IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY CRIMINAL APPEAL No.977 OF 2010 BETWEEN:
1. Ilyaz Khan S/o. Late Anwar Khan, Aged 35 years, Almirah preparing work, R/o. 2nd Idga Pulikeshi Road, H.No.3325, Mandi Mohalla, Mysuru.
2. Thakrez Sharief @ Tabrez Sharief S/o. Peerulla Sharieef, Aged about 29 years, Coolie Work, R/o. B.B. Keri, Pulikesh Mohall Road, H.No.76, Mandi Mohalla, Mysuru, Near Government High School, Mandi Mohalla, Mysuru.
3. Yusuf Khan S/o. Habeeb Khan, Aged 34 years, R/o. Kumbaragundi Koppalu, Shikaripur Town. …Appellants (By Sri. D.Mohan Kumar, Amicus Curiae) AND:
State of Karnataka By Shikaripura Town Police Station, Shikaripura, Rep. by Public Prosecutor, High Court, Bengaluru. …Respondent (By Sri. Divakar Maddur, HCGP) This Criminal Appeal is filed under Section 374(2) of Cr.P.C praying to set aside the order of conviction dated:6/8.09.2010 passed by the Spl. Judge, Shivamogga in Spl.(NDPS) Case No.13/2009 – convicting the appellants/accused for the offence punishable under Section 8(c) R/w Section 20(b)(ii)(B) of the N.D.P.S. Act, 1985; the appellants/accused are sentenced to undergo R.I. for five years and a pay a fine of `20,000/-, in default of payment of fine, they shall undergo R.I. for six months each for the offence punishable under Section 8(c) R/w Section 20(b)(ii)(B) of the N.D.P.S. Act, 1985; the appellants/accused prays that they be acquitted.
This Criminal Appeal coming on for Hearing, this day, the Court delivered the following:
JUDGMENT The appellants who were accused Nos.1, 2 and 3 before the learned Special Judge, Shivamogga, (hereinafter for brevity referred to as `trial Court’), in Spl.(NDPS) Case No.13/2009, have challenged their order of conviction passed by the said Special Judge on 6.9.2010, for the offences punishable under Sections 8(c) read with Section 20 (b)(ii)(B) of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter for brevity referred to as `NDPS Act’), wherein the learned Special Judge by order dated 8.9.2010, sentenced the accused to undergo rigorous imprisonment for a period of five years and to pay fine of `20,000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of six months each.
2. The summary of the case of the prosecution is that on 21.7.2009, at about 9.00 a.m., PW-4 then Police Sub-Inspector, received an information that few people are illegally transporting ganja in an autorickshaw near Market yard in Shikaripura. Immediately, joined by his staff, which included Assistant Sub-Inspector and few Police Constables, he went near the place as given to him in information and noticed an autorickshaw bearing registration No.KA-19- 6967. When enquired the two passengers travelling in the said autorickshaw about the contents of an airbag which they were possessing, he came to know that it was containing ganja in it. Immediately, the said PW-4 passed on the information to his superior i.e., Deputy Superintendent of Police, who at his request, came to the spot. He summoned two panchas to the place and in their presence, inspected the airbag which was in the said autorickshaw with those two passengers and noticed some quantity of ganja in it. After getting a weighing scale to the spot, they weighed it to ascertain that it did contain ganja in two plastic bags, in total weighing 5 Kg. and when weighed along with airbag, it was weighing in total 6 Kg. The said Deputy Superintendent of Police also conducted personal search of the two passengers and recovered a sum of `13,000/- and `700/- from accused Nos.1 and 2 respectively in cash. They also seized the airbag and took 100 grams of ganja from each of the plastic bag seized in the place as a sample for its chemical examination, drew a panchanama as per Ex.P-1 in the presence of panchas and brought both the accused along with driver of the autorickshaw and seized articles to the respondent- police station and lodged a complaint as per Ex.P-2 with the respondent-police. On enquiry, he was given information by the accused that it was accused No.4 Smt.Shaniya from whom they had purchased the ganja for its sale. Accordingly, as lead by accused Nos.1 and 2, they proceeded to the house of said Smt.Shaniya (accused No.4), wherein by conducting the search of the said house, they noticed the presence of 20 grams of ganja and in the said process, in was seized under the very same panchanama at Ex.P-1 in the presence of very same panchas. Thereafter, PW-1 – the Deputy Superintendent of Police, took all the four accused along with seized goods and autorickshaw to the respondent- police and lodged a complaint as per Ex.P-2 in the respondent-police station.
