Allowed

Udaykumar @ Uday Shivyogi Danannavar v. the State of Karnataka

Karnataka HC8 Jan 2024CRL.A/2785/2013

Case brief

AI extract

What is this about?

Three accused convicted under Section 20(b)(ii)(C) NDPS Act for transporting 103 kg ganja appealed. The High Court found total non-compliance with Sections 42, 50 and 52A of the NDPS Act and set aside the conviction, acquitting all appellants.

What did the court decide?

Conviction and sentence in Special Case No.59/2012 set aside; appellants acquitted under Section 20(b)(ii)(C) NDPS Act; bail bonds cancelled.

Udaykumar @ Uday Shivyogi Danannavar Vs the State of… — Narcotics (NDPS) | Karnataka HC (2024)

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NC: 2024:KHC-D:428 CRL.A No. 2796 of 2013 C/W. CRL.A Nos. 2785 AND 2818 of 2013

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 8^TH DAY OF JANUARY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE S.VISHWAJITH SHETTY

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CRIMINAL APPEAL NO. 2796 OF 2013

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CLUBBED WITH

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CRIMINAL APPEAL NO. 2785 OF 2013 CRIMINAL APPEAL NO. 2818 OF 2013

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IN CRL.A. NO.2796/2013:

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BETWEEN:

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BASAYYA SHANKARAYYA ARAGUNDI @ AALAGUNDI, AGE: 22 YEARS, R/O. AGASIMUNDE KADAPATTI CHAL, TQ: JAMAKANDI, DIST: BAGALKOT.

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…APPELLANT

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(BY SRI VIJAY M. MALALI, ADVOCATE)

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AND:

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Digitally VIJAYALAXMI signed by M BHAT VIJAYALAXMI M BHAT

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THE STATE OF KARNATAKA BY MALMARUTI POLICE STATION, R/BY S.P.P KARNATAKA, HIGH COURT BENCH, DHARWAD.

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…RESPONDENT

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(BY SRI M. B. GUNDWADE, ADDITIONAL SPP)

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THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C.

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SEEKING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE DATED 16.09.2013 PASSED BY

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THE SPECIAL (PRL. SESSIONS) JUDGE, BELGAUM, IN SPL. CASE NO.59/2012 AND ACQUIT THE APPELLANT.

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IN CRL.A.NO.2785/2013:

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BETWEEN:

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UDAYKUMAR @ UDAY SHIVYOGI DANANNAVAR, AGE: 22 YEARS, R/O. GUDAGERI ROAD, SAMSI, TQ: KUNDAGOL, DIST: DHARWAD.

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…APPELLANT

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(BY SRI SHANKAR HEGDE, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA BY MALMARUTI POLICE STATION, R/BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, DHARWAD BENCH.

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…RESPONDENT

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(BY SRI M. B. GUNDWADE, ADDITIONAL S.P.P.)

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THIS CRIMINAL APPEAL IS FILED U/SEC. 374(2) OF CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE DATED 17.09.2013 PASSED BY SPL. PRL. SESSIONS JUDGE, BELGAUM, IN SPECIAL CASE NO. 59/2012 AND ACQUIT THE APPELLANT.

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IN CRL.A.NO.2818/2013:

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BETWEEN:

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SANJU S/O. GOUTAM TIKOTA, AGE: 22 YEARS, R/O. SAVALAGI, HARIJANKERI, TQ: JAMKHANDIR, DIST: BAGALKOT.

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…APPELLANT

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(BY SRI GANAPATI M. BHAT, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA BY ITS MAL MARUTI POLICE STATION, BELGAUM. R/BY S.P.P, HIGH COURT, DHARWAD BENCH BUILDING, DHARWAD-580011.

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…RESPONDENT (BY SRI M. B. GUNDWADE, ADDITIONAL SPP)

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THIS CRIMINAL APPEAL IS FILED U/S. 374(2) OF CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 16.09.2013 PASSED BY THE SPECIAL (PRL. SESSIONS) JUDGE, BELGAUM, IN S.C.NO.59/2012, FOR THE OFFENCES P/U/S 20(B)(II)(C) OF NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCE ACT,1985 AND ACQUIT THE APPELLANT FOR CHARGES LEVELED AGAINST HIM.

