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2019 DIGILAW 1984 (KAR)

State of Karnataka v. Saleem

2019-09-11

B.A.PATIL

body2019
JUDGMENT : B. A. PATIL, J. 1. The State is before this Court being aggrieved by the judgment and order of acquittal passed by the Principal Sessions Judge/Special Judge, Dakshina Kannada, Mangaluru, in Special Case No.72/2015, dated 28.7.2017, by which the accused-respondents herein were acquitted of the offences punishable under Section 8(c) r/w. Section 20(b)(ii)(B) of NDPS Act. 2. I have heard the learned HCGP for the appellant- State. Though the notice is served on respondent Nos.1 and 2, they have remained absent. Learned counsel for respondent Nos.3 and 4 is not present before the Court. There is no representation on behalf of them. 3. The case of the prosecution in brief is that PW.1 received a credible information about selling of ganja. Immediately he informed the higher officers and secured the panch witnesses and along with his staff he went near Shrinivas Institute of Technology College on 31.3.2015 at about 9.00 p.m., where they noticed two persons in an autorickshaw bearing Regn.No.KA-19- AA7382 selling ganja. After seeing the police officials the driver escaped from the spot. Accused No.1-Saleem was apprehended. He revealed the name of accused No.2- Jabbar. The police have also apprehended accused Nos.3 and 4 who were in Alto car bearing Regn.No.KA-19-MD- 3981. The police found that accused were in possession of small ganja packets. The said ganja was seized along with autorickshaw and car. They also seized cash of Rs.900/- and a LAVA mobile phone from accused No.1. Thereafter on the basis of the complaint, a case has been registered. After completion of investigation, the charge sheet has been filed. After filing of the charge sheet, the Special Court took cognizance, secured the presence of the accused and after following the procedure under Section 207 of Cr.P.C., after hearing the learned PP and the learned counsel for the accused, prepared the charge which was read over to the accused. The accused pleaded not guilty and claimed to be tried. As such the trial was fixed. 4. In order to prove its case, the prosecution has got examined PWs.1 to 5 and got marked Exs.P1 to P15 and also MOs.1 to 6. Thereafter the statement of the accused was recorded by putting incriminating material as against them. They denied the same. However, they did not lead any evidence and not got marked any documents on their behalf. In order to prove its case, the prosecution has got examined PWs.1 to 5 and got marked Exs.P1 to P15 and also MOs.1 to 6. Thereafter the statement of the accused was recorded by putting incriminating material as against them. They denied the same. However, they did not lead any evidence and not got marked any documents on their behalf. After hearing both the parties, the impugned judgment and order came to be passed by acquitting the accused. Challenging the legality and correctness of the said order of acquittal, the State has preferred this appeal. 5. The main grounds urged by the learned HCGP are that the trial Court without properly appreciating the entire material on record has erroneously acquitted the accused. The evidence of PWs.1 and 3 to 5 clearly goes to show that the said ganja seized from the possession of the accused and they had no permit or license to sell the said ganja. Only on technical grounds, the accused-respondents are acquitted. It is his further submission that the accused have not given any explanation under Section 313 of Cr.P.C. When the accused were found in possession of the ganja, the trial Court ought to have drawn the presumption under Section 114 of the Indian Evidence Act and it ought to have convicted them for the alleged offences. It is his further submission that though there is ample material as against the accused persons, the trial Court has wrongly acquitted them. On these grounds, he prayed to allow the appeal by setting aside the impugned order and to convict the accused. 6. I have carefully and cautiously gone through the submissions of the learned HCGP and perused the records including the evidence and the documents which are made available by the learned HCGP. 7. Pw.1 is the ASP who received the credible information. By securing the panch witnesses he went to the spot and searched accused No.1 and seized the ganja from his possession and thereafter he also seized ganja from the possession of accused Nos.3 and 4. He has also deposed with regard to the procedure followed for the purpose of seizure and drawing up of the mahazar. During the course of cross-examination, he has deposed that he has given the notice to the accused persons under the provisions of the NDPS Act. He has also deposed with regard to the procedure followed for the purpose of seizure and drawing up of the mahazar. During the course of cross-examination, he has deposed that he has given the notice to the accused persons under the provisions of the NDPS Act. He has further deposed that in the mahazar it does not disclose that the seized material contains leaves, stem, flowers and other material. The said seized ganja was weighed and the chit containing case number and other details was affixed on the seized article. He has further deposed that at the time of affixing the said chit, the case was not registered and he has not given any report. Other suggestions have been denied by this witness. 8. Pw.2 is the witness to seizure mahazar at Ex.P1. He has not supported the case of the prosecution and he has been treated as hostile. However, during the course of cross-examination by the learned PP, nothing has been elicited so as to substantiate the case of the prosecution. 9. Pw.3 is the official of RFSL, who has deposed with regard to the chemical examination of the article sent and he has given his opinion as per Ex.P11 stating that the seized articles were containing ganja. During the course of cross-examination, nothing has been elicited from the mouth of this witness. 