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Karnataka High Court · body

2016 DIGILAW 169 (KAR)

SUBRAMANYAM v. STATE OF KARNATAKA

2016-02-18

A.V.CHANDRASHEKARA

body2016
JUDGMENT : Present appeal is filed under Section 374 of Cr.P.C. challenging the judgment of conviction and sentence passed by the learned Special Judge dealing with the cases arising out of Narcotic Drugs and Psychotropic Substances Act (for short ‘the Act’) in Spl.C.C.No.134/2013. Petitioner who was accused No.1 is convicted for the offence punishable under Section 5(C) of NDPS Act r/w. Section 34 of IPC and is sentenced to undergo R.I. for 10 years and to pay fine of Rs.1 lakh, in default, to undergo six months of S.I. for the offence punishable under Section 5(C) of NDPS Act. The judgment of conviction and sentence dated 27.11.2015 is called in question in this appeal. 2. The facts leading to the filing of the present appeal are as follows: a. Accused had been charged for the offence under Section 5(C) of the Act arising out of Crime No.5/12 registered by the respondent – police station. On 21.01.2012 at about 7.30 a.m., CW18 received a credible information regarding the illegal transportation of 8 bags of poppy straw (husk) in Madhusudan bus from Madanapalli to Bangalore. CW18 – PSI – Mr.Rajanna is stated to have reduced the information so received in the Station House Diary and informed the same to the Circle Inspector of Police and also to the Deputy Superintendent of Police through phone. He issued intimation to CW1 to 8 and 11 panchas and staff to participate in the raid and issued notice to panchas as per Ex.P14. CW18 was waiting in front of the station along with panchas and staff members. The bus in question was stopped and it was found out that there were plastic bags on the top of the bus. On enquiry, CW6 –conductor told that a person was transporting the said bags from Madanapalli and going to Pillaguppa factory and he is stated to have shown accused No.1 as the person who got loaded the same to the top of the bus. On enquiry, accused No.1 stated that he was going to supply the said bags to one Prakash – accused No.2. CW18 informed the accused that he has a right to be personally searched by a Gazetted Officer or Magistrate and the search took place in the presence of CW4 – Gazetted Officer as accused agreed to be searched by CW4. b. On personal search, no items were found with him. CW18 informed the accused that he has a right to be personally searched by a Gazetted Officer or Magistrate and the search took place in the presence of CW4 – Gazetted Officer as accused agreed to be searched by CW4. b. On personal search, no items were found with him. They weighed the poppy straw (husk) and each bag contained an average of 1213 kgs. In all 180.450 kgs of poppy husk was seized. Out of the same, 250 grams each from all the bags were taken out separately for sample. CW18 prepared the mahazar at the spot and accused No.1 was produced along with the property to the police station and CW18 himself chose to register the case against both the accused and FIR was sent to the jurisdictional Court. c. The statement of accused No.1 was recorded and he was produced before the Court. CW14 recorded the statements of CWs’1 to 10, 12 to 17. He sent a letter to the Deputy Superintendent of Police about the success of the raid. Accused No.2 was arrested on 24.01.2012 and his voluntary statement was recorded. The samples were sent to FSL through CW16 and obtained acknowledgement. d. Both the accused have been examined under Section 313 of Cr.P.C. They have denied the allegation made against them. Their defence is one of total denial of the allegations made against them. 3. Learned counsel for the appellant has argued that the trial Court has not properly analyzed the oral and documentary evidence in right perspective and that wrong approach has been adopted to the real state of affairs. It is argued that the trial Court has ignored the fact that the conductor has not at all identified the accused as the person who was transporting the said incriminating materials. He has argued that the mandatory provisions of Sections 42, 52A and 67 of the Act have not been complied with and therefore the judgment of conviction and sentence passed is opposed to law, facts and probabilities. 4. Per contra, Sri.Rachaiah, learned HCGP has supported the judgment of conviction and sentence essentially on the ground that the personal search of the accused was done in the presence of the Gazetted Officer and CW-18 had reduced the information in writing and informed his higher authorities at the earliest. 