Karnataka High Court

Chandrappa S/O Banneppa Bhavani vs The State Of Karnataka on 21 January, 2025

Author: S.Vishwajith Shetty

Bench: S.Vishwajith Shetty

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                                                     CRL.A No. 200177 of 2021




                              IN THE HIGH COURT OF KARNATAKA,
                                     KALABURAGI BENCH
                          DATED THIS THE 21ST DAY OF JANUARY, 2025
                                           BEFORE
                      THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY


                            CRIMINAL APPEAL NO. 200177 OF 2021
                                  (374(Cr.PC)/415(BNSS))
                   BETWEEN:

                   SRI CHANDRAPPA S/O BANNEPPA BHAVANI,
                   AGED ABOUT 61 YEARS, OCC: AGRICULTURE,
                   R/O. KAKHANDAKI, TQ. BABALESHWAR,
                   DIST. VIJAYAPUR.

                                                                 ...APPELLANT
                   (BY SRI S. S. MAMADAPUR, ADVOCATE)

                   AND:

                   THE STATE OF KARNATAKA
                   THROUGH BABALESHWAR PS,
Digitally signed   REP. BY ITS ADDL. STATE PUBLIC PROSECUTOR,
by SHILPA R        ADVOCATE GENERAL'S OFFICE,
TENIHALLI          HIGH COURT BUILDING,
Location: HIGH     KALABURAGI-585103.
COURT OF
KARNATAKA
                                                               ...RESPONDENT
                   (BY SMT. MAYA T.R., HCGP)

                        THIS CRL.A. IS FILED U/S.374 (2) OF CR.P.C PRAYING
                   TO, SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER
                   OF SENTENCE DATED 19.08.2021 PASSED BY THE HON'BLE
                   PRINCIPAL DISTRICT AND SESSIONS JUDGE/SPECIAL JUDGE,
                   VIJAYAPUR IN SPECIAL (NDPS)CASE NO.19/2018 AND ACQUIT
                   THE APPELLANT/ACCUSED OF THE AFORESAID OFFENCES.
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                                               NC: 2025:KHC-K:368
                                     CRL.A No. 200177 of 2021




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

CORAM:    HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY

                      ORAL JUDGMENT

(PER: HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY)

1. This appeal under Section 374(2) of Cr.P.C. is filed by

accused assailing the judgment and order of conviction and

sentence dated 19.08.2021 passed by the Court of Principal

District and Sessions Judge/Special Judge, Vijayapura in Special

(NDPS) Case No.19/2018.

2. Heard the learned counsel for the parties.

3. The ASI of Babaleshwar Police Station had submitted a

charge sheet against appellant/accused for the offence

punishable under Section 20(b) of the Narcotic Drugs and

Psychotropic Substances Act, 1985 (hereinafter referred to as

'the NDPS Act' for short) alleging that on 08.09.2018 when the

first informant (PW3) was in the station, he received a credible

information that a person standing near canal bridge on

Kakhandaki - Doodihal Road was transporting contraband

article ganja and on receipt of such information, first informant

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along with his staff and panchas had conducted a raid and

apprehended the accused/appellant and from his possession

totally 16 kgs of contraband article allegedly ganja was seized.

Thereafter, apprehended accused was arrested and produced

before the Court and remanded to judicial custody.

Investigation in the case was completed and charge sheet was

filed. During trial, in order to substantiate its case, prosecution

has examined 10 witnesses before the Trial Court as PW 1 to

PW 10 and got marked 23 documents as Exs.P1 to P23. On

behalf of defence, no defence evidence was lead nor was any

documents got marked. The prosecution in support of its case

had got marked one material object as MO 1. The Trial Court

after hearing the arguments addressed on both sides, vide the

impugned judgment and order of conviction and sentence

having convicted the appellant for the offence punishable under

Section 20 (a) (i) & (b) (ii) (B) of the NDPS Act, sentenced him

to undergo rigorous imprisonment for a period of five years and

to pay fine of Rs.50,000/- and in default to undergo simple

imprisonment for a period of one year for the offence

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

sentenced to undergo rigorous imprisonment for a period of

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five years and to pay fine of Rs.50,000/- and in default to

undergo simple imprisonment for a period of one year for the

offence punishable under Section 20 (b) (ii) (B) of the NDPS

Act. Being aggrieved by the judgment and order of conviction

and sentence, the appellant is before this Court.

