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2019 Supreme(Kar) 1909
IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH
Bellunke A.S., J.
Bhujang Siddaram Munde - Appellant
Versus
The State Of Karnataka Rep. By Chikodi Ps, Dist: Belgaum. Now Rep. By Its Spp - Respondent
Criminal Appeal No.2557 of 2011
Decided On : 19-06-2019
Advocate Appeared:
For the Appellant :Sri. Ramachandra Mali, Advocate
For the Respondent: Sri V.S. Kalasurmath, HCGP
Headnote:
Narcotic Drugs and Psychotropic Substance Act, 1985 - Section 20(b)(ii)(B) and 8(c) – Appeal against conviction - Rigorous imprisonment - Whether prosecution has proved beyond reasonable doubt before trial Court that accused was in possession of ganja without any license or permit and same was being sold and hence has committed offence punishable under Section 20(b)(ii)(B) read with Section 8(c) of Narcotic Drugs and Psychotropic Substance Act - Whether appellant/accused proves that judgment of trial court is perverse capricious and against facts and evidence and material on record and therefore is liable to be set aside - Whether it could be possible that too in such a highly busy area contraband could be sold so openly by any one that too sitting by side of a road - Whether they were local residents or outsiders or where accused was apprehended - Whether these samples were seized property or were kept - That also vitiates the entire investigation - Sub-Inspector of Police received a credible information that accused named in charge sheet was possessing of ganja powder in a plastic bag - He had also ganja chits each containing grams worth with him - He was not having any permit or license - He had engaged in sale of said ganja - Matter was also informed to higher officers – Therefore Investigating Officer He secured panchas and also a Gazette Officer – Thereafter Sub-Inspector of Police along with Gazette Officer-PW-1 witnesses PWs.2 and 3 PW-4-photographer and PW-5-weigh-man left the police station and reached - There they found the accused sitting with a bag containing powder and he was found selling something to public – Immediately raiding party went to spot and apprehended accused – Held, Description of seized product shows it had stems leaves branches and perhaps even fruiting parts - But the question is can the stem leaves branches be termed as Ganja in view of definition referred to above - Answer is obviously in negative because Act itself defines what is Ganja - Not only raiding party but Investigation Officer has not separated fruiting tops or flowering from Ganja plants before weighing - What has been done is they have weighed entire plants to record the weight - Since leaves stem and branches were also part of weight there was no definite weight of actual flowering or fruiting part of the plant - Hence evidence produced before the prosecution to sustain charge is totally vague - If whole plant is seized, then it will only be a cannabis plant and not ganja - So far as drawing is concerned alleged independent witnesses have not supported the case of prosecution. It is not stated whether they were the local residents or outsiders or where the accused was apprehended - In addition to that photograph only shows the accused sitting along with article officials and witnesses and therefore alleged incident has not been taken place at all - Therefore after taking photograph it appears that Investigating Officer must have returned to police station and must have written about conducting of seizure collecting samples and sealing same - If a photographer is summoned then photographs of all relevant proceedings should have been taken - Hon’ble Supreme Court in case has held that in case where have turned hostile to prosecution and where there is no other evidence except interested testimony of police Officers it would not be safe to rely on such evidence - Further it is held that is nothing but a document written by concerned police officer - Hon’ble Supreme Court in case has held that offence committed under NDPS Act is grave one and the procedural safeguards provided therein in terms of Sections 41 42 and 50 of NDPS Act should be complied with - In this case it appears that Investigating Officer was complainant and has not complied any of aforesaid provisions such as segregation etc. should have been done as required under Section 50 of NDPS Act - Having regard law laid down by Hon’ble Supreme Court find that the prosecution has not proved that weight and seizure was in accordance with mandatory provisions of NDPS Act - No hard cash has been seized from accused though he is said to have found selling ganja to public – Hence when independent witnesses PWs.2 and 3 have not at all supported case of prosecution with regard to search and seizure in addition to that there is inordinate delay in sending samples to chemical examiner for chemical analysis - Though articles were seized it was sent to FSL laboratory for examination after more than months - Appeal is allowed
JUDGMENT :
This is an appeal preferred by the accused against the judgment of conviction and sentence imposed by the learned Special Judge (Principal Sessions Judge), Belgaum, in Special Case No.127 of 2009 dated 22.01.2011, wherein the accused has been convicted for the offences punishable under Section 20(b)(ii)(B) read with Section 8(c) of the Narcotic Drugs and Psychotropic Substance Act, 1985 (hereinafter referred to as the ‘NDPS Act’, for short) and sentenced to undergo rigorous imprisonment for a period of four years and to pay fine of Rs.50,000/-and in default of payment of fine, to undergo further rigorous imprisonment for a further period of one year.
2. Brief facts leading to the case on hand are as under:
On 07.01.2009 at about 3.00 pm, the Sub-Inspector of Police, Chikodi police station, received a credible information that the accused named in the chargesheet was possessing 2 Kgs of ganja powder worth Rs.3,000/-in a plastic bag. He had also 15 ganja chits each containing 10 grams worth Rs.225/-with him. He was not having any permit or licence. He had engaged in sale of said ganja near Ankali-Koot on Chikkodi-Ankali road. The matter was also informed to the higher officers. Therefore, the Investigating Officer He secured panchas and also a Gazetted Officer. Thereafter, the Sub-Inspector of Police along with Gazetted Officer-PW-1, Panch witnesses PWs.2 and 3, PW-4-photographer and PW-5-weigh-man, left the police station at about 3.30 pm and reached Ankali-Khoot. There, they found the accused sitting with a bag containing powder and he was found selling something to the public. Immediately, the raiding party went to the spot and apprehended the accused. The powder, which the accused was possessing, was found to be ganja powder weighing 2 kgs. Out of that, 100 grams of power was taken as sample in a separate container which was packed and sealed. Apart from that, the accused was also in possession of 15 ganja paper chits each containing 10 grams. Out of the said chits, two chits were taken as sample. They were separately packed and sealed. A seizure panchanama was also drawn as per Ex.P-2 at the spot itself between 3.45 pm to 4.15 pm. Sample was also taken from bluk of ganja. Thereafter, the I.O. returned to police station. He filed a complaint about the search and seizure. The documents were handed over to the SHO on that day. Based on such complaint a case was registered.
During the course of investigation, accused was apprehended at the spot itself. He was remanded to judicial custody and subsequently, was enlarged on bail. After completion of investigation, the Investigating Officer filed charge sheet against the accused for the offences punishable under Sections 20(b)(ii)(B) read with Section 8(c) of the NDPS Act. The learned Special Judge after taking cognizance of the aforesaid offences registered Special Case No.127 of 2009. The presence of the accused was secured. After hearing both sides, charge was framed for the aforesaid offences. The accused pleaded not guilty and claimed to be tried.
After holding trial, the learned trial judge found that the prosecution has proved beyond reasonable doubt that the accused has committed the offence punishable under Section 20(b)(ii)(B) read with Section 8(c) of the NDPS Act. Therefore, the learned Judge passed the impugned order convicting and sentencing the accused for the aforesaid offence. The said judgment has been challenged by the accused on the following grounds:
The trial Court has not properly appreciated the evidence on record. The approach of the learned Judge is erroneous and illegal. The material on record does not make out the alleged offence. The complainant is an interested person. Independent panch witnesses PWS.2, 3 and 4 have not supported the case of the prosecution. Very possession of the contraband by the accused is not at all proved. The trial Court has committed an error in believing the evidence of PWs.1 to 6. Though independent witnesses were availab
