Karnataka High Court

Syed Pasha vs State Of Karnataka on 12 March, 2025

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                                                       NC: 2025:KHC:10414
                                                      CRL.A No. 82 of 2013




                IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                    DATED THIS THE 12TH DAY OF MARCH, 2025

                                      BEFORE
               THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
                       CRIMINAL APPEAL NO. 82 OF 2013 (C)
             BETWEEN:

             SYED PASHA
             S/O SYED GAFOOR
             AGED ABOUT 58 YEARS
             RESIDENT OF MUTHUR COLONY
             MUTHUR VILLAGE & POST
             PIRIA PATNA TQ
             MYSORE DISTRICT
             (NOW IN JUDICIAL CUSTODY)
                                                              ...APPELLANT
             (BY SRI. K. RAVISHANKAR, ADVOCATE)

             AND:

             STATE OF KARNATAKA
             REPRESENTED BY P.S.I
             SIDDAPUR POLICE STATION
             KODAGU DISTRICT
Digitally signed
by SHAKAMBARI                                               ...RESPONDENT
Location: HIGH
COURT OF         (BY SRI. RAJATH SUBRAMANYAM, HCGP)
KARNATAKA

                   THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING TO
             SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION
             DATED 16.01.2013 PASSED BY THE S.J., KODAGU, MADIKERI
             IN SPL. CASE (NDPS) NO.9/2007 - CONVICTING THE
             APPELLANT/ACCUSED FOR THE OFFENCE UNDEER SECTION 8
             (C) P/U/S 20(b) OF THE N.D.P.S. ACT.

                  THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
             DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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                                         NC: 2025:KHC:10414
                                       CRL.A No. 82 of 2013




CORAM:    HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR


                     ORAL JUDGMENT

This appeal is directed against the judgment of

conviction and order of sentence dated 16th January 2013

passed in Spl.Case (NDPS) No.9/2007 by the Sessions

Judge, Kodagu at Madikeri.

2. Before the trial Court, there were two accused.

Both were convicted and sentenced. But, it is only accused

no.1 who has preferred this appeal.

3. Parties to this appeal are referred to as per

their rank before the trial Court for convenience.

4. The accused were charge-sheeted by the Sub-

Inspector of Police, Siddapura Police Station for the

offences punishable under Section 8-C read with Section

20-B of NDPS Act and Section 120-B of IPC.

5. The factual matrix as per the case of the

prosecution are as under:

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That on 31.05.2007, at about 10.00 a.m., the

complainant PW.1 P.P.Santhosh, the then PSI of Siddapura

Police Station received an anonymous information through

his telephone, stating that, in a shop adjoining the lodge

by name `Karavali(Kaveri) Lodge' on the way to

Karadigoodu from Siddapura, there are activities of selling

the `ganja' illegally. Therefore, along with his staff and

Gazetted Officer, Dr.A.B.Thammaiah with two panchas by

name Aknooru Prabhakara and P.Thiruma alias Raja went

to the said place at about 12.30 p.m. He checked the shop

and noticed, that in the drawer of the table, there were 58

packets of ganja weighing 5 grams each. Accused no.2

was present in the shop and he informed that the said

packets are kept for sale. A notice was served on him and

a search was conducted on his person. It is noticed that, in

his right pant pocket, there were four ganja packets each

weighing 5 grams. The accused no.2 was not having

permit to possess or sell the said ganja packets. On

enquiry, it was revealed by him that, it was accused no.1

used to supply the said ganja packets for the purpose of

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sale. It is further stated that, within a short time, accused

no.1 also came there and accused no.2 showed accused

no.1 stating that, it is accused no.1 who supplied the said

ganja packets.

6. On search of accused no.1, it is noticed that,

there were dry leaves of ganja, sticks and seeds. On

weighing the same, a packet was containing 1 kg. 200

grams of ganja. Accused no.1 was not having any permit

to possess and sell the same. Therefore, PSI Siddapura

Police Station prepared the panchanama, apprehended the

accused and brought them to the police station along with

the panchanama. Based upon that, he registered the crime

in crime No.64/2007 of his police station. On completion of

investigation, he filed the charge sheet against the

accused for the aforesaid offences.

