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IN THE HIGH COURT OF KARNATAKA AT BENGALURU (DHARWAD BENCH)
Shivashankar Amarannavar, J.
Rudrappa Bhimappa Hunashyal - Appellant
Versus
State Of Karnataka - Respondent
Criminal Appeal No. 2691 of 2011
Decided On : 07-07-2020
NDPS Act - Conviction under Section 20(b)(ii)(B) - Section 42 non-compliance - acquittal
Fact of the Case:
The appellant-accused No.1 was convicted for possession of ganja under Section 20(b)(ii)(B) of the NDPS Act, 1985. The case revolved around the seizure of ganja from the appellant-accused No.1 by the police based on credible information received. The trial court convicted the accused No.1 while acquitting accused No.2.
Finding of the Court:
The court found that there was non-compliance with the mandatory provisions of Section 42(1) & (2) of the NDPS Act, 1985, as the police officer failed to record the credible information received in writing and send a copy to the superior officers. The court also noted the interestedness of the witnesses and the accused's prior complaints against the police and government officials. As a result, the court acquitted the appellant-accused No.1 for the offence punishable under Section 20(b)(ii)(B) of the NDPS Act, 1985.
Issues: Non-compliance with Section 42 of the NDPS Act, interestedness of witnesses, and prior complaints against police and government officials.
Ratio Decidendi: The court emphasized the mandatory nature of compliance with Section 42(1) & (2) of the NDPS Act, 1985, and the potential prejudice to the accused in case of non-compliance. The court also considered the interestedness of witnesses and the accused's prior complaints as factors casting doubt on the prosecution's case.
Final Decision: The appeal was allowed, the conviction was set aside, and the appellant-accused No.1 was acquitted for the offence punishable under Section 20(b)(ii)(B) of the NDPS Act, 1985. The bail and surety bonds were cancelled, and any fine amount paid by the accused-appellant No.1 was to be refunded.
JUDGMENT
Shivashankar Amarannavar, J. - The present appeal has been filed by the appellant-accused No.1 challenging his conviction for the offence punishable under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances (in short 'NDPS') Act, 1985 by the Special Judge (Prl. Sessions Judge) Belgaum by Judgment dated 06.06.2011 where under the appellant-accused No.1 has been sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.20,000/- for offence under section 20(b)(ii)(B) of NDPS Act, 1985. In default of payment of fine he shall undergo rigorous imprisonment for a further period of nine months. The accused No.2 has been acquitted by the said Judgment for the offence punishable under section 20(b)(ii)(B) of the NDPS Act, 1985.
2. The factual matrix of the case are as under:
3. The Sub Inspector of Police, Ghataprabha Police Station who has examined as PW.6 is stated to have received credible information on 09.02.2008 at 7.15 a.m. while he was in Police Station, that two persons by name Rudrappa Bhimappa Hunshyal and Siddaram Benakatti are keeping ganja in a handbag so as to sell the same in Shindikurubet village and they are awaiting vehicle near GLBC Canal, Ghataprabha- Gokak road to travel to Shindikurubet village and the said credible information has been received over telephone. Immediately, PW.6 secured PW.1- Sri.S.K.Thakalake, Veterinary Doctor, Ghataprabha and two independent panchas PWs.2 and 3 and a photographer. Immediately, at about 8.10. a.m. PW.6 along with PWs.1 to 3 and other staff came near GLBC canal situated on Ghataprabha-Gokak road and reached at about 8.15 a.m. Two persons were standing near the said canal and when they saw the Police van, they started running and he and his staff tried to secure them and they secured one person by name Rudrappa Bhimmappa Hunshyal (accused No.1) and another person ran away and accused No.1 told his name as Siddaram Benakatti. Accused No.1 was holding a bag and he told his name as Rudrappa Bhimmappa Hunshyal and on questioning he told that he and another were going to Shindikurubet and on checking the bag which he was holding there was a ganja weighing 1 kg 500 grams in it and out of it he took 100 grams as sample for the purpose of chemical examination and separately packed it and also packed remaining ganja and got taken photos and prepared mahazar as per Ex.P.3. The panchas and Gazetted officer affixed their signature on it and accused No.1 also affixed his LTM on it. He along with accused and articles seized came to Police Station and filed a complaint as per Ex.P.7 and handed over the same to PW.5 B.Y.Adimani, PSI and the said B.Y.Adimani registered the said complaint in Crime No.41/2008 for the offence punishable under Section 20(b)(ii)(B) of the NDPS Act, 1985.
4. Pw.5 conducted investigation and further investigation was conducted by PW.7 PSI, Ghataprabha Police Station and he has filed charge sheet for the said offence. Consequent upon the charges being framed against accused No.1 and 2, as they have pleaded not guilty of the offence and they claimed to be tried.
5. In order to bring home the guilt of the accused, prosecution has examined seven witnesses and got marked 11 documents and two Material Objects. PW.1 is the Gatetted Officer. PWs.2 and 3 are the independent witnesses to seizure mahazor EX.P.3, who have partly supported the case of the prosecution. PW.4 is the Police Constable who carried ganja packet to FSL for chemical examination.
6. The trial court after hearing arguments and after framing points for consideration has convicted the accused No.1 for the offence punishable under section 20(b)(ii)(B) of the NDPS Act, 1985 and acquitted the accused No.2.
7. The accused No.1 who is the appellant herein has challenged the said Judgment of conviction and Order of sentence on the following grounds.
a) The impugned judgment is illegal and arbitrary since the same has been passed without considering the material facts,
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