal No.1054 of 2013 is filed by
accused Nos.2 and 3 under Section 374(2) of the Code of
Criminal Procedure, 1973 (for brevity referred to as
'Cr.P.C.') to set aside the judgment of conviction and order
on sentence dated 25-10-2013 passed by the Sessions
Judge, Kodagu, Madikeri, in Special Case (NDPS) No.7 of
2007 and acquit them for the offences punishable under
Sections 8(b) and 20(a)(i) of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (for brevity referred to
as 'NDPS Act').
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2. For the sake of convenience, the parties are
referred to as per their rankings before the trial Court.
The appellants are accused Nos.5, 2 and 3 respectively
and the respondent-State is the complainant.
3. The brief facts of the prosecution case is that on
7-2-2007 at 5:00 a.m., when PW1-G.M. Naikar, Sub-
Inspector of Police (Crimes), Madikeri Rural Police Station,
was in his official quarters, received a credible information
with regard to growing of cannabis (ganja) plants at
Meghathalu of Makkandur Village in the land belonging to
accused No.1 to an extent of 1½ acres with the assistance
of other accused persons. Immediately, PW1 went to the
Police Station, secured sub-staff, panchas and PW3-
K.N. Sathyanarayana, In-charge Tahasildar, and reached
the spot at 7:00 a.m. and conducted raid on the accused
persons. Accused No.1 and two other persons were
watering cannabis plants, two others were filling the pits
with mud using spades, and one person was cooking in a
shed covered with plastic sheet. Therefore, PW1 with the
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assistance of his sub-staff took accused Nos.1 to 6 to his
custody. PW1, his sub-staff and Gazetted Officer identified
cannabis plants, where 525 pits had been dug and in each
of them, four to five plants were found. In this regard, a
detailed seizure mahazar was drawn in the presence of the
witnesses. There were 2415 cannabis plants in the land of
accused No.1 and out of it, five were removed for the
purpose of sample. Hence, PW1 went to the Police Station,
along with accused persons, lodged a complaint as per
Ex.P2 and produced accused Nos.1 to 6 before PW7-
K.P. Harishchandra, Sub-Inspector of Police. On the basis
of Ex.P2, PW7 registered a case in Crime No.20 of 2007
and sent FIR as per Ex.P5. In turn, PW7 took up
investigation, recorded the statements of the witnesses,
and on the following day of the incident, he went to the
spot, destroyed the remaining 2410 plants with permission
of the Court and sent five sample plants for chemical
examination and on receipt of the report-Ex.P8 and after
completion of investigation, he submitted charge-sheet to
the Court.
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4. After receipt of the charge-sheet, the trial Court
took cognizance of the offences against the appellants and
other accused under Section 190(1)(b) of the Cr.P.C. The
presence of the appellants were taken and they were
enlarged on bail during trial. The trial Court after hearing
on charge, framed charge against the appellants for the
offences punishable under Sections 8(b) and 20(a)(i) of
the NDPS Act and they pleaded not guilty and claimed to
be tried.
5. In order to prove its case, the prosecution
examined in all ten witnesses as PWs.1 to 10, got marked
eleven documents as per Exs.P1 to P11, got marked seven
material objects as per MOs.1 to 7 and closed its side. At
the stage of conclusion of the trial, the statement of the
appellants were recorded under Section 313 of the Cr.P.C.
by explaining the incriminating material available in the
prosecution case and case of the appellants were of total
denial.
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6. After hearing the prosecution and the defence,
the trial Court framed the following point for its
determination:
"i) Whether the prosecution has established
beyond all reasonable doubts that prior to
07.02.2007 the accused had cultivated
cannabis plants in land bearing Sy.No.53/A1 of
Meghathalu village coming within the limits of
Madikeri Rural police station without any licence
or permit and thereby have committed the
offences under Section 8(b) punishable under
Section 20(a)(i) of the N.D.P.S. Act, 1985?"
7. On the basis of the oral and documentary
evidence on record, the trial Court convicted the
appellants and others for the offences punishable under
Sections 8(b) and 20(a)(i) of the NDPS Act and sentenced
them to undergo rigorous imprisonment for five years with
fine of Rs.50,000/- each and in default of payment of fine,
to undergo rigorous imprisonment for one year. Aggrieved
by the judgment of conviction and order on sentence,
accused Nos.2, 3 and 5 have filed these appeals.