7. During the crime stage itself, the present

accused/appellant was enlarged on bail. Copies of police

papers were furnished to him as contemplated under

Section 207 of Cr.PC. Charges were framed against the

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accused persons for the aforesaid offences, for which, they

pleaded not guilty and claimed to be tried.

8. To prove the case of the prosecution, eight

witnesses were examined in the shape of PWs.1 to 8, got

marked Exs.P1 to P11 and MOs nos.1 to 8. Thereafter,

accused were questioned under Section 313 of Cr.PC so as

to enable them to answer the incriminating circumstances

appearing in the evidence of prosecution. They denied

their complicity in the crime and did not choose to lead

any defence evidence. However, through PW.6 Ex.D1 to

D5 were marked on behalf of the defence.

9. The learned trial Court on hearing the

arguments and on evaluation of the evidence found both

the accused guilty of committing offence under Section

8-C read with Section 20-B of NDPS Act and sentenced

them as under:

"A-1 is sentenced to undergo rigorous imprisonment for five years and pay a fine of Rs.50,000-00 (Rupees Fifty thousand only) and in default of

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payment of fine to undergo rigorous imprisonment for one year.

A-2 is sentenced to undergo rigorous imprisonment for three months and pay a fine of Rs.5,000-00 (Rupees Five thousand only) and in default of payment of fine to undergo rigorous imprisonment for one month.

The period spent by the accused as under trial prisoners shall be given set off against the sentence now imposed".

10. Being aggrieved by the said judgment of

conviction and order of sentence, now accused no.1 is

before this Court challenging the judgment of his

conviction and order of sentence.

11. Heard the arguments of learned counsel for

accused no.1 and learned Additional HCGP for State and

perused the records.

12. It is submitted by the counsel for the accused

that, the pancha witnesses examined in the shape of

PW.13 and 14 have given a clear go bye to the case of the

prosecution and thus, the very seizure is not proved. The

present accused is falsely implicated based upon the

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statement of accused no.2. There is no incriminating

evidence against present accused no.1 and only the

allegation was accused no.1 used to supply the ganja, a

narcotic drug, but, this fact is not proved in accordance

with law.

13. PW.1 has acted as complainant as well as IO in

this case which is fatal to the case of the prosecution.

When seizure of the narcotic drug is not proved and when

search procedures are not followed by the IO as per the

provisions of NDPS Act, 1985 and Cr.PC, then, there is a

room for suspecting the case of the prosecution. He would

further submit that, evidence of PW.1 never inspire any

confidence in the mind of the court. The seized so called

ganja packets were retained by the IO for a period of 12

days and then, thereafter were sent to FSL for chemical

examination. For this delay, there is no explanation

offered by the IO. Further, he submits that, no notice is

served upon accused no.1 & 2 before conducting any raid.

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14. He submits that, when there is no search as per

the provisions of Section 50 of NDPS Act which is

mandatory, then it is fatal to the case of the prosecution.

He would further submit that, prosecution has utterly

failed to prove the guilty of the accused beyond all

reasonable doubt. In support of his submission, he relied

upon the following decisions of Hon'ble Apex Court.

i. "Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609,

ii. Karnail Singh v. State of Haryana, (2009) 8 SCC 539

iii. Mina Pun v. State of Uttar Pradesh, 2023 LiveLaw (SC) 724,

iv. The State of Karnataka v. Sri.M.K. Mahesha and others Crl.A.no.1741/2019 decided on 27.11.2023".

15. He submits that, in view of the law laid down by

the Hon'ble Apex Court, impugned judgment is not at all

sustainable in the eyes of law.

