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2020 DIGILAW 1346 (KAR)

Rudrappa Bhimappa Hunashyal v. State Of Karnataka

2020-07-07

SHIVASHANKAR AMARANNAVAR

body2020
JUDGMENT Shivashankar Amarannavar, J. - The present appeal has been filed by the appellant-accused No.1 challenging his conviction for the offence punishable under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances (in short 'NDPS') Act, 1985 by the Special Judge (Prl. Sessions Judge) Belgaum by Judgment dated 06.06.2011 where under the appellant-accused No.1 has been sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.20,000/- for offence under section 20(b)(ii)(B) of NDPS Act, 1985. In default of payment of fine he shall undergo rigorous imprisonment for a further period of nine months. The accused No.2 has been acquitted by the said Judgment for the offence punishable under section 20(b)(ii)(B) of the NDPS Act, 1985. 2. The factual matrix of the case are as under: 3. The Sub Inspector of Police, Ghataprabha Police Station who has examined as PW.6 is stated to have received credible information on 09.02.2008 at 7.15 a.m. while he was in Police Station, that two persons by name Rudrappa Bhimappa Hunshyal and Siddaram Benakatti are keeping ganja in a handbag so as to sell the same in Shindikurubet village and they are awaiting vehicle near GLBC Canal, Ghataprabha- Gokak road to travel to Shindikurubet village and the said credible information has been received over telephone. Immediately, PW.6 secured PW.1- Sri.S.K.Thakalake, Veterinary Doctor, Ghataprabha and two independent panchas PWs.2 and 3 and a photographer. Immediately, at about 8.10. a.m. PW.6 along with PWs.1 to 3 and other staff came near GLBC canal situated on Ghataprabha-Gokak road and reached at about 8.15 a.m. Two persons were standing near the said canal and when they saw the Police van, they started running and he and his staff tried to secure them and they secured one person by name Rudrappa Bhimmappa Hunshyal (accused No.1) and another person ran away and accused No.1 told his name as Siddaram Benakatti. Accused No.1 was holding a bag and he told his name as Rudrappa Bhimmappa Hunshyal and on questioning he told that he and another were going to Shindikurubet and on checking the bag which he was holding there was a ganja weighing 1 kg 500 grams in it and out of it he took 100 grams as sample for the purpose of chemical examination and separately packed it and also packed remaining ganja and got taken photos and prepared mahazar as per Ex.P.3. The panchas and Gazetted officer affixed their signature on it and accused No.1 also affixed his LTM on it. He along with accused and articles seized came to Police Station and filed a complaint as per Ex.P.7 and handed over the same to PW.5 B.Y.Adimani, PSI and the said B.Y.Adimani registered the said complaint in Crime No.41/2008 for the offence punishable under Section 20(b)(ii)(B) of the NDPS Act, 1985. 4. Pw.5 conducted investigation and further investigation was conducted by PW.7 PSI, Ghataprabha Police Station and he has filed charge sheet for the said offence. Consequent upon the charges being framed against accused No.1 and 2, as they have pleaded not guilty of the offence and they claimed to be tried. 5. In order to bring home the guilt of the accused, prosecution has examined seven witnesses and got marked 11 documents and two Material Objects. PW.1 is the Gatetted Officer. PWs.2 and 3 are the independent witnesses to seizure mahazor EX.P.3, who have partly supported the case of the prosecution. PW.4 is the Police Constable who carried ganja packet to FSL for chemical examination. 6. The trial court after hearing arguments and after framing points for consideration has convicted the accused No.1 for the offence punishable under section 20(b)(ii)(B) of the NDPS Act, 1985 and acquitted the accused No.2. 7. The accused No.1 who is the appellant herein has challenged the said Judgment of conviction and Order of sentence on the following grounds. a) The impugned judgment is illegal and arbitrary since the same has been passed without considering the material facts, circumstances, documents and evidence on record. b) PW-1 himself admitted that he had not given written consent to act as Gazetted Officer during the raid and admits that he don't know how many weights had been brought to the spot for the purpose of weighing the property. c) PW.2 pancha witness turned hostile and it clearly goes to show that the present appellant not at all involved in this offence. d) The prosecution failed to prove how much weight of ganja was seized and even no witnesses were clearly disclosed the weight of the seized item. e) Prosecution has failed to prove the seizure because both the panchas are turned hostile. d) The prosecution failed to prove how much weight of ganja was seized and even no witnesses were clearly disclosed the weight of the seized item. e) Prosecution has failed to prove the seizure because both the panchas are turned hostile. f) The Trial Court failed to appreciate that there are inconsistencies with regard to the alleged incident and there is no eye witnesses spoken about seizure of Ganja. g) The Trial Court lost the sight to ascertain as to what the ingredients to constitute the alleged offence are and whether the said ingredients have been brought on record that the Court should have taken great care to assess their interested testimony which has not been supported by the alleged independent witnesses. h) The sentence and fine by the learned Sessions Judge is too harsh in nature and the same is liable to be quashed. Hence, appellant-accused No.1 prays to allow the appeal and acquit him. 8. Heard the arguments of learned counsel for the appellant-accused No.1 and learned HCGP for respondent-State. 9. Learned counsel for the appellant-accused No.1 has argued that the PW.1 Gazetted Officer and the Police officials are interested witnesses as they are interested in taking revenge against the appellantaccused No.1 as he has filed a complaint against the PW.1 and Police Officials. He further argued that there is a total non-compliance of Provisions contained in sub-section(1) and (2)of Section 42 of NDPS Act, 1985 and therefore, on that ground alone the appellant-accused No.1 is entitled for acquittal and on that point he places reliance on the decision of the Hon'ble Apex Court in the case of Karnail Singh Vs. State of Haryana, (2009) 8 SCC 539 . 10. He further argued that PWs.2 and 3 who are panchas have half heartedly supported the case of the prosecution and their evidence is not helpful for the prosecution to establish seizure of Ganja from the possession of the appellant-accused No.1. He further argued that PW.6-Police Sub Inspector has not asked the accused whether he chooses to be searched in the presence of Gazetted Officer/Magistrate and followed the compliance as per the provisions contained in Section 50 of the NDPS Act. He places reliance on the decision reported by Hon'ble Apex Court in the case of Sarju alias Ramu V. State of U.P., (2009) AIR SC 3214 . He places reliance on the decision reported by Hon'ble Apex Court in the case of Sarju alias Ramu V. State of U.P., (2009) AIR SC 3214 . He further argued that PW.6-PSI was in Police station, when he received the credible information and he had lot of time to record the information and submit the same to his superior officers. 11. On the contra, the learned HCGP has argued that the evidence of PWs.1 to 3 and 5 is sufficient to show that accused No.1 was in possession of ganja bag containing 1.5 Kgs. He further argued that the trial Court has rightly appreciated the evidence on record and has rightly convicted the appellant-accused No.1 for the said offence. He has supported the reasoning assigned by the trial court in convicting the appellantaccused No.1. 12. After hearing the arguments and perusing the records and the grounds urged, the following point arise for my consideration:- Whether the Learned Special Judge (Prl. Sessions Judge) Belgaum has justified in convicting the appellant-accused No.1 for the offence punishable under section 20(b)(ii)(B) of the NDPS Act, 1985? 13. My answer to the above point is in the negative for the following reasons: The case of the prosecution is that PW.6- A.S.Gudigoppa who was the PSI of Ghataprabha Police Station has stated that on 09.02.2008 when he was in Police Station, at about 7.15 a.m. he received the credible information to the effect that two persons by name Rudrappa Bhimappa Hunshyal and Siddram Benakatti were standing near GLBC canal on the road leading to Ghatapraba-Gokak and they are holding a hand bag containing ganja and they are proceeding to Shindikurbet village for selling the ganja contained in the hand bag which they are holding. PW.6 secured PW.1-Gazetted Officer, PW.2 and PW.3- panchas and photographer and they left police station at 8.10 a.m. The PW.6 was in Police station from 7.15 to 8.10 a.m. After receipt of the credible information, PW.6 has not stated that he reduced the said credible information into writing and send the same to his superior officers. The learned counsel appearing for the appellantaccused No.1 has contended that there is clear noncompliance of provisions contained in sub-sections(1) and (2) of Section 42 of NDPS Act, 1985. 14. The Constitutional Bench of the Hon'ble Supreme Court in the case of Karnail Singh Vs. The learned counsel appearing for the appellantaccused No.1 has contended that there is clear noncompliance of provisions contained in sub-sections(1) and (2) of Section 42 of NDPS Act, 1985. 14. The Constitutional Bench of the Hon'ble Supreme Court in the case of Karnail Singh Vs. State of Haryana, (2009) 8 SCC 539 has dealt with at a length about the effect of non-compliance of the Section 42(1) & (2) of NDPS Act,1985. The pith and substance of the law laid down in the said case is found in paragraph No.35 of the judgment. The same is extracted below. "35. In conclusion, what is to be noticed is Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Section 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows: (a) The officer on receiving the information [of the nature referred to in Sub-section (1) of Section 42] from any person had to record it 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). (b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, 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 . (c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period,that is after the search, entry and seizure. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period,that is after the search, entry and seizure. The question is one of urgency and expediency. (d) While total non-compliance of requirements of sub-sections (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending a copy of such information to the official superior forthwith, may not be treated as violation of section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of section 42 of the Act. Whether there is adequate or substantial compliance with section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to section 42 by Act 9 of 2001." 15. Pw.6-Psi was in Police Station when the information was received by him and he had sufficient time to take action and record in writing the information received and send a copy thereof to the superior officers. PW.6 has not reduced the credible information received by him in writing and has failed to send a copy thereof to the superior officers. Therefore, it will be a suspicious circumstance being clear violation of Section 42 of the NDPS Act, 1985. 16. In the case of State of Rajastan Vs. PW.6 has not reduced the credible information received by him in writing and has failed to send a copy thereof to the superior officers. Therefore, it will be a suspicious circumstance being clear violation of Section 42 of the NDPS Act, 1985. 16. In the case of State of Rajastan Vs. Jagraj Singh alias Hansa, (2016) 11 SCC 687 , the Hon'ble Supreme Court referred to Constitutional Bench decision of Karnail Singh's case (supra) reiterated that compliance with Section 42 of the Act is mandatory and search conducted in breach of Section 42(1) & (2) of NDPS Act, 1985 will seriously prejudice the accused and the conviction has to be reversed. 17. Pw.1 is the Gazetted Officer being Veterinary doctor in Veterinary Hospital, Ghataprabha and in his presence PW.6 made a search of the bag held by accused No.1 and came to know that it contains ganja weighing 1.5Kgs. 18. In the cross examination of PW.1, it is elicited that accused No.1 has given complaint against PW.1 before Lokayuktha and also to Human Rights Commission. The very said fact goes to show that he is interested in getting conviction of the appellant accused No.1 as he has filed complaint against him before the Lokayukta and to Human Rights Commission. Therefore, the testimony of PW.1 is not reliable. 19. Pw.2 Pancha witness has deposed that when they reached the spot, he did not notice accused No.1 but has stated that later he was caught by Police and brought near the canal and at that time accused No.1 was holding a bag which was checked by the Police and Police found that it contains ganja. PW.2 was treated as hostile. In the cross examination of PW.2, he has stated that he did not see ganja pack with accused No.1 before he brought near him by Police. 20. Pw.3 another panch who went along with raiding team has deposed that when they went near GLBC Canal, some persons were there, he was attending a mobile phone call at that time and he cannot recollect and say that accused persons are the persons who were there on the spot and he was told by Police that accused No.1 was trying to sell ganja and hence, they held him. PW.3 has been treated as hostile. PW.3 has been treated as hostile. Therefore, the evidence of PWs.2 and 3 are of no assistance to the prosecution to prove possession of ganja by accused No.1. 21. Pw.6 in the cross examination has stated that accused No.1 prior to 07.04.2007 has filed a complaint against staff of superior officers of Ghatapraba Police station. PW.6 has further stated in the cross examination that accused No.1 has filed compliant against Tahasildar, other Government servants, Police and other officials as per Ex.D.1 dated 24.09.2007. The said aspect goes to show that PW.6 is the interested witness as there is a grudge against appellant-accused No.1 by the Police and other Government servants as he has filed complaint against them. Therefore, a doubt arises with regard to the case of the Prosecution. Therefore, benefit of doubt has to be extended to the appellant-accused No.1. More so, there is non-compliance of mandatory provisions contained under Section 42(1) & (2) of NDPS Act, 1985. The trial Court has not appreciated the evidence on record properly. The trial Court has not taken into consideration the non-compliance of mandatory provisions contained under Section 42(1) & (2) of NDPS Act and interestedness of PW.1 and PW.6. The trial Court has committed an error in holding that the appellant-accused No.1 has committed an offence punishable under Section 20(b)(ii)(B) of the NDPS Act, 1985. Hence, I pass the following: ORDER Appeal is allowed. The Judgment dated 06.06.2011 passed in SPl. Case No.24/2008 by Special Judge (Prl. Sessions Judge) Belgaum is set aside. The appellant-accused No.1 is acquitted for the offence punishable under Section 20(b)(ii)(B) of the NDPS Act, 1985. The bail bonds and surety bonds executed by appellant-accused No.1 stands cancelled. Refund fine amount if any, paid by the accused-appellant No.1.