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2019 Supreme(Kar) 862
IN THE HIGH COURT OF KARNATAKA
B.A. PATIL, J.
State of Karnataka - Appellant
Versus
Saleem - Respondent
Criminal Appeal No. 395 of 2018
Decided On : 11-09-2019
Advocate Appeared:
Thejesh P., Adv., Saraswathi, Adv.
The prescribed procedure under Section 50 of the NDPS Act must be meticulously followed, and failure to do so may lead to false implication of the accused, warranting the benefit of doubt to go in favor of the accused.
Headnote:
NDPS Act - Acquittal - Section 8(c) r/w. Section 20(b)(ii)(B) - [GANJA] - [NDPS Act, Section 8(c), Section 20(b)(ii)(B)] - The court discussed the provisions of Section 50 of the NDPS Act, which requires the communication of the right to be searched in the presence of a Gazetted Officer to the accused. The court emphasized that the prescribed procedure must be meticulously followed, and failure to do so may lead to false implication of the accused. The court cited the case of State of Rajasthan Vs. Parmanand & another, (2014) AIR SC 1384, to support the proposition that the benefit of doubt should go to the accused when the mandated provisions of Section 50 have not been followed. The court found the evidence contradictory and tainted, leading to the conclusion that the prosecution's case was not fair and acquitted the accused.
Fact of the Case:
The prosecution alleged that the accused were selling ganja near a college. The police seized ganja from the accused and filed a charge sheet. The trial court acquitted the accused, leading to the state's appeal.
Finding of the Court:
The court found that the prosecution's case was not fair and created doubt. It emphasized the importance of following the prescribed procedure under Section 50 of the NDPS Act and cited case law to support the benefit of doubt going to the accused. The court concluded that the trial court's acquittal was justified.
Issues: The main issue was whether the trial court's acquittal of the accused was justified, considering the evidence and procedural irregularities.
Ratio Decidendi: The court emphasized the importance of following the prescribed procedure under Section 50 of the NDPS Act and cited case law to support the benefit of doubt going to the accused. It found the evidence contradictory and tainted, leading to the conclusion that the prosecution's case was not fair.
Final Decision: The appeal was dismissed, and the trial court's acquittal of the accused was confirmed.
JUDGMENT :
B. A. PATIL, J.
1. The State is before this Court being aggrieved by the judgment and order of acquittal passed by the Principal Sessions Judge/Special Judge, Dakshina Kannada, Mangaluru, in Special Case No.72/2015, dated 28.7.2017, by which the accused-respondents herein were acquitted of the offences punishable under Section 8(c) r/w. Section 20(b)(ii)(B) of NDPS Act.
2. I have heard the learned HCGP for the appellant- State. Though the notice is served on respondent Nos.1 and 2, they have remained absent. Learned counsel for respondent Nos.3 and 4 is not present before the Court. There is no representation on behalf of them.
3. The case of the prosecution in brief is that PW.1 received a credible information about selling of ganja. Immediately he informed the higher officers and secured the panch witnesses and along with his staff he went near Shrinivas Institute of Technology College on 31.3.2015 at about 9.00 p.m., where they noticed two persons in an autorickshaw bearing Regn.No.KA-19- AA7382 selling ganja. After seeing the police officials the driver escaped from the spot. Accused No.1-Saleem was apprehended. He revealed the name of accused No.2- Jabbar. The police have also apprehended accused Nos.3 and 4 who were in Alto car bearing Regn.No.KA-19-MD- 3981. The police found that accused were in possession of small ganja packets. The said ganja was seized along with autorickshaw and car. They also seized cash of Rs.900/- and a LAVA mobile phone from accused No.1. Thereafter on the basis of the complaint, a case has been registered. After completion of investigation, the charge sheet has been filed. After filing of the charge sheet, the Special Court took cognizance, secured the presence of the accused and after following the procedure under Section 207 of Cr.P.C., after hearing the learned PP and the learned counsel for the accused, prepared the charge which was read over to the accused. The accused pleaded not guilty and claimed to be tried. As such the trial was fixed.
4. In order to prove its case, the prosecution has got examined PWs.1 to 5 and got marked Exs.P1 to P15 and also MOs.1 to 6. Thereafter the statement of the accused was recorded by putting incriminating material as against them. They denied the same. However, they did not lead any evidence and not got marked any documents on their behalf. After hearing both the parties, the impugned judgment and order came to be passed by acquitting the accused. Challenging the legality and correctness of the said order of acquittal, the State has preferred this appeal.
5. The main grounds urged by the learned HCGP are that the trial Court without properly appreciating the entire material on record has erroneously acquitted the accused. The evidence of PWs.1 and 3 to 5 clearly goes to show that the said ganja seized from the possession of the accused and they had no permit or license to sell the said ganja. Only on technical grounds, the accused-respondents are acquitted. It is his further submission that the accused have not given any explanation under Section 313 of Cr.P.C. When the accused were found in possession of the ganja, the trial Court ought to have drawn the presumption under Section 114 of the Indian Evidence Act and it ought to have convicted them for the alleged offences. It is his further submission that though there is ample material as against the accused persons, the trial Court has wrongly acquitted them. On these grounds, he prayed to allow the appeal by setting aside the impugned order and to convict the accused.
6. I have carefully and cautiously gone through the submissions of the learned HCGP and perused the records including the evidence and the documents which are made available by the learned HCGP.
7. Pw.1 is the ASP who received the credible information. By securing the panch witnesses he went to the spot and searched accused No.1 and seized the ganja from his possession and thereafter he also seized ganja from the possession of accused N
