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Karnataka High Court
Sri Umesha vs State Of Karnataka on 19 February, 2026
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CRL.A No. 821 of 2015
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF FEBRUARY, 2026
BEFORE
THE HON'BLE MR. JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 821 OF 2015 (C)
BETWEEN:
1. SRI UMESHA
S/O VEERABHADRAIAH,
AGED ABOUT 29 YEARS,
R/O AREKERE VILLAGE,
JAVAGAL HOBLI,
ARASIKERE TALUK,
HASSAN DISTRICT 56.
...APPELLANT
(BY SRI. PRATHEEP K C., ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY BANAVARA POLICE STATION
REP BY ITS
STATE PUBLIC PROSECUTOR,
Digitally signed by
HIGH COURT OF KARNATAKA,
LAKSHMINARAYAN N BANGALORE 01.
Location: High Court
of Karnataka
...RESPONDENT
(BY SRI. M.DIWAKAR MADDUR, HCGP)
THIS CRL.A. IS FILED U/S.374(2) CR.P.C PLEASED TO
SET ASIDE THE JUDGMENT DATED 30.6.2015 PASSED BY THE
PRL. S.J. AND SPL. JUDGE, HASSAN IN SPL. CASE (NDPS)
NO.71/2009 - CONVICTING THE APPELLANT/ACCUSED FOR
THE OFFENCE P/U/S 20(b) OF N.D.P.S. ACT, 1985 AND ETC.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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CORAM: HON'BLE MR. JUSTICE G BASAVARAJA
ORAL JUDGMENT
The appellant has preferred this appeal against the
judgment of conviction and order on sentence dated
30.06.2015 passed in Spl.Case(NDPS)No.71/2009 by the
Principal Sessions Judge and Special Judge, Hassan (for
short 'the trial Court').
2. For the sake of convenience the parties herein
are referred to as per their rank before the trial Court.
3. Brief facts leading to this appeal are that, the
Circle Inspector of Police, Rural Circle, Arasikere, laid a
charge-sheet against the accused for the offence
punishable under Section 20(b) of the Narcotic Drugs and
Psychotropic Substances (NDPS) Act, 1985 (hereinafter
referred as 'the NDPS Act').
4. It is alleged by the prosecution that, on
17.07.2009 at about 05.30 p.m. in the house of accused
at Arekere Village, the accused was found in possession of
3 kgs 850 grams of ganja for the purpose of sale in
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contravention of the provisions of the NDPS Act. Thus, the
accused has committed the offence punishable under
Section 20(b) of NDPS Act, 1985.
5. After investigation, the Investigating Officer has
submitted the charge sheet against the accused for the
offence under Section 20(b) of NDPS Act, 1985.
6. The accused was enlarged on bail and after
filing the charge sheet, case was registered in a Special
Case No. 71/2009. On hearing the charges, trial Court has
framed the charges for the commission of alleged offence
under Section 20(b) of NDPS Act, 1985. Same were read
over and explained to the accused. Having understood the
same accused pleaded not guilty and claimed to be tried.
7. To prove the guilt of the accused, in all Ten
witnesses were examined as PWs.1 to 10. Ten documents
were marked as Exhibits P1 to P10 and three material
objects were marked as MO Nos.1 to 3.
8. On closure of prosecution side evidence,
statement under Section 313 of Cr.P.C was recorded. The
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accused has totally denied the evidence of prosecution
witnesses. However, he did not choose to lead any defence
evidence on the his behalf.
9. Having heard the arguments on both sides, the
trial Court has convicted the accused for the offence on
Section 20(b) of NDPS Act, 1985 and sentenced to
undergo Rigorous Imprisonment for a period 5 years and
to pay a fine of Rs.25,000/-. Being aggrieved by the
impugned judgment of conviction and order on sentence,
the appellant has preferred this appeal.
10. The learned counsel for the appellant would
submit that the impugned order passed by the trial Court
is not sustainable either in law or on facts. The trial Court
has completely failed to appreciate the case of the
appellant. The trial Court has failed to observe the dictum
of this Court in K.K. REJJI AND OTHERS v. STATE OF
MURUDESHWAR POLICE STATION, wherein it is held
that stems, leaves and branches cannot be termed as
"ganja" in view of the definition of "ganja" in NDPS Act.
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11. The Investigating Officer has not separated
fruiting tops or flowering from the ganja plants from
weighing. What has been done is that they have weighed
entire plants to record the weight. In that context, the
evidence produced to substantiate the charge is totally
vague. If the whole plant is seized then it will only be a
cannabis plant and not ganja.
