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2019 Supreme(Kar) 1690
IN THE HIGH COURT OF KARNATAKA
H.B. PRABHAKARA SASTRY, J.
Ilyaz Khan - Appellant
Versus
State of Karnataka by Shikaripura Town Police Station - Respondent
Criminal Appeal No. 977 of 2010
Decided On : 26-02-2019
D. Mohan Kumar, Adv., Divakar Maddur, Adv.
Headnote:
Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 8(c), 20 (b)(ii)(B) - Rigorous imprisonment – Appeal against conviction - Whether samples tested by them had contained cannabis flowering tops and buds - Summary of case of prosecution is that PW-4 then Police Sub-Inspector received an information that few people are illegally transporting ganja in an auto rickshaw near Market yard - Immediately joined by his staff which included Assistant Sub-Inspector and few Police Constables he went near place as given to him in information and noticed an auto rickshaw - When enquired two passengers travelling in said auto rickshaw about contents of an airbag which they were possessing he came to know that it was containing ganja in it – Immediately said PW-4 passed on information to his superior Deputy Superintendent of Police who at his request came to spot - He summoned two panchas to place and in their presence inspected airbag which was in said auto rickshaw with those two passengers and noticed some quantity of ganja in it - After getting a weighing scale to spot they weighed it to ascertain that it did contain ganja in two plastic bags in total weighing five Kg and when weighed along with airbag it was weighing in total six Kg - Said Deputy Superintendent of Police also conducted personal search of two passengers and recovered a sum from accused Nos.1 and 2 respectively in cash – Held, According to PW-1 and PW-4 when they enquired accused Nos.1 and 2 who were said to be passengers in said auto rickshaw they revealed that bag that they were carrying was containing ganja - Said seizure is said to have been made by them in presence of two panchas PWs.2 and 3 - However both these panchas have uniformly stated that police had not summoned them to any place and they have not seized any articles much less ganja in their presence - Both of them have stated that their signature on Ex.P-1 was taken only in police station - Even though merely because panchas have not supported case of prosecution evidence of official witnesses cannot be totally discarded provided their evidence appears to be trustworthy - But in case on hand narration of PW-4 about stopping alleged auto rickshaw merely based on suspicion and evidence of PW-1 when read in its entirety does not appear to be sufficient to solely rely upon - Evidence of independent witnesses PWs.2 and 3 was also necessarily to be in consonance with evidence of PW-1 and PW-4 - Since PWs.2 and 3 have totally turned hostile to case of prosecution evidence of PW-1 and PW-4 does not appear to be safe to rely upon - It is also for reason that even according to PW-1 and PW-4 apart from them one more responsible police officer who was Circle Police Inspector was also present at time of raid – Further few more Police Constables were also there - Despite same none of those witnesses have been examined by prosecution for reasons best known to them - Fourthly even according to PW-1 after he seizing alleged ganja in spot he also conducted personal search of accused – Admittedly before conducting personal search of accused Nos.1 and 2 PW-1 has not informed accused about their right to be searched in presence of a Officer - Nowhere PW-1 has stated that he informed accused that he was a Officer as such he is going to conduct their personal search – Thus second argument of learned counsel for appellants that alleged personal search of accused Nos.1 and 2 was without any notice to them by PW-1 also cannot be ignored – Lastly argument of learned counsel for appellants that PW-4 who is Investigating Officer himself was a member of raiding team as such entire investigation is suspicious in nature is to be considered - It is case of prosecution that first information about alleged transaction of ganja was given to PW-4 in turn he passed on said information to his superiors - Even according to prosecution PW-4 was also a member of raiding team and was present when PW-1Deputy Superintendent of Police conducted seizure of alleged goods and also personal search of accused Nos.1 and 2 - According to PW-4 he himself was present when seizure at two different places was drawn as per Ex.P-1 – Thus starting from receiving information up to seizure of goods PW-4 was said to be participating actively in raid – However same person later on received complaint said to have been lodged by PW-1 and also conducted investigation in matter including alleged recording of statements of several of witnesses and sending of sample of seized goods to its chemical examination - In such a situation when member of raiding team himself being recipient of complaint and also Investigating Officer who has conducted investigation and filed charge sheet same creates serious suspicion in circumstances of present case - Appeal is allowed
JUDGMENT :
H.B. Prabhakara Sastry, J.
The appellants who were accused Nos.1, 2 and 3 before the learned Special Judge, Shivamogga, (hereinafter for brevity referred to as 'trial Court'), in Spl.(NDPS) Case No.13/2009, have challenged their order of conviction passed by the said Special Judge on 6.9.2010, for the offences punishable under Sections 8(c) read with Section 20 (b)(ii)(B) of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter for brevity referred to as 'NDPS Act'), wherein the learned Special Judge by order dated 8.9.2010, sentenced the accused to undergo rigorous imprisonment for a period of five years and to pay fine of Rs.20,000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of six months each.
2. The summary of the case of the prosecution is that on 21.7.2009, at about 9.00 a.m., PW-4 then Police Sub-Inspector, received an information that few people are illegally transporting ganja in an autorickshaw near Market yard in Shikaripura. Immediately, joined by his staff, which included Assistant Sub-Inspector and few Police Constables, he went near the place as given to him in information and noticed an autorickshaw bearing registration No.KA-19- 6967. When enquired the two passengers travelling in the said autorickshaw about the contents of an airbag which they were possessing, he came to know that it was containing ganja in it. Immediately, the said PW-4 passed on the information to his superior i.e., Deputy Superintendent of Police, who at his request, came to the spot. He summoned two panchas to the place and in their presence, inspected the airbag which was in the said autorickshaw with those two passengers and noticed some quantity of ganja in it. After getting a weighing scale to the spot, they weighed it to ascertain that it did contain ganja in two plastic bags, in total weighing 5 Kg. and when weighed along with airbag, it was weighing in total 6 Kg. The said Deputy Superintendent of Police also conducted personal search of the two passengers and recovered a sum of Rs.13,000/- and Rs.700/- from accused Nos.1 and 2 respectively in cash. They also seized the airbag and took 100 grams of ganja from each of the plastic bag seized in the place as a sample for its chemical examination, drew a panchanama as per Ex.P-1 in the presence of panchas and brought both the accused along with driver of the autorickshaw and seized articles to the respondent-police station and lodged a complaint as per Ex.P-2 with the respondent-police. On enquiry, he was given information by the accused that it was accused No.4 Smt. Shaniya from whom they had purchased the ganja for its sale. Accordingly, as lead by accused Nos.1 and 2, they proceeded to the house of said Smt.Shaniya (accused No.4), wherein by conducting the search of the said house, they noticed the presence of 20 grams of ganja and in the said process, in was seized under the very same panchanama at Ex.P-1 in the presence of very same panchas. Thereafter, PW-1 - the Deputy Superintendent of Police, took all the four accused along with seized goods and autorickshaw to the respondent-police and lodged a complaint as per Ex.P-2 in the respondent-police station.
After registering a crime against all the four accused, the respondent-police conducted investigation and filed charge sheet against the accused. Since the accused pleaded not guilty, they were tried for the offences punishable under Sections 8(c) read with Section 20 (b)(ii)(B) of NDPS Act.
3. In order to prove the guilt against the accused, the prosecution examined four witnesses from PW-1 to PW-4 and got marked documents from Exs.P-1 to P-7(a) and material objects from MO-1 to MO-6. Neither any witness was examined nor the documents were marked as exhibits from the accused side.
4. After hearing both side, the learned Special Judge by his impugned judgment dated 06.09.2010, acquitted accused No.4 of the alleged offences and convicted accused Nos.1 to 3 for the offences p
