Allowed

Shesharaju v. State of Karnataka

Karnataka HC20 Sept 2024CRL.A/433/2012

Case brief

AI extract

What is this about?

Conviction for possessing 10 kgs 950 grams of ganja under Section 20(b)(ii)(B) NDPS Act. Credible information was not reduced to writing; contraband not in exclusive possession; panch witnesses hostile and independent witnesses not examined. Appeal allowed and accused acquitted on benefit of doubt.

What did the court decide?

Conviction and sentence set aside; accused acquitted; bail bonds cancelled; deposited fine, if any, to be refunded.

Shesharaju Vs State of Karnataka — Narcotics (NDPS) | Karnataka HC (2024)

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1 - NC: 2024:KHC:39115 CRL.A No. 433 of 2012

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 20^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ

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CRIMINAL APPEAL NO. 433 OF 2012

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BETWEEN:

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SHESHARAJU S/O PERIYANAYAGAM, AGED ABOUT 40 YEARS, AGRICULTURIST, R/AT SURVEY NO.1077, M.G.DODDI VILLAGE, KOLLEGAL TALUK, CHAMARAJANAGAR DISTRICT.

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…APPELLANT

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(BY SRI. M VINOD KUMAR., ADVOCATE)

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AND:

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Digitally signed by LAKSHMI T Location: High Court of Karnataka

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STATE OF KARNATAKA REPRESENTED BY STATION HOUSE OFFICER, RAMAPURA POLICE STATION, REPRESENTED BY THE STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, AMBEDKAR VEEDHI, BANGALORE.

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…RESPONDENT

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(BY SRI. RAHUL RAI.K., HCGP)

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THIS CRL.A. IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION DATED:2.4.2012 PASSED BY THE DIST., & S.J. CHAMARAJANAGAR IN SPL.C.NO.153/2009-CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 20(b)(ii)(B) OF NDPS ACT, 1985.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE MOHAMMAD NAWAZ

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ORAL JUDGMENT

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This appeal is preferred by the accused, to set aside the judgment and order dated 02.04.2012 passed by the Court of District and Sessions Judge at Chamarajanagar in Spl.C.No.153/2009, wherein the learned Sessions Judge has convicted and sentenced him for the offence punishable under Section 20(b)(ii)(B) of NDPS Act.

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Accused has been sentenced to undergo imprisonment for a period of four years and to pay a fine of Rs.25,000/-, in default, to suffer further S.I. for a period of five months.

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Heard the learned counsel for appellant, learned High Court Government Pleader for the State and perused the evidence and material on record, including the impugned judgment of the trial Court.

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3 - NC: 2024:KHC:39115 CRL.A No. 433 of 2012

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In brief, case of the prosecution is that, on 25.07.2009 at about 2.00 p.m., on receiving a credible information, complainant – Dy. SP, Kollegal Sub-Division, Kollegal, along with his staff and panchas conducted a raid in the thatched shed (mattale shed) belonging to the accused, situated in front of his house, in Survey No.1077/1C of M.G.Doddi Village, Kollegal Taluk and found that he had stored and in possession of 10 kgs 950 grams of ganja leaves without any license or permit and thereby committed an offence punishable under Section 20(b)(ii)(B) of NDPS Act, 1985.

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To prove the above charge, prosecution got examined 7 witnesses and 6 documents and MOs.1 and 2.

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The learned Sessions Judge while convicting the accused, observed that the seizure of dried ganja from the possession of the accused under panchnama -Ex.P1 has been proved from the evidence on record and admittedly, the accused has not led any rebuttal evidence to disprove the same, nor he has offered any satisfactory explanation

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of its possession, at the time of seizure and even at the time of recording his statement under Section 313 Cr.P.C.

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According to prosecution, on 25.07.2009 at about 2.00 p.m., the Dy.SP, Kollegal Sub-Division, Kollegala received a credible information that ganja has been stored in the thatched shed situated in front of the house of the accused and therefore, he along with his staff and three panch witnesses went to the spot and conducted a raid in the said shed situated in Survey No.1077/1C.

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They noticed one gunny bag and two plastic bags in the said shed. In the gunny bag there was 5 kgs of ganja and the plastic bag in which there were 7 packets contained 5 kgs 950 grams of ganja. In all 10 kgs 950 grams of ganja was seized under a mahazar – Ex.P1.

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Prosecution has got examined the village Accountant – PW.3 to prove that the RTC of Survey No.1077/1C of Koudalli Village is in the name of the accused. PW.3, in his deposition has stated that he issued the RTC of the said land and it stands in the name of

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5 - NC: 2024:KHC:39115 CRL.A No. 433 of 2012

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Shesharaju son of Periyanayaka i.e., the accused and it

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was in his cultivation. The RTC is marked as Ex.P2.

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The complainant - Dy.SP is examined as PW.4. According to him on receiving the credible information he went to the above mentioned land along with his staff and panchas and conducted a raid. PWs.5 and 7 are the other police officials examined by the prosecution, who went to the spot along with PW.4.