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THESE APPEALS, COMING ON FOR FURTHER HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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CRL.A No. 2796 of 2013 C/W. CRL.A Nos. 2785 AND 2818 of 2013

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JUDGMENT

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These three criminal appeals under Section 374(2) of the Code of Criminal Procedure, 1973 arise out of the Judgment

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and order of conviction dated 16.09.2013 and order on sentence dated 17.09.2013 passed by the Court of Special (Principal Sessions) Judge, Belagavi (for short, ‘the Trial Court’) in Special Case No.59/2012.

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Heard the learned counsel for the parties.

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Facts leading to filing of above captioned three appeals as revealed from the records narrated briefly are, on 31.12.2011, the appellants herein who are arrayed as accused Nos.1 to 3 before the Trial Court were found transporting four plastic bags containing contraband article ganja totally weighing 103 kgs in a Cruiser vehicle bearing registration No.KA-48/M-153. The said vehicle was intercepted by the Police Officers attached to the Malmaruti Police Station, Belagavi and after the contraband article allegedly ganja was seized and subjected to panchanama, accused persons who were found transporting the same in their vehicle were arrested and remanded to judicial custody. Investigation in the case was completed and charge sheet was filed for the offence

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punishable under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substance Act, 1985 (for short, ‘the NDPS Act, 1985’) and Section 34 of the IPC.

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Before the Trial Court, the prosecution to prove its case had examined 09 witnesses as P.W.1 to P.W.9 and had got marked 22 documents as Ex.P.1 to Ex.P.22. The prosecution also had got marked 09 material objects as M.O-1 to M.O-9. After completion of recording of prosecution evidence, the statement of accused under Section 313 of Cr.P.C. was recorded. However, the accused did not choose to lead any defence evidence. The Trial Court after hearing the arguments addressed by both sides, vide the impugned Judgment and order, convicted the accused for the offence punishable under Section 20(b)(ii)(C) of the NDPS Act, 1985 and sentenced them to undergo imprisonment for a period of 10 years and to pay fine of Rs.1,00,000/- each and in default to undergo simple imprisonment for a period of 01 year.

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Being aggrieved by the said Judgment and order passed by the Trial Court, accused Nos.1 to 3 have preferred these three appeals before this Court.

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Learned counsel for the appellants having reiterated the grounds urged in the memorandum of appeals, submits that the requirement of Sections 42 and 50 of the NDPS Act, 1985, which are mandatory in nature has not been complied in the present case. P.W.2 and 3 who were independent pancha witnesses to the seizure mahazar have not supported the case of prosecution. The other witnesses are all official witnesses. The Investigating Officer has not prepared an inventory of the seized contraband article and has not got the said inventory certified by the jurisdictional Magistrate as required under section 52A of the NDPS Act, 1985. Therefore, the impugned Judgment and order passed by the Trial Court is bad in law. Accordingly, they prayed to allow the appeals.

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Per Contra , the learned Additional State Public Prosecutor has argued in support of the impugned Judgment and order. He submits that non-compliance of Sections 42 and 50 and 52A of the NDPS Act, 1985 has not caused any prejudice to the case of appellants. Even though, P.W.2 and 3 have turned hostile the seizure of the contraband article has been proved by the prosecution by producing Ex.P.6 photographs of seizure. The quantity of contraband article

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seized is huge and the appellants were found in possession of the same. Accordingly, he prays to dismiss the appeals.

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P.W.1 is the informant in the present case. Ex.P.1 is

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the intimation forwarded by P.W.1 to his higher Officer prior to conducting the raid. For a perusal of the same, prima-facie it is seen that requirement of Section 42 of the NDPS Act, 1985 has not been complied. The material on record would go to show that P.W.1 was in the Police Station when he received the credible information regarding transportation of contraband article in a vehicle. A reading of Section 42(1) of the NDPS Act, 1985 would go to show that on receipt of credible information the Officer is required to reduce the information in writing and enter the same in the prescribed register and Section 42(2) of the NDPS Act, 1985 provides that the said information recorded, shall be communicated to the higher officer. In the present case, the said mandatory requirement of law appears to be prima-facie not complied with.

