Karnataka High Court
Chandrashekhar vs The State Of Karnataka on 17 September, 2025
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
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CRL.A No. 100202 of 2016
HC-KAR
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
DATED THIS THE 17TH DAY OF SEPTEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
CRIMINAL APPEAL NO. 100202 OF 2016 (C)
BETWEEN:
1. SHRI CHANDRASHEKHAR BHEEMAPPA HANJANATTI,
AGED ABOUT 34 YEARS,
2. SHRI BALESH KRISHNA HANJANATTI,
AGED ABOUT 23 YEARS,
APPELLANTS 1 AND 2 BOTH ARE
R/O: JAGANUR, TQ: CHIKODI,
DIST: BELAGAVI-591 201.
... APPELLANTS
(BY SRI. ASHOK R. KALYANSHETTY, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
BY ITS STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL'S OFFICE,
HIGH COURT PREMISES,
Digitally
DHARWAD-580 001.
signed by
RAKESH S
RAKESH HARIHAR
... RESPONDENT
S Location:
HIGH
HARIHAR COURT OF
KARNATAKA
DHARWAD
(BY SMT. GIRIJA S. HIREMATH, HCGP)
BENCH
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION
DATED 04/07/2016 AND ORDER OF SENTENCE DATED 08/07/2016
FOR THE OFFENCES PUNISHABLE UNDER SECTION 20(B)(II)(B) OF
THE NDPS ACT, PASSED BY THE II ADDITIONAL DISTRICT AND
SESSIONS JUDGE, BELAGAVI IN SPL. CASE NO.64/2012 AND ACQUIT
THEM OF THE CHARGE FOR THE SAID OFFENCE IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR FURTHER HEARING, THIS DAY,
JUDGMENT IS DELIVERED THEREIN AS UNDER:
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CRL.A No. 100202 of 2016
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ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY)
1. Accused Nos.1 and 2 are before this Court in this
appeal filed under Section 374(2) of Cr.P.C. with a prayer
to set-aside the judgment and order of conviction dated
04.07.2016 and order on sentence dated 08.07.2016
passed in Special Case No.64/2012 by the Court of II
Additional District and Sessions Judge, Belagavi, for
offences punishable under Section 20(b)(ii)(B) of the NDPS
Act, 1985.
2. Heard the learned counsel for the parties.
3. It is the case of the prosecution that PW5 - Anil
Kumar received credible information on 02.11.2011 at
about 02.15 p.m. that accused were holding a bag
containing contraband article allegedly ganja and were
trying to sell the same near a mango garden at Jaganur
Village within the jurisdiction of Chikkodi Police Station.
PW5, therefore, after obtaining necessary permission from
his higher officers had conducted a raid to the alleged spot
along with the staff and independent panchas and
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apprehended accused Nos.1 and 2 from the alleged spot
and from their possession, contraband article allegedly
ganja totally weighing 1 kg 500 grams was seized under
panchanama. On enquiry, the accused allegedly admitted
that they had grown ganja plants in their property and
therefore, a raid was subsequently conducted to the
property of the accused and 11 ganja plants totally
weighing 37 kgs 550 grams was seized under a common
panchanama - Ex.P2. Thereafter, apprehended accused
and seized contraband articles were brought to police
station and FIR was registered in Crime No.356/2011 by
Chikkodi Police Station.
4. After completing investigation charge sheet was filed
against the appellants for the aforesaid offences and since
appellants had claimed to be tried before the Trial Court for
the charge-sheeted offences, the prosecution in order to
prove its case had examined 11 witnesses as PW1 to PW11
and got marked 24 documents as Exs.P1 to P24. On behalf
of defence, no oral evidence was led nor was any
document got marked. Three material objects were marked
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on behalf of the prosecution as MO Nos.1 to 3. The Trial
Court vide the impugned judgment and order of conviction
dated 04.07.2016 convicted the appellants for the offence
punishable under Section 20 (b)(ii)(B) of the NDPS Act,
1985 and had acquitted them for the offence punishable
under Section 20(a)(i) of the NDPS Act, 1985 and by order
dated 08.07.2016, accused Nos.1 and 2 were sentenced to
undergo rigorous imprisonment for a period of three years
and to pay fine of Rs.50,000/- each and in default to
undergo imprisonment for a period of six months. Assailing
the aforesaid judgment and the order of conviction and
sentence, the appellants are before this Court.
