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Karnataka High Court · body

2023 DIGILAW 886 (KAR)

Basappa v. State of Karnataka

2023-07-14

K.NATARAJAN

body2023
JUDGMENT/ORDER 1. This appeal filed by the appellants under Sec. 374(2) of Cr.P.C. for setting aside the judgment of conviction and sentence passed by the Principal District and Sessions Judge (Special Judge) Tumkur (referred as "trial Court" for short) in Spl.Case No.217/2010 dtd. 8/12/2011 for having found the accused guilty, convicted and sentenced them to undergo imprisonment for a period of 4 years and pay a fine of Rs.25, 000.00 each and in default of payment of fine, they shall undergo further imprisonment for a period of 6 months for the offense under Sec. 20(a)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short " NDPS Act "). 2. Heard the learned counsel for the appellants and learned High Court Government Pleader for respondent- State. 3. The rank of the parties before the trial Court is retrained for the sake of convenience. 4. The case of the prosecution before the trial Court is that P.W.7 one K.R.Chandrashekar received credible information on 4/10/2010 that in the lands of the accused at Kammanakote village where they stated to have grown ganja plants among other crops. In that regard, he secured panchas P.W.1, P.W.2 and Photographer P.W.3, went to the spot i.e. lands of the accused, where accused No.1 was present. On verification of the lands, it was found that the accused have grown ganja plants. He plucked the ganja plants and on counting it was found that there were 35 ganja plants weighing about 35 Kgs. The same was sealed under the panchanama and arrested the accused, came to the Police Station, filed report to P.W.9. Based on the report of P.W.7, P.W.9 registered First Information Report (for short "FIR") in Crime No.127/2010 and accused were sent to judicial remand. P.W.10 took up further investigation and filed charge sheet. After taking cognizance, the Special Court framed charges against appellants No.1 to 3, who said to have belonged to same family. They have pleaded not guilty and claimed to be tried. Accordingly, the Prosecution called upon to adduce evidence. 5. The prosecution to prove its case, in all examined 10 witnesses and got marked 9 documents and 3 material objects. After closing the prosecution evidence, the statement of accused under Sec. 313 Cr.P.C. was recorded. They have pleaded not guilty and claimed to be tried. Accordingly, the Prosecution called upon to adduce evidence. 5. The prosecution to prove its case, in all examined 10 witnesses and got marked 9 documents and 3 material objects. After closing the prosecution evidence, the statement of accused under Sec. 313 Cr.P.C. was recorded. The incriminating evidence adduced against the accused was read over to them and the case of the accused is one of total denial but not entered any defense. Accordingly, after hearing the arguments, the Trial Court found the accused guilty, convicted and sentenced to undergo imprisonment as stated above. Being aggrieved with the same, the appellants are before this Court. 6. Learned counsel for the appellants contended that the Investigating Officer/P.W.7 has not recorded the credible information in writing prior to proceeding to the spot for search and seizure of contraband articles. It is also contended that the report was not submitted to the Higher Officer within 72 hours as per Sec. 42(2) of the NDPS Act. The trial Court has not considered these mandatory provisions which cannot be escaped from its strict compliance under the NDPS Act, which is not followed by the Investigating Officer. The panch witnesses, P.W.2 and Photographer P.W.3 turned hostile. Except the evidence of Investigating Officer and P.W.1, who is an official witness, none of them have supported the case of the prosecution. Hence, the Trial Court has committed error in accepting the evidence of prosecution and convicting the accused. Hence, prayed for setting aside the conviction and sentence. 7. Per contra, learned HCGP supporting the judgment of the trial Court contended that the mandatory provisions of Sec. 50 of the NDPS Act are not applicable to the case on hand and sending report to the Higher Officer regarding search and seizure under Sec. 57 is only directory and not mandatory. The trial Court considering the evidence of P.W.1 and P.W.7 to P.W.10 rightly convicted the appellants. Hence, prayed for dismissal of the appeal. 8. The trial Court considering the evidence of P.W.1 and P.W.7 to P.W.10 rightly convicted the appellants. Hence, prayed for dismissal of the appeal. 8. Having heard the arguments of the learned counsel for the parties and on perusal of the records the points that arise for consideration of the appeal are - (a) Whether the Prosecution prove beyond all reasonable doubt, the illegal cultivation of ganja plants by the accused in their land at Kammanakote village which was seized by P.W.7 thereby, they have committed offence under Sec. 20(b) of N.D.P.S. Act ? (b) Whether the judgment of the trial Court call for interference? 