Compliance with mandatory seizure procedures under Section 52A of the NDPS Act is essential; failure to adhere results in inadmissibility of evidence and vitiation of conviction.

JUDGMENT :

S. Vishwajith Shetty, J.

1. Accused Nos.1 and 2 are before this Court in this appeal filed under Section 374(2) of Cr.P.C. with a prayer to set-aside the judgment and order of conviction dated 04.07.2016 and order on sentence dated 08.07.2016 passed in Special Case No.64/2012 by the Court of II Additional District and Sessions Judge, Belagavi, for offences punishable under Section 20 (b)(ii)(B) of the NDPS Act, 1985.

2. Heard the learned counsel for the parties.

3. It is the case of the prosecution that PW5 - Anil Kumar received credible information on 02.11.2011 at about 02.15 p.m. that accused were holding a bag containing contraband article allegedly ganja and were trying to sell the same near a mango garden at Jaganur Village within the jurisdiction of Chikkodi Police Station. PW5, therefore, after obtaining necessary permission from his higher officers had conducted a raid to the alleged spot along with the staff and independent panchas and apprehended accused Nos.1 and 2 from the alleged spot and from their possession, contraband article allegedly ganja totally weighing 1 kg 500 grams was seized under panchanama. On enquiry, the accused allegedly admitted that they had grown ganja plants in their property and therefore, a raid was subsequently conducted to the property of the accused and 11 ganja plants totally weighing 37 kgs 550 grams was seized under a common panchanama – Ex.P2. Thereafter, apprehended accused and seized contraband articles were brought to police station and FIR was registered in Crime No.356/2011 by Chikkodi Police Station.

4. After completing investigation charge sheet was filed against the appellants for the aforesaid offences and since appellants had claimed to be tried before the Trial Court for the charge-sheeted offences, the prosecution in order to prove its case had examined 11 witnesses as PW1 to PW11 and got marked 24 documents as Exs.P1 to P24. On behalf of defence, no oral evidence was led nor was any document got marked. Three material objects were marked on behalf of the prosecution as MO Nos.1 to 3. The Trial Court vide the impugned judgment and order of conviction dated 04.07.2016 convicted the appellants for the offence punishable under Section 20 (b)(ii)(B) of the NDPS Act, 1985 and had acquitted them for the offence punishable under Section 20 (a)(i) of the NDPS Act, 1985 and by order dated 08.07.2016, accused Nos.1 and 2 were sentenced to undergo rigorous imprisonment for a period of three years and to pay fine of Rs.50,000/- each and in default to undergo imprisonment for a period of six months. Assailing the aforesaid judgment and the order of conviction and sentence, the appellants are before this Court.

5. The material on record would go to show that based on the credible information received by the first informant Anil Kumar/PW5, a raid was conducted to the alleged spot where the appellants, who were allegedly carrying contraband article ganja were making attempts to sell the same. After the appellants were apprehended by PW5 and his staff, on 02.11.2011, from their possession contraband article allegedly ganja totally weighing 1 kg 500 grams which they were carrying in a bag was recovered. It is alleged that accused Nos.1 and 2 had confessed that they had grown ganja plants in their property and therefore, a raid was also conducted on the very same day to the property of accused Nos.1 and 2 and from the said property, PW5 and his staff had recovered wet ganja plants totally weighing 37 kgs 550 grams. Ex.P2 is the panchanama, under which the