4. Per contra, Sri.Rachaiah, learned HCGP has supported the judgment of conviction and sentence essentially on the ground that the personal search of the accused was done in the presence of the Gazetted Officer and CW-18 had reduced the information in writing and informed his higher authorities at the earliest. He has submitted that inspite of material witnesses turning hostile, there is nothing on record to disbelieve the evidence of police witnesses and the confession of accused No.1 recorded under Section 67 of the Act. He has submitted that the evidence of Police Officer should not be evaluated with distrust and that the learned Judge is justified in convicting the accused. 5. After going through the records and after hearing the learned counsel for the petitioner and learned HCGP, the points that arise for my consideration are: “1. Whether the trial Court is justified in convicting the accused on the basis of the evidence of the official witnesses without there being any corroboration in material particulars? 2. Whether the trial Court is justified in convicting the accused to undergo 10 years of R.I. and to pay Rs.1 lakh as fine? 3. Whether any interference is called for by this Court, if so to what extent?” REASONS 6. Point No.1: CW18 – Rajanna was working as a PSI in Nandagudi Police Station from July 2011 to September 2012. He is stated to have received a credible information at about 7.30 a.m. when he was in police station to the effect that in one bus ‘Madhusudhan’ proceeding from Madanapalli to Bangalore, poppy straw (husk) was being illegally transported. He is stated to have reduced the same into writing. Ex.P12 is the copy of the Station House Diary relating to the receipt of information. Of course, Station House Officer has to maintain Station House Diary and credibility of Ex.P12 cannot be found fault with. 7. What is further deposed by him is that he informed the jurisdictional Circle Inspector of Police and Deputy Superintendent of Police over phone and obtained information. Specific suggestions have been put to him stating that he did not inform the Circle Inspector of Police or the Deputy Superintendent of Police, in any manner and therefore statutory provisions of Section 42(2) of the Act have not been complied with. Specific suggestions have been put to him stating that he did not inform the Circle Inspector of Police or the Deputy Superintendent of Police, in any manner and therefore statutory provisions of Section 42(2) of the Act have not been complied with. Ex.P12 – copy of the Station House Diary speaks only about the receipt of credible information received by him in regard to the transportation of poppy straw (husk) on the top of a bus proceeding from Madanapalli to Bangalore. But Ex.P20 is a written information stated to have been sent by PW-14 to the Deputy Superintendent of Police requesting permission to continue with the investigation. It bears the signature of Deputy Superintendent of Police. But nothing is mentioned in the Station House Diary about the intimation being given to his immediate higher ups, after coming back to the police Station from the spot. Ex.P20 depicts that soon after the receipt of the information it was communicated to the Deputy Superintendent of Police, but Ex.P12 is silent to that effect. 8. The entire case of the prosecution is based upon the deposition of PW-1. According to him, Shaik Mohammed Ilyaz examined as PW-6 was the conductor of the bus and he showed this appellant as the person who was transporting poppy straw (husk) to Pillaguppa factory and the said person disclosed his name as Subramanya and accused is stated to have confessed about the same. What is argued by the learned HCGP is that the incriminating poppy straw (husk) was weighed in the presence of accused and the Gazetted Officer and therefore it is a perfect compliance of Section 50 of the Act. Question of applicability of Section 50 of the Act does not arise, since seizure of husk was from the top of the bus and not from the person of the accused. Question that really arises for consideration in this Court, is as to whether the alleged identification of this appellant as the person transporting the poppy straw (husk) by the conductor could be really believed. 9. What is argued by the learned HCGP is that the accused had an opportunity to explain his stand when he was examined under Section 313 of Cr.P.C. and he has not spoken about the alleged identification made by the conductor and the weighing of the contraband materials in the presence of the Gazetted Officer by the Investigating Officer. 10. 9. What is argued by the learned HCGP is that the accused had an opportunity to explain his stand when he was examined under Section 313 of Cr.P.C. and he has not spoken about the alleged identification made by the conductor and the weighing of the contraband materials in the presence of the Gazetted Officer by the Investigating Officer. 