9. In order to re-appreciate the entire material on record, it is relevant to consider the evidence of the prosecution witnesses and the documents relied upon. (a) P.W.1-K.M.Malleshaiah who said to be working in Child Development Project Office, Madhugiri stated that on 4/10/2010, the Circle Inspector of Police of Kammanakote village came to their village, requested him to accompany him and he accompanied him to the land where ganja plants were grown, which was seized under the panchanama Ex.P1 and identified the said mahazar as Ex.P1 and signature as Ex.P2 and also M.Os 1 to 3. (b) P.W.2 Ramakrishna, the independent panch witness turned hostile, however, admitted his signature as Ex.P.1(b) but denied the seizure of M.Os. 1 to 3. (c) P.W.3-Ravi Kumar, Photographer said to have accompanied the Police Officer and took photographs in the spot. But this witness also turned hostile and not support the prosecution case. Therefore, his evidence is not useful for prosecution case. (d) P.W.4-Seenappa a villager deposed that accused Nos.1 to 3 were cultivating the said and during the relevant time. (e) P.W.5-K.R.Lohith, Police Constable accompanied P.W.7 while conducting raid. (f) P.W.6/Ganesh is computer operator in the Revenue Department who issued RTC at Ex.P5 and according to him, the RTC stands in the name of the father of accused persons. (g) P.W.7/K.R.Chandrasekhar, Police Circle Inspector who deposed that he has received credible information on 4/10/2010 regarding cultivation of ganja plants by the accused persons in their lands, then he requested P.W.1 to accompany him and also requested P.W.2 and P.W.3. He went to the spot where accused No.1 was found. (g) P.W.7/K.R.Chandrasekhar, Police Circle Inspector who deposed that he has received credible information on 4/10/2010 regarding cultivation of ganja plants by the accused persons in their lands, then he requested P.W.1 to accompany him and also requested P.W.2 and P.W.3. He went to the spot where accused No.1 was found. He plucked ganja plants which was almost 35 Kgs, seized under the panchanama Ex.P.1 and he removed 500 gm of ganja leaves as sample and remaining ganja was packed in two bags weighing around 20 Kgs and 15 Kgs each and identified the sample ganja as M.O.1 and M.Os.2 and 3 as ganja bundles. He has prepared panchanama between 4.30 p.m. to 6.30 p.m., as per Ex.P1. Then came to the Police Station prepared a report as per Ex.P6, produced the same before P.W.9/the Station House Officer along with the accused persons. (h) P.W.8 another panch witness Venkatareddy who has also accompanied P.W.7 supported the case of the prosecution regarding search and seizure and Ex.P1 to Ex.P9. (j) P.W.9-Chandrasekharaiah, Police Sub-Inspector who deposed that he received Ex.P1/panchanama, Ex.P6- information or report by P.W.7. Based upon Ex.P6-report he registered FIR in Crime No.127/2010 and prepared FIR as Ex.P7, then he sent the accused to the judicial remand and handed over the investigation to P.W.10. (k) P.W.10 another Police sub-Inspector who took up further investigation, collected RTC, recorded statements and filed charge sheet. 10. Upon considering the evidence of prosecution witnesses, it is seen that P.W.1, P.W.7 and P.W.8 are the prosecution witness regarding search and seizure of ganja plants from the lands of the accused. It is not in dispute that as per the evidence of P.W.6 Ganesh who issued RTC for the said lands that the RTC stands in the name of father of appellants No.1 to 3 and as per the evidence of P.W.4-Seenappa, that the land was cultivated by the appellants. P.W.7 who is a police Circle Inspector received credible information on 4/10/2010 and according to his evidence, after receipt of the information, he immediately took panchas along with the Police Constable P.W.1 to P.W.3 and P.W.8, visited the spot where accused No.1 was present and seized ganja plants. P.W.7 who is a police Circle Inspector received credible information on 4/10/2010 and according to his evidence, after receipt of the information, he immediately took panchas along with the Police Constable P.W.1 to P.W.3 and P.W.8, visited the spot where accused No.1 was present and seized ganja plants. On careful consideration of evidence of P.W.7, it reveals that he has received credible information and immediately he proceeded to the spot and seized ganja plants under Panchanama Ex.P1 and thereafter he came to the Police Station prepared a report/first information as per Ex.P6. Based upon Ex.P6 report, P.W.9 registered FIR as per Ex.P7. Learned counsel for the appellants seriously contended that there is gross violation of mandatory provisions under Sec. 42 of NDPS Act which is not been followed. 11. Admittedly, the Police Officer has not stated anything about reducing the information into writing as per Sec. 42(1) of the NDPS Act. It is relevant at this stage to extract Sec. 42(1) and 42(2) of the NDPS Act which reads as under: "42. Power of entry, search, seizure and arrest without warrant or authorization. 11. Admittedly, the Police Officer has not stated anything about reducing the information into writing as per Sec. 42(1) of the NDPS Act. It is relevant at this stage to extract Sec. 42(1) and 42(2) of the NDPS Act which reads as under: "42. Power of entry, search, seizure and arrest without warrant or authorization. - (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments -of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired Property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset, - (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such "drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances, granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of sub-inspector: Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-sec. (1) or records grounds for his belief under the proviso thereto, he shall within seventy- two hours send a copy thereof to his immediate official superior." 