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The Constitution Bench of Hon’ble Supreme Court in the case of Karnail Singh vs. State of Haryana , reported in (2008) 8 SCC 539 has held that compliance of requirement under Sections 42 and 50 of the NDPS Act, 1985 are

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mandatory in nature. In the case of State of Rajasthan vs. Jagraj Singh Alias Hansa, reported in (2016) 11 SCC 687 , where the recovery of contraband article was made from a private vehicle, the Hon’ble Supreme Court has observed that Section 43 of the NDPS Act, 1983 does not get attracted and only Section 42 of the NDPS Act, 1983 would be applicable. In paragraph no.29 of the said Judgment, the Hon’ble Supreme Court has observed as follows :

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29. After referring to the earlier judgments, the Constitution Bench came to the conclusion that noncompliance with requirement of Sections 42 and 50 is impermissible whereas delayed compliance with satisfactory explanation will be acceptable compliance with Section 42. The Constitution Bench noted the effect of the aforesaid two decisions in para 5. The present is not a case where insofar as compliance with Section 42(1) proviso even an argument based on substantial compliance is raised there is total non-compliance with Section 42(1) proviso. As observed above, Section 43 being not attracted, search was to be conducted after complying with the provisions of Section 42. We thus, conclude that the High Court has rightly held that noncompliance with Section 42(1) and Section 42(2) were proved on the record and the High Court has not committed any error in setting aside the conviction order.”

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In the case of Boota Singh and Others vs. State of Haryana , reported in 2021 SCC OnLine SC 324 , wherein contraband article was seized from a private vehicle, in paragraph Nos.15 to 17, the Hon’ble Supreme Court has observed as follows :

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“ 15. The evidence in the present case clearly shows that the vehicle was not a public conveyance but was a vehicle belonging to accused Gurdeep Singh. The Registration Certificate of the vehicle, which has been placed on record also does not indicate it to be a Public Transport Vehicle. The explanation to Section 43 shows that a private vehicle would not come within the expression “public place” as explained in Section 43 of the NDPS Act. On the strength of the decision of this Court in Jagraj Singh alias Hans a³ , the relevant provision would not be Section 43 of the NDPS Act but the case would come under Section 42 of the NDPS Act.

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16. It is an admitted position that there was total noncompliance of the requirements of Section 42 of the NDPS Act.

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17. The decision of this Court in Karnail Singh as followed in Jagraj, is absolutely clear. Total noncompliance of Section 42 is impermissible. The rigor of Section 42 may get lessened in situations dealt with in the conclusion drawn by this Court in Karnail Singh Singh alias Hansa, (2009) 8 SCC 539 but in no case, total noncompliance of Section 42 can be accepted.”

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In the present case, the informant was in the Police Station as could be seen from the Ex.P.1, when he received the credible information and therefore, he was required to reduce the credible information into writing and enter the same in the prescribed register and thereafter forward the said information to his higher officers. The said mandatory requirement of Section 42 of the NDPS Act, 1985 has not at all been complied in the present case. In addition to the same, even in the present case, the seizure is from a private vehicle and therefore the Judgments referred to hereinabove would be squarely applicable to the facts of the present case.

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The seizure mahazar at Ex.P.5 would go to show that in addition to the contraband article, cash of Rs.20,000/- was recovered from the possession of accused No.1. The Hon’ble Supreme Court in the case of SK. Raju Alias Abdul Haque Alias Jagga vs. State of West Bengal , reported in (2018) 9 SCC 708 , in a case, where cash recovered from the person of accused in addition to recovery of contraband article from the bag carried by the accused has held that compliance of Section 50 of the NDPS Act, 1985 which is mandatory in nature become necessary. In the said case, the Investigating Officer had

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searched the bag of accused and recovered the contraband article from the bag of accused and on the personal search of the accused from his trouser pocket cash was recovered. The Hon’ble Supreme Court has held in the said case as soon as search of person takes place, requirement of compliance of Section 50 of the NDPS Act, 1985 is attracted, irrespective of whether contraband article is recovered from the person of the accused or not. In the present case, the material would go to show that there is a total non compliance of mandatory requirement of Section 50 of the NDPS Act, 1985.

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The Hon’ble Supreme Court in the case of State of Delhi vs. Ram Avtar Alias Rama , reported in (2011) 12 SCC 207 has held that merely asking the accused whether he wished to be searched before a gazetted officer or a Magistrate without informing him that he enjoyed a right in that behalf, amounts to not compliance of Section 50 of the NDPS Act, 1985. In paragraph nos.28, 29 and 33 of the said Judgment, the Hon’ble Court has observed as follows :

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28. To secure a conviction under Section 21 of the Act, the possession of the illicit article is a sine qua non. Such contraband article should be recovered in accordance with the provisions of Section 50 of the Act, otherwise, the

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recovery itself shall stand vitiated in law. Whether the provisions of Section 50 of the Act were complied with or not, would normally be a matter to be determined on the basis of the evidence produced by the prosecution. An illegal search cannot entitle the prosecution to raise a presumption of validity of evidence under Section 50 of the Act. As is obvious from the bare language of Ext. PW 6/A, the accused was not made aware of his right, that he could be searched in the presence of a gazetted officer or a Magistrate, and that he could exercise such choice. The writing does not reflect this most essential requirement of Section 50 of the Act. Thus, we have no hesitation in holding that the judgment of the High Court does not suffer from any infirmity.

