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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
K.SOMASHEKAR, J.
Mustaq Ahamed alias Maamu - Appellant
Vs.
State of Karnataka By Udayagiri Police Station Rep. by State Public Prosecutor High Court Building Bangalore - Respondent
CRIMINAL APPEAL NO. 624 OF 2011
Decided On : 15-12-2021
Criminal Procedure Code, 1973 - Section 313, 233, 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 20(b), 20(b)(i), 50, 20, 42, 43 - Power of entry, search, seizure and arrest without warrant or authorization - Appeal appellant is seeking for consideration of grounds urged in appeal memo and consequently to set aside judgment of conviction and order of sentence rendered by trial Court and seeking acquittal of accused for offence punishable under Section 20(b) of NDPS Act, 1985, amongst grounds urged - Whether there are proper evidence on record or prosecution has improved its case during course of trial.
Finding of the Court:
It is found that prosecution has failed to prove said mandatory compliance as required in law, i.e., mandatory provision of Section 50 of NDPS Act, 1985 - Therefore, appellants who are accused are entitled to claim benefit to seek acquittal - In terms of aforesaid reasons and findings and so also in view of warranting circumstances re-appreciation of evidence and also exhibited documents on part of prosecution as where trial Court did not appreciate evidence in proper perspective manner - Keeping in view Section 50 of mandatory provision of NDPS Act if not reappreciation of evidence, certainly appellants who are accused before trial court being gravamen of accusation made by prosecution being sufferers and certainly there shall be a miscarriage of justice - Therefore, in view of aforesaid reasons and findings it is opined that accused who are appellants before Court ought to be acquitted by setting aside judgment of conviction and order of sentence rendered by trial Court.
Result: Appeal allowed
JUDGMENT :
This appeal is directed against the judgment of conviction and order of sentence rendered by the Court of the Principal District and Sessions Judge, Mysore, (hereinafter referred to as ‘trial Court’) in Spl.C. No. 25/2010 dated 01.06.2011, whereby held conviction for the offence punishable under Section 20(b) of Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as ‘NDPS Act’) 1985.
2. In this appeal appellant is seeking for consideration of the grounds urged in the appeal memo and consequently to set aside the judgment of conviction and order of sentence rendered by the trial Court and seeking acquittal of accused Nos.1 and 2 for the offence punishable under Section 20(b) of the NDPS Act, 1985, amongst the grounds urged.
3. Heard the learned counsel Sri P. Nataraju for appellants and so also the learned High Court Government Pleader for the respondent-State, who are present before the Court physically.
4. Perused the judgment of conviction and order of sentence rendered by the trial Court in Spl.C. No.25/2010 dated 01.06.2011 so also the evidence of PWs.1 to 8 and the documents at Exs.P1 to P7 and also MOs 1 to 8.
5. Factual matrix of the appeal is as under:
Subsequently, the Police Inspector who lead the team members to the scene of crime in the presence of the Panch witnesses has conducted Mahazar and also seized the Ganja from the possessions of accused No.1 namely Mustaq Ahmed @ Maamu and brought him to the Police Station. Then he registered a suo moto case against the accused persons by filing a complaint report. Accordingly, criminal law was set into motion by recording the FIR as per Ex.P4 for the offence punishable under Section 20(b) of NDPS Act, 1985. After recording FIR by the Police of the jurisdiction they proceeded in further for investigation and to lead charge-sheet against the accused persons.
6. It is the further case of the prosecution that after apprehending of accused No.1 the Police Inspector conducted search of the bag found in the possession of accused No.1 and found 500 grams of Ganja and also found 58 small packets containing Ganja and 5 paper packets in all it contained 720 grams of Ganja and also recovered an amount of Rs.1,260/-from the possession of accused No.1. On enquiry to him in respect of another person who escaped from the scene of crime, he revealed that accused No.2 told him to keep money with him. After registering the case he conducted further investigation and entrusted the matter to PW7 namely Sadashiva working as Police-Sub-Inspector of Udaygiri Police Station, Mysore. After entrusting the further investigation by the Police Inspector PW2 – Mathews Thomas who registered the crime against accused on his complaint report to PW7, thereafter he being the Police-Sub-Inspector conducted further investigation thoroughly and lead charge sheet against the accused persons.
7. On receip
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