4. Learned counsel for the appellant submits that seized

contraband article ganja cannot be considered as ganja within

the meaning of Section 2 (iii)(b) of the NDPS Act. The police

have collected the sample of the contraband article at the time

of alleged seizure of contraband article under seizure mahazar

Ex.P1. He submits that MO 1, is the sample drawn by the

Investigation Officer at the time of seizure itself. He refers to

Ex.P19 and P21 and submits that sample of the contraband

article drawn before the learned Magistrate under Ex.P16 was

not at all forwarded to the Forensic Science Laboratory and

therefore, there is non compliance of requirement of Section

52A of the NDPS Act in the present case. He submits that entire

investigation in the case gets vitiated and therefore, in view of

the law laid down by the Hon'ble Supreme Court in the case of

Mangilal vs. State of Madhya Pradesh reported in 2023

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SCC OnLine SC 862, the judgment and order of conviction and

sentence is liable to be set-aside.

5. Per contra, learned High Court Government Pleader has

argued in support of the impugned judgment and order of

conviction and sentence and submits that though the samples

were seized under Ex.P1, thereafter, there is compliance of

Section 52A of the NDPS Act in the present case. Therefore, it

cannot be said that Section 52A of the Act is not at all complied

in the present case. Mere assertion of the appellant that

Section 52A of the NDPS Act is not complied is not sufficient

and the same is required to be proved from the material

available on record. In support of her arguments, she has

placed reliance on the judgment of the Hon'ble Supreme Court

in the case of Bharat Aambale vs. The State of Chhattisgarh in

Criminal Appeal No.250/2025 disposed of on 06.01.2025. She

submits that prosecution has made out a case for the alleged

offences against the appellant and the Trial Court having

appreciated oral and documentary evidence has rightly

convicted the appellant for the alleged offences. Accordingly,

she prays to dismiss the appeal.

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6. The prosecution during the course of trial has examined

10 charge sheet witnesses in the present case. PW1 is the Head

Constable and PW 2 and PW 4 are the Police Constables, who

had accompanied first informant/PW 3, who conducted raid on

08.09.2018 and had apprehended appellant/accused and from

his possession had recovered contraband article ganja totally

weighing 16 kgs. PW 5 is the Police Constable, who had

submitted FIR to the Magistrate and PW 6 is the panch witness

in whose presence contraband article was seized under seizure

mahazar Ex.P1. PW7 is the photographer and PW8 is the

person who had weighed the contraband article after the raid

was conducted by PW3. PW9 is the Gazetted Officer, who had

accompanied first informant at the time of raid. PW 10 is the

Investigation Officer, who conducted investigation and had

submitted charge sheet against accused.

7. Ex.P1 is the seizure panchanama dated 08.09.2018 and a

perusal of the same would go to show that contraband article

ganja seized from the appellant was found in a white bag and

also in a white towel. In the white bag, 13 kgs 500 grams of

contraband article was found and in the white towel, 2 kgs 500

grams of ganja was found. Therefore, total weight of the

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contraband article seized under the seizure mahazar would be

16 kgs. In Ex.P1 itself, it is mentioned that the Investigation

Officer had collected 500 grams each from the white bag and

the white towel and the sample contraband article collected by

the Investigation Officer was packed in a white cloth and sealed

before the Gazetted Officer. MO1 is the sample of contraband

article collected by the Investigation Officer at the time of

preparing the seizure mahazar. PW1, who was a party to the

raiding squad has spoken about MO1 and has said that MO1

was the sample of contraband article collected by the

Investigation Officer at the time of preparing seizure mahazar.

