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2020 DIGILAW 717 (KAR)

Shivappa Pawadeppa Palkar v. State of Karnataka

2020-03-12

B.A.PATIL

body2020
JUDGMENT : B.A. Patil, J. 1. Convicted appellant/accused is in appeal against the Judgment of conviction and order of sentence passed by the Sessions Judge, Koppal in Special C.C. (N.D.P.S.) No. 1 of 2008, dated 12.04.2011. 2. I have heard the learned counsel appearing for the appellant-accused and the learned Additional S.P.P. for the respondent-State. 3. The genesis of the complaint is that, credible information was received by P.W. 8 on 25.07.2006 that, the accused is in possession of ganja and he has grown ganja crop in his land. Immediately, he informed the same to his higher police officials and secured the pancha witnesses and the Gazetted Officers and went to the spot. Accused and his mother were present; when they made a search of the house, they found dry ganja in a saree bundle and some dry ganja in a carry bag. The accused did not produce any pass or permit for possessing the same. Same was seized. There the people informed that the accused has also grown the ganja in the tomato plants. Immediately, they went there and they saw 29 ganja plants were grown, which are 3 feet to 7 feet in height, all they were removed from the earth and weighed and it was weighing 38 kgs. Same were seized by drawing a mahazar and a complaint was filed. On the basis of the same, a case has been registered in Crime No. 84 of 2006 for the offence punishable under Sections 20(A) and 20(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the N.D.P.S. Act'). Thereafter, after investigating the case the charge sheet has been filed. The Special Court took the cognizance and after hearing the learned Public Prosecutor and the learned counsel appearing for the accused the charge was prepared and read over to the accused, accused pleaded not guilty and he claims to be tried and as such trial was fixed. 4. In order to prove the case of the prosecution, prosecution got examined 08 witnesses and got marked 22 documents and 06 material objects. Thereafter, the statement of the accused was recorded under Section 313 of the Code of Criminal Procedure, accused denied the in criminating materials. 5. 4. In order to prove the case of the prosecution, prosecution got examined 08 witnesses and got marked 22 documents and 06 material objects. Thereafter, the statement of the accused was recorded under Section 313 of the Code of Criminal Procedure, accused denied the in criminating materials. 5. After hearing the learned counsel for the accused and the learned Public Prosecutor, the Court below came to the conclusion that there is a material to convict the accused and accused was convicted for the offence punishable under Sections 20(b)(ii)(A) and 20(a)(i) of the N.D.P.S. Act. Challenging the legality and correctness of the Judgment, the appellant-accused is before this Court. 6. The main ground urged by the learned counsel for the appellant is that the Judgment of conviction and order of sentence passed by the learned Sessions Judge is against the law and evidence placed on record. It is his submission that the provision of Section 41 of the N.D.P.S. Act has not been complied. He has not obtained the warrant as contemplated before making the search of the house of accused. It is his further submission that, Ex. P.10 clearly goes to show that the land in which the ganja is said to have been grown and is seized, is standing in the name of four brothers jointly, without erring other bothers as accused persons, the charge sheet filed as against the accused is not sustainable in law. It is his further submission that the prosecution has to establish the conscious possession of the said ganja in the possession of the accused. But when the said land is standing in the name of four brothers and even two brothers were came to be examined before the Court and in their evidence, they have clearly stated that nobody is using the said land and no partition has taken place in between them and they are jointly cultivating the said land. Even though the said evidence is available, the trial Court erred in convicting the accused. It is his further submission that another brother came to be examined as P.W. 3, he has categorically deposed that, Sy. No. 3/2 measuring 01 acre, 20 guntas is belonging to him. Though such evidence is available and accused was not connected to the land in any manner and erroneously convicted the accused person. It is his further submission that another brother came to be examined as P.W. 3, he has categorically deposed that, Sy. No. 3/2 measuring 01 acre, 20 guntas is belonging to him. Though such evidence is available and accused was not connected to the land in any manner and erroneously convicted the accused person. It is his further submission that the prosecution has not clearly established the fact that the seized articles are ganja as contemplated under the N.D.P.S. Act, and unless and until the prosecution establishes that the seized articles are ganja, by producing the F.S.L. report. The Court cannot hold the accused guilty for the alleged offence. In order to substantiate his contentions, he has relied upon the decision in the case of K.K. Rejji and others v. State by Murdeshwar Police Station Karwar, reported in 2010 5 Kar LJ 279 and another decision of coordinate bench of this Court in the case of Bhimsheppa S/o. Laxmappa Hegdi v. State of Karnataka in Criminal Appeal No. 2521 of 2011 dated 10.04.2019 and another decision of the Hon'ble Apex Court in the case of Beckodan Abdul Rahiman v. State of Kerala, reported in 2002 (3) SCC 597 : (2002 Cri LJ 2529). On these grounds he prayed to allow the appeal. 