12. The Special Court would get jurisdiction to
decide a case only if the quantity exceeds 1000 grams i.e.,
small quantity and punishment prescribed is more than 3
years. If the punishment prescribed is upto 6 months or
with fine, then the Special Court gets no Jurisdiction and
trial has to be by the Magistrate under Cr.P.C. In other
words, the Court held that the evidence was not sufficient
to know whether the quantity of ganja seized is small
quantity or a commercial quantity so as to confer
jurisdiction on a Special Court. Ultimately, the criminal
appeal came to be allowed. Therefore, in the instant case
also, as per mahazar, the respondent police has seized
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3 kg 850 grams of ganja leaves which cannot be termed
as ganja as per Section 2(iii)(b) of NDPS Act, which says
ganja that is flowering of fruiting tops of cannabis plant
excluding the seeds and leaves when not accompanied.
13. Further he would submit that the Investigating
Officer has not complied with the mandatory provisions of
Section 42(1) and (2) of the NDPS Act.
14. In the case on hand, PW6 has deposed in his
evidence that on 17.07.2009 at 04.20 p.m he has received
the information as to the illegal possession of ganza. After
receipt of credible information as to the possession of
illegal ganja, the Investigating Officer has not mentioned
the same in the station house dairy and intimate the same
to the higher officers has required under Section 42 of
NDPS Act. Without compliance of this provision, the
Investigating Officer went to the spot along with panchas
and seized alleged ganza under mahazar-Ex.P1.
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15. The Investigating Officer has also not complied
with the mandatory provisions of Section 52(a) and has
not obtained the certificate from the Magistrate.
16. The samples also not taken before the
Magistrate. The correctness of the list of samples drawn by
the Investigating Officer has not been certified by the
Magistrate. After lapse of 3 months, the Investigating
Officer has submitted the samples for FSL examination as
per Exhibit P8. On all these grounds, sought for allowing
this appeal.
17. To substantiate his argument, relied on the
decisions of the Hon'ble Apex Court in the case of
Smt.Najmunisha vs. the State of Gujarat reported in
2024 SCC OnLine SC 520, Mangilal vs. State of
Madhya Pradesh reported in (2023) 19 Supreme
Court Cases 364 and on the judgment of this Court in
the case of Chandrashekar vs. State of Karnataka in
Criminal Petition No.11138/2024 decided on
29.04.2025.
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18. As against this, learned High Court Government
Pleader Sri.M.Diwakar Maddur, would submit that trial
Court has properly appreciated the evidence on record in
proper perspective. There are no grounds to interfere with
the impugned judgment passed by the trial Court and
sought for dismissal of the appeal.
19. Having heard the arguments on both sides and
on perusal of materials placed before this Court, the
following points would arise for my consideration:
1. Whether the trial Court is justified in
convicting accused for the offence punishable
under Section 20(b) of NDPS Act?
2. What Order?
Regarding Point No.1:
20. I have carefully examined the materials placed
before this Court. It is the case of the prosecution that on
17.07.2009 at about 05.30 p.m. in the house of Arekere
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village the accused was found in possession of 3 kgs 850
grams of ganja for the purpose of sale, in contravention of
provisions of NDPS Act. Thus, the accused has committed
the offence.
21. To substantiate the case of the prosecution, in
all, ten witnesses were examined as PWs.1 to 10. Ten
documents were marked as Exhibits P1 to P10 and three
material objects were marked as MOs.1 to 3.
22. On perusal of the evidence of prosecution
witnesses, it is crystal clear that the prosecution has not
examined any independent witnesses to substantiate the
case of the prosecution.
23. PW1-B.R.Gangadhara, ASI, has deposed in his
evidence that on 17.07.2009 he has received the credible
information. Then CW2 to CW6 proceeded in a department
vehicle to Arekere village to raid. They went to Arekere
village and they entered into the house of the accused and
found the ganja leaves which was weighing 3 kgs 850
grams and he has conducted mahazar as per Exhibit P1
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and took the possession of ganja. He has taken 100 grams
of ganja leaves for chemical examination.
24. PW2-Dr.Jawahar has deposed in his evidence
that, he was working as Medical Officer in Primary Health
Center, Banavara. The PSI, Banavara and CW3 Dr.Sunitha
Jain informed him as to the ganja leaves and took him to
Arekere village at 05.00 p.m. and he went to the house of
Veerabhadraiah. They have entered into the house and
found ganja leaves. Police have taken 100 grams of leaves
for FSL. Umesha/accused is the son of Veerabhadraiah.
Police have conducted the mahazar as per Exhibit P1.
25. PW3-Puttaswamy, Panchayath Secretary of
Arekere Grama Panchayath, has deposed his evidence as
to issuance of assessment extract-Exhibit P2, which is
standing in the name of Rudraiah S/o Veerabhadraiah.
26. PW4, Bhairachari, Head Constable has deposed
in his evidence as to the submission of sealed ganja cover
to the FSL Mysore.
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27. PW5- Madhu, Police Constable has deposed as
to the issuance of notice to Dr.Jawahar and Dr. Sunita
Jain. Further, he has deposed as to the seizure of ganja as
per Exhibit P1.
