Karnataka High Court
Siddappa S/O Gurappa Kakhandaki vs The State Of Karnataka on 28 October, 2024
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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CRL.A No. 200188 of 2021
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 28TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL NO.200188 OF 2021
[374(Cr.PC)/415(BNSS)]
BETWEEN:
SIDDAPPA S/O GURAPPA KAKHANDAKI,
AGE: 41 YEARS, OCC: AGRICULTURE,
R/O HEBBALATTI,
TQ. AND DIST. VIJAYAPUR-586101.
...APPELLANT
(BY SRI SHIVANAND V. PATTANASHETTI, ADVOCATE)
AND:
THE STATE OF KARNATAKA
Digitally signed R/BY SPECIAL P.P.
by KHAJAAMEEN
L MALAGHAN HIGH COURT OF KARNATAKA
Location: High KALABURAGI-586101
Court Of
Karnataka (THROUGH THE EXCISE SUB-INSPECTOR,
VIJAYAPUR THE RANGE EXCISE P.S
VIJAYAPUR, DIST. VIJAYPUR-586101)
...RESPONDENT
(BY SRI JAMADAR SHAHABUDDIN, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374
(2) OF CR.P.C., (415 OF BNSS) PRAYING TO SET ASIDE THE
JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED
12.08.2021 PASSED BY THE PRINCIPAL DISTRICT AND
SESSIONS JUDGE / SPECIAL JUDGE AT VIJAYAPUR, IN SPECIAL
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CRL.A No. 200188 of 2021
(NDPS) CASE.NO.16/2019 FOR THE OFFENCE PUNISHABLE
UNDER SECTION 20(A) OF NDPS ACT, AND CONSEQUENTLY
ACQUIT THE APPELLANT/ACCUSED NO.1, IN THE INTEREST OF
JUSTICT AND EQUITY.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
ORAL JUDGMENT
This appeal is preferred by accused No.1, feeling
aggrieved by the judgment and order of conviction and
sentence dated 12.08.2021 passed against him by the
Court of the Principal District and Sessions Judge/Special
Judge at Vijayapura in Special (NDPS) Case No.16/2019,
for the offence punishable under Section 20 (a) of the
Narcotic Drugs and Psychotropic Substances Act, 1985 [for
short, 'the NDPS Act'].
2. Heard both sides and perused the material on
record.
3. It is the case of prosecution that, in land
bearing Sy.No.127/1D of Kumathe village, appellant/
accused No.1 has cultivated cannabis plants and accused
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No.2, his father being the owner of the said land, has
permitted accused No.1 to use the said land and cultivate
cannabis plants.
4. Charges were framed against accused Nos.1
and 2 for offences punishable under Sections 20 and 25 of
the NDPS Act. The learned Sessions Judge, on
appreciation of the oral and documentary evidence
adduced by the prosecution, acquitted accused No.2 of the
offence punishable under Section 25 of the NDPS Act,
however, convicted accused No.1 for the offence
punishable under Section 20(a) of the NDPS Act.
5. PW-7 - Inspector of Excise is the first
informant. According to the prosecution, he received a
credible information on 07.09.2018 at about 8.00 a.m.
that ganja plants are being cultivated in land bearing
Sy.No.127/1D of Kumathe village, Vijayapura taluk. He
secured PW-1, working as a Revenue Inspector and one
Raghavendra working as FDA to act as panchas and went
to the spot, along with PW-8, Dy.SP. of Excise, PW-6,
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excise guard and panchas, wherein they noticed accused
No.2 removing weeds from the midst of lemon plants
grown in the said land. On seeing them, accused tried to
run away, however, he was apprehended. In total, 30
cannabis plants weighing about 101.55 kilograms were
seized in the presence of panchas under a mahazar
Ex.P-2. Samples were taken for the purpose of chemical
examination. As per the FSL report - Ex.P-10, the
samples sent for analysis were having morphological
features and confirmed the characteristics of ganja.
6. According to the prosecution, accused No.2
being the owner of the land in question, permitted his son
i.e., accused No.1 - appellant herein to cultivate ganja
plants in the land in question and thereby accused No.2
was charged under Section 25 of the NDPS Act, whereas,
appellant/accused No.1 was charged for the offence
punishable under Section 20(a) of the NDPS Act.
7. The learned Sessions Judge, while acquitting
accused No.2, has held that in the entire evidence of the
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prosecution witnesses, no witnesses have stated that he
has knowingly permitted accused No.1 to cultivate the
cannabis plants in his land and at the time of seizure of
cannabis plants, he was not present and therefore, the
prosecution has failed to prove the ingredients of Section
25 of the NDPS Act and failed to prove the offence alleged
against accused No.2, through independent and convincing
evidence.
8. While convicting accused No.1, the learned
Sessions Judge has observed that from the evidence of
PWs-1, 2, 5 to 9, it is clear that the prosecution is able to
establish that on 07.09.2018 at about 10.00 a.m., in the
land bearing Sy.No.127/1D of Kumathe village, accused
No.1 was found to have illegally cultivating 30 ganja plants
totally weighing 101.55 kilograms for the purpose of sale
and therefore, the prosecution is able to establish that
accused No.1 has committed an offence punishable under
Section 20(a) of the NDPS Act beyond all reasonable
doubt.