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PW.4 has stated that when they reached the spot, accused was in the house and they searched the shed and noticed one gunny bag with ganja and one white plastic bag and inside the bag there were 7 packets of ganja wrapped with newspaper. He has further stated that the ganja in the gunny bag weighed about 5 kgs and the ganja in 7 packets weighed about 5 kgs 950 grams. Thereafter, he took sample ganja from the gunny bag and also from 7 packets and sealed in two white cloth bags and handed over the sample to the pancha. He then

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6 - NC: 2024:KHC:39115 CRL.A No. 433 of 2012

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conducted the mahazar – Ex.P1 and gave the report to CW.18 (PW.7).

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According to PW.5, there was a weighing balance in the house of the accused, with the help of which they weighed the ganja. PWs.4 and 7 in their chief examination has not specifically stated they weighed the ganja found in the gunny bag and 7 packets with the help of a weighing scale which was in the house of the accused.

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It is true that the weighing scale is marked as MO.2. However, neither in Ex.P1 nor Ex.P3 there is a mention of seizure of the said weighing scale. Certainly there would have been weighing stones with the help of which the ganja was weighed. The said weighing stones are not seized in this case.

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Be that as it may, PW.4 who is said to have received a credible information about storage of ganja in the shed of the accused has nowhere stated that he reduced the said information into writing. It is therefore contended by the learned counsel for appellant that there

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is no compliance of Section 42 of the NDPS Act. He has relied on a decision of the Hon’ble Apex Court in the case

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of ‘Beckodan Abdul Rahman v. State of Kerala’ reported in 2002 Crl.L.J. 2529, wherein the Hon’ble Apex Court has held “keeping in mind the grave consequences which are likely to follow on proof of possession of illicit articles under the Act, namely, the shifting of the onus to the accused and severe punishment to which he becomes liable, the Legislature has enacted and provided certain safeguards in various provisions of the Act including Ss.42 and 50 of the Act. The harsh provisions of the Act cast a duty upon the prosecution to strictly follow the procedure and compliance of the safeguards.”

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It is the specific case of prosecution that PW.4 along with his staff and panchas on receiving a credible information that ganja has been stored in the thatched shed belonging to accused, conducted a raid and seized 10 kgs 950 grams of ganja from the said shed. Admittedly, alleged ganja seized in this case was not found inside the

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house where the accused was staying. On the other hand, it was found concealed in the thatched shed which was situated in the front of the house of the accused. According to PW.4, accused was present in the house when they went to conduct the raid. Neither PWs.4, 5 and 6 have stated that they questioned the accused regarding storage of ganja. They have not stated that the ganja which was concealed in the thatched shed was shown by the accused. Even before proceeding to the spot, the police knew about the storage of ganja in the shed. It is not the case of prosecution that after apprehending the accused, they recorded his confession and it is he who led them to the thatched shed and at his instance the ganja was seized.

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Learned High Court Government Pleader has contended that PWs.4, 5 and 7 have consistently stated about seizure of ganja and the prosecution by examining PW.6, chemical examiner has also proved that the contraband which was seized in this case is ganja and

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therefore, the prosecution has established its case against

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the accused beyond reasonable doubt.

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It is no doubt true, report-Ex.P4 of PW.6 – Assistant Chemical Examiner, indicate that he received requisition from CPI, Ramapura Police Station to examine the sealed plastic bag and on examination, he found cystolithic hairs of ganja in the given sample. He has stated that in the physical test, the presence of ganja leaves, stems, flowering tops, fruit tops and seeds were seen.

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In the instant case, though PW4 has stated that he received a credible information at about 2.00 p.m. on 25.07.2009, there is no material placed to show that the said credible information was reduced into writing. The ganja is not seized from the exclusive possession of the accused. On the other hand, even before proceeding to the spot, the police knew that the ganja was stored in the thatched shed. The said shed was situated in front of the house of the accused and it is not the case of prosecution

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that on the voluntary statement of the accused, the police have seized ganja.

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In view of the above, it is necessary to find

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corroboration to the evidence of PWs.4, 5 and 7. However, both the panch witnesses examined as PWs.1 and 2 by the prosecution have turned hostile and not supported the case of prosecution. They have denied that the police have seized ganja under a mahazar-Ex.P1 or police conducted the mahazar in their presence. Further, PWs.4 and 7 have stated that public had gathered when they conducted the panchanama, however, independent witnesses are not examined in this case. Hence, it cannot be said that the prosecution has established the guilt of the accused beyond reasonable doubt. The accused is entitled to benefit of doubt. Accordingly, the following:

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ORDER

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i. Appeal is allowed.

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ii. The Judgment and Order dated 02.04.2012 passed by the Court of the District and Sessions Judge, Chamarajanagar in Spl.C. No.153/2009, convicting and sentencing the accused for the offence under Section 20(b)(ii)(B) of NDPS Act, 1985 is hereby set aside.

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iii. Accused is acquitted of the said offence. His bail bonds stand cancelled.

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iv. Fine amount, if any deposited, shall be refunded to the accused.

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Sd/(MOHAMMAD NAWAZ) JUDGE

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HB,TL List No.: 1 Sl No.: 30

Shesharaju v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Shesharaju v. State of Karnataka

Case brief

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What did the court decide?

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