10. As per the facts in the case of STATE OF PUNJAB v. BALDEV SINGH – (1999) 6 SCC 172 , accused admitted that Narcotic Drugs were recovered from bags which were found in his possession at the time of his apprehension, in terms of Section 35 of NDPS Act. Therefore, the burden of proof was upon him to prove that he had no knowledge that the bags contained such a substance. It was argued in the said case that the onus was on the accused and that he had no knowledge that bags contained such a substance. 11. Per contra, learned counsel for the appellant has relied upon a decision of the Hon’ble Supreme Court in the case of MAKHAN SINGH vs. STATE OF HARYANA – Crl.Apl.No.682/2015 disposed of on 21.04.2015. As per the facts of the said case, Raghbir Singh examined as PW-6 recovered narcotic drugs from the possession of the accused. Though it is well settled that a conviction can be based solely on the testimony of official witnesses, condition precedent is that the evidence of such official witnesses must inspire confidence. 12. In the present case, the conductor who is stated to be the independent witness regarding identification of the accused transporting the poppy straw (husk) has not at all supported the case of the prosecution inspite of his cross examination done by the learned Prosecutor with the permission of the Court. All other independent official witnesses in their one voice have deposed that accused did not possess anything and that they do not know anything about the case. Nothing is elicited from them during the course of cross examination. 13. Learned HCGP has relied upon Section 50 of the Act and contended that recovery was made from the bus and this cannot be found fault with. Admittedly, the recovery is not from the appellant, but from the top of the bus which was looked after by the conductor. Hence, Section 50 of the Act has no application to the present facts of the case. Admittedly, the recovery is not from the appellant, but from the top of the bus which was looked after by the conductor. Hence, Section 50 of the Act has no application to the present facts of the case. Even in Makhan Singh’s case the contraband materials had been recovered from the fitter – rehra of the vehicle which was allegedly driven by the accused. Therefore, it is held that Section 50 of the Act will have no application at all. 14. As rightly held by the Hon’ble Supreme Court in Makhan Singh’s case prosecution ought to have endeavored to prove whether the appellant was transporting the seized contraband materials from the top of the bus by placing cogent evidence. 15. What is deposed by PW-6 is that few coolies loaded few bags in Madanapalli to the top of the bus and that accused had not loaded those bags. He has further deposed that he charged Rs.30/per bag and they were to be unloaded near Pillaguppa Factory. He has denied having stated to the police that it was the accused who got the bags loaded to the top of the bus. 16. Mr.Baskar, examined as PW-7 –cleaner of the bus, has not supported the case of the prosecution in any manner. PW-8 Nagabhushan mechanic of the said bus has denied any seizure of contraband materials and accused being taken into custody. 17. The learned Judge of the trial Court has come to the conclusion that mandatory provisions of 42 of the Act have been strictly complied with. Sri.Rachaiah, learned HCGP has vehemently argued that the credible information received by the PSI while he was in the police station was reduced into writing and the same is evident from the copy of the Station House Diary got marked in the present case vide Ex.P12 and that the said information was immediately passed on to his Higher Officer i.e., Deputy Superintendent of Police, Bangalore Sub Division on the same day. 18. Reliance is placed on Ex.P20, a letter stated to have been addressed by the PSI – Rajanna to the Deputy Superintendent of Police on 21.01.2012. Rajanna, who is examined as PW-14 has deposed that after the receipt of information, he intimated the Circle Inspector of Police as well as Deputy Superintendent of Police over phone and got permission. 18. Reliance is placed on Ex.P20, a letter stated to have been addressed by the PSI – Rajanna to the Deputy Superintendent of Police on 21.01.2012. Rajanna, who is examined as PW-14 has deposed that after the receipt of information, he intimated the Circle Inspector of Police as well as Deputy Superintendent of Police over phone and got permission. If he had intimated to the Circle Inspector of Police and Deputy Superintendent of Police, he would have been mentioned in Ex.P12 to the effect that the intimation had been given to the Circle Inspector of Police as well as the Deputy Superintendent of Police. 