7. Per Contra, the learned Additional S.P.P. vehemently argued and submitted that, P.W. 2 the brother of the accused has clearly admitted the fact that the accused is doing the work in the said land. P.W. 3 also deposed that there is no partition itself clearly goes to show that though there is no partition the said land is in possession of the accused. It is his further submission that 800 grams ganja has been seized from the house of the accused and accused was in conscious possession. The said house is also in his possession. On all these materials which have been produced, clearly goes to show that the accused committed the alleged offence. It is his further submission that the records indicate that the seized articles have been sent to the F.S.L. and the F.S.L. report is also awaited and he fairly submitted that F.S.L. report has not been marked, on these grounds he prayed to dismiss the appeal. 8. It is his further submission that the records indicate that the seized articles have been sent to the F.S.L. and the F.S.L. report is also awaited and he fairly submitted that F.S.L. report has not been marked, on these grounds he prayed to dismiss the appeal. 8. I have carefully and cautiously heard the submissions made by the learned counsel for the appellant-accused and the learned Additional S.P.P. appearing for the respondent-State and perused the records including the trial Court records. 9. Though the learned counsellor the appellant raised many issues, the main issue is that the prosecution is not clearly established that the seized articles are ganja as contemplated under the N.D.P.S. Act. 10. I have carefully and cautiously heard the submissions made by the learned counsel for the appellant-accused and learned Additional S.P.P. for the respondent-State and perused the records including the trial Court records. Though reference has been made by the trial Judge with regard to the sending of the seized materials for scientific examination and report, but for the reasons best known to the prosecution the said document has not been produced and got marked. In the absence of such proof, it cannot be held that the seized article is a ganja and accused has contravened the provision under the N.D.P.S. Act and the same is liable to be punished. Be that as it may, as could be seen from Ex. P.10 the record of rights pertaining to the land bearing Sy. No. 3/2 measuring 01 acre 20 guntas, therein it shows that it is standing in the name of Amarappa, appellant-accused Shivappa, Adeppa and Basappa. When the records show that the said land is standing in the name of all four brothers and the evidence of P.W. 2 clearly goes to show that no partition has taken place in between four brothers and they are jointly cultivating the said land, then under such circumstances, the contention of the prosecution that it is the accused who has grown the ganja in the said land is not acceptable. Be that as it may, even as could be seen from the seizure mahazar Ex. P.3 the wet ganja plants have been uprooted and before separating the flowers, buds and stems and the entire wet plants were weighed, it was weighing 38 Kgs until and unless it is bifurcated, separated and weighed. Be that as it may, even as could be seen from the seizure mahazar Ex. P.3 the wet ganja plants have been uprooted and before separating the flowers, buds and stems and the entire wet plants were weighed, it was weighing 38 Kgs until and unless it is bifurcated, separated and weighed. Under such circumstances, it cannot be held that accused was holding in possession of the ganja which is commercial quantity. The weighment and measurement is to be a crucial aspect so as to fix the accused either under Section 20(A) or 20(B) of the N.D.P.S. Act, if it is a small quantity, then under such circumstances, the conviction which has been held by the trial Court for the and 2 offence is considered to be illegal. In that light, the prosecution also utterly failed to establish the fact that the seized ganja is a ganja and he was in conscious possession. The said seized material is a ganja. In the absence of all these materials, the conviction which has been arrived by the trial Court is considered to be erroneous and not sustainable in law. 11. I am conscious of the fact that, some records show that the seized ganja has been sent to the F.S.L. and report has not been furnished, it is only irregularity. But the case is of the year 2006 and already a decade has been completed and by this time, even the said report might have already destroyed, it may not be in existence. If the matter is remitted back with a direction to obtain the FSL report and decide the case, it will be a futile exercise, some of the witnesses might have already died and they may not be available in favour of the prosecution. 12. Taking into consideration the above said facts and circumstances, I am of the considered opinion that the appellant has made out a case to allow the appeal and to set aside the impugned Judgment. In that light, the appeal is allowed and the Judgment of conviction and order of sentence passed by the Sessions Judge, Koppal in Special C.C. (N.D.P.S.) No. 1 of 2008 dated 12.04.2011 is set aside and the appellant-accused is acquitted for the charges leveled against him. The bail bond and surety bond executed by the appellant-accused stands cancelled. In that light, the appeal is allowed and the Judgment of conviction and order of sentence passed by the Sessions Judge, Koppal in Special C.C. (N.D.P.S.) No. 1 of 2008 dated 12.04.2011 is set aside and the appellant-accused is acquitted for the charges leveled against him. The bail bond and surety bond executed by the appellant-accused stands cancelled. If any fine amount has been deposited by the appellant-accused, the trial Court is hereby directed to refund the said amount to the appellant-accused on proper identification and acknowledgement.