10. Pw.4 is the PSI who accompanied PW.1. He has also reiterated the evidence of PW.1. 11. Pw.5 is the Police Inspector, who has also accompanied PW.1. He has conducted the investigation and filed the charge sheet as against the accused. During the course of cross-examination he has deposed that PW.1 has come to his office at about 6.00 p.m. and he has not registered the case and has not issued any FIR. He has further deposed that he went in a jeep along with PW.1. Except that, nothing has been elicited from the mouth of this witness. 12. As could be seen from the evidence produced by the prosecution, PW.1 has deposed that when they went and made a raid at that time, accused No.2 ran way from that spot and accused No.1 was apprehended. When accused No.1 was enquired, he revealed the name of accused No.2. But as could be seen from Exs.P1 and P2, it has not been mentioned that it is accused No.1 who identified accused No.2 and revealed his name. When accused No.1 was enquired, he revealed the name of accused No.2. But as could be seen from Exs.P1 and P2, it has not been mentioned that it is accused No.1 who identified accused No.2 and revealed his name. As could be seen from the evidence of PW.1 he has deposed that a LAVA mobile was seized from the possession of accused No.1. But during the course of cross-examination, PW.1 has deposed that a Samsung mobile was seized from accused No.3 and he has also deposed with regard to seizure of four small packets of ganja from the possession of accused Nos.3 and 4. Be that as it may, it is noticed from the case of the prosecution that the Investigating Officer has not followed the provisions of Section 50 of the NDPS Act. As per the said Section, when any Officer while exercising the power under Section 42 of the NDPS Act and about to search any person, take such person without unnecessary delay to the nearest Gezetted Officer. Before doing so, he has to explain that accused is having right to be searched in the presence of a Gazetted Officer. The very purpose of Section 50 of the NDPS Act is the communication of the said right to the said person who is about to be searched is not an empty formality. Most of the offences under the NDPS Act carry stringent punishment and therefore the prescribed procedure has to be meticulously followed. These are the minimum safeguards available to an accused against the possibility of false involvement. This aspect has not been followed by the Investigating Officer in the present case. Even as could be seen from the cross-examination of PW.1, he has deposed that the mahazar was drawn by his staff and he has not specifically mentioned that the seized articles contain leaves, stem, flowers and other material. The crowning factor is that on the seized articles a chit was affixed by mentioning the case number and other details and at the time of affixing the said chit, the case was not registered, that itself goes to show that a false case has been registered against the accused persons. The crowning factor is that on the seized articles a chit was affixed by mentioning the case number and other details and at the time of affixing the said chit, the case was not registered, that itself goes to show that a false case has been registered against the accused persons. When the mandated provisions of Section 50 of the NDPS Act have not been followed and the evidence clearly goes to show about false implication of the accused, then under circumstances, the benefit of doubt should go to the accused. Though prosecution has examined PW.2, who is an independent witness, he has not supported the case of the prosecution. The other witnesses examined by the prosecution are the official witnesses who accompanied PW.1 and other witnesses. When the prosecution has not followed the provisions of Section 50 of the NDPS Act while searching the accused, then under such circumstances, the benefit of doubt should go to the accused and the accused are entitled for acquittal. This proposition of law has been laid down by the Hon’ble Apex Court in the case of State of Rajasthan Vs. Parmanand & another, (2014) AIR SC 1384. 13. Even as could be seen from the evidence of PWs.1,3 to 5, their evidence is contradictory to each other. When MOs.1 to 6 were being seized on the spot and they were seized and as per the evidence of PW.1 chit was affixed on the seized articles with case number and other details, that itself clearly goes to show that the investigation is tainted and mala fide. Even PW.1 has admitted during the course of cross-examination that he does not know the father s name of accused No.2, his place of residence and the other particulars. If the Investigating Officer has apprehended the accused person and seized some articles, then under such circumstances, he could have collected all the details of the said accused person. In the absence of any such material, it creates a doubt in the case of the prosecution. 14. Looking from any angle, the case of the prosecution is not considered to be fair as it creates a doubt. It is well settled proposition of law that if any doubt arises in the case of the prosecution, benefit of doubt should go in favour of the accused. 14. Looking from any angle, the case of the prosecution is not considered to be fair as it creates a doubt. It is well settled proposition of law that if any doubt arises in the case of the prosecution, benefit of doubt should go in favour of the accused. I have carefully and cautiously gone through the impugned judgment and order passed by the trial Court. The trial Court after considering the entire material on record and after discussing the decisions of the Hon’ble Apex Court and this Court has come to the conclusion and has rightly acquitted the accused persons. I find no perversity or illegality while passing the impugned judgment and order of the acquittal. Therefore, the same deserves to be confirmed. Accordingly, the appeal being devoid of merits, stands dismissed.