After registering a crime against all the four accused, the respondent-police conducted investigation and filed charge sheet against the accused. Since the accused pleaded not guilty, they were tried for the offences punishable under Sections 8(c) read with Section 20 (b)(ii)(B) of NDPS Act.
In order to prove the guilt against the accused, the prosecution examined four witnesses from PW-1 to PW-4 and got marked documents from Exs.P-1 to P-7(a) and material objects from MO-1 to MO-6. Neither any witness was examined nor the documents were marked as exhibits from the accused side.
4. After hearing both side, the learned Special Judge by his impugned judgment dated 06.09.2010, acquitted accused No.4 of the alleged offences and convicted accused Nos.1 to 3 for the offences punishable under Sections 8(c) read with Section 20 (b)(ii)(B) of NDPS Act and sentenced them accordingly. It is challenging their conviction for the offences punishable under Sections 8(c) read with Section 20 (b)(ii)(B) of NDPS Act, the accused have preferred this appeal.
5. Even though the appellants were originally being represented by their counsel, however, this Court noticing that for several dates of hearing continuously the learned counsel for the appellants has remained absent, by its detailed order dated 15.2.2019, appointed learned counsel Sri D.Mohan Kumar, as an Amicus Curiae for the appellants. As such, Sri D.Mohan Kumar, learned counsel is representing the accused/appellants in this appeal.
6. Lower Court records were called for and the same are placed before this Court.
7. Heard the arguments from both side and perused the materials.
8. For the sake of convenience, the parties would be referred to as per their ranks before the trial Court.
Among the four witnesses examined by the prosecution, PW-1 is the Deputy Superintendent of Police of Shikaripura, who has stated that on 21.7.2009, at about 9.15 a.m. he received a telephonic information from PW-4, who was the Police Sub-Inspector of respondent-police station, stating that he had stopped an autorickshaw in the market place of Shikaripura near Mari temple on the information that ganja is being transported in the said autorickshaw illegally. After receiving the said information, this witness, joined by Circle Police Inspector, went to the spot and also summoned two panchas to the spot. In the presence of panchas, he inspected the autorickshaw, in which, apart from driver, two passengers were found seated along with an airbag with them. When the autorickshaw was checked, it was noticed that it had contained two black plastic covers, in which, there were ganja leaves. On enquiry with the accused, they came to know that they were carrying it without any licence. They also ascertained the identity of the accused and getting a weighing scale on the spot, they weighed the ganja and noticed that it was in total weighing 5 Kg. However, along with airbag, it was weighing in total 6 Kg.
PW-1 has further stated that he conducted personal search of accused Nos.1 and 2 on the spot and found a cash of `13,000/- from accused No.1 and a cash of `700/- from accused No.2. He arrested the driver and two passengers i.e., accused Nos.1, 2 and 3 and drew a seizure panchanama as per Ex.P-1.
PW-1 has further stated that when enquired with accused Nos.1 and 2, he came to know that they had collected the said ganja from accused No.4 - Smt.Shaniya, whose house was also nearby. Accordingly, as shown by accused Nos.1 and 2, these people joined by accused and panchas went to the house of the said lady where they conducted search of her house. In the said process, beneath the staircase, in a bag, they noticed 20 grams of ganja. They arrested the said Shaniya also and completed the panchanama at Ex.P-1 in the said place. Brought all the four accused along with seized goods and vehicle before the complainant-police and lodged a complaint as per Ex.P-2.
The witness was subjected to a detailed cross- examination wherein he adhered to his original version.
