Revision petition challenging rejection of a discharge application in an NDPS ganja seizure case. The court held that recovery from a bag does not attract Section 50 NDPS compliance, prima facie materials existed, no mini trial is permissible at the discharge stage, and rejected the petition.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 5TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE S.RACHAIAH
CRIMINAL REVISION PETITION NO. 100029 OF 2024 (397)
BETWEEN:
GOVIDAPPA, S/O. KENCHAPPA TAMRAGUNDI, AGE: 61 YEARS, OCC: AGRICULTURE, R/O: VADAVIHOSUR, TQ: SHIRAHATTI, DIST: GADAG - 582112.
…PETITIONER
(BY SRI K.L.PATIL, ADVOCATE)
AND:
CHANDRASHEKAR LAXMAN KATTIMANI
HIGH COURT OF KARNATAKA
THE STATE OF KARNATAKA, THROUGH GADAG CEN POLICE STATION, NOW REP. BY S.P.P., HIGH COURT OF KARNATAKA, DHARWAD BENCH.
(BY SRI PRAVEENA Y.DEVAREDDIYAVARA, HCGP)
…RESPONDENT
THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W 401 OF CR.P.C., SEEKING TO CALL FOR RECORDS AND SET ASIDE THE ORDER DATED 03.01.2024 PASSED BY THE LEARNED ADDL. DISTRICT AND SESSIONS JUDGE, GADAG IN NDPS NO.03/2023 AND THEREBY ALLOW THE APPLICATION FILED U/S 227 OF CR.P.C., FOR DISCHARGE HIM FROM THE OFFENCE PUNISHABLE U/S 20(B) OF THE NDPS ACT.
THIS PETITION COMING ON FOR DICTATION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard Sri K.L.Patil, learned counsel for the petitioner
and Sri Praveena Y.Devaraddiyavara, learned High Court Government Pleader for the respondent/State.
4. Brief facts of the case are as under:
The complainant being a Police Sub-Inspector of Gadag Police Station lodged a complaint stating that on 11.03.2023 at about 8.00 a.m., he received an information stating that one person was selling ganja near water tank of VadaviHosur village by keeping the said ganja in the bag. After receiving the said information, secured panchas and other
officials and went to the place and he was watching the movements of the petitioner. They noticed that one person was standing by holding the bag in his hand, after seeing the complainant and others; he was trying to run away from the spot. However, he was apprehended and conducted search themselves before conducting the search and seizure of the person. They enquired him as to what was there in the bag. He confessed that it was ganja and told them that he brought the same for selling to the public. After seizing the said ganja in the presence of panchas, it was weighed. The said ganja was weighing 1380 grams. After taking sample from the said ganja, it was sealed and kept it aside and arrested the accused. Thereafter, he was produced before the Magistrate and submitted the charge sheet.
such irregularity or illegality committed by the Investigating Officer in conducting the investigation, the entire investigation would be vitiated and therefore, it is not appropriate to ask the petitioner to face the trial.
Section 42 and also Section 50 of the Act. Therefore, there is no violation of any provisions contemplated under the Act.
“10. By the impugned judgment and order, the High Court in exercise of its revisional jurisdiction has set aside the order passed by the learned Special Judge framing the charge against the accused under Section 7 of the PC Act and consequently has discharged the accused for the said offence. What has been weighed with the High Court while discharging the accused is stated in paragraphs 10 & 11 of the impugned judgment and order, which are reproduced hereinabove.
11.1 In the case of P.Vijayan, this Court had an occasion to consider Section 227 of the Cr.P.C. What is required to be considered at the time of framing of the charge and/or considering the discharge application has been considered elaborately in the said decision. It is observed and held that at the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. It is observed that in other words, the sufficiency of grounds would take within its fold the nature of the evidence recorded by the police or the documents produced before the Court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him. It is further observed that if the Judge comes to a conclusion that there is sufficient ground to proceed, he will frame a charge under Section 228 Cr.P.C., if not, he will discharge the accused. It is further observed that while exercising its judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the court, after the trial starts.
11.2 In the recent decision of this Court in the case of M.R. Hiremath, one of us (Justice D.Y. Chandrachud) speaking for the Bench has observed and held in paragraph 25 as under:
“29. … At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage.”
15. As observed hereinabove, the High Court was required to consider whether a prima facie case has been made out or not and whether the accused is required to be further tried or not. At the stage of framing of the charge and/or considering the discharge application, the mini trial is not permissible. At this stage, it is to be noted that even as per S ection 7 of the PC Act, even an attempt constitutes an offence. Therefore, the High Court
has erred and/or exceeded in virtually holding a mini trial at the stage of discharge application.”
10. On plain reading of the above mentioned dictum,
the Hon’ble Supreme Court reiterated that, at the stage of framing of charge or consideration of discharge application, the Court has to find that there are sufficient grounds for proceeding against accused. If the Judge comes to the conclusion that there is sufficient ground to proceed, he has to frame the charge, if not, he has to discharge the accused.
namely Vadavi-Hosur. After receiving the said information, he secured the panchas and also accompanied other officials went to the spot and started watching movements of the person. The person was holding a bag in his hand and was selling ganja. After seeing the complainant and others, he started running from the spot. However, he was secured by the jurisdictional police. After securing him, they enquired the contents of the bag, he disclosed that it was ganja and he was selling the said ganja to the public. Immediately, it was seized. After conducting the investigation, submitted the charge sheet.
42. Power of entry, search, seizure and arrest without warrant or authorisation.— (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 paramilitary 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 further 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-section (1) or records grounds for his belief under the proviso thereto, he shall within seventytwo hours send a copy thereof to his immediate official superior.
person under the provisions of Sections 4117 and 42 or Section 4318, he shall, if such person so requires, take such person without unnecessary delay to nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in subsection (1).
(3) The Gazette Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a female.
(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazette Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974).
(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.
was holding a bag and the said bag contained ganja weighing about 1310 grams and he was selling the said ganja in the public. Therefore, the submission of the learned counsel regarding violation of any provisions cannot be accepted. Prima facie, there are materials to proceed against the petitioner and therefore, it is not appropriate to consider the discharge application at this stage. Consequently, it has to be rejected. Accordingly, I proceed to pass the following:
ORDER
The petition stands rejected.
The Trial Court is at liberty to proceed with the case in accordance with law.
CLK CT:ANB List No.: 2 Sl No.: 19
Sd/JUDGE
2 issues framed by the court
Whether non-compliance with Sections 41, 42 and 50 of the NDPS Act vitiated the search and seizure so as to warrant discharge.
Whether the discharge application could be entertained where prima facie materials exist against the accused.
Colour shows how this judgement treated each authority
Yusuf @ Asif V/s StateReferred¶6
Yusuf @ Asif V/s State in Criminal Appeal No.3191/2023 disposed of on 30.10.2023
State of Rajasthan V/s Ashok Kumar KashyapRelied on¶9
State of Rajasthan V/s Ashok Kumar Kashyap reported in (2021) 11 SCC 191 · Who else cites this
6 provisions across 2 enactments
Govidappa S/o Kenchappa Tamragundi
Chandrashekar Laxman Kattimani
The State of Karnataka through Gadag Cen Police Station
S.Rachaiya
As recorded by the court registry
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