5. The material on record would go to show that based
on the credible information received by the first informant
Anil Kumar/PW5, a raid was conducted to the alleged spot
where the appellants, who were allegedly carrying
contraband article ganja were making attempts to sell the
same. After the appellants were apprehended by PW5 and
his staff, on 02.11.2011, from their possession contraband
article allegedly ganja totally weighing 1 kg 500 grams
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which they were carrying in a bag was recovered. It is
alleged that accused Nos.1 and 2 had confessed that they
had grown ganja plants in their property and therefore, a
raid was also conducted on the very same day to the
property of accused Nos.1 and 2 and from the said
property, PW5 and his staff had recovered wet ganja plants
totally weighing 37 kgs 550 grams. Ex.P2 is the
panchanama, under which the aforesaid two recoveries
were seized.
6. Perusal of Ex.P2 would go to show that 500 grams of
contraband article allegedly ganja was collected as sample
from 1 kg 500 grams of ganja which was initially recovered
from appellants and from 37 kgs 550 grams of ganja plant,
1 kg of ganja plant was collected as sample. Ex.P13 is the
application filed by PW5 before the jurisdictional Magistrate
in compliance of the requirement of Section 52A of the
NDPS Act and Ex.P14 is the Certificate issued by the
Magistrate under Section 52A(3) of the NDPS Act.
7. From a perusal of the proceedings under Section 52A
of the NDPS Act before the jurisdictional Magistrate, it is
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found that sample of the contraband article has not been
collected in the present case in the presence of the
jurisdictional Magistrate. Ex.P23 is the Certificate issued by
the Forensic Science Laboratory and from perusal of the
said document, it is found that 500 grams of ganja and 1
kg of ganja which were collected as samples at the time of
raid on the date of registration of FIR under the
panchanama Ex.P2, were forwarded to the Forensic
Science Laboratory for the purpose of examination.
8. Sub-section (2), (3) and (4) of Section 52A of the
NDPS Act provides for the procedure and manner of
seizing, preparing of inventory of the seized contraband
article, drawing of sample and getting inventory certified
by the Magistrate etc. Section 52A of the NDPS Act reads
as follows :
"52A. Disposal of seized narcotic drugs
and psychotropic substances. -
(1) The Central Government may, having
regard to the hazardous nature, vulnerability to theft,
substitution, constraint of proper storage space or
any other relevant consideration, in respect of any
narcotic drugs, psychotropic substances, controlled
substances or conveyances, by notification in the
Official Gazette, specify such narcotic drugs,
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psychotropic substances, controlled substances or
conveyance or class of narcotic drugs, class of
psychotropic substances, class of controlled
substances or conveyances, which shall, as soon as
may be after their seizure, be disposed of by such
officer and in such manner as that Government may,
from time to time, determine after following the
procedure hereinafter specified.
(2) Where any narcotic drugs, psychotropic
substances, controlled substances or conveyances
has been seized and forwarded to the officer-
incharge of the nearest police station or to the officer
empowered under section 53, the officer referred to
in sub-section (1) shall prepare an inventory of such
narcotic drugs, psychotropic substances, controlled
substances or conveyances containing such details
relating to their description, quality, quantity, mode
of packing, marks, numbers or such other identifying
particulars of the 3 [narcotic drugs, psychotropic
substances, controlled substances] or conveyances or
the packing in which they are packed, country of
origin and other particulars as the officer referred to
in sub-section (1) may consider relevant to the
identity of the narcotic drugs, psychotropic
substances, controlled substances or conveyances in
any proceedings under this Act and make an
application, to any Magistrate for the purpose of -
(a) certifying the correctness of the
inventory so prepared; or
(b) taking, in the presence of such
Magistrate, photographs of such drugs,
substances or conveyances and certifying such
photographs as true; or
(c) allowing to draw representative
samples of such drugs or substances, in the
presence of such Magistrate and certifying the
correctness of any list of samples so drawn.
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(3) Where an application is made under
subsection (2), the Magistrate shall, as soon as may
be, allow the application.
(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
inventory, the photographs of 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."
