Conviction under drug statutes requires consistent evidence; discrepancies in witness testimonies can invalidate the prosecution's case.

JUDGMENT :

S. RACHAIAH, J.

1. This appeal has been filed by the appellant, being aggrieved by the judgment of conviction dated 30.06.2021 and order on sentence dated 01.07.2021 in Spl. C (NDPS) No.13/2016 on the file of the Special Judge and Principal District and Sessions Judge, Bidar, wherein the accused has been found guilty and convicted for the offences punishable under Sections 8 (c), 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS Act’).

Factual matrix of the case are as under:

2. The case of the prosecution is that, on 24.02.2013, when C.W.3 – Hanmanth V. Guttedar, Excise Inspector, Raichur, C.W.4 – Sham Savalgi, Excise Deputy Commissioner, Bidar, C.W.7 – Adhinath, Excise Sub- Inspector, C.W.6 – Sanjaykumar Gladson, Excise Police and other staff were on duty on account of the fact that there was local body election and the Code of Conduct was in force. Around 10.30 a.m., on 24.02.2013, they reached Navadgeri cross and took two persons as panch witnesses to assist them in the rounds and they visited Benakanalli village and then went to Chambol village, where C.W.6 – Sanjaykumar Gladson, Exercise Inspector of Aurad Range, joined them along with his staff. As per the averments of the complaint, C.W.3 had received a credible information that one person was standing in Jambagi bus stand carrying ganja in a khaki colour bag. They went to the spot along with the staff and Gazetted officers. As soon as the accused saw the officials, he tried to run away from the place, however, he was apprehended. On enquiry, he disclosed his name as Laxman S/o Babu Rathod of Jambagi Thanda and on further enquiry, he admitted that he was carrying ganja in the bag. Immediately, C.W.3 prepared the reason of record of search without warrant and opened the bag, found the ganja in it and it was weighed on a scale in the nearby kirana shop, the same is weighed 6 kgs. The seizure panchanama was drawn in the presence of the panch witnesses and a case came to be registered in Crime No.30/2012-13 for the offences under Sections 8 (c), 20(b)(i), 25 and 29 of the NDPS Act. After conducting investigation, submitted charge sheet.

3. To prove the case of the prosecution, the prosecution examined seven witnesses as PWs.1 to 7 and got marked eight documents as per Exhibits P1 to P8 and also identified two material objects as M.Os.1 and 2. The Trial Court after considering the evidence on record, convicted the accused for the offences punishable under Sections 8 (c), 20(b)(ii)(B) of the NDPS Act.

4. Heard Sri Nandkishore Boob, the learned counsel for the appellant and Sri Jamadar Shahabuddin, learned High Court Government Pleader for respondent - State.

5. It is submitted by the learned counsel for the appellant/accused that the impugned judgment of conviction and order on sentence is contrary to law and also facts, and hence, the same is liable to be set aside.

6. It is further submitted that, P.W.4 - panch witness has not supported the case of the prosecution. The person who weighed the ganja has not been cited as a charge sheet witness nor was examined by the prosecution. The riding party has not followed the procedure contemplated under Section 42 of the NDPS Act insofar as the conduct of search. P.W.5 – Hanmanth V. Guttedar, being a riding party had not been subjected himself for search and also he did not inform the accused regarding the mandatory requirement that in the presence of whom he has to be searched. The manner in which the Trial Court arrived at a conclusion regarding search and seizure and also the presence of ganja is not proper and appropriate. Hence, the judgment of conviction is liable t