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2016 DIGILAW 944 (KAR)

State of Karnataka v. Lohi A. S.

2016-12-08

ANAND BYRAREDDY

body2016
JUDGMENT : ANAND BYRAREDDY, J. 1. Heard the learned Government Pleader. 2. The present appeal is preferred by the State seeking enhancement of sentence of the respondents who have been convicted for the offences punishable under Sections 20(a) and 20(b) read with Section 20(1) and 20(2) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The background is said to be as follows: According to the prosecution, when the Police Sub-Inspector, Hanur Police Station who was on patrol in Hanur Town, was intimated on phone that there were two persons coming from Ramapura on motorcycle and that they were carrying ganja in order to sell the same and that they were proceeding towards Kollegala and said Police Sub-Inspector had then reached his Police Station and secured a Gazetted Officer namely a Block Education Officer, one Swamy, by issuing notice and also two panchas in order to intercept the suspects who were said to be carrying narcotic substance and informed his superior on phone about the intended interception and secured his permission and along with the aforesaid persons, had proceeded in departmental jeep and parked the same near petrol bunk waiting the arrival of the suspects. When they noticed a motorcycle bearing No. KA-09-EQ-337, it was stopped and enquiries were made about the rider and the pillion rider of their names and it was learnt that one was Lohith and the other was Eranna of Peddanapalya and they were found to be carrying a plastic bag and it was alleged that it consisted of leaves and it was found to be leaves of cannabis plant or ganja and that on further enquiry, they had also revealed that the plant was grown on their land and after drying the same, they were proceeding to sell the said substance. It was stated that the same was weighed and it was found to weigh about 1 k.g., 100 grams which was seized along with the motorcycle and the said persons were arrested and a case was registered against them for the offences as aforesaid and they stood trial. 3. Having pleaded not guilty and having came to be tried, prosecution tendered evidence and the court below had framed the following points for consideration and answered point No. 1 in the affirmative and point No.2 in the negative: 1. 3. Having pleaded not guilty and having came to be tried, prosecution tendered evidence and the court below had framed the following points for consideration and answered point No. 1 in the affirmative and point No.2 in the negative: 1. Whether prosecution proves beyond reasonable doubt that on 12/04/2012 at about 4.30 p.m., accused Nos.1 and 2 were found transporting cannabis leaves in their motorcycle bearing registration No. KA-09- EQ-337 near TAPCMS petrol bunk, Hanur without license, when PW6 the PSI Hanur raided the spot along with his subordinate officials and panchas CW2 to 4 and thereby committed the offence punishable under Section 20(b) Read With Section 20(2) of NDPS Act? 2. Whether prosecution further proves beyond reasonable doubt that on aforesaid date, time and place, accused No.2 was found grown cannabis plants in his land and thereafter both accused were transporting the said cannabis plants in order to sell the same and thereby committed the offence punishable under Section 20(a) Read With Section 20(1) of NDPS Act? 3. What order? It is in this background that the State is before this Court seeking enhancement of sentence. 4. On the face of it, it is found that the judgment as well as the allegations pertain to the accused carrying ganja leaves. This contradiction in terms, since the Act prescribes and defines as to what could be construed as 'ganja' and Section 2(III) of the NDPS Act defines cannabis as meaning either charas or ganja or any mixture with or without any neutral material, of any of the above namely ganja or charas, and ganja, in particular, is referred to as the flowering or fruiting tops of the cannabis plant, excluding the seeds and leaves. Therefore when the judgment itself refers to ganja leaves having been seized from the possession of the accused, unless ganja as construed under the Act, was segregated from the leaves actual quantity that was carried could not be known and unless the commercial quantity as prescribed under the schedule to the Act is also ascertained whether it would constitute an offence or whether it could contract higher punishment also, could not be ascertained. In the absence of these particulars, the State seeking enhancement of the sentence, cannot be countenanced. In fact, it was the case where the accused could have been safely acquitted. In the absence of these particulars, the State seeking enhancement of the sentence, cannot be countenanced. In fact, it was the case where the accused could have been safely acquitted. In that view of the matter, the question of enhancing the sentence does not arise and since the respondents are not in appeal, the appeal does not merit consideration and is rejected. 5. The application for condonation of delay, therefore is irrelevant and hence rejected.