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2013 Supreme(Kar) 53
IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT GULBARGA
Anand Byrareddy, J.
Ravi, Vaijinath and Sharanappa
Vs.
State of Karnataka
Criminal Appeal No. 412 of 2007
Decided On: 22.01.2013
Advocate Appeared:
For Appellant/Petitioner/Plaintiff:Shri Mahantesh S. Desai, Advocate
For Respondents/Defendant: Shri Sanjay A. Patil, Additional State Public Prosecutor
Headnote:CODE OF CRIMINAL PROCEDURE, 1973 - Section 374 (2): [Anand Byrareddy, J] Appeal against conviction - Conviction under Section 20(ii)(c) of Narcotic Drugs and Psychotropic Substances Act, 1985 - Appellants were said to be in possession of 5 bags containing 45 kgs. of Ganja to transport from Andhra Pradesh to Maharashtra - Held, In the facts and circumstances, there was absence to record in writing the information received in the first instance and there was no emergent situation, which warranted the postponement of the said act of recording the information received in writing nor is there any such record in writing at a later point of time, as could be seen from the records made available. Therefore, the entire proceedings are vitiated by virtue of such failure to record the circumstances in writing the next contention that the quantity indicated as having been in the possession of the appellants is also inaccurate, as the weighment was of the stalks, leaves, seeds and possibly, the flowering and fruiting tops. There is no attempt at segregation of the same in arriving at the weight of the substance. The definition of ’ganja’ is explicit. It excludes the seeds and leaves when not accompanied by the fruiting or flowering tops of the Cannabis plant. In the instant case, not only were seeds and leaves, but also the stalks were included in the weighment of the substance that was seized and therefore, would be an inaccurate weighment and it would have a telling effect on the degree of punishment that could be imposed having due regard to the weight of the substance, as the NDPS Act provides for a Schedule, which prescribes the degree of punishment dependent on the weight of the substance involved. Therefore, there is a failure in the charges being framed accurately against the accused. The further contention that the goods itself did not belong to the appellants may not be a strong ground, on which the case would rest. However, the first two grounds referred to hereinabove are sufficient to hold that the proceedings are vitiated.
Anand Byrareddy, J.
1. Heard the learned Counsel for the appellants and the learned Additional State Public Prosecutor. The appellants were the accused before the trial court, who have suffered a sentence of rigorous imprisonment for a period of ten years and to pay a fine of Rs. 1,00,000/- each, for committing an offence punishable under Section 20(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (Hereinafter referred to as the 'NDPS Act', for brevity).
2. The background to the said sentence being imposed is as follows:-
It transpires that the Manna-e-Khelli Police had received credible information on 20th October 2005 at 11 a.m., of ganja being transported from Andhra Pradesh to Maharashtra and the concerned had gone near the Manna-e-Khelli bus-stand, where they found the present appellants in possession of 5 bags of ganja weighing 45 Kilograms. The same was seized and a case having been registered and on conclusion of the investigation, a charge-sheet was filed against the accused.
The accused, who were in judicial custody, were represented by counsel and the accused having pleaded not guilty to the charges framed, the matter went to trial. The prosecution examined PWs. 1 to 5 and marked Exhibits P.1 to P.3 and on the basis of the said evidence, the following points were framed for consideration:-
1. Whether the prosecution proves that, accused No. 1, accused No. 3 and accused No. 4 along with deceased accused No. 2 being husband and in-laws of daughter of complainant, in furtherance of their common intention gave cruelty and ill-treatment to deceased Laxmibai demanding Rs. 10,000/- which was given to the accused and, thereby, accused committed an offence punishable under Section 498(A) read with Section 34of the Indian Penal Code beyond all reasonable doubt?
2. Whether the prosecution proves that, on 27.5.2005 at about 11 a.m., at Revappana Maddi in Indi town, in the house of accused, deceased Laxmibai without tolerating the ill-treatment and cruelty given by accused No. 1, accused No. 3 and accused No. 4 along with deceased accused No. 2 in order of demanding Rs. 10,000/- which was due to be given to her mother attempted to commit suicide by pouring kerosene on her person and that while she was undergoing treatment in the Hospital, she died on 3.6.2005 at about 13.45 hours and that all accused in furtherance of their common intention, abetted its commission and, thereby, accused committed an offence punishable under section 306 read with Section 34 of the Indian Penal Code beyond all reasonable doubt?
3. Whether the prosecution proves that, on the said date, time and place, accused -1, accused-3 and accused-4 along with deceased accused-2, abused deceased Laxmibai in vulgar words and gave provocation to her intending that, such provocation would cause her to break public peace and thereby, accused committed an offence punishable under Section 504 read with Section 34 of the Indian Penal Code beyond all reasonable doubt?
The court below has answered the above points in the affirmative.
It is that which is under challenge in the present appeal.
3. The learned Counsel for the appellants would primarily canvass that the offences punishable under the NDPS Act are visited with stringent punishment and therefore, the procedure prescribed under the NDPS Act is to be strictly complied with. The learned Counsel would submit that the present proceeding suffers from the infirmity of the procedure not having been followed. He would draw attention to Section 42 of the Act which reads as follows:-
42. Power of entry, search, seizure and arrest without warrant or authorisation -
(1) Any such officer (Being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or
