IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR. JUSTICE B.A. PATIL CRIMINAL APPEAL NO.157 OF 2018 BETWEEN:
STATE OF KARNATAKA BY COASTAL SECURITY POLICE STATION, MANGALURU, REP. BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BENGALURU-1.
(BY SRI M.DIVAKAR MADDUR, HCGP) AND ... APPELLANT SIRAJ AGED ABOUT 34 YEARS, S/O. LATE UBARABBA, R/O. KALKATTA HOUSE, NEAR KALKATTA BUS STAND, MANJANADY VILLAGE & POST, MANGALURU TALUK, D.K.-575 001.
... RESPONDENT (SMT. HALEEMA AMEENA, ADV.,FOR SRI S.VISHWAJITH SHETTY, ADV.,) * * * THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND (3) OF CR.P.C PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 18.07.2017 PASSED BY THE III-JMFC, MANGALORE IN C.C.NO.1149/2014 ACQUITTING THE ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 8(c) READ WITH SECTION 20(b) (ii) (A) of N.D.P.S ACT AND TO SET ASIDE THE ABOVE SAID ORDER.
THIS CRIMINAL APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The present appeal has been preferred by the appellant - State, challenging the judgment and order passed by JMFC (III Court) at Mangaluru in C.C.No.1149/2014, dated 18.07.2017, wherein, the respondent-accused has been acquitted for the offences punishable under Section 8(c) read with Section 20(b)(ii)(A) of N.D.P.S. Act.
2. I have heard the learned HCGP for the appellant-State as well as the learned counsel for the respondent-accused.
3. The brief facts of the case are that on 03.02.2014 at about 4.15 p.m., the investigating officer received credible information that the accused is trying to sell Ganja at seashore of Subhashnagara Ullal, Mangaluru. Immediately, the investigating officer secured the presence of the panch witnesses and went to the place where he found accused possessing Ganja and he was selling the same to the General Public. Immediately, they searched and questioned him about the permit or licence to possess Ganja. After completion of due legal formalities, police searched the accused and found that the accused was in illegal possession of 290 grams of Ganja. The said articles were seized by the investigating officer and the case was registered in Crime No.1/2014. After investigation, charge-sheet has been filed.
4. Learned Magistrate took cognizance and secured the presence of the accused and framed the charge-sheet.
5. In order to prove its case, the prosecution got examined four witnesses as per PWs.1 to 4 and got marked ten documents as per Exs.P1 to P10 and two material objects as per M.Os.1 and 2.
6. After hearing the learned APP and the learned counsel for the accused-respondent, the impugned order came to be passed by the trial Court.
7. It is the submission of the learned HCGP that the trial Court without considering the evidence on record only on presumption and assumption has come to the wrong conclusion and acquitted the accused. PW.1 is an independent witness. He has also supported the case of prosecution. PWs.2 and 3 are the official witnesses, whose evidence corroborates with the evidence of PW.1 and even the independent witness has supported the seizure of the Ganja from the possession of the accused. It is also proved that the accused was in illegal possession of 290 grams of Ganja. Looking into the said aspect, the chemical examination report and other material clearly goes to show that the seized material is Ganja. On these grounds, he prayed to allow the appeal by setting aside the impugned order.
8. Per contra, the learned counsel appearing on behalf of the respondent-accused vehemently argued and submitted that the mandatory provisions of Section 50 and 42(2) of NDPS Act have not been followed. Non-following of the said procedure is fatal to the prosecution. She further submitted that the independent witnesses have not supported the case of prosecution. Even PW.1 in his cross-examination has admitted the fact that the police have obtained his signature in the Police Station and he has not been served with the notice, that itself creates a doubt about seizure of the ganja as contended by the prosecution. She further submitted that immediately after receipt of the information, police have not registered the case or made an entry in the Station House Dairy which is contemplated under Section 154 of Cr.P.C. Non following of the said procedure is also considered to be vitiating the entire proceedings. Her further submission is that the Ganja which is said to be seized from the possession of the accused contains leaves, seeds, stem and buds, but in order to call the said material as Ganja, then it must contain only the seeds and buds. It is further submitted that the evidence of the prosecution is lacking and there is no material to connect the accused to the alleged crime. The trial Court after considering the fact that non following of the mandatory provisions and there is no substantial evidence to prove the case of the prosecution, has rightly acquitted the accused. There are no good grounds to interfere with the impugned order. Hence, she prayed to dismiss the appeal.
9. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records.