19. Ex.P12(a) is the Station House Dairy marked at 7.30 a.m. relating to the receipt of information and proceeding towards the spot. Ex.P12(b) is the Station House Dairy entered at about 12.45 p.m. after coming back from the place were the contraband was seized. Ex.P20 discloses that after the receipt of credible information, he had passed on the message to the Deputy Superintendent of Police about himself and his panchas proceedings towards the spot. On a plain reading of Ex.P12 it is very difficult to come to the conclusion that the information was passed on to the Deputy Superintendent of police immediately after it was received by him. If he had really intimated to the Deputy Superintendent of Police either orally or in writing, he would have mentioned in Ex.P20(a) – the station house dairy marked at 7.30 a.m. or atleast at 12.45 p.m. when another entry was made. In order to vouchsafe the authenticity of Ex.P20, the Deputy Superintendent of Police should have been cited as a witness or atleast examined by the prosecution with the permission of the Court. 20. The decision rendered by the Constitution Bench of the Hon’ble Apex Court in the case of KARNAIL SINGH v. STATE OF HARYANA (2009) 8 SCC 539 ), has dealt with the mandatory formalities to be complied with by a police officer or an Authorised Officer soon after the receipt of credible information relating to the narcotic drugs or psychotropic substances. The decision rendered by the Constitution Bench of the Hon’ble Apex Court in the case of KARNAIL SINGH v. STATE OF HARYANA (2009) 8 SCC 539 ), has dealt with the mandatory formalities to be complied with by a police officer or an Authorised Officer soon after the receipt of credible information relating to the narcotic drugs or psychotropic substances. Relevant portion of law laid down by the Hon’ble Apex Court in the case of KARNAIL SINGH (supra) is as follows: ‘An officer on receiving information of the nature referred to in subsection (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while he is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.’ 21. Even the Circle Inspector of Police to whom the intimation is stated to have been given by PW-14 about the receipt of credible information is neither cited as witness in the charge sheet nor examined. Therefore, it is very difficult to accept the contention of learned HCGP that the mandatory provision of Section 42 of the Act have been complied with. Therefore, mere production of letter Ex.P20 stated to have been addressed to the Deputy Superintendent of Police and getting it marked as Ex.P20 would be insufficient. Mere marking of a document does not dispense with the proof of the requirement of Section 42 of the Act. 22. While cross examining PW-14, learned counsel for the first accused has put a specific suggestion that no intimation was given to Deputy Superintendent of Police as per Ex.P20 and that the same is created by him in the police station. Of course, the said suggestion is denied by PW-14. 22. While cross examining PW-14, learned counsel for the first accused has put a specific suggestion that no intimation was given to Deputy Superintendent of Police as per Ex.P20 and that the same is created by him in the police station. Of course, the said suggestion is denied by PW-14. Compliance of provision of Section 42 of the Act are not directory, but mandatory. Even slight departure would make the case of the prosecution a weaker one. On analyzing the entire evidence of PW-14 and in the light of Ex.P20 and specific suggestion put by the learned counsel for the accused No.1, it is very difficult to opine that the provision of Section 42 of the Act have been complied with in the present case. This aspect of the matter is not properly dealt with by the trial Court. Learned Judge of the trial Court has not looked into the aspect of the proof of Ex.P20. As already stated, mere marking of a document would be insufficient to prove its contents when the very authenticity of a document is seriously disputed. 23. Ex.P19 is stated to be the confessional statement of the accused – Subramanya recorded by Rajanna – PSI – examined as PW-14. This is relied upon as one of the important piece of evidence as per Section 67 of the Act. Section 67 of the Act is reproduced below: “67. Power to call for information, etc – Any officer referred to in Section 42 who is authorized in this behalf by the Central Government or a State Government may, during the course of any enquiry in connection with the contravention of any provision of this Act – (a) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder; (b) require any person to produce or deliver any document or thing useful or relevant to the enquiry; (c) examine any person acquainted with the facts and circumstances of the case.” 24. This Court will have to consider the applicability of Section 67 of the Act to the facts of the case. This Court will have to consider the effect of the purported statement said to have been made by accused No.1 to PW-14. This Court will have to consider the applicability of Section 67 of the Act to the facts of the case. This Court will have to consider the effect of the purported statement said to have been made by accused No.1 to PW-14. The situation in