8. Ex.P17 is the Certificate of Inventory dated 11.09.2018

issued by the jurisdictional Magistrate as provided under

Section 52A of the NDPS Act. A perusal of the same would to

go to show that 15 kgs 696 grams of contraband article ganja

allegedly was produced before the learned Magistrate which

was found in one white fertilizer bag and two samples were

drawn from the same bag weighing 502 grams and 528 grams

each and were packed in yellow and red colour cloth bags.

Though two separate samples were drawn, the fact remains

that seized contraband article was packed by the Investigation

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Officer in one white fertilizer bag though Ex.P1 seizure mahazar

would go to show that seized contraband article was found in

the custody of the appellant separately which were weighing 13

kgs 500 grams and 2 kgs 500 grams each. It appears that the

Investigating Officer had homogeneously mixed the contraband

articles and packed in one white bag.

9. The Hon'ble Supreme Court in the case of Union of

India vs. Bal Mukund and Others reported in (2009) 12

SCC 161, has observed as follows:-

"36. There is another aspect of the matter which cannot also be lost sight of. Standing Instruction 1/88, which had been issued under the Act, lays down the procedure for taking samples. The High Court has noticed that PW 7 had taken samples of 25 gm each from all the five bags and then mixed them and sent to the laboratory. There is nothing to show that adequate quantity from each bag had been taken. It was a requirement in law."

10. Ex.P19, is the acknowledgment issued by the FSL for

having received the contraband article for the purpose of

chemical examination from Police Constable D N Kosthi.

Undisputedly, the said police constable has not been examined

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in the present case. A perusal of Ex.P19 would go to show that

what was received in the FSL was 15 kgs 696 grams of

contraband article allegedly ganja and the sample which was

drawn under the inventory at Ex.P17 before the jurisdictional

Magistrate appears to have not been forwarded by the

Investigation Officer to the FSL for the purpose of chemical

examination. Ex.P21 is the Test Report of the contraband

article dated 25.07.2019 issued by the FSL. In the said

document, it is stated that the laboratory had received

contraband article on 09.10.2018 through Police Constable D N

Kosthi. Therefore, undisputedly, reference is made to the

contraband article received by the FSL under acknowledgment

Ex.P19 wherein 15 kgs 696 grams of ganja was received by the

FSL. It appears that sample of the drug was drawn at the FSL

and was subjected to chemical examination. The inventory at

Ex.P17 would clearly go to show that there are separate

samples weighing 502 grams and 528 grams each which was

collected and a perusal of the documents at Ex.P19 and Ex.P21

would go to show that said sample of the contraband article

which were drawn before the Magistrate was not at all

forwarded for the purpose of chemical examination. Therefore,

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there is total non-compliance of requirement of Section 52A of

the NDPS Act in the present case.

11. This Court in the case of Sharukh vs. State of Karnataka

in Crl.A.No.200230/2023 C/w Crl.A.No.200147/2023 disposed

of on 05.07.2024 in paragraph No.19 has observed as follows:-

"19. Section 52(A)(2) is introduced in the statute with an object to give some sanctity for the seizure made and also to prevent any mischief at the hands of the police officers or any other officer investigating the cases under the provisions of the NDPS Act. The punishment for the offences under the provisions of the NDPS Act depends upon the quantity of the contraband article seized and therefore, to rule out any foul play during the course of investigation, necessity of preparing the inventory and getting the same certified by the jurisdictional Magistrate within a reasonable time and drawing of sample from the seized contraband article becomes mandatory."