12. A bear reading of the provision of Sec. 42 makes it clear that an Officer is required to take down the information in writing as per Sec. 42(1) of NDPS Act and a copy of the same shall be forwarded within 72 hours to his immediate official superior as per Sec. 42(2) of the NDPS Act. Admittedly, P.W.7 has not reduced the information into writing prior to going on raid i.e., for search and seizure of ganja plants. Sec. 42 of the NDPS Act empowers entry, search, seizure and arrest without warrant or authorization. When such being the case, it is mandatory on the part of P.W.7 to reduce the information into writing prior to proceeding to the spot. That apart, it is also mandatory to search and seize the contraband articles in the presence of a Gazetted Officer. Though P.W.7 secured the presence of P.W.1 who is a staff of Child Development Project Office who accompanied P.W.7, neither P.W.7 nor P.W.1 stated that P.W.1 was a Gazetted Officer who accompanied P.W.7 at the time of seizing contraband articles. 13. It is worth to mention here that the evidence of P.W.9 that he has registered FIR Ex.P7 on the report of P.W.7 as per Ex.P6, only after search, seizure and arrest of the accused by P.W.7. The P.W.7 prepared Ex.P1 Panchanama on the spot between 4.30 p.m. to 6.30 p.m. FIR/Ex.P7 was registered subsequent to seizing of articles under Panchanama Ex.P1. Therefore, investigation or search and seizure was done prior to the registration of FIR. The legislature cleverly drafted Sec. 42 of the Act that registering FIR prior to search and seizure of contraband articles and that information should be recorded in writing prior to proceeding to the spot that too search and seizure must be conducted in the presence of a Gazetted Officer. Otherwise the Investigation, search, seizure and arrest take place prior to registration of FIR. Hence, it is mandatory on the part of the Raiding Officer to reduce the information into writing as per Sec. 42(1) of the NDPS Act, that will be used as First Information. 14. Otherwise the Investigation, search, seizure and arrest take place prior to registration of FIR. Hence, it is mandatory on the part of the Raiding Officer to reduce the information into writing as per Sec. 42(1) of the NDPS Act, that will be used as First Information. 14. Learned counsel for the appellants relied upon a judgment of the Hon'ble Supreme Court reported in 2013 Crl.L.J 841 in the case of SUKHDEV SINGH v/s STATE OF HARYANA at paragraph 18 has held as under: "In the present case, the occurrence was of 4/2/1994. The Trial of the accused concluded by judgment of conviction dtd. 4/7/1998. Thus, it will be the unamended Sec. 42(2) of the NDPS Act that would govern the present case. The provisions of Sec. 42 are intended to provide protection as well as lay down a procedure which is mandatory and should be followed positively by the Investigating Officer. He is obliged to furnish the information to his superior officer forthwith. That obviously means without any delay. But there could be cases where the Investigating Officer instantaneously, for special reasons to be explained in writing, is not able to reduce the information into writing and send the said information to his superior officers but could do it later and preferably prior to recovery. Compliance of Sec. 42 is mandatory and there cannot be an escape from its strict compliance." 15. The Constitutional Bench of the Hon'ble Supreme Court also held in KARNAIL SINGH v/s STATE OF HARYANA reported in (2009)8 SCC 539 has held that compliance of Sec. 42 of the NDPS Act is mandatory. Considering the same, I am of the view that P.W.7 has not followed mandatory provisions and without reducing the information into writing visited the spot, seized contraband articles which is in violation of Sec. 42 of the NDPS Act and also information was not sent to the Superior Officer within 72 hours as per Sec. 42(2) of the NDPS Act. Since, P.W.7 is the Circle Inspector he must send the report to the official superior to him. Therefore, I am of the view that the evidence of P.W.1, P.W.4 and P.W.7 to P.W.10 are not useful to the case of the prosecution. Since, P.W.7 is the Circle Inspector he must send the report to the official superior to him. Therefore, I am of the view that the evidence of P.W.1, P.W.4 and P.W.7 to P.W.10 are not useful to the case of the prosecution. Hence, in my considered view, the prosecution has failed to prove the guilt of the accused beyond all reasonable doubts in order to convict the accused under Sec. 20(a) (i) of the NDPS Act . The trial Court has committed error in mentioning Sec. 50 of the Act which is applicable only to personal search of the assailant or accused. Sec. 42 of the NDPS Act is totally ignored by the trial Court. Therefore, the judgment of conviction of the accused for the offense punishable under Sec. 20(a)(i) of the NDPS Act is liable to be set aside. 16. Accordingly, the appeal is allowed. The judgment of the trial Court in Spl.C.C.No.217/2010 dtd. 8/12/2011 is hereby set aside. The appellants are acquitted for the offence punishable under Sec. 20(a)(i) of the NDPS Act. Their bail bonds stand cancelled. The fine amount, if any, collected is ordered to be refunded to the appellants after due identification.