which such purported statement said to have been made cannot also be lost sight of. The purported raid was conducted in the morning. A large number of passengers were in the said bus. Apart from that, this PW-14 and his saff were also present. According to the prosecution 8 bags of poppy straw (husk) were found on the top of the bus. When exactly the statement of Ex.P19 was recorded by PW-14 is not forthcoming. Whether it was recorded in the police station or whether it was recorded at the time of drawing up of mahazar or soon after the same, is not forthcoming. In his cross examination in chief PW-14 – PSI who conducted raid has deposed that the conductor told him that the bags were loaded to the bus at Madanapalli and the same was being transported to factory at Pillaguppa and he showed one man as the person who was transporting the same. It is the definite case of the prosecution that the conductor of the bus showed the first accused and on enquiry the said man is stated to have told the PSI that it was being transported to be handed over to one Prakash. Whereas, PW-14 as further deposed in his cross examination that he came to the police station and registered the case on his own report and subjected the seized materials in PF No.6/2012 and the accused was arrested and statement was recorded vide Ex.P19. 25. He has identified his signature as Ex.P19(a) and signature of the accused as Ex.P19(b). On going through the cross examination of PW-14, it appears that accused No.1 is stated to have told PW-14 that he was carrying the bags to hand over the same to one Prakash. This statement is stated to have been given soon after he was identified by the conductor of the bus at the spot where the bus was stopped. Whereas in his cross examination he has deposed that accused gave the said information after he was taken to custody and subjected to custodial interrogation. This statement is stated to have been given soon after he was identified by the conductor of the bus at the spot where the bus was stopped. Whereas in his cross examination he has deposed that accused gave the said information after he was taken to custody and subjected to custodial interrogation. If really accused had made a statement vide Ex.P19, it cannot be said that he had given voluntary statement under Section 67 of the Act. 26. It is useful to refer to a decision rendered by a Bench consisting of three judges of the Hon’ble Supreme Court in the case of UNION OF INDIA v. BAL MUKUND AND OTHERS – (2009) 12 SCC 161 . 27. In Bal Mukund’s case, Hon’ble Supreme Court has held that the statutory provisions must be acted upon when drastic powers are conferred to deprive a citizen for not less than 10 years. Paragraph No.28 of the said decision found in Page 172 is extracted below: “28. Where a statute confers such drastic powers and seeks to deprive a citizen of its liberty for not less than ten years, and making stringent provisions for grant of bail, scrupulous compliance with the statutory provisions must be insisted upon. While considering a case of the present nature where two persons may barely read and write Hindi, are said to have been used as carrier containing material of only 1.68% of narcotics, a conviction, in our opinion, should not be based merely on the basis of a statement made under Section 67 of the Act without any independent corroboration particularly in view of the fact that such statements have retracted. 28. The entire judgment of the trial Court is essentially based on the purported confession of accused No.1 made vide Ex.P19. The Special Judge has failed to note that Ex.P19 could have been considered as a reliable piece of evidence only when there was corroboration. Admittedly, no contraband was found in his possession. According to Ex.P19, the same was being transported by accused No.1 to hand over the same to accused No.2 and accused No.2 is acquitted and that the State has not filed any appeal against the acquittal of accused No.2. The only evidence against accused No.1 is his confessional statement recorded under Section 67 of the Act. So called confessional statement has not been admitted by the accused during the cross examination of PW-14. The only evidence against accused No.1 is his confessional statement recorded under Section 67 of the Act. So called confessional statement has not been admitted by the accused during the cross examination of PW-14. Therefore, he cannot be convicted solely on the basis of alleged statement purported to be one under Section 67 of the Act. 29. Sri.Rachaiah, learned HCGP has relied upon the decision of the Hon’ble Apex Court reported in the case of KANHAIYALAL v. UNION OF INDIA – AIR 2008 SC 1044 to contend that convicting of an accused is justified on the basis of the statement recorded under Section 67 of the Act. The said decision is referred to and discussed subsequently by a Bench consisting of three Judges in the case of Bal Mukund (supra). In paragraph No.31 of the decision Bal Mukund’s case, Kanhaiyalal case is referred to and held that the statement made under Section 67 of the Act can be considered provided there is corroboration in material particulars. 