16. Per contra, the learned HCGP with all

vehemence submits that, the trial Court by assessing the

evidence in proper perspective has passed the impugned

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judgment which does not call for any interference by this

Court. He would submit that, PW.1 being the complainant

and IO has clearly supported the case of the prosecution

and his evidence has rightly been believed by the trial

Court. The other witnesses have supported the case of the

prosecution. Therefore, he prays to dismiss the appeal.

17. Both the counsel relied upon the evidence

placed on record by the prosecution both oral and

documentary.

18. In view of these rival submissions, the point

that would arise for my consideration is:

"Whether the trial Court has committed any

factual or legal error by passing the impugned

judgment of conviction and order of sentence

against the accused?"

19. PW.1 being the complainant reiterates the

contents of the panchanama in his evidence on oath.

According to him, on 31.5.2007, at 10.00 a.m., when he

was in the police station, he received a anonymous

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telephone call informing about selling of ganja illegally

from a shop situated abutting 'Karavali Lodge' by keeping

the same in a small box. Immediately, he noted the said

fact in his station house diary and along with two panchas

and police staff as well as Gazetted Officer Dr.Thammaiah

went to the said shop in a departmental jeep. There he

noticed the presence of accused no.2 in the shop. On

enquiry he told his name and address. It was revealed by

him that, he is selling ganja in his shop supplied by

accused no.1. Therefore, a search was conducted and it is

noticed that, accused no.2 was found possessing 58 ganja

packets. It is his evidence that, as the matter was urgent,

he obtained search warrant from Dy.SP as per Ex.P1. A

letter was given to accused no.2 as per Ex.P2 and his

signature was taken.

20. On personal search of accused no.2, they

noticed 'four small packets' containing ganja of 5 gram

each and in the cash box, they noticed 58 such packets

containing ganja. By that time, accused no.1 came there

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for supplying the said ganja packets. The said accused

no.1 came along with a plastic bag and on search they

noticed 1 kg. 200 grams of ganja in the said plastic bag

containing ganja leaves, sticks and seeds. From accused

no.2, 62 ganja packets were seized and 10 were taken as

sample which is marked at MO No.4. He identifies other

packets also. Thereafter, all of them came to the police

station along with panchas and submitted report as per

Ex.P5 to the Court. There is no evidence placed on record

through PW. 1 that, he had really followed the provisions

of Section 50 of NDPS Act which speaks of conditions

under which the search of persons to be conducted. This

Section 50 reads thus:

"50. Conditions under which search of persons shall be conducted.--

(1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazette Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.

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(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in subsection (1).

(3) The Gazette Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

(4) No female shall be searched by anyone excepting a female.

(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazette Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974).

(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior".

21. Further, Section 41 of Cr.PC also speaks with

regard to search. Though, it is stated in the panchanama

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that, the accused no.1 is found possessing 1 kg. 200

grams of ganja, leaves, sticks and seeds, whether they

were seized or not and sent for chemical examination, the

evidence of PW.1 is very much silent.

22. This PW.1 is cross-examined by the defence

counsel. Though intensive cross-examination is directed to

PW.1, his evidence is silent about the fact that, when he

went to the shop of accused no.2, he did not enquiry

about possessing licence by accused no.2. He has not

enquired about, in whose name the said licence is

standing. The weighing machine which was used for

weighing the ganja packets is not seized by him.

According to him, it was a small scale. He admits that, in a

notice issued to Gazetted Officer, there is no mention with

regard to place of conducting the raid. He is not having

any expertise in conducting raid with regard to the

narcotic drugs i.e. ganja. As per his evidence, he reached

the shop of accused no.2 and when he was enquiring

accused no.1 came there by walk. Further, he states that,

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as accused no.1 was found with ganja bag, therefore a

case was registered. The said shop of accused no.2 is

belonging to owner of the Karalavai Lodge.

23. If evidence of PW.1 is scrupulously perused

categorically it shows that, he has not followed the

mandatory provisions of Section 50 of NDPS Act with

regard to conducting of search.

24. PW.2 H.K.Mahadeva was HC at the relevant

time, stated in line with evidence of PW.1. He has stated

that, on weighing the said ganja, it was weighing 1 kg.