10. PW.1 is the mahazar witness. He has deposed that on 03.02.2014, he was in his house and he received a phone call and he was called to the Police Station along with another panch witness and thereafter they went to the spot and they were shown the accused, then they surrounded the accused and found in possession of 290 grams of Ganja in polythene bag. After taking sample, the said Ganja has been seized by drawing mahazar as Ex.P1. During the course of cross-examination, he has admitted that the Police have obtained his signature in the Police Station and also not served notice and did not obtain his signature. He admits that the police have not searched him personally and they have not secured the gazetted officer on the spot and he did not remember the place in which he signed to M.Os.1 and 2.
11. PW.2 is the police constable who accompanied with the investigating officer. He has also reiterated the evidence of PW.1. During the course of cross-examination, he admits that he did not remember on what time he saw the accused on the spot and he admits that panch witnesses are residents of Bengare village.
12. PW.3 is also police constable. He also reiterated the evidence of PW.2.
13. PW.4 is the investigating officer. He has deposed on the receipt of credible information and arrest of the accused at the spot and seizure of the Ganja and further investigation and filing of the charge-sheet. He has admitted in his cross- examination that in Ex.P7, he did not mention about the receipt of information and forwarding such information to the higher officers and he has not produced the station house dairy before the Court at the time of filing the charge-sheet. He has further admitted that after receipt of the information, he did not register the case and he did not serve notice to the panch witnesses. Except that, nothing has been elicited from the mouth of this witness.
14. The main contention of the learned counsel appearing on behalf of the accused is that the investigating officer has not followed the mandatory provisions of Sections 50 and 42(2) of the NDPS Act. As per Section 50 of the NDPS Act, it imposes the condition under which search of the person shall be conducted. As per the said Section and also under Sections 41, 42 and 43 of the NDPS Act, if any person under the said provisions has to be searched and if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate and the said search has to be done as contemplated under sub-section(1) of Section 50. As could be seen from the evidence of the investigating officer, he has not made any efforts before seizure of the said Ganja from the possession of the accused to comply with the said provision of law. Though, he has deposed before the Court that when personal search of the accused he found 290 grams of Ganja in polythene bag. The law mandates the investigating officer to question the accused whether he has to be searched before the Gazetted Officer or not. If he does not question this, then under such circumstances, the mandatory provisions have not been followed, it vitiates the entire proceedings and as per the law laid down by the Hon’ble Apex Court, the accused is entitled to the benefit of doubt. Even the Hon’ble Apex Court in the case of K. Mohanan v. State of Kerala reported in (2010) 10 SCC 222 has observed that merely asking the accused whether he wishes to be searched before a Gazetted Officer or the Magistrate is not sufficient without informing him that he has got a right under the law that he can seek for the search of the said material from his possession in front of the Gazetted Officer or Magistrate. If it is not done, then under such circumstances it would not satisfy the requirement of Section 50 of the NDPS Act. On going through the records, which were made available, there is non compliance of provisions of Section 50 of the NDPS Act and which amounts to nothing, but denial of the fair trial and even the search is considered to be illegal. The benefit of doubt should go to the accused in this behalf.
15. Be that as it may, even as could be seen from the records, PW.1 though he is also a witness to the seizure mahazar, in cross-examination he has admitted the fact that he has signed the said mahazar in the Police station. Under such circumstances, his evidence is not going to substantiate the case of prosecution and other witnesses are the police officials. There is no corroboration in the evidence of prosecution. It is well settled proposition of law that if the case based on the testimony of the official witnesses, their testimony cannot be rejected. But, when the mandatory provisions of the said Section 50 of the NDPS Act have not been followed, then under such circumstances, the evidence of the official witnesses also cannot be said to hold that they inspected the spot and seized the said article from the possession of the accused.
16. The another ground which has been urged by the learned counsel for the respondent is that as per Section 154 of Cr.P.C. immediately after the receipt of information, he has to make an entry in the station house dairy but the investigating officer who came to be examined as PW.4 before the Court below has admitted that after receipt of the information he did not register the case and did not cause notice to the panch witnesses and he has not produced the case dairy for having made entry in the station house dairy. In that light also the case of the prosecution has to fail.
17. Looking from any angle, the prosecution has utterly failed to satisfy the Court that the mandatory provisions of NDPS Act have been followed, the search and seizure has been done in accordance with law. Looking to the said aspects in detail, the Court below has rightly come to the right conclusion and there is no perversity or illegality in passing the impugned order. The same deserves to be confirmed.
18. Taking into consideration of the aforesaid facts and circumstances as well as the discussions, the appeal is dismissed.
Sd/- JUDGE GBB