30. Relying upon the decision reported in the case of FRANCIS STANLY v. NARCOTIC CONTROL BUREAU– (2006) 13 SCC 210, it is held in Bal Mukund’s case that the confession made before the Officer of the Department of Revenue Intelligence under the Act may not be hit by Section 25, yet such a confession must be subject to closer scrutiny than a confession made to private citizens or officials who do not have investigating powers under the Act. Admittedly, PW-14 has the power to conduct the investigation and it is who conducted the raid and registered the case. It is un-understandable whether PW-14 can register the case. On the other hand, he should have submitted a report to the SHO to whom he had handed over the charge of the station in the morning, along with the mahazar drawn at the spot and the contraband narcotic materials. 31. In this view of the matter Section 52(A) of the Act is relevant. On the other hand, he should have submitted a report to the SHO to whom he had handed over the charge of the station in the morning, along with the mahazar drawn at the spot and the contraband narcotic materials. 31. In this view of the matter Section 52(A) of the Act is relevant. Relying upon the decision reported in the case of JITENDER v. STATE OF MADHYA PRADESH (2003 SAR 902), this Court in the case of SARDAR AND OTHERS v. STATE THROUGH HALLIKHED POLICE STATION – CRL.A.No.579/15 disposed of by the Kalaburgi Bench on 3.9.2015, has reiterated that the best evidence in a case arising out of NDPS Act would be to produce the very seized materials before the trial Court and getting them marked as material objects. The manner in which seized contraband will have to be taken into custody by the Station House Officer in question is also dealt with. Nothing is shown about the compliance of the mandatory provision of sub sections (2) and (4) of Section 52A of the Act. Whenever the seized narcotic drugs or psychotropic substance is produced before the Officer-in-charge of the police station or the officer authorized under Section 53 of the Act, a detailed inventory will have to be done with regard to all the minute details of the identity, in the presence of the magistrate along with photographs. Then such evidence would be primary evidence to prove the seizure of the entire seized substance or narcotic drug. This Court is of the opinion that a serious lapse is committed by the police Officer i.e., PW-14 by registering the case by himself an also in not complying with the mandatory provision of Section 52A of the Act. 32. As discussed earlier, there is absolutely no corroboration in material particulars. The alleged seizure was from the top of the bus in which several passengers were traveling. Nothing is placed on record to prove that it was this appellant who had got the incriminating materials loaded to the bus and the same was being transported to the Pillaguppa factory. 32. As discussed earlier, there is absolutely no corroboration in material particulars. The alleged seizure was from the top of the bus in which several passengers were traveling. Nothing is placed on record to prove that it was this appellant who had got the incriminating materials loaded to the bus and the same was being transported to the Pillaguppa factory. In the light of the independent witnesses not supporting the prosecution and in the light of the serious lapses committed in regard to noncomplaince of mandatory Sections 42, 52A and 67 of the Act, this Court is of the opinion that the trial Court has not assessed the oral and documentary evidence in right perspective and hence is not justified in convicting the accused. The trial Court has adopted wrong approach to the real state of affairs. Accordingly, point No.1 is answered in the Negative. 33. Point Nos : 2 and 3: In view of the negative finding on point no.1, the judgment of conviction and sentence passed by the learned special judge is not sustainable either in law or on facts. Accordingly it is liable to be set aside. 34. In the result, the following order is passed: ORDER The judgment of conviction and sentence passed against the appellant in Spl.C.C.No.134/2013 by the XXXIII Additional City Civil and Sessions Judge & Spl. Judge (NDPS), Bangalore is set aside. Consequently, appeal is allowed and accused is acquitted for the offences punishable under Section 5(C) of NDPS Act r/w. Section 34 of IPC. Accused shall be released, if he is not required in any case. Fine amount, if deposited, by the appellant, be returned to him after the appeal period is over. Registry to intimate the concerned jail authorities about the same.