200 grams, it was sealed. But, in the cross-examination he

states that, he came to know about the selling of the

ganja through PSI in the police station. Panchas are the

residents of Karadi village. He admits that, in front of

police station only, the office of veterinary doctor is

situated who is a gazetted officer. He further states that,

when he went to the shop, accused no.2 was only there

and it was a petty shop. There is no corroborative

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evidence spoken to by this PW.2 with that of evidence of

PW.1.

25. PW.3 A.P.Prabhakar, PW.4 Thirumalal Raja are

stated to be panchas and both have turned hostile. They

never say that, they accompanied the police at the time

conducting search of illegal possession of ganja, as well

selling of the same. PW.3 states that, he has put his

signature in Siddapura police station and denied all the

suggestions so directed to him by public prosecutor after

declaring him as hostile witness. So also PW.4 his

signature was taken in the police station itself.

26. In all criminal cases, Panchas are the authors of

pancahnama. When they turn hostile, no evidentiary value

can be attached to such evidence. Therefore, evidence of

PW.3 and 4 become inconsequential to the case of the

prosecution.

27. PW.5 is the constable who carried seized ganja

packets to the FSL on 13.6.2007 for the purpose of

chemical examination. Though the raid was conducted on

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31.5.2007, but, after more than 12 days, the said seized

ganja packets were sent to chemical examination. For this

all 12 to 13 days, where these ganja packets were

preserved and what was the reason for sending the same

after 12 days for chemical examination is not explained by

PW.1 who was the custodian of said seized articles. It is

argued that, during these 13 days, there is possibility of

tampering the articles by IO. The accused no.1 has been

falsely implicated. Possibility of replacement/tampering

cannot be ruled out in view of dearth of evidence placed

on record by the prosecution.

28. PW.6 Vimal Nanaiah is the owner of the said

Karavali Lodging and it was accused no.2 who took the

shop premises on lease. To that extent, the evidence of

PW.6 is to be accepted.

29. PW.7 K.C.Apanna, was the PDO of Siddapura

Grama Panchayath and issued Ex.P11 which is not in

dispute.

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30. PW.8 Dr.A.B.Thammaiah, the Gazetted Officer

who accompanied the IO states in his evidence that, he

along with the Police went to the shop of accused no.2 and

on enquiry, it was revealed that, he was selling the ganja.

He states that, 58 ganja packets were seized from the

possession of accused no.2 and even from his packets,

four such packets were seized. By that time, one person

came i.e., accused no.1 and he was possessing ganja

weighing 1 kg. 200 grams which was also seized. He put

his signature. He states, in his presence, as per the

statement of accused no.1 and 2, a search was conducted

on the person of accused nos.1 and 2.

31. In the cross-examination, this PW.8 deposed

from where the police brought the scale for the purpose of

weighing the ganja packets. He states that, there were so

many persons moving near the Karavali Lodge at that

time.

32. If the evidence of PW.6 is perused, he never

says with regard to following the mandatory provisions of

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NIDPS Act in conducting search as contemplated under

section 50 of the said Act by the IO. In para.15, 18 to 23

of the first decisions stated above, the Hon'ble Apex Court

have categorically held that, in case of search, the officer

shall record the reasons for such belief which necessitated

such search and within 72 hours, send a copy thereof to

his immediate superior official. This procedure is not

followed by IO. As per the provisions of NDPS Act, the

provisions of Sec.50 of the said Act are mandatory, the

investigation officer is bound to follow such a procedure.

But, in this case, it is not so.

33. Further, in the Karnail Singh's decision, supra,

the Hon'ble Apex Court, it is held that, in special

circumstances and emergent situations, the non-

compliance of Section 42 is mandatory, but, it will not

vitiate the raid. But, however, the prosecution is under

obligation to comply the provisions of NDPS Act in a

proper manner. In para.17 of the said decision, it is

observed by the Hon'ble Apex Court as under:

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"17. It is clear from Sajan Abraham [(2001) 6 SCC 692 : 2001 SCC (Cri) 1217] that to enforce the law under the NDPS Act stringently against the persons involved in illicit drug trafficking and drug abuse, the legislature has made some of its provisions obligatory for the prosecution to comply with, which the courts have interpreted to be mandatory. It is further clear that this is in order to balance the stringency for an accused by casting an obligation on the prosecution for its strict compliance.

