Point of Law: Search and seizer of Ganja –Conviction set aside - Prosecution has failed to establish that the car and the house from where the contraband articles were seized either belonged to the accused or his wife.

JUDGMENT :

S. VISHWAJITH SHETTY, J.

1. The accused No. 1 in Special (NDPS) Case No. 09/2015, who has been convicted by the Court of Special Judge/Principal Sessions Judge, Vijayapura vide its judgment and order of conviction and sentence dated 11th January 2017 for the offence under Section 8(c) which is punishable under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “the NDPS Act”) and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 1,00,000/- and in default of payment of fine to undergo simple imprisonment for one year, has approached this court in this appeal with a prayer to set aside the said judgment and order of conviction and sentence.

2. Brief facts of the case are:

On 26.02.2015 the complainant/PW-1 on receipt of a credible information that huge quantity of ganja was stored in the house of appellant, after informing his higher officers, at about 2.40 p.m. conducted a raid along with his staff and panch witnesses on the house of the appellant situated near Sadakibawadi and Secab School at Vijayapur. On seeing the raiding party, the appellant, who was allegedly present near the house and was loading ganja bags in a car bearing No. KA-03/MB-4261 ran away from the spot. From the car, seven blue colour carry bags containing 2 kilograms of ganja each and a white colour urea bag containing 15 kilograms of ganja was seized. Inside the house, the raiding party found a concrete tank in which 98 blue colour carry bags containing ganja was found. All the contraband articles were seized by the complainant under a panchanama and after returning to the office with the seized articles, a case was registered on the basis of his complaint, in Vijayapura Excise Police Station in Crime No. 32/2015 for the offences punishable under Sections 8(b) and 8(c) read with Sections 20 and 25 of the NDPS Act. After investigation, charge-sheet was filed against two persons. The second accused/Rajesh M. Pachchapur was allegedly the owner of the Tata Indica car bearing No. KA-03/MB-4261. Since accused No. 2 was absconding, the case against him was split up.

3. During the course of investigation, the appellant was arrested on 29.09.2015. Charges were framed against him for the offences under Section 8(c) which is punishable under Section 20(b)(ii)(C) and since the accused did not plead guilty and claimed to be tried, the case was posted for trial. During the course of trial, the prosecution in order to establish the guilt of the accused had examined 10 witnesses as PWs. 1 to 10 and marked 25 documents as Exs.P1 to P25. In support of its case, the prosecution had also marked M.Os.1 to 20. After completion of prosecution evidence, the statement of the appellant/accused under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”) was recorded. No defence evidence was led nor any document was marked in support of the defence.

4. The trial court thereafter wards heard the arguments of the learned counsel appearing on both sides and by means of the impugned judgment and order has convicted the appellant for the offences punishable under Section 20(b)(ii)(C) of the NDPS Act.

5. Learned Counsel appearing for the appellant/accused contends that the judgment and order of conviction and sentence is highly illegal and the same is passed without proper application of mind. He submits that the learned Sessions Judge has failed to properly appreciate the oral and documentary evidence available on record. He also submits that the prosecution has failed to examine any independent witnesses in the case. He submits that complainant has not reduced the credible information in writing nor has he informed his higher officers and obtained any permission in writing and therefore, there is complete non-compliance of Section 42 of the NDPS Act. The trial court, according to him, has erred in relying upon the report - Ex.P16 as the same does not comply the re