Research › Search › Judgment

Karnataka High Court · body

2020 DIGILAW 1554 (KAR)

Jagannath Tuljappa Kathare v. State Of Karnataka

2020-08-11

M.G.UMA

body2020
JUDGMENT : Heard the learned advocate for the appellant Sri.S.B.Deyannavar and learned AGA Sri.Vinayak Kulkarni for respondent-State. 2. Brief facts of the case of the prosecution is that the accused was found in possession of 40 kgs of ganja, recovered from his house, for which he was not having any permit or licence and thereby he has contravened Section 8(c), punishable under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985, (for short referred to as ‘the NDPS Act’). 3. The prosecution in order to prove the guilt of the accused, examined PWs1 to 8, got marked Exs.P1 to 14 and identified M.Os.1 to 5 in support of its contention. The accused has denied all the incriminating materials available on record, but has not chosen to lead any evidence in support of the evidence. The trial Court after taking into consideration all the materials on record, came to the conclusion that the prosecution is successful in proving contravention of Section 8(c) punishable under Section 20(b)(ii)(C) under the NDPS Act and convicted the accused. Aggrieved by said judgment of conviction and order of sentence passed by the trial Court, the accused has preferred this appeal on various grounds. 4. Learned advocate for the appellant submitted that the impugned judgment of conviction and order of sentence is illegal, perverse and the same is liable to be set aside. Even though the prosecution is relying on the evidence of PWs1, 3 to 8 in support of its contention, there are serious contradictions regarding the time at which the information was received by the complainant, intimation sent to the higher officer and the Court concerned and also with regard to the search and seizure. He further contended that the detailed description of ganja is not provided in the seizure mahazar Ex.P1, but during the evidence, PW3 has stated in detail with regard to its description, which is quite contrary to the seizure mahazar. Under such circumstances, the seizure of the ganja itself is doubtful and the benefit of doubt is to be given to the accused. He further submitted that even according to PW4, who is the mahazar witness, chosen by the complainant and his evidence cannot be believed to corroborate the evidence of the official witnesses. Under such circumstances, the seizure of the ganja itself is doubtful and the benefit of doubt is to be given to the accused. He further submitted that even according to PW4, who is the mahazar witness, chosen by the complainant and his evidence cannot be believed to corroborate the evidence of the official witnesses. Since there are material contradictions and inconsistencies in the case made out by the prosecution, the contention taken by the accused that he is falsely implicated in the matter is probabalised and therefore the prosecution has failed to establish the guilt of the accused beyond reasonable doubt and the accused is entitled to be acquitted by extending the benefit of doubt. Therefore, he prays for allowing the appeal by setting aside the impugned judgment of conviction and order of sentence passed by the trial Court. 5. Per contra the learned AGA supported the impugned judgment of conviction and order of sentence passed by the trial Court and submitted that minor discrepancies with regard to the timings, as stated by the prosecution witnesses, will not go to the root of the matter. No material contradictions or omissions were brought on record during cross examination of any of the witnesses. In the absence of any material contradictions, inconsistencies, omissions etc., the version of PWs1, 3 and 4, is to be accepted. The version of the official witnesses PWs1 and 3 is corroborated by the independent witness-PW4 and the contention of the prosecution with regard to the commission of the offence by the accused is supported by the evidence of PW7-the Scientific Officer and his report Ex.P9. The complainant has complied with all the requirements of law by following the procedure contemplated under the NDPS Act and the trial Court rightly appreciated all those materials on record and formed an opinion that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt. There is no reason to set aside the impugned judgment of conviction and order of sentence as contended by the appellant. He also submitted that simply because PW4 was the attesting witness in several other cases, his version cannot be ignored and he cannot be dubbed as a stock witness. Nothing has been elicited from him or from the informant-PW3 that this witness was specially chosen to concoct any document. He also submitted that simply because PW4 was the attesting witness in several other cases, his version cannot be ignored and he cannot be dubbed as a stock witness. Nothing has been elicited from him or from the informant-PW3 that this witness was specially chosen to concoct any document. In support of his contention, the learned AGA relied on the decision in Amarjit Singh Cheema Vs. State (Bom), 1987(3) CRIMES 12. He also submitted that no case of false implication of the accused was either made out during cross examination, nor it was stated by the accused in the 313 statement. There must be strong motive for the investigating officer and unless such case is made out, it cannot be concluded as such and requested to dismiss the appeal, as devoid of merits. 6. I have perused the materials on record including the trial Court records. 