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2019 DIGILAW 1980 (KAR)

State Of Karnataka v. Manjunatha

2019-09-11

B.A.PATIL

body2019
JUDGMENT : B.A. Patil, J. The State is before this Court challenging the judgment and order of acquittal passed by Principal Sessions Judge (Special Judge), Tumakuru, in Special Case No.288/2015 dated 17.8.2017. 2. I have heard the learned High Court Government Pleader Sri.Thejesh P. and learned counsel for the respondent/accused Miss.M.Shashikala S. appearing on behalf of S.Balakrishnan. 3. The case of the prosecution in brief is that PW3 while he was working as Police Inspector on 13.7.2015 at about 10.00 a.m. he received a credible information that in Sy.No.9/2 and 11/1 at Maracharahalli village ganja plants have been grown illegally without there being any permit or licence. He registered a case in Crime No.250/2015 and after submitting the FIR to the Court he reported the matter to Superintendent of Police, Tumakuru and also to Deputy Superintendent of Police. The Deputy Superintendent of Police came to Koratagere police station and took the investigation, secured two panchas, along with them they went to the said land. Accused No.1 was present in the said land and on verification they found two ganja plants were grown in Sy.No.11/1 and it was uprooted and weighed and they were weighing 5 Kgs. and out of them 500 grams was taken as a sample and a mahazar was drawn. It is the further case of the prosecution that accused No.1 has led them to Sy.No.9/2 and there 10 ganja plants were found, out of them 4 ganja plants were dried and 6 ganja plants were wet and they were uprooted and from 4 dried ganja plants,500 grams was taken as sample and from 6 wet ganja plants 500 grams was taken as sample independently. The dried ganja plants were totally weighing 2.75 kgs. and wet ganja plants were weighing about 3.2 kgs. and they were also seized by drawing a mahazar. A report was submitted and a case was investigated and filed the charge sheet. After submission of the charge sheet the learned Special Judge took the cognizance and secured the presence of the accused Nos.1 and 2 and after hearing the learned counsels appearing for the parties and the learned Public Prosecutor after following the procedure under Section 207 of Cr.P.C. the charge was prepared, read over, explained to the accused, accused pleaded not guilty, they claims to be tried and as such the trial was fixed. 4. 4. In order to prove the case of the prosecution, it has got examined 4 witnesses and got marked 10 documents and 8 Material Objects. Thereafter, the statement of the accused was recorded by putting incriminating material as against them. Accused denied the same and have not led any defence evidence and they have not got marked any documents. After hearing the arguments, the trial Court acquitted the accused. Assailing the same, the State is before this Court. 5. The main grounds urged by the learned High Court Government Pleader by substantiating his arguments are that the Court below without properly appreciating the evidence and material placed on record has come to a wrong conclusion and has wrongly acquitted the accused. It is his further submission that the FSL report clearly goes to show that the said seized article is prima facie ganja and the said ganja has been cultivated in the land in Sy.Nos.11/1 and 9/2 and the said lands are belonging to accused Nos.1 and 2. It is his further submission that Ex.P6- the Record of Rights has been furnished in respect of Sy.No.11/1 and the name of the accused is shown in RTC extract. The accused persons have not given any explanation as to who has cultivated the said land. In the absence of any material it can be presumed that it is the accused who have cultivated the said ganja plants. It is his further submission that accused No.1 was present through out the seizure procedure and he has led them to survey number and his presence is shown to him. The said ganja plants have been seized by uprooting and drawing a mahazar. It is his further submission that the trial Court without considering the best evidence has come to a wrong conclusion and has wrongly acquitted the accused. On these grounds he prayed to allow the appeal and to convict the accused. 6. Per contra, the learned counsel appearing on behalf of the respondent/accused vehemently argued and submitted that no independent witnesses have been examined by the prosecution to substantiate the said fact. It is her further submission that the quantitative and qualitative test has also not been conducted as per the guideline No.1.18 issued by the Narcotic Control Bureau. 6. Per contra, the learned counsel appearing on behalf of the respondent/accused vehemently argued and submitted that no independent witnesses have been examined by the prosecution to substantiate the said fact. It is her further submission that the quantitative and qualitative test has also not been conducted as per the guideline No.1.18 issued by the Narcotic Control Bureau. She further submitted that in order to prove the case, the prosecution has to prove that the accused has cultivated the said uprooted cannabis in his land. It is not enough that the few plants were found in the property of the accused. Only on the basis of that it cannot be held that the accused has cultivated the said plants with intention. It is her further submission that the said ganja plants were scattered in the entire land and not in a group and in a cultivated passion. She further submitted that accused No.2 was not present at the place of incident and admittedly Sy.No.11/2 is standing in the joint family name and it is the joint family property. She further submitted that the land Sy.No.9/2 belongs to one Hemantha and though the case of the prosecution is that about 6 wet ganja plants and 4 dried ganja plants have been seized from Sy.No.9/2, but for the reasons best known to the prosecution he has not been erred as an accused and he has been left free without arraying him as an accused. That itself goes to show that the investigation is not fair and defected and false investigation has been made in respect of respondents/accused Nos.1 and 2. She further submitted that the trial Court after considering all the material placed on record has come to a right conclusion. The appellant/State has not made out any good grounds to interfere with the said order. On these grounds she prayed to dismiss the appeal. 7. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and the learned High Court Government Pleader also made available the statement of the witnesses and other documents exhibited before the Court below. I have carefully gone through the said documents also. 8. In order to prove the case of the prosecution, it has got examined PW1 who is none other than the Village Accountant. I have carefully gone through the said documents also. 8. In order to prove the case of the prosecution, it has got examined PW1 who is none other than the Village Accountant. He has deposed that PW4 summoned him and took him to Sy.No.11/1 of Maracharahalli village belonging to the accused and there they found two ganja plants which were weighing 1.5 kgs. and 5 kgs. and a sample of 500 grams each being taken from each ganja plants and thereafter they went to Sy.No.9/2 and there they found 10 ganja plants and a sample was taken and mahazar was drawn as per Ex.P2 and sample ganja are marked as M.Os.1 to 4. During the course of cross-examination nothing has been elicited so as to discard the evidence of this witness. PW2 is the Assistant Engineer of PWD. He has deposed about drawing up of the sketch of the spot and he has produced Exs.P4 and P5. PW3 is the Police Inspector, he has deposed with regard to he receiving credible information and informed the same to the higher official and thereafter along with PW4 he accompanied and he went and conducted the raid. He has deposed about the raid made by the raiding party. PW4 is the Deputy Superintendent of Police. He has deposed that he received the credible information from PW3 and he secured the panch witnesses and proceeded to the said village and he has reiterated the evidence of PW1 and he has further deposed about the further investigation done by him and filing of the charge sheet. 9. On close reading of the evidence which has been produced and the material placed on record, the only contention which has been taken up by the learned counsel for the respondent is that in order to establish the case, the prosecution has to prove that the accused has cultivated the prohibited plants in the said land and in order to substantiate the said fact the prosecution has adduced the evidence. 10. PW1 is the Village Accountant, PW2 the PWD Engineer and PWs.3 and 4 are the Police Official witnesses. On close reading of the said evidence though they have stated that they have found the ganja plants in Sy.Nos.11/1 and 9/2, they have not specifically proved with material to show that the accused had cultivated the said prohibited plants in the said land. On close reading of the said evidence though they have stated that they have found the ganja plants in Sy.Nos.11/1 and 9/2, they have not specifically proved with material to show that the accused had cultivated the said prohibited plants in the said land. It is well proposed proposition of law by the Hon'ble Apex Court in the case of Alakh Ram Vs. State of Uttar Pradesh, (2004) 1 Supreme 405 , therein the Hon'ble Apex Court has observed that in order to prove the guilt of the accused under Section 20 of the NDPS Act, it must be proved that the accused has cultivated the prohibited plants and it is not enough that few plants were found in the property of the accused that he has cultivated the said plants in his land. 11. Admittedly, as could be seen from the evidence and the spot mahazar Ex.P2, the said plants which have been spotted are not in a group and they were in a scattered manner and that too when they went to Sy.No.11/1, there they found two ganja plants weighing 5 Kgs. that itself clearly goes to show that if at all the accused is intending to cultivate the ganja plants, then under such circumstances he will not grow only two plants in his entire land. That too along with the other crops if only two plants are found, then under such circumstances it will not be called as even cultivation of the ganja plants. 12. Be that as it may. When the ganja plants were uprooted and weighed and they were weighing 5 kgs. the said ganja plants were wet and dried, then under such circumstances, weighing which has been made also appears to be not correct. 13. In order to weigh the ganja plants, the seeds, buds, flowers, stem and edges of the leaves has to be separated from the plant and then thereafter it has to be weighed. Without following the said procedure, the Investigating Officer has taken the entire plant for the purpose of weighing and has come to the conclusion that the said ganja weighed was 5 kgs. 14. Without following the said procedure, the Investigating Officer has taken the entire plant for the purpose of weighing and has come to the conclusion that the said ganja weighed was 5 kgs. 14. One more crowning factor that is found from the case of the prosecution is that they continued the proceedings and went to Sy.No.9/2 and there they found 10 ganja plants and out of them,4 ganja plants were dry plants and 6 ganja plants were wet and said ganja plants have also been seized. For the reasons best known to the Investigating Officer, the owner of the land i.e. Hemantha has not been arrayed as an accused in the present case. That itself clearly goes to show that it is not only a tainted investigation, but a malafide and defective investigation. Major portion of the ganja plants have been found in Sy.No.9/2 and only 2 ganja plants have been found in the land of the accused, then under such circumstances the case of the prosecution creates a doubt and it is well proposed principles of law that if any doubt arises in the case of the prosecution, then the said benefit should go to the accused. 15. Even it is well proposed proposition of law by the Hon'ble Apex Court as well as by this Court that the Investigating Agency has to follow the guidelines issued by the Narcotic Control Bureau column No. 1.18 and there must have a quantitative and qualitative test within 15 days and further 15 days of the seizure. The said procedure has also not been followed to come to the conclusion that the said seized material is a ganja. 16. Though the FSL report has been produced, subsequently in order to come to the qualitative test, the said procedure has not been followed. In that light also the case of the prosecution creates a doubt and the benefit of doubt should go to the accused. 17. It is the specific contention of the respondent/accused that the said land though stand in the name of accused Nos.1 and 2, but it is a joint family property. If it is a joint family property, then under such circumstances, who cultivated the said land is a material aspect. 17. It is the specific contention of the respondent/accused that the said land though stand in the name of accused Nos.1 and 2, but it is a joint family property. If it is a joint family property, then under such circumstances, who cultivated the said land is a material aspect. In the absence of such material the Court below has come to a right conclusion and has rightly acquitted the accused and the State has not made out any good grounds so as to interfere with the judgment of the trial Court. 18. I have carefully and cautiously gone through the judgment of the trial Court. The trial Court after discussing in detail all the aspects has come to a right conclusion. The said judgment is neither perverse nor illegal. It does not require any interference and the same is liable to be confirmed. Appeal is devoid of merits, the same is liable to be dismissed, accordingly it is dismissed.