Allowed

Sri Shameer v. the State of Karnataka

Karnataka HC2 Jan 2024CRL.RP/166/2015

Case brief

AI extract

What is this about?

Conviction under Section 8(c) r/w 20(b)(ii)(A) NDPS Act for possession of ganja was challenged in revision. The court held the investigating officer failed to follow mandatory provisions of Sections 42, 43 and 50 of the NDPS Act, and that co-accused No.1 had been acquitted on identical evidence. Conviction and sentence were set aside and the petitioner acquitted.

What did the court decide?

Judgments of conviction and sentence set aside; petitioner acquitted under Section 8(c) r/w 20(b)(ii)(A) NDPS Act; fine refunded if paid.

Sri Shameer Vs the State of Karnataka — Narcotics (NDPS) | Karnataka HC (2024)

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NC: 2024:KHC:143 CRL.RP No. 166 of 2015

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 2^ND DAY OF JANUARY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE G BASAVARAJA CRIMINAL REVISION PETITION NO. 166 OF 2015

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BETWEEN:

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SRI SHAMEER

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AGED ABOUT 29 YEARS, S/O IBRAHIM, R/AT NEAR RAILWAY COSS, AMMEMAR, FARANGIPET, BANTWAL TALUK,D.K.

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…PETITIONER

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(BY SMT.HALEEMA AMEEN,ADVOCATE)

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AND:

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Digitally signed by SANDHYA S Location: High Court of Karnataka

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THE STATE OF KARNATAKA REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDINGS, BANGALORE.

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(BY SRI. M.R.PATIL, HCGP)

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…RESPONDENT

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THIS CRIMINAL REVISION PETITION IS FILED U/S.397 R/W 401CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 2.9.2013 MADE IN C.C.NO.5970/2007 BY THE COURT OF JMFCIII MANGALURU AND THE JUDGMENT AND ORDER DATED 8.1.2015 MADE IN CRL.A. NO.311/2013 BY THE COURT OF PRL. SESSIONS JDUGE, MANGALROE AND QCQUIT HIM OF THE OFFENCES WITH WHICH HE WAS CONVICTED BY THE COURTS BELOW.

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NC: 2024:KHC:143 CRL.RP No. 166 of 2015

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THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The revision petitioner/accused has preferred this

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revision petition against the judgment of conviction and order of sentence dated 02.09.2013 passed in C.C.No.5970/2007 by the Court of JMFC (III Court), Mangalore (hereinafter referred to as 'Trial Court' for short) which is confirmed by the judgment dated 08.01.2015 passed in Crl.Appeal No.311/2013 by the Court of the Principal Sessions Judge, D.K.Mangaluru (hereinafter referred to as 'Appellate Court' for short).

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For the sake of convenience, the parties in this

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appeal are referred to as per their status and rank before the Trial Court.

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The brief case of the prosecution is that on

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10.12.2005 at about 10.00 p.m., CW.1 received an information regarding the illegal sale of ganja in the side of the public road situated in front of the Amrith Bar at

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Shalle Padavu in Moodushedde Village of Mangalore and he has sent CW.9 in a civil dress to purchase the ganja. When CW.9 purchasing the ganja from the accused, the accused along with his officials raided the said place, caught hold the accused along with another accused and found the accused were in possession of 350 grams of ganja worth Rs.4,500/- illegally and seized the same and the motorcycle bearing Reg.No.KA-19-U-5990. Thus, the accused has committed the offence punishable under Section 8(c) r/w 20(b) (1) of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'NDPS Act' for short).

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After filing of the charge sheet, cognizance was taken against the accused, the case was registered in C.C.No.5970/2007. In pursuance of the summons, the accused has appeared before the Court and enlarged on bail. Charge framed and read over and explained to the Accused. Having understood the same accused pleaded not guilty and claimed to be tried.