PWs.2 and 3 though were projected by the prosecution as the alleged panchas when the seizure panchanama as per Ex.P-1 was said to have been drawn at two places of the offence, however, both these witnesses have turned hostile to the case of the prosecution and stated that their signature to the panchanama at Ex.P-1 was taken by the police only in their police station. Both of them have pleaded their total ignorance about the alleged raid said to have conducted by the police and they have summoned to the place of raid. Even after treating them hostile and cross-examining them, the prosecution could not get any support from them.
PW-4, then Police Sub-Inspector of the respondent-police station has stated that on 21.7.2009, at about 9.00 a.m., he received an information about the illegal transportation of ganja in an autorickshaw near market field in Shikaripura. Joined by his staff, he proceeded to the spot and noticed an autorickshaw bearing registration No.KA-19-6967 and stopped it. By the enquiry with the inmates in the autorickshaw about the contents of the bag which they were possessing, he came to know that it was containing ganja. He passed on the information to Deputy Superintendent of Police (PW-1) and to his Circle Police Inspector and requested them to come to the spot. The said Deputy Superintendent of Police accompanying with Circle Police Inspector came to the spot and summoned two panchas and also weighing scale and seized the ganja that was being transported by accused Nos.1 and 2 as inmates in the said autorickshaw. When weighed, the said ganja was weighing 5 Kg. without airbag and 6 Kg. along with airbag. A panchanama as per Ex.P-1 was drawn in the spot. By the enquiry with accused Nos.1 and 2, The Deputy Superintendent of Police came to know that it was accused No.4 who was supplying them with ganja. Accordingly, led by accused Nos.1 and 2, they went to the house of accused No.4 and conducted search of the house of accused No.4. In the said process, they traced 20 grams of ganja kept in a bag, which also they seized under the very same panchanama.
PW-4 has further stated that after returning to the police station, PW-1, their Deputy Superintendent of Police lodged a complaint as per Ex.P-2 which was registered in their station Crime No.126/2009 against all the four accused. The witness has further stated that he continued the investigation of the case. During which process, he sent the sample package to the Assistant Chemical Examiner, Chitradurga, and received their report as per Ex.P-7, recorded the statements of many witnesses and filed the charge sheet against the accused.
The denial suggestions made to him in his cross- examination were not admitted as true by him.
The very argument of the learned counsel for the appellants was that there is no mention in the alleged seized goods was a ganja as defined under Section 2 of NDPS Act. The definition of `ganja’ as per Section 2(iii)(b) of NDPS Act is as below :
“ganja, that, the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated”
A reading of the said Section goes to show that in order to constitute `ganja’, it should be flowering or fruiting tops of cannabis plant. Merely seeds and leaves when not accompanied by the tops would not constitute the definition of `ganja’. In the instant case, the evidence of PW-1 and PW-4 shows that they noticed the ganja leaves in the bag that was in possession of the accused. Further, the panchanama at Ex.P-1 also no where mentions that it was flowering or fruiting tops or buds. On the contrary, the said panchanama shows that the seized goods were containing ganja leaves and seeds. Even the Chemical Examiner’s report as at Ex.P-7 also does not give the description of the goods as tested by them. As such, it does not mention whether the samples tested by them had contained the cannabis flowering tops and buds. Thus, the argument of learned counsel for the appellants that the alleged goods even if it is considered that the same was seized would not constitute necessary description of the `ganja’ as defined, requires to be accepted.
Secondly, PW-4 in his cross-examination has stated that in the information received by him, he was not given the details of the autorickshaw in which the alleged goods were said to be under transportation.
In such a situation, it cannot be understood as to based on what suspicion, they stopped the autorickshaw bearing registration No.KA-19-6967 and enquired the inmates therein. No details in that regard has been given by PW-4 in his evidence. As such, the very initial act of PW-4 suspecting a vehicle and stopping it for the alleged offence of transportation in contraband case creates a doubt in the mind of the Court.
Thirdly, according to PW-1 and PW-4, when they enquired accused Nos.1 and 2, who were said to be the passengers in the said autorickshaw, they revealed that the bag that they were carrying was containing ganja. The said seizure is said to have been made by them in the presence of two panchas i.e., PWs.2 and 3. However, both these panchas have uniformly stated that the police had not summoned them to any place and they have not seized any articles, much less, ganja in their presence. Both of them have stated that their signature on Ex.P-1 – the panchnama, was taken only in the police station.