28. PW6-Dinesh Kumar B.S, has deposed in his
evidence that on 17.07.2009 he has received a credible
information as to the possession of illegal ganja in the
house of Veerabhadraiah at Arekere. Then he gave written
requisition to the Gazetted Officers Dr. Jawahar and Sunita
Jain to act as panchas. Then P. C. Jagannath, Madhu and
Singh along with dedicated officers proceeded to Arekere
in a government jeep at 04.30 p.m. and they raided the
house and found 3 kgs 850 grams in a plastic bag. They
have seized the same under mahazar-Exhibit P1. The
accused has possessed that ganja without having any
licence. Thereafter, he has taken the custody of the
accused and he has suo-motu registered the case in Crime
No.147/2009 under Section 20(b) of NDPS Act and
submitted the First Information Report to the Court as per
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Exhibit P5. Thereafter, they have inserted the seized
properties in PF No.76/2009. Then they have produced the
accused before the Court. Thereafter, he has entrusted the
case file for further investigation to Dy.SP.
29. PW7-M. V. Mallapur, CPI, and PW8-T.D.Raju,
CPI, have deposed as to the part of their investigation.
30. PW9-Dr.Sunitha Jain has deposed in his
evidence as to the mahazar conducted by the police as per
Exhibit P4 and seizure of ganja.
31. PW10-P.Mallesh, FSL officer has deposed as to
the issuance of certificate-Exhibit P8.
32. After careful examination of the entire materials
on record, it is the case of the prosecution that the
Investigating Officer has seized the alleged ganja in the
house of accused. To substantiate the case of the
prosecution, the Investigating Officer has produced Exhibit
P2-assessment register extract, pertaining to the property
No.653, which is standing in the name of Rudraiah S/o
Veerabhadraiah. PW3-Puttaswamy, the Secretary of
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Grama Panchayath has deposed as to the issuance of
Exhibit P2. He has also clearly reported that this house is
standing in the name of Rudraiah S/o Veerabhadraiah.
During his cross-examination, he has clearly admitted that
in Arekere village, Umesha S/o Veerabhadraiah has no
house in the Arekere Grama Panchayath limits. In Exhibit
P1-mahazar it is stated that, on 17.07.2009 the
Investigating Officer has conducted the mahazar in the
house of Veerabhadraiah S/o Rudraiah. The property
number is not disclosed in the mahazar. Even after
investigation, the Investigating Officer has not shown the
property number in the charge-sheet. In the charge-sheet,
the Investigating Officer has simply stated that they have
raided the house of the accused. The Investigating Officer
has not produced any document to show that, the house in
question was standing in the name of the accused-Umesh.
Even Investigating Officer has not explained anything as to
how Exhibit P2-assessment extract is connected to the
accused. The relationship between Rudraiah S/o
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Veerabhadraiah and the accused has not been explained
by the prosecution. Accordingly, the prosecution has failed
to prove that the Investigating Officer has seized the
alleged ganza from the possession of the accused in the
house property No.653.
33. According, to the prosecution that, PW6 has
received the information as to the illegal possession of the
alleged ganja on 17.07.2009 at 04.30 p.m. But
Investigating Officer has not taken the same in writing and
informed to immediate official superior. During the course
of cross- examination of PW6. He has not whispered
anything as to the fact that soon after the receipt of
credible information he has taken down in writing and
informed the same to the higher officers as required under
Section 42 of NDPS Act, 1985.
34. PW6 has clearly admitted in his evidence that
he has not obtained search warrant before entering into
the house in question. He has not explained anything as to
non-obtaining of search warrant as required under Section
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42 of NDPS Act. The Investigation Officer has also not
complied with the mandatory provisions of Section (5) of
Section 50 of NDPS Act and Sub-section 7 of Section 100
of Cr.P.C.
35. Viewed from any angle, I do not find any
material to prove the mandatory provisions of Section 42,
50, 52A of NDPS Act, 1985. Without proper appreciation of
the evidence on record, the trial Court has convicted the
accused, which is not sustainable under law.
36. On re-appreciation, reconsideration and
re-examination of the entire materials on record. I do not
find any material to convict the accused for the offence
punishable under Section 20(b) of NDPS, Act. Hence, I
answer point No.1 in the negative.
Regarding Point No.2:
37. For the aforesaid reasons and discussions, I
proceed to pass the following:
ORDER
i) Appeal is allowed.
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ii) The judgment of conviction and order
on sentence passed by the Prl. Sessions Judge
and Special Judge, Hassan in Spl.Case(NDPS)
No.71/2009 dated 30.06.2015 is set aside.
iii) The accused/appellant is acquitted of
the offence under Section 20(b) of NDPS Act.
iv) The trial Court is directed to return
the fine amount if any deposited by the accused.
Registry is directed to send the copy of this judgment
along with Trial Court records to the trial Court.
Sd/-
(G BASAVARAJA)
JUDGE
KBM
List No.: 1 Sl No.: 79