12. The Hon'ble Supreme Court in the case of Mangilal

(supra) in paragraph Nos.5 and 6 has observed as follows:-

"5. Sub-section (2) of Section 52A of the NDPS Act mandates a competent officer to prepare an inventory of such narcotic drugs with adequate particulars. This has to be followed through an

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appropriate application to the Magistrate concerned for the purpose of certifying the correctness of inventory, taking relevant photographs in his presence and certifying them as true or taking drawal of samples in his presence with due certification. Such an application can be filed for anyone of the aforesaid three purposes. The objective behind this provision is to have an element of supervision by the magistrate over the disposal of seized contraband. Such inventories, photographs and list of samples drawn with certification by Magistrates would constitute as a primary evidence. Therefore, when there is non-compliance of Section 52A of the NDPS Act, where a certification of a magistrate is lacking any inventory, photograph or list of samples would not constitute primary evidence.

6. The obvious reason behind this provision is to inject fair play in the process of investigation. Section 52A of the NDPS Act is a mandatory rule of evidence which requires the physical presence of a Magistrate followed by an order facilitating his approval either for certifying an inventory or for a photograph taken apart from list of samples drawn. In due compliance of Section 52A(1) of the NDPS Act the Ministry of Finance (Department of Revenue) issued a Notification No. G.S.R. 339(E) dated

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10.05.2007 which furnishes an exhaustive manner and mode of disposal of drugs ending with a certificate of destruction:

"4. Manner of disposal

1) Where any narcotic drug or psychotropic substances has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53, of the Act, or if it is seized by such an officer himself, he shall prepare an inventory of such narcotic drugs or psychotropic substances as per Annexure 1 to this notification and apply to any Magistrate under sub-section (2) of section 52A as per Annexure 2 to this notification.

2) After the Magistrate allows the application under sub-section (3) of section 52A, the officer mentioned in clause (1) above shall preserve the certified inventory, photographs and samples drawn in the presence of the Magistrate as primary evidence for the case and submit details of the drug consignments to the Chairman of the Drug Disposal Committee for a decision by the committee on the disposal. The officer shall send a copy of the details along

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with the drug consignments to the officer- in-charge of the godown.

XXX XXX XXX

4.2 Mode of disposal of drugs.

(i) Opium, morphine, codeine and thebaine shall be disposed of by transferring to the Government Opium and Alkaloid Works under the Chief Controller of Factories.

(ii) In case of drugs other than the drugs mentioned in clause (i), the Chief Controller of Factories shall be intimated by the fastest means of communication available, details of drug consignments that are ready for disposal.

(iii) The Chief Controller of Factories shall indicate within 15 days of the date of receipt of the communication, the quantities of drugs, if any, that are required by him to supply as samples under Rule 67B.



(iv)    Such quantities of drugs, if any, as
        required     by       the    Chief     Controller       of
        Factories    under          clause    (iii)    shall    be
        transferred to him and the remaining
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quantities of drugs shall be destroyed as per the procedure outlined in para 4.1.2.

(v) Destruction shall be by incineration in incinerators fitted with appropriate air pollution control devices, which comply with emission standards. Such incineration may only be done in places where adequate facilities and security arrangements exist. In order to ensure that such incineration may not be a health hazard or polluting, consent of the State Pollution Control Board or Pollution Control Committee, as the case may be, should be obtained. Destruction shall be carried out at the presence of the Members of the Drug Disposal Committee.

           XXX                        XXX                   XXX


   4.4 Certificate of destruction.


   A     certificate    of     destruction       (in    triplicate)

containing all the relevant data like godown entry number, gross and net weight of the drugs seized, etc., shall be prepared and signed by the chairman and members of the Drug Disposal Committee as per format at Annexure 3. The original copy shall be pasted in the godown

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register after making necessary entries to this effect, the duplicate to be retained in the seizure case file and the triplicate copy will be kept by the Drug Disposal Committee. Details of disposal of drugs shall be reported to the Narcotics Control Bureau in the Monthly Master Reports."

13. Section 52 A (4) of the NDPS Act reads as follows:-

"52A-(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1972) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the innventory, the photographs of 5[narcotic drugs, psychotropic substances, controlled substances or conveyances] and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence.""

