Research › Search › Judgment

Karnataka High Court · body

2017 DIGILAW 9 (KAR)

Mehaboob Daula v. State of Karnataka

2017-01-02

ANAND BYRAREDDY

body2017
ORDER : Anand Byrareddy, J. 1. Heard the learned counsel for the petitioners. 2. The petitioners are the accused standing trial for offences punishable under Section 20(b)(i)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the NDPS Act', for brevity). It is seen from the facts alleged on the basis of a complaint dated 14.01.2014, whereby credible information is said to have been received at 7.00 a.m. on that day that there were some persons seen to be attempting to sell 'ganja' on MKDK Road of Mandi Mohalla, Mysore City, and the complainant on receiving such information, had proceeded to the spot along with Panchayatdars and his men. They had hid themselves on a corner of MKDK Road and did observe that there were three men and a female who were in conversation at the spot and the female was seen to be counting money. Accused No. 4 is said to have paid cash to Accused No. 3, who in turn had handed over the bags to Accused Nos. 1 and 2. It is at that point of time that the complainant and his men had intervened and had seized articles held by each of those persons and on examination, it was found that the bags which were handed over contained 'ganja' and the cash which was handed over was in a sum of Rs. 19,500/-. Thereafter, a mahazar was drawn up on the basis of the said seizure and a case was said to have been instituted. It is in this background that the petitioners are before this court. 3. The petition is filed on two primary grounds. One namely that the substance said to have been seized is shown as 'ganja' but is described in various places in ambiguous language, which would indicate that the substance seized would not conform to the definition of 'ganja' as contained in the NDPS Act. In that, the substance seized is said to consist not only of the flowering tops of the 'ganja' plant, but also of stems and leaves. This is evident from the statement of CW-2 C.K. Somashekar, wherein it is described as 'leaves, stem and flowering tops'. In the First Information report which is dated 14.01.2014, it is indicated as 'flower and stem of ganja plant'. This is evident from the statement of CW-2 C.K. Somashekar, wherein it is described as 'leaves, stem and flowering tops'. In the First Information report which is dated 14.01.2014, it is indicated as 'flower and stem of ganja plant'. In the charge-sheet, it is shown in the vernacular language as 'ganja soppu' which would indicate that it is ganja leaves and would not conform to the definition of 'ganja'. There has been non-compliance with the mandatory requirement under Section 50 of the NDPS Act. In that, in conducting search and seizure of the material, the accused ought to have been informed of their right to be searched before a Gazetted Officer. This not having been complied with, would be futile to the case of the prosecution as laid down by the Supreme Court, following a catena of decisions rendered earlier in the case of State of Rajasthan vs. Parmanand and Another AIR 2014 SC 1384 . Hence, he would submit that the entire proceedings are vitiated and the rigmarole of trial would be a futile exercise if the prosecution is not in a position to establish the quantity of ganja seized if one is to proceed on the basis that the substance seized contained not only the flowering tops of the ganja plant but other parts of the plant. The quantity seized would not be discernable unless the flowering tops are segregated from the quantity seized and are made to conform to the definition of the word 'ganja' as contained in the NDPS Act and therefore seeks that the proceedings be quashed. 4. The learned Government Pleader on the other hand would submit that no doubt the definition of the word 'ganja' as contained in the NDPS Act is specific. In that, it refers to flowering and fruiting tops of cannabis plant excluding the seeds and leaves when not accompanied by the tops. This however, should not be construed in a pedantic manner that the court is concerned with the record which is primarily in the kannada language and the insistence on the reference to 'ganja' being in accordance with the definition as contained in the NDPS Act which is in English, would by itself not absolve the accused of having committed the offence. In the vernacular, 'ganja' is referred to a 'ganja soppu' and which is widely accepted and cannot on that ground alone be claimed to vitiate the proceedings. In any event, the substance seized is accepted before the court below in due course and it would be for the court below to examine at the trial whether the substance seized is in fact 'ganja' or did include other parts of the ganja plant which may not fall within the definition of 'ganja'. For this court at this stage to proceed on the basis that the substance seized is not consistent in various parts of the record, would be foretelling the trial and would result in a miscarriage of justice and the trial should be allowed to run its course. Secondly, insofar as the requirement of mandatory compliance under Section 50, the learned Government Pleader would point out that unless the non-compliance results in a miscarriage of justice, there is no warrant to hold that the proceedings are vitiated. This is also a rider as laid down in a catena of decisions relied upon by the learned counsel for the petitioner. Further, unless there was insistence by the accused that they should be searched in the presence of a gazetted officer on an option being offered to the accused and they not having chosen to be so searched by a gazetted officer, would not result in the proceedings being vitiated and consequently, the petition is misconceived and ought to be dismissed. 5. In the above circumstances, the argument put forth by the learned Government Pleader that there cannot be an insistence with reference to the seized substance being defined in various parts of the record in varying terms as to include other parts of the 'ganja' plant apart from the flowering tops is inclusive of 'ganja' and that leeway ought to be given to the fact that the record is maintained in kannada and 'ganja' is generally referred to as 'ganja soppu' in the vernacular and that it should be a subject matter of trial to be decided by the court below, is not a concession that can be offered to the prosecution. The prosecution of a criminal for an offence which invites serious punishment is a serious matter and if the prosecution insists on maintaining its record in the kannada language, the duty is cast on the prosecution to also ensure that reference to the seized substance is in conformity with the language as prescribed in the NDPS Act, whether it is in kannada language or any other language. The leeway sought for in this regard cannot be permitted, for that would result in diluting the requirement of law, which is impermissible. It is the duty cast on the prosecution or the State to ensure that there is adequate definition of the expression 'ganja' in kannada language, if the record is to be maintained in kannada with reference to 'ganja' as prescribed in the Act. Therefore, if on a plain examination of the record if there is inconsistent reference to the material or the substance seized as consisting of leaves, stem and other parts of the plant apart from flowering top, there cannot be clear indication of the substance that was seized and the commercial quantity which necessarily requires to be determined in the first instance in laying the charge against the accused. If this is not possible, going by the prima facie examination of the record where indeed it is found that the substance seized is referred to in varying terms which is not consistent with the definition of 'ganja' as contained in the NDPS Act, a serious view has to be taken by this court. Reference to ganja as 'ganja soppu' in the vernacular is no concern of this court. It should conform to the definition as contained in the NDPS Act and the prosecution is duty bound to ensure this. As long as that is not done, the prosecution has to fail. Accordingly, on the very first ground, the case would fail and hence, the petition would have to be allowed on this ground alone. It should conform to the definition as contained in the NDPS Act and the prosecution is duty bound to ensure this. As long as that is not done, the prosecution has to fail. Accordingly, on the very first ground, the case would fail and hence, the petition would have to be allowed on this ground alone. Apart from the serious discrepancy in not having complied with the mandatory requirement under Section 50, the specious plea on the part of the Government Pleader that unless there is miscarriage of justice, the requirement under Section 50 of the NDPS Act should not be insisted upon, is an incorrect interpretation of the law as laid down by the Supreme Court in a catena of decisions which are referred to and relied upon the case of State of Rajasthan vs. Parmanand (supra). 6. Consequently, the petition is allowed. The proceedings initiated against the accused in Special Case No. 73/2014 on the file of the Principal District and Sessions Judge, Mysore, is quashed.