The Court however while construing such provisions strictly should not interpret them literally so as to render their compliance impossible. It concluded that if in a case, the strict following of a mandate results in delay in trapping an accused, which may lead the accused to escape, then the prosecution case should not be thrown out. It is also clear that when substantial compliance has been made it would not vitiate the prosecution case".

34. In the Mina Pun's decision, supra, in

paragraphs 6,7 and 8, the Hon'ble Apex Court has

observed as under:

"6. Thus, it is an admitted position that in the consent letter, it is not mentioned that the appellants were informed about their right to insist that either a Magistrate or a Gazetted Officer

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remains present when their body search is conducted.

7. Learned counsel appearing for the appellants read over the consent letter at Exhibit Ka-1 which only records that the appellants had voluntarily agreed to a body search. Thus, the appellants were not informed about their right to be searched before a Magistrate or a Gazetted officer.

8. In view of the law laid down by a Constitution bench of this Court in Vijaysinh Jadeja v. State of Gujarat1, it is crystal clear that there was a violation of the safeguard provided by Section 50 of the NDPS Act. In paragraphs 24 and 29 of its decision, the Constitution Bench held thus:

"24. Although the Constitution Bench in Baldev Singh case [(1999) 6 SCC 172 : 1999 SCC (Cri) 1080] did not decide in absolute terms the question whether or not Section 50 of the NDPS Act was directory or mandatory yet it was held that provisions of sub-section (1) of Section 50 make it imperative for the empowered officer to "inform" the person concerned (suspect) about the existence of his right that if he so requires, he shall be searched before a gazetted officer or a Magistrate; failure to "inform" the suspect about the existence of his said right would cause prejudice to him, and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the

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conviction has been recorded only on the basis of the possession of the illicit article, recovered from the person during a search conducted in violation of the provisions of Section 50 of the NDPS Act. The Court also noted that it was not necessary that the information required to be given under Section 50 should be in a prescribed form or in writing but it was mandatory that the suspect was made aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him. We respectfully concur with these conclusions. Any other interpretation of the provision would make the valuable right conferred on the suspect illusory and a farce".

35. Likewise, a judgment of co-ordinate bench of

this Court supra, relying upon the facts of the case has

also observed that, if mandatory provisions are not

followed and if there is no fair investigation i.e.

complainant as well as judicial officer, then, the

investigation is said to be vitiated. For this, the

co-ordinate bench of this Court in Sri.M.K. Mahesha supra

relied upon a decision in Mohan lal vs. Punjab reported in

AIR 2018 SC 3853 which reads as under:

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"(B) Constitution of India, Art.21 - Fair trial - fair investigation is foundation of fair trial - And requires informant and investigating Officer not to be same persons especially in laws carrying reverse burden of proof - When informant and Investigation Officer is same person, investigation is said to be vitiated".

36. Thus, if all these factual features coupled with

infirmity noticed above, the prosecution has failed to prove

the guilt of the accused beyond all reasonable doubt. The

learned trial Court, without properly appreciating the

evidence placed on record and the law with regard to

search has wrongly come to the conclusion that, accused

no.1 is guilty of aforesaid offence, which, in my opinion is

incorrect and requires interference by this Court.

Therefore, this appeal deserves to be allowed and the

impugned judgment is liable to be set aside.

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37. Resultantly, I pass the following:

ORDER

i) The Criminal Appeal is allowed.

ii) The judgment of conviction and order

of sentence dated 16.01.2013 passed

in Special Case (NDPS)No.9/2007 by

the Sessions Judge, Kodagu at

Madikeri is hereby set-aside.