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8. Learned counsel for the appellants has
contended that the judgment of conviction and order on
sentence passed by the trial Court is manifestly illegal,
arbitrary and against the facts and evidence on record.
There is no iota of evidence to connect the appellants with
the crime. In the instant case, independent witnesses i.e.
PWs.4, 5 and 10 have turned hostile to the case of the
prosecution and in absence of any independent witnesses,
merely on the basis of oral evidence of PWs.1 to 3 and 5
to 9, the trial Court convicted the appellants, which is
gross error in the eye of law.
He further contended that the respondent-Police
have not complied with the mandatory provisions of
Sections 42, 50, 52 and 54 of the NDPS Act. It is
contended that the alleged raid was conducted in the land
of one Madlanda B. Devaiah and these accused persons
are not the owners of the said land. As per the report of
PW8-P.S. Nagendra, Village Accountant, accused No.1 was
cultivating the land in question, but oral evidence is quite
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contrary to Exs.P9 and 10-RTC extracts. As per Exs.P9 and
P10, one Madlanda B. Devaiah is the owner of the land
and not these accused persons.
He further contended that at no point of time,
accused Nos.1 to 6 were cultivating the land in question.
The owner of the land was neither cited as witness in the
charge-sheet nor made him as one of the accused in this
case. The investigating Officer has falsely implicated these
accused in the crime in order to save the real culprit or the
owner of the land. On all these grounds, he prays to allow
these appeals.
9. Learned High Court Government Pleader for the
respondent-State vehemently contended that PWs.1 to 3
and 6 to 9 have categorically stated against the accused
about cultivation of cannabis plants in the land of accused
No.1. There were 2410 cannabis plants in the land of
accused No.1, the raiding party removed those plants in
the presence of independent witnesses, sub-staff and
Gazetted Officer and they have categorically stated against
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the accused. PW9-B. Lingappa, FSL Officer, has
categorised the seized plants as leaves, root parts, stems
and accordingly, he submitted his report as per Ex.P8.
Therefore, the trial Court has rightly convicted the
appellants. Further, PW1 has complied with the mandatory
requirements of Sections 42, 50, 52 and 54 of the NDPS
Act. Hence, there was no error on the part of the
Investigating Officer or raiding party in conducting raid as
per the mandatory provisions. Hence, there is no finding
fault in this regard and on the basis of the material
available on record, the trial Court has rightly drew
presumption under Section 54 of the NDPS Act in favour of
the prosecution and accordingly, convicted the appellants.
Hence, he prays to dismiss the appeal.
10. Based on the above submissions, the following
point that would arise for consideration of this Court is:
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"Whether the judgment of conviction and
order on sentence dated 25-10-2013
passed by the Sessions Judge, Kodagu,
Madikeri, in Special Case (NDPS) No.7 of
2007, calls for interference by this
Court?"
11. As per the case of the prosecution, on 7-2-2007,
accused Nos.1 to 6 were cultivating cannabis plants in the
land bearing Survey No.53/A1 of Meghathalu Village,
hence, the complainant, his staff and Gazetted Officer
conducted raid on accused Nos.1 to 6 and found 2415
cannabis plants which were illegally grown in the land of
accused No.1. Therefore, the complainant seized cannabis
plants and conducted seizure mahazar and lodged the
complaint.
12. In order to establish the above aspects, the
prosecution has examined:
a. PW1-G.M. Naikar, Sub-Inspector of Police, who
received credible information about illegal cultivation of
cannabis plants in the land of accused No.1. After receipt
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of the said information, he reduced it into writing in his
diary and informed this aspect to his higher authorities,
secured sub-staff and PW3-K.N. Sathyanarayana, In-
charge Tahasildar as Gazetted Officer, visited the land of
accused No.1 at 7:00 a.m. PWs.1 to 3 and his sub-staff
seen cannabis plants in the land of accused No.1. Hence,
they removed 2415 cannabis plants and out of it, five
plants were sent for examination. The approximate weight
of each cannabis plants were about 1½ kilograms. Same
were packed. He also seized plastic pipe, two spades,
plastic mug, bucket and plastic-sheet as MOs.1 to 7. In
the cross-examination, he has categorically admitted that
cannabis plants were grown in the land belonging to one
Somanna (accused No.1). He admits that he did not weigh
the cannabis plants, but he approximately mentioned its
weight in Ex.P1-seizure mahazar and even, he did not
weigh the sample plants.