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29. Now, we come to discuss the argument raised on behalf of the State, that in the present case, generally and as a proposition of law, even if there is an apparent default in compliance with the provisions of Section 50 of the Act, a person may still be convicted if the recovery of the contraband can be proved by the statements of independent witnesses or other responsible officers, in whose presence the recovery is effected. To us, this argument appears to be based upon not only a misconstruction of the provisions of Section 50 of the Act but also on the misconception of the principles applicable to criminal jurisprudence. Once the recovery itself is found to be illegal, being in violation of the provisions of Section 50 of the Act, it cannot, on the basis of the statements of the police officers, or even independent witnesses, form the foundation for conviction of the accused under Section

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21 of the Act. Once the recovery is held to be illegal, that means the accused did not actually possess the illicit article or contraband and that no such illicit article was recovered from the possession of the accused such as to enable such conviction of a contraband article.

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33. The Constitution Bench, in Vijaysinh Chandubha Jadeja [(2011) 1 SCC 609 : (2011) 1 SCC (Cri) 497] had spelt out the effects of failure to comply with the mandatory provisions of Section 50 of the Act, being (A) cause of prejudice to the suspect accused; (B) rendering recovery of illicit article suspect and thereby, vitiating the conviction, if the same is recorded only on the basis of recovery of illicit article from the person of the accused during such search. The learned counsel for the appellant relied on the use of the words “only on the basis of the recovery” used in para 29 of that judgment, to contend that if there is other supporting evidence of recovery, the conviction cannot be set aside. This submission is nothing but based upon a misreading of the judgment; not only of para 29 but the judgment in its entirety."

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In the case of Ashok Kumar Sharma vs. State of

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Rajasthan , reported in (2013) 2 SCC 67 , the Hon’ble Supreme Court in paragraph Nos.8 and 9 of its Judgment has observed as follows :

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“ 8. We may, in this connection, also examine the general maxim ignorantia juris non excusat and whether in such a situation the accused could take a defence that he

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was unaware of the procedure laid down in Section 50 of the NDPS Act. Ignorance does not normally afford any defence under the criminal law, since a person is presumed to know the law. Undisputedly ignorance of law often in reality exists, though as a general proposition, it is true, that knowledge of law must be imputed to every person. But it must be too much to impute knowledge in certain situations, for example, we cannot expect a rustic villager, totally illiterate, a poor man on the street, to be aware of the various laws laid down in this country, leave aside the NDPS Act. We notice that this fact is also within the knowledge of the legislature, possibly for that reason the legislature in its wisdom imposed an obligation on the authorised officer acting under Section 50 of the NDPS Act to inform the suspect of his right under Section 50 to be searched in the presence of a gazetted officer or a Magistrate warranting strict compliance with that procedure.

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9. We are of the view that non-compliance with this mandatory procedure has vitiated the entire proceedings initiated against the appellant-accused. We are of the view that the Special Court as well as the High Court has committed an error in not properly appreciating the scope of Section 50 of the NDPS Act. The appeal is, therefore, allowed. Consequently, the conviction and sentence imposed by the Sessions Court and affirmed by the High Court are set aside. The appellant-accused, who is in jail, to be released forthwith, if not required in connection with any other case.”

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In the case of Vijaysinh Chandubha Jadeja vs. State of Gujarat , reported in (2011) 1 SCC 609 , in paragraph No.29 of the judgment the Hon’ble Supreme Court has observed as

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follows :

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“ 29. In view of the foregoing discussion, we are of the firm opinion that the object with which the right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that insofar as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision.”

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In the present case, P.W.2 and 3 who are the independent pancha witnesses have not supported the case of prosecution. In addition to the same, there is no compliance

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with the mandatory requirement of Section 50 of the NDPS Act, 1985. The Hon’ble Supreme Court in the above referred Judgments has not only held that non compliance of Section 50 of the NDPS Act, 1985 would vitiate the trial, but also has held that the same would render the recovery suspicious.

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In the present case, in addition to non compliance of mandatory requirements as provided under Sections 42 and 50 of the NDPS Act, 1985, the prosecution has also not complied with Section 52A(2) of the NDPS Act, 1985. The material on record would go to show that the Investigating Officer has not prepared an inventory of the contraband article seized and has not produced the contraband article before the jurisdictional Magistrate and the requirement of getting the inventory certified by the jurisdictional Magistrate is also not complied.