14. From a reading of the aforesaid provision of law, it is very

clear that list of sample drawn under sub-section (2) of Section

52A of the NDPS Act and certified by the Magistrate only can be

considered as primary evidence. In the present case, samples

drawn under the inventory have not at all been forwarded to

the FSL for the purpose of chemical examination and therefore,

primary evidence was not at all placed before the Court.

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15. In the case of Mohammed Khalid and Another vs.

State of Telangana reported in 2024 INSC 158, the Hon'ble

Supreme Court in paragraph No.22 has observed as follows:

"22. Admittedly, no proceedings under Section 52A of the NDPS Act were undertaken by the Investigating Officer PW-5 for preparing an inventory and obtaining samples in presence of the jurisdictional Magistrate. In this view of the matter, the FSL report(Exhibit P-11) is nothing but a waste paper and cannot be read in evidence."

16. In the case on hand, though the proceedings under

Section 52A of the NDPS Act were undertaken by the

Investigation Officer and samples were obtained in the

presence of jurisdictional Magistrate, it appears that the said

samples have not been forwarded for the purpose of chemical

examination and therefore, the FSL report at Ex.P21 cannot be

relied upon nor can it be read in evidence. In addition to the

same, contraband article seized under Ex.P1 have not been

produced before the Court and marked as MO. It is only sample

which was collected by the Investigation Officer under Ex.P1

even prior to subjecting the contraband article for inventory as

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provided under Section 52A of the NDPS Act, which is produced

as MO1.

17. The Hon'ble Supreme Court in the case of Mangilal

(supra) has observed that the best evidence would have been

the seized materials which ought to have been produced during

the trial and marked as material objects. There is no

explanation for this failure to produce them. Mere oral evidence

as to their features and production of panchnama does not

discharge the heavy burden which lies on the prosecution,

particularly where the offence is punishable with a stringent

sentence as under the NDPS Act.

18. In the case of Bharat Aambale (supra), the Hon'ble

Supreme Court having referred to its earlier judgment in the

case of Mangilal (supra), has observed that though it is in

complete agreement with the observations made in the case of

Mangilal (supra), a mere assertion by the accused that there is

non-compliance of Section 52A of the NDPS Act, is not

sufficient and initial burden is on the accused to establish that

there is non-compliance of Section 52A of the NDPS Act either

by leading evidence or by relying upon the evidence of the

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prosecution. In the case on hand, on the basis of the evidence

placed on record by the prosecution, the accused/appellant has

successfully proved that there is total non-compliance of the

requirement of Section 52A of the NDPS Act and therefore, the

burden on the appellant/accused as contemplated in the case of

Bharat Aambale (supra) is successfully discharged by him in

the present case.

19. Since the seized contraband article collected under the

inventory at Ex.P17 was not produced in the present case, a

serious doubt arises with regard to the seizure. The Trial Court

has placed reliance on the report of the FSL at Ex.P21 while

taking the evidence of official witnesses as gospel truth. From

over all appreciation of oral and documentary evidence in the

present case, it is seen that there are many material

irregularities which create a serious doubt on the case of the

prosecution. In addition to the same, seized contraband article

includes leaves, stem, seeds and other parts of the wet ganja

plant and therefore, a serious doubt arises whether the seized

contraband article can be considered as ganja within the

meaning of Section 2(iii)(b) of the NDPS Act, more so for the

reason the sample of contraband article which were seized

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under the inventory were not at all sent to the FSL for the

purpose of chemical examination. Under the circumstances, I

am of the opinion that the Trial Court was not justified in

convicting the appellant/accused for the alleged offences.

Accordingly, the following:-

ORDER

(i) The appeal is allowed.

(ii) The judgment and order of conviction and sentence dated 19.08.2021 passed by the Principal District and Sessions Judge/Special Judge, Vijayapura in Special (NDPS) Case No.19/2018 is hereby set-aside. The appellant is acquitted of the alleged offences.