Even though merely because the panchas have not supported the case of the prosecution, the evidence of official witnesses cannot be totally discarded, provided their evidence appears to be trustworthy. But, in the case on hand, the narration of PW-4 about they stopping the alleged autorickshaw merely based on suspicion and evidence of PW-1, when read in its entirety, does not appear to be sufficient to solely rely upon. The evidence of independent witnesses i.e., PWs.2 and 3, was also necessarily to be in consonance with evidence of PW-1 and PW-4. Since PWs.2 and 3 have totally turned hostile to the case of the prosecution, the evidence of PW-1 and PW-4 does not appear to be safe to rely upon. It is also for the reason that even according to PW-1 and PW-4, apart from them, one more responsible police officer who was the Circle Police Inspector was also present at the time of raid. Further, few more Police Constables were also there. Despite the same, none of those witnesses have been examined by the prosecution for the reasons best known to them.
Fourthly, even according to PW-1, after he seizing the alleged ganja in the spot, he also conducted personal search of the accused. Admittedly, before conducting the personal search of accused Nos.1 and 2, PW-1 has not informed the accused about their right to be searched in the presence of a Gazetted Officer. No where PW-1 has stated that he informed the accused that he was a Gazetted Officer, as such, he is going to conduct their personal search. Thus, the second argument of learned counsel for the appellants that the alleged personal search of accused Nos.1 and 2 was without any notice to them by PW-1 also cannot be ignored.
Lastly, the argument of learned counsel for the appellants that PW-4 who is the Investigating Officer himself was a member of the raiding team, as such, the entire investigation is suspicious in nature, is to be considered.
It is the case of the prosecution that first information about the alleged transaction of ganja was given to PW-4, in turn, he passed on the said information to his superiors. Even according to the prosecution, PW-4 was also a member of the raiding team and was present when PW-1, the Deputy Superintendent of Police, conducted seizure of the alleged goods and also the personal search of accused Nos.1 and 2. According to PW-4, he himself was present when the seizure panchanama at two different places was drawn as per Ex.P-1. Thus, starting from receiving the information up to the seizure of the goods, PW-4 was said to be participating actively in the raid. However, the same person later on received the complaint said to have been lodged by PW-1 and also conducted the investigation in the matter, including alleged recording of statements of several of the witnesses and sending of the sample of seized goods to its chemical examination. In such a situation, when the member of the raiding team himself being the recipient of the complaint and also the Investigating Officer, who has conducted the investigation and filed charge sheet, the same creates serious suspicion in the circumstances of the present case.
As such, the prosecution case being vitiated with serious doubts, the trial Court without noticing these aspects, merely believing the evidence of PWs.1 to 4, has erroneously held the accused Nos.1, 2 and 3 as guilty of the alleged offences. The trial Court ought to have given the benefit of doubt to the accused and ought to have acquitted the accused. Since the trial Court has erred in properly appreciating the evidence on record, the interference by this Court is deserving.
Accordingly, I proceed to pass the following order:
ORDER The Appeal is allowed. The impugned judgment of conviction dated 6.9.2010 and order on sentence dated 8.9.2010, passed by the learned Special Judge, Shivamogga, in Spl.(NDPS) Case No.13/2009, holding the present appellants/accused Nos.1, 2 and 3 guilty of the offences punishable under Sections 8(c) read with Section 20 (b)(ii)(B) of NDPS Act, is set aside. The accused Nos.1, 2 and 3 viz., Ilyaz Khan, s/o late Anwar Khan, Thakrez Sharief @ Tabrez Sharief, s/o Peerulla Sharieef and Yusuf Khan s/o Habeeb Khan, respectively are acquitted of the alleged offences.
The bail bonds executed by the appellants stands cancelled after the period of appeal and if no appeal is preferred in the matter.
The Registry is directed to transmit a copy of this judgment along with lower Court records to the lower Court immediately.
The Registry is directed to pay a sum of `3,000/-
to the learned Amicus Curiae as honorarium.
Sd/- JUDGE bk/