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9. The learned High Court Government Pleader
has contended that accused No.1 was caught red handed
in the land where huge amount of ganja plants were
grown and he was seen working in the land. The samples
sent for analysis confirmed that they were ganja plants
and therefore, he has been rightly convicted by the
learned Sessions Judge. He contended that all the
material witnesses have supported the case of prosecution
and therefore, there is no illegality committed by the
learned Sessions Judge.
10. Among the prosecution witnesses, PWs-2 to 4
have turned hostile and not supported the case of
prosecution. Among the panch witnesses, prosecution has
examined one Sudhindra as PW-1. PW-7 is the first
informant, PW-8 is the Dy.SP. of Excise and PW-9 is the
excise guard, who went to the spot along with PWs-1, 7
and 8. PW-5 has taken the sample to the FSL for chemical
test and PW-6 is the Inspector of Excise who conducted
investigation and laid the charge sheet.
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11. It is the specific case of the prosecution that the
land in question from where the ganja plants were seized,
belonged to accused No.2. The prosecution has got
examined PW-2 working as a Village Accountant of
Kumathe village. He has stated that Sy.No.127/1D of
Kumathe village belongs to accused No.2. Therefore,
when the prosecution itself claims that the said land is
owned by accused No.2, a heavy burden lies on it to
establish that the present appellant i.e., accused No.1 has
grown ganja plants in the said land. The seizure of 30
ganja plants weighing about 101.55 kilograms, though not
seriously disputed by the learned counsel for the
appellant, it is vehemently contended by him that even
accepting that the said plants were seized and shown to
be ganja plants as per FSL report, liability cannot be
fastened on the appellant that he has cultivated ganja
plants.
12. In order to prove that the seized ganja plants
were cultivated by accused No.1, the prosecution by
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placing reliance on the above evidence of PWs-1, 7 to 9
who have gone to the spot, is trying to contend that the
accused was present in the land and he was seen
removing weeds from the midst of the lemon plants. Even
the learned Sessions Judge, while convicting accused
No.1, has come to the conclusion that accused was very
much present in the land and he was seen removing the
weeds and he was found to have illegally cultivating the
ganja plants.
13. The prosecution has not examined any witness
who have seen accused No.1 cultivating ganja plants in
the land. However, based on the evidence of the above
prosecution witnesses, wherein they have stated that the
accused was present in the land and removing the weeds,
the learned Sessions Judge has drawn a presumption
under Section 54 of the NDPS Act and held that the
accused has illegally cultivated ganja plants.
14. To draw a presumption under Section 54 of the
NDPS Act it has to be shown that the accused was in
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possession of narcotic drugs or psychotropic substances. It
is not the case of prosecution that ganja plants were in the
exclusive possession of the accused. As he was seen
present in the land removing the weeds, such a
presumption was drawn, which is not permissible. When
admittedly, the land belongs to accused No.2 and since
accused No.1 was not exclusively found in possession of
ganja plants, it cannot be presumed or held that he has
grown ganja plants in the land.
15. It is also contended by the learned counsel for
the appellant that the case of the prosecution that the
ganja plants were grown in the midst of lemon plants itself
is not proved, since PWs-3 and 4 have categorically stated
in their cross-examination that there were no lemon plants
but only kadale (chickpea) plants were grown. He would
also draw the attention of the Court to Ex.P-17, the record
of rights in support of his contention.
16. Having re-appreciated the entire evidence and
material on record, this Court is of the considered view
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that the evidence of the prosecution witnesses namely
PWs-1, 5 to 9 does not lead to the only conclusion that it
was the accused and accused alone who has grown ganja
plants in land bearing Sy.No.127/1D of Kumathe village,
Vijayapur taluk. Even accepting their evidence, the
presence of the accused in the land will not lead to a
conclusion that he has grown ganja plants which were
seized in this case. Accused was neither in exclusive
possession of ganja plants nor he was seen growing ganja
plants in the land. Presumption under Section 54 of the
NDPS Act cannot be drawn in the facts of the present
case. The reasons assigned by the learned Sessions Judge
to convict the appellant/accused No.1 are therefore, not in
accordance with law. Appeal therefore deserves to be
allowed. Accordingly, the following:
ORDER
(i) The appeal is allowed.
(ii) The judgment and order dated 12.08.2021
passed by the court of the Principal District
and Sessions Judge/Special Judge at
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Vijayapura in Special (NDPS) Case
No.16/2019 insofar as convicting the
appellant/accused No.1 for the offence
punishable under Section 20(a) of the NDPS
Act is hereby set aside.
(iii) Appellant/accused No.1 is acquitted of the
said offence.
(iv) His bail bond stands cancelled.
(v) Fine amount, if any deposited by the
appellant/accused No.1, shall be refunded to
him.
Sd/-
(MOHAMMAD NAWAZ)
JUDGE
SWK
CT:SI
