Shri Krishnappa S/O Late Eswarappa Vs the State of Karnataka

SMT ANANDAMMA @ LAKSHMAMMA W/O CHANNAKESHAVACHAR AGED 45 YEARS, 4^TH CROSS, VEERASBHADRESHWARA SWAMY TEMPLE ROAD, CHALLAKERE, NOW RESIDING NEAR UCHANGAMMA TEMPLE, RANGAIAHNA BAGILU ROAD, CHITRADURGA

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…APPELLANTS

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Digitally signed by MALATESH K C

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Location: HIGH COURT OF KARNATAKA

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(BY SRI. KARTHIK YADAV U, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA REPRESENTED BY TUMKUR RURAL POLICE STATION