9. In the present case, there is absolutely no
compliance of the aforesaid provisions of law. Section
52(A) of the NDPS Act deals with seizure of contraband
article, forwarding the seized contraband article and
obtaining certification from the relevant Magistrate. Section
52(A) of the NDPS Act considers that the certified
inventory of seized substance along with any list of seized
samples as primary evidence in the trial.
10. From a reading of the aforesaid provisions, it is clear
that, whenever a contraband article is seized the officer
referred to in Sub-section (1) of Section 53 of the NDPS
Act, shall prepare the inventory of the seized contraband
articles in detail and the description of the seized
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contraband article, mode of packing, identify marks and
quantity in each pack shall be mentioned and thereafter an
application shall be filed to the jurisdictional Magistrate for
the purpose of certifying the correctness of the inventory
and also for allowing to draw samples of the contraband
article in the presence of the Magistrate for forwarding the
same to the Forensic Science Laboratory for chemical
examination.
11. In the present case, sample of contraband article was
not at all drawn in the presence of the jurisdictional
Magistrate. Mere fact that the sample was drawn in the
presence of a Gazetted Officer is not sufficient compliance
of the mandate under Sub-section (2) of Section 52A of
the NDPS Act. Therefore, the samples which were drawn
under Ex.P2 and the FSL report obtained as per Ex.P23
cannot be considered as primary evidence and in the
absence of primary evidence, the trial gets vitiated.
12. In the case of Mangilal vs. State of Madhya
Pradesh reported in 2023 INSC 634, the Hon'ble
Supreme Court has observed Section 52A of the NDPS Act
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is a mandatory rule of evidence. In paragraph No.5 and 6
of the said judgment, it is 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
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."
13. In the case of Mohammed Khalid and
Another vs. State of Telangana reported in 2024 INSC
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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."
14. 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.
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15. In the case of Yusuf @ Asif vs. State reported
in 2021 INSC 912, the Hon'ble Supreme Court in
paragraph Nos.15, 16 and 17 has observed as follows:
"5. In Mohanlal's case, the apex court while
dealing with Section 52A of the NDPS Act clearly laid
down that it is manifest from the said provision that
upon seizure of the contraband, it has to be
forwarded either to the officer incharge of the
nearest police station or to the officer empowered
under Section 53 who is obliged to prepare an
inventory of the seized contraband and then to make
an application to the Magistrate for the purposes of
getting its correctness certified. It has been further
laid down that the samples drawn in the presence of
the Magistrate and the list thereof on being certified
alone would constitute primary evidence for the
purposes of the trial.
16. In the absence of any material on record
to establish that the samples of the seized
contraband were drawn in the presence of the
Magistrate and that the inventory of the seized
contraband was duly certified by the Magistrate, it is
apparent that the said seized contraband and the
samples drawn therefrom would not be a valid piece
of primary evidence in the trial. Once there is no
primary evidence available, the trial as a whole
stands vitiated.
17. Accordingly, we are of the opinion that
the failure of the concerned authorities to lead
primary evidence vitiates the conviction and as such
in our opinion, the conviction of the appellant
deserves to be set aside. The impugned judgment
and order of the High Court as well as the trial court
convicting the appellant and sentencing him to
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rigorous imprisonment of 10 years with fine of Rs.1
lakh and in default of payment of fine to undergo
further imprisonment of one year is hereby set
aside."
16. In the case on hand, there is absolutely no
compliance of the requirement of Section 52A of the NDPS
Act and therefore, it is apparent that the seized contraband
article and the samples drawn from the same would not be
a valid piece of primary evidence and no reliance can be
placed either on the seizure mahazar at Ex.P2 or on the
FSL report at Ex.P23. Under the circumstances, the
impugned judgment and order of conviction and sentence
passed by the Trial Court cannot be sustained. Accordingly,
the following:-
ORDER
(i) The Criminal Appeal is allowed.
(ii) The judgment and order of conviction dated
04.07.2016 and order on sentence dated
08.07.2016 passed by the II Addl. District and
Sessions Judge, Belagavi, in Special Case
No.64/2012, is hereby set-aside. The
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appellants are acquitted for the charge sheeted
offences.
(iii) Their bail bonds if any, stand cancelled.
Sd/-
(S.VISHWAJITH SHETTY)
JUDGE
DN
CT:BCK