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Section 52A of the NDPS Act, 1985 reads as follows :

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“52A. Disposal of seized narcotic drugs and psychotropic substances. —

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(1) The Central Government may, having regard to the hazardous nature, vulnerability to theft, substitution, constraint of proper storage space or any other relevant consideration, in respect of any narcotic drugs, psychotropic substances, controlled substances or conveyances, by notification in the Official Gazette, specify such narcotic drugs, psychotropic substances, controlled substances or conveyance or class of narcotic drugs, class of psychotropic substances, class of controlled substances or conveyances, which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that

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Government may, from time to time, determine after following the procedure hereinafter specified.

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(2) Where any narcotic drugs, psychotropic substances, controlled substances or conveyances has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53, the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs, psychotropic substances, controlled substances or conveyances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs, psychotropic substances, controlled substances or conveyances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs, psychotropic substances, controlled substances or conveyances in any proceedings under this Act and make an application, to any Magistrate for the purpose of--

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(a) certifying the correctness of the inventory so prepared; or

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(b) taking, in the presence of such magistrate, photographs of such drugs, substances or conveyances and certifying such photographs as true; or

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(c) allowing to draw representative samples of such drugs or substances, in the presence of such magistrate and certifying the correctness of any list of samples so drawn.

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(3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application.

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(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1972) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs, psychotropic substances, controlled substances or conveyances and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence.”

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Sub-section 1 of Section 52A of the NDPS Act, 1985

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provides for the manner in which the Central Government is

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required to dispose of the seized narcotic substance. The object behind disposing of the seized contraband article is to prevent any illegal use of the said contraband article. Sub-section (2) of Section 52A of the NDPS Act, 1985 provides that the authorised Officer shall prepare an inventory of the seized contraband article after producing the seized contraband article before the jurisdictional Magistrate by making necessary application and the sample of the seized contraband article shall also be drawn in the specified manner before the jurisdictional Magistrate. The inventory prepared by the authorized officer is required to be certified by the jurisdictional Magistrate and the entire process of certifying the inventory is required to be done within a reasonable time. This provision gives a supervisory power to the jurisdictional Magistrate which is provided with an object to the find out the correctness and genuineness of the seizure made by the authorized Officers. The object behind this provision is to prevent foul play in the process of investigation.

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Section 52A(3) of the NDPS Act, 1985 provides that when an application is made under Section (2), the Magistrate shall, as soon as may be, allow the application. Section 52A(4) of the NDPS Act, 1985 reads as follows ;

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52A (4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1972) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of⁵ [narcotic drugs, psychotropic substances, controlled substances or conveyances] and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence.]

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In the present case, the Investigating Officer has not prepared any inventory and has not got the same certified by the jurisdictional Magistrate. The sample of the contraband article drawn as provided under sub-section (2) of Section 52(A) is also not certified by the Magistrate. P.W.9 in his evidence has admitted this aspect of the matter. In the absence of certification by jurisdictional Magistrate the inventory photographs and list of samples drawn under Section 52(A)(2) cannot be considered as primary evidence. The Trial Court was therefore not justified in placing reliance on the photographs to prove the recovery.

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From the aforesaid analysis of the matter, it is seen that the prosecution has failed to comply the mandatory requirements of Sections 42, 50 and 52A of the NDPS Act, 1985. The same is fatal to the case of prosecution. A serious

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doubt arises with regard to the correctness and genuineness of the seizure made by the prosecution having regard to the total non compliance of Sections 42, 50 and 52A of the NDPS Act, 1985. It is trite that non-compliance of aforesaid provisions of law vitiates the investigation as well as the trial and therefore the Trial Court was not justified in convicting the appellants for the alleged charge sheet offences. Under the circumstances, I am of the view that the impugned Judgment and order of conviction and sentence is required to be set aside. Accordingly, the following :

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ORDER

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Appeals are allowed.

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The Judgment and order of conviction dated 16.09.2013 and order on sentence dated 17.09.2013 passed in Special Case No.59/2012 by the Court of Special (Principal Sessions) Judge, Belagavi are set aside.

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Accused are acquitted for the offence punishable under section 20(b)(ii)(C) of the NDPS Act, 1985 for which they were convicted by the Trial Court.

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The bail bonds, if any of the accused persons stand cancelled.

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