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To prove the case of prosecution, 10

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witnesses were examined as PWs.1 to 10 and 14 documents were got marked as Exs.P1 to P14. On closure of prosecution evidence, statement under Section 313 of Cr.P.C. was recorded and the accused denied the evidence of prosecution witnesses and did not chose to adduce any

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defence evidence on his behalf. During the course of cross-examination of prosecution witnesses, Exs.D1 was got marked. On hearing the arguments on both sides, the Trial Court has convicted the accused for the commission of offence 8(c) r/w 20(b)(ii)(A) of NDPS Act and sentenced

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to undergo rigorous imprisonment with fine of Rs.5,000/-. In default of payment of fine, he shall undergo simple imprisonment for period of 1 month.

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Being aggrieved by the judgment of conviction and order of sentence passed by the Trial Court, the accused has preferred appeal before the Principal Sessions Judge, D.K.Mangaluru in Crl.Appeal No.311/2013 and the same came to be dismissed on 08.01.2015. Being

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NC: 2024:KHC:143 CRL.RP No. 166 of 2015

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aggrieved by this judgment, the revision petitioner has preferred this revision petition.

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Learned counsel for revision

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petitioner/accused submits that the impugned judgment of conviction and order of sentence which is confirmed by the Appellate Court is illegal, unreasonable and opposed to law and facts. The Trial Court has committed serious irregularities and illegalities while appreciating the materials on record. The prosecution has filed charge sheet against both accused. Since accused No.2 was absconding, the case against him was split up and the trial was conducted in C.C.No.5970/2007 and trial continued against accused No.1 and in a full fledged trial, the Trial Court has acquitted the accused No.1 in C.C.no.3294/2006. On the same set of evidence, the present revision petitioner could not have been convicted. Further, both the Courts have not considered the judgment passed in respect of accused No.1 in C.C.No.3294/2006 dated 19.12.2007 on the file of JMFC

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(III Court), D.K.Mangaluru. The Trial Court has failed to consider the evidence on record in accordance with law and facts.

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Further, the learned counsel submitted

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that the investigating officer has not followed the mandatory provisions of Sections 42,43 and 50 of NDPS Act. On all these grounds, he sought to allow this revision petition.

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As against this, learned High Court Government Pleader submits that the Trial Court has passed the judgment of conviction and order of sentence in accordance with law and facts and that there are no grounds to interfere with the impugned judgment passed by the Trial Court. As such, he sought to dismiss the revision petition.

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Having heard the arguments on both sides and on perusal of entire records, the following points would arise for my consideration:

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i. Whether the revision petitioner has made out the grounds to interfere with the impugned judgment of conviction and order of sentence passed by the Trial Court which is confirmed by the Trial Court?

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ii. What order?

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My answer to the above points are as

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under:

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Point No.1: in the affirmative

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Point No.2: as per final order

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Regarding point No.1:

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I have carefully examined the material placed before the Court.

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A perusal of records, it is crystal clear that the Trial Court has taken cognizance against accused Nos.1 and 2. Subsequently, during the course of trial, accused Nos.1 and 2 was absconded and accused No.1 was produced under NBW and the case against accused No.2 was split up and a separate case was registered in C.C.No.5970/2007. The case pertaining to accused No.1

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which was registered in C.C.No.3294/2006 reveals that accused No.1 was acquitted for the offence punishable under Section 8(c) r/w 20(b)(ii)(A) of NDPS Act on 19.12.2007 and that there are no material placed before this Court and the prosecution has proved this appeal against the judgment passed by the Trial Court against accused No.1. Hence, the judgment passed by the Trial Court against accused No.1 is final.

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In paragraph Nos. 10 to 14, the judgment passed by the Trial Court in C.C.No.3294/2006 dated 19.12.2007 against accused No.1 and the Trial Court has observed as under:

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" 10. P.W.1 in his evidence has deposed that the information received by him regarding the illegal sale of Ganja near Shalepadavu in Moodushedde. P.W.2 has stated about the seizure of M.Os. 1 to 3 from the possession of the accused as per Ex.P3. P.W.2 though has not clearly supported the case of prosecution, but he stated in his chief-examination that he is familiar with the accused Faizal and also admitted that he has signed the mahazar. P.W.4 who is the owner of Motorcycle stated in his cross-examination that ಈ ಪ�ಕರಣದ ಆ�ೋ� ಶ�ೕ� ಇಬ�ರೂ

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ಕೂಡ �ಾಂಜ �ಾ�ಾಟ �ಾಡಲು �ೋ�ಾಗ ನನ! "ೕ#ಾರು $ೈಕ&ನ&'

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(ೕ&ೕಸ*�ೆ +,- ./0�ಾ0�ೆ ಎಂದ�ೆ ಸ* .

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11. Accused counsel vehemently argued that, over all evidence produced by the prosecution has the probability of the case. However the provisions of law contain Narcotic Drugs and Psychotropic Substances Act requires existence of the fact regarding the possession of drugs by the accused beyond all reasonable doubt.

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12. The learned counsel for the accused has also disputed the procedure followed by the Investigating Officer and non-compliance of Sections 41,42 and 50 of Act, which are mandatory under the Act. It has come in the evidence that on reliable information regarding the sale of Ganja, P.W.1 has proceeded with the other officials to the spot. However he has not recorded the fact of information received by him. He has also not obtained any search warrant and followed procedure under Section 50 of the Act. The contention of the learned A.P.P., is that Investigating Officer has issued notice to the accused and on their request he himself conducted the search of the accused persons. However, Section 50 of the Act contemplates that the accused shall be taken to the nearest Gazetted Officer mentioned in the Section 42 or to the nearest Magistrate.

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13. Learned APP relied upon 2008(2) crimes 289 (sc)SC In between Chithhayan v/s. State of Tamil Nadu in which it is held that:

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Narcotic drugs and psychotropoc substances act 1985 section 8 © r/w 22, 42(2) 50- seizure of 2 kilograms of diazwpam from a bag carried by appellantconviction by trial court appeal tereeagainst on plea of non compliance of mandatory provisions of sec 42(2) and 50 of act dismissed by HC-appeal -so for as sec42(2) was concerned it was held that search was made in public place and not in a building and as such that was applicable was sec43 and not sec42(2) of act- so for as the applicability of sec 50 of act was concerned there was search of bag carried by appellant and there was no personal search- when there is no personal search and the search is effected in relation to a bag. Sec50 of the

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act ha o application- no infirmity found in judgment of HC so as to warrant interference-appeal having no merit dismissed accordingly.

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14. Relying upon above said citation APP argued that in the present case search of the bag carried by accused in a public place, there was no personal search and search is in relation to a bag sec 50 of the act has no application, hence sec 42(2) attracts not sec 43 of said act. I have gone through the above said citation which aptly applicable to the present case."

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On careful examination of evidence on

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record placed before this Court, it is crystal clear that the evidence of PW.8 -Sunil, he has purchased ganja from accused No.1 and he has given Rs.50/- to accused No.2. During his cross-examination, he also admitted as to the contents of Ex.D1 and also clearly stated that accused No.1 was possessing the ganja. The prime accused No.1 was acquitted by the Trial Court and the Trial Court has convicted accused No.2 while acquitting the accused No.1 has properly appreciated the evidence on record in accordance with law and facts.

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The investigating officer has not followed

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the mandatory provisions of Sections 42,43 and 50 of NDPS Act. Hence, both the Courts have not properly

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appreciated the evidence on records in accordance with law and facts. Accordingly, the appellant/revision petitioner has made out a ground to interfere with the judgment of conviction and order of sentence passed by the Trial Court which is confirmed by the Appellate Court. Hence, I answer point No.1 in the affirmative.

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Regarding point No.2:

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For the aforesaid reasons and discussions, I proceed to pass the following:

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ORDER

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i. Criminal revision petition is allowed .

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ii. Judgment of conviction and order of sentence dated 02.09.2013 passed in C.C.No.5970/2007 by the Court of the JMFC (III Court), Mangaluru D.K., which is confirmed by the judgment dated 08.01.2015 passed in Crl.Appeal No.311/2013 by the Court of the Principal Sessions Judge, Mangaluru are set aside.

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