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b. PW2-H.R.S. Shetty, Deputy Superintendent of
Police, who orally permitted PW1 to conduct the raid in the
land of accused No.1.
c. PW3-K.N. Sathyanarayana, In-charge Tahasildar,
who accompanied PW1 on his request, has stated about
the alleged raid conducted on accused Nos.1 to 6 in the
land of accused No.1. But, he failed to identify the accused
before the Court. In the cross-examination, he
categorically admitted that PW1 did not invite him as
Gazetted Officer, but he invited him in the capacity of In-
charge Tahasildar. He further admits that PW1 did not
separate the flowering and fruiting part, root, leaves and
stems. He is unable to name the accused who grown
cannabis plants in the land bearing Survey No.53/A1 of
Meghathalu Village. He further admits that PW1-Police
Officer did not ask the accused to conduct seizure in the
presence of the Gazetted Officer or Judicial Magistrate
First Class.
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d. PW4-M.B. Ponnappa, father of accused No.1,
PW5-S.K. Achaiah, witness to Ex.P1-seizure mahazar and
PW10-H.N. Laksmisha, Photographer, have turned hostile
to the case of the prosecution and hence, their oral
evidence do not aid the case of the prosecution to any
extent.
e. PW6-S.N. Suresh Babu, Circle Inspector of Police,
who accompanied PW1, supports the case of the
prosecution and reiterates the oral evidence of PW1.
f. PW7-K.P. Harishchandra, Sub-Inspector of Police,
who received the complaint as per Ex.P2, conducted
seizure mahazar as per Ex.P1, registered the case against
the accused and submitted FIR as per Ex.P5 to the Court
and his higher authorities. In the cross-examination, he
admitted that he destroyed the entire cannabis plants with
the permission of the Court.
g. PW8-P.S. Nagendra, Village Accountant, who
visited the land of accused No.1 along with the Gazetted
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Officer and as per the request of the Investigating Officer,
he issued Exs.P9 and P10-RTC extracts. As per the
contents of Exs.P9 and P10, Madlanda B. Devaiah is the
owner of the land in question.
h. PW9-B. Lingappa, Chemical examiner, has
deposed that he examined the sample plants and issued
his report as per Ex.P8. He categorically stated that the
sample sent to him was cannabis plants containing leaves
and flowers.
13. Learned counsel for the appellant submitted that
the prosecution failed to furnish the material particulars as
to accused No.1 whether he is in exclusive possession of
the land in question. As per the material produced by the
prosecution itself, PW8-P.S. Nagendra, Village Accountant,
has deposed that one Madlanda B. Devaiah is in
possession of the land in question.
14. In the instant case, it is admitted that, PW1-
G.M. Naikar, Sub-Inspector of Police, who conducted raid
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in the land of accused No.1, has not made any record of
any ground on the basis of which, he had a reasonable
belief that the offence under Section 54 of the NDPS Act is
being committed before proceeding to conduct raid in the
land of accused No.1 without obtaining a search warrant
and therefore, the provisions of Section 54 of the NDPS
Act have not at all complied with. Therefore, this renders
the entire search/raid without jurisdiction and as a logical
corollary, it vitiates the proceedings. Sections 53 and 54
of the NDPS Act contain valuable safeguards for the liberty
of citizen, in order to protect them from ill-founded or
frivolous prosecution or harassment. Therefore, there has
been a direct non-compliance of the provisions of Section
54 of the NDPS Act, which renders the search completely
without jurisdiction.
15. Further, as per Section 42(2) of the NDPS Act,
where an Officer takes down any information in writing
under Sub Section (1) or grounds for his belief, he shall
within 72 hours, send a copy thereof to his immediate
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superior official. The compliance with Section 42(2) of the
NDPS Act is mandatory and failure of raiding party (PW1)
to takedown the information received by him in writing
and shall forthwith send a report to his immediate Officer
would cause prejudice to the accused. Under this Section,
if there is total non-compliance in the provisions, the same
would adversely affect the prosecution case and to that
extent, it is mandatory. Whereas in the instant case,
though PW1-Sub-Inspector of Police received information,
but the same was not taken down in writing by him or
conveyed to his immediate Police Officer. As per the
evidence of PW1, he orally informed his higher official. Any
oral evidence of PW1 will not be in compliance with the
provisions of Section 42(2) of the NDPS Act. Apart from
this, the first informant did not reduce the credible
information in writing and he has not registered the said
credible information as FIR.
16. On perusal of the oral and documentary evidence
on record, it appears that the requirements of Section 50
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of the NDPS Act have not been complied with. In fact, the
accused ought to have been informed that, they have the
option of being searched in the presence of a Gazetted
Officer or a Judicial Magistrate First Class. In the instant
case, PW3-K.N. Sathyanarayana was an In-charge
Tahasildar, and was not a Gazetted Officer at the relevant
point of time. Hence, PW1, the first informant, ought to
have complied with the requirements of Section 50 of the
NDPS Act. Though PW1 has not complied with the
mandatory requirements of Section 50 of the NDPS Act,
the trial Court has wrongly interpreted that such
requirement was in response of personal search.
17. On perusal of the oral testimonies of PWs.1 to 3,
it clearly establishes that PW3-K.N. Sathyanarayana was
an In-charge Tahasildar and not a Gazetted Officer. The
obligation of raiding party under Section 50 of the NDPS
Act has been settled in the case of VIJAYSINH
CHANDUBHA JADEJA v. STATE OF GUJARAT reported
in (2011) 1 SCC 609 wherein, the Hon'ble Apex Court
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held that "the requirement of Section 50 of the NDPS Act
is a mandatory requirement and the provision of Section
50 must be very strictly construed." From perusal of the
ratio laid down in the decision cited supra, on the case on
hand, the requirements of Section 50 of the NDPS Act is
not complied with by informing the accused of their option
to be searched either in the presence of a Gazetted Officer
or a Magistrate. The mandatory requirement continues
even after that and it is required that the accused are
actually brought before the Gazetted Officer or the
Magistrate in order to impart authenticity, transparency
and creditworthiness to the entire proceedings. In the
instant case, PW1 or PW7, ought to have laid an
endeavour to produce accused Nos.1 to 6 before the
nearest Magistrate or ought to have conducted raid in the
presence of regular Gazetted Officer. However, PW1 or
PW7 has not complied with the requirements of Section 50
of the NDPS Act.
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18. On perusal of the evidence of PW1, it appears
that on 7-2-2007 at 5:00 a.m., he received credible
information about illegal cultivation of cannabis in the land
of accused No.1. Admittedly, PW1 neither recorded the
said information received in his diary, nor communicated
the same to his higher authority in writing within the
period of 72 hours, even after raid was conducted.
19. In the instant case, according to the prosecution,
accused Nos.1 to 6 were cultivating cannabis plants in the
land of accused No.1 and as per the evidence of PW1, he
removed 2415 plants and out of it, 5 cannabis plants were
sent for examination. In support of the contention of the
prosecution, it got examined PW9-B. Lingappa, Scientific
Officer. On perusal of Ex.P8-Chemical Examiner's Report,
the Scientific Officer opined that he examined leaves,
fruiting tops and stems. It appears that the report of
chemical analysis is incomplete as the Scientific Officer has
not categorised the cannabis plants, whether it includes
stem, leaves, branches, fruiting tops, etc.
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20. A Co-ordinate Bench of this Court, in the case of
K.K. REJJI AND OTHERS v. STATE BY MURDESHWAR
POLICE STATION, KARWAR, reported in
2010 (5) KANT.L.J 279, has held as under:
"Ganja is defined under the provision of NDPS
Act as follows:
"2(iii)(b) Ganja, that is, the flowering or
fruiting tops of the cannabis plant
(excluding the seeds and leaves when
not accompanied by the tops), by
whatever name they may be known or
designated".
Whereas in the instant case, PW9-Scientific Officer
has not described the ganja as defined under Section
2(iii)(b) of the NDPS Act. Therefore, Ex.P8-Chemical
Examiner's Report is inconclusive.
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
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of seizure conducted by 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 presence
of the Magistrate or independent Gazetted Officer. In the
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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, the appeal filed by
accused Nos.2, 3 and 5 deserves to be allowed and point
No.1 is answered in the affirmative.
24. Accordingly, I pass the following
ORDER
i. Criminal appeals are allowed;
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ii. The judgment of conviction and order on sentence
dated 25-10-2013 passed by the Sessions Judge,
Kodagu, Madikeri, in Special Case (NDPS) No.7 of
2007 is hereby set aside;
iii. Appellants/Accused Nos.2, 3 and 5 are set at liberty
and their bail bonds, if any, shall stand cancelled,
and
iv. The fine amount, if any, deposited shall be returned
to them, forthwith.
Sd/-
JUDGE
PSG [paragraph Nos.1 to 12(c)]
KVK [paragraph Nos.12(d) to end]