7. As per the case made out by the prosecution, PW3-the police inspector received credible information about the storage of ganja by the accused in his house and immediately he informed this fact to his higher officer-ACP, Hubballi town, as per Ex.P5 and also forwarded the intimation to the Special Court as per Ex.P3 along with the FIR-Ex.P11 and proceeded to the house of the accused, by securing the presence of 2 panchas i.e. PWs2 and 4 along with ASI-PW1. When he held search, he found two packets of ganja weighing 22 kgs and 18 kgs respectively. The accused was not having any licence to possess the same and thereby he contravened Section 8(c) of the NDPS Act. Since the ganja recovered from the house of the accused was weighing 40 kgs, the same is the commercial quantity and therefore the accused is liable to be punishable under Section 20(b)(ii)(C) of the NDPS Act. 8. The prosecution in order to prove its contention examined PW1-ASI, who accompanied the first informant-PW3, to the house of the accused. This witness has spoken to regarding the receiving of the information and proceeding to the house of the accused, search and seizure of M.Os1 and 2-the bulk ganja, drawing of samples as per M.Os3 and 4 and also the weighing scale as per M.O5 and drawing of the seizure mahazar as per Ex.P1. This witness was cross examined at length, but nothing material has been elicited from him to disbelieve his version. This witness was cross examined at length, but nothing material has been elicited from him to disbelieve his version. Ofcourse my attention was drawn by the learned advocate for the appellant that the witness has stated about he receiving of the information from PW3 at 6.00 pm, when according to PW3, he himself received the credible information at about 6.15 pm. This discrepancy is a minor one and witness has stated that he has received the intimation from PW3, at about 6.00 pm. It is also further contended by the learned advocate for the appellant that the witness has stated that the red cloth found covering M.O2, was not there, when the same was seized. Ofcourse this witness stated that the red cloth covering M.O2 was not there when the same was seized, but nothing further was elicited from the witness, either to deny the seizure of MO2 itself or to contend that there was some manipulation subsequent to the seizure of M.O2. When nothing has been elicited from PW1, the inconsistency in mentioning the time or the evidence that the red colour cloth was not there with M.O2, when the same was seized, will not go to the root of the matter. 9. PW3 is the first informant, who spoke about receiving of the credible information, informing his higher officer as per Ex.P5, sending the intimation to the Court concerned as per Ex.P3 along with the first information-Ex.P8, search held in the house of the accused in the presence of panchas and seizure of M.Os1 and 2-the bulk ganja; totally weighing 40 kgs, drawing of samples as per M.Os3 and 4 and drawing of seizure mahazar Ex.P1. During cross examination of this witness also nothing has been elicited, either to disbelieve his version or to reject the contention of the prosecution. Witness specifically stated that since he was having the apprehension that the accused may abscond, he had not obtained search warrant, but sent the report to the Court concerned as per Ex.P3. He also stated that he found two bags in the house of the accused with ganja, which included leaves, flowering and fruit tops. The first bag was containing 22 kgs of ganja and the second bag was containing 18 kgs. He also stated that he found two bags in the house of the accused with ganja, which included leaves, flowering and fruit tops. The first bag was containing 22 kgs of ganja and the second bag was containing 18 kgs. During cross examination, witness stated that Ex.P3-the intimation to the Special Judge was sent through the Court police constable on Court duty between 6.15 to 6.30 pm and the information to ACP as per Ex.P5, was sent through P.C. No.2388 and he obtained the permission from ACP to hold search and seizure at 7.00 pm. Even though this witness admitted that he has not called for any independent witnesses from the locality. He stated that no such person was available to act as pancha and denied the suggestion that PWs2 and 3 are the stock panchas. Witness stated that since the leaves, seeds and the flowering tops were found in the bags, he concluded it as ganja. Witness denied the suggestion that Ex.P1 was concocted in the police station and the signature of the accused was taken on it, forcibly. It is pertinent to note that except suggesting that the panchas were stock panchas, which has been denied by the witness, nothing has been elicited from him, as to the reason, why PW4 was identified and called for as pancha. No ill will or motive was suggested to this witness against the accused for concoction of documents or for false implication of the accused. 10. PW4 is one of the pancha witness, who fully supported the case of the prosecution. Witness admitted that in about 8 to 10 cases, he has signed the panchanama, but in the present case, he is deposing for the first time before the Court in the instant case. It has not been persuaded further to elicit from this witness that, he is in any way interested in concoction of the document or to the effect that the present accused is falsely implicated in the matter for any reason. The version of this witness was not falsified during cross examination. 11. My attention was drawn by the learned advocate for the accused to the contents of seizure mahazar Ex.P8, wherein it is stated that the seal used for seizing the contraband was handed over to the panchas by obtaining the acknowledgment from them. The version of this witness was not falsified during cross examination. 11. My attention was drawn by the learned advocate for the accused to the contents of seizure mahazar Ex.P8, wherein it is stated that the seal used for seizing the contraband was handed over to the panchas by obtaining the acknowledgment from them. Learned advocate contended that neither the acknowledgment nor the seal were produced before the trial Court. But it is pertinent to note that there is absolutely no cross examination either to PW1 or to PWs3 and 4 about this fact. Therefore such recital found in the seizure mahazar-Ex.P1, do not falsify the case of the prosecution in any manner, in the absence of any material in that regard. 12. PW6 is the police constable, who carried the FIR to the Special Court, which is as per Ex.P11. As per the endorsement found on Ex.P11 the complaint and the FIR were submitted on 19.08.2010 at 2.30 am. This witness has explained in his evidence that he received the FIR at 11.30 pm on 19.08.2010 and went to Dharwad from Hubballi, which is 25 kms away and from there, he went to the Home Office of the Special Judge, which was 2 to 3 kms away and therefore there was delay. During cross examination, this witness denied the suggestion that there will be bus convenience between Hubballi and Dharwad at all the 24 hours in a day. 13. PW7 is the Scientific Officer, who deposed before the trial Court about his qualification and the experience in the field and stated that he had received 2 sealed packets for examination. Seals were intact and were tallying with the specimen seal. He also stated that on examination, each packet was containing light brownish green in colour dried leaves, seeds, fruiting and flowering tops along with sticks and after examination, he found the characteristic feature cannabis (ganja) in article Nos.1 and 2 and he issued the report as per Ex.P9. Nothing has been elicited from this witness to disbelieve his version. As per Ex.P9 the FSL report, the sample found in article Nos.1 and 2 responded positive for all the tests and therefore it was concluded that the sample is cannabis (ganja). 14. Nothing has been elicited from this witness to disbelieve his version. As per Ex.P9 the FSL report, the sample found in article Nos.1 and 2 responded positive for all the tests and therefore it was concluded that the sample is cannabis (ganja). 14. If all these material are taken into consideration, except minor discrepancies in deposing about the timings, nothing has been elicited from the witness, to reject the contention of the prosecution. PW3 who held the raid, has complied all the requirement of Section 42 of the NDPS Act and I do not find any reason to disbelieve his version. Even though PW4 stated that he has subscribed his signature as a mahazar witness, in several cases, he specifically stated that the present case is the first one in which he is deposing before the Court and denied the suggestion that he is a stock pancha to Kamaripeth police station. Nothing has been elicited from him to trace his connectivity to the police station in question and to contend that he is a stock pancha, easily available to the police, either to concoct documents or to falsely implicate any innocent person. In this regard the decision relied on by the learned AGA in Amarjit Singh Cheema (supra) is helpful to the case of the prosecution, wherein the Hon’ble High Court of Bombay at paragraph 10 held as follows: “10. There is considerable justification in what is contended by the learned Public Prosecutor that the evidence of P.W. 4 Parulekar cannot be discarded considering several aspects. Firstly he brings to our notice that despite the fact that P.W. 4 became a panch witness in several cases, according to him, it is not possible for the appellant at this stage to discredit this witness for the reason that no chance was at all given to P.W. 4 by putting any question to him on this subject when he was examined in the trial Court to prove the panchnama. There is force in what is contended by the learned Public Prosecutor. It is not possible to guess in what circumstances P.W. 4 became a panch witness in several cases. There is force in what is contended by the learned Public Prosecutor. It is not possible to guess in what circumstances P.W. 4 became a panch witness in several cases. It was clearly incumbent on the appellant to have put questions to that witness and probably the witness could have explained as to how he happened to be a panch witness in those several cases and depending on his answers, it would then be possible for the Court either to accept his explanation or to discard him that he is not credible. Since no question was put to him in cross-examination nor his credibility disputed, it is difficult to now hold, in the absence of any further material, that P.W. 4's evidence is liable to be discarded merely because he happened to be a panch witness in a number of cases. ……… There is another factor which makes us accept the evidence of P.W. 4. There is nothing on record to suggest under what circumstances P.W. 4 became panch witness in other cases. No question put to him in cross examination and there is no whisper about it as far as P.W. 4 is concerned. …….. (emphasis supplied) 15. In the present case also, nothing has been elicited from PW4, to dub him as a stock witness and to reject his version. 16. The discussions held above disclose that the prosecution is successful in placing the materials before the Court about seizure of 40 kgs of ganja in two bags from the house of the accused, as deposed by PW3 and supported by PWs1 and 4. The accused has not offered any reasonable explanation for possession of the contraband, which was proved to be cannabis (ganja) as per the report Ex.P9, supported by the version of PW7. 17. When the prosecution is successful in proving the basic requirements of law for commission of the offence against the accused, the presumption under Section 54 of the NDPS Act operates. Under Section 54 of the NDPS Act, it may be presumed that the accused has committed an offence, unless and until the contrary is proved and the accused account for the possession of the same, satisfactorily. The materials on record disclose that no attempt was made to rebut the presumption by the accused. Under Section 54 of the NDPS Act, it may be presumed that the accused has committed an offence, unless and until the contrary is proved and the accused account for the possession of the same, satisfactorily. The materials on record disclose that no attempt was made to rebut the presumption by the accused. Under such circumstances, merely by relying on minor discrepancies and inconsistencies, it cannot be said that the case of the prosecution is either falsified or that the presumption under Section 54 was rebutted. Therefore, I am of the opinion that the prosecution is successful in proving contravention of Section 8(c) of the NDPS Act, since 40 kgs of contraband was seized from the house of the accused. It forms commercial quantity, as per the Notification specifying small quantity and commercial quantity of the contraband. 18. I have gone through the impugned judgment of conviction and order of sentence passed by the trial Court. It has taken into consideration all the materials on record and arrived at a right conclusion. I do not find any reason to form a different opinion and to set aside the same. Hence the appeal preferred by the appellant/accused is liable to be dismissed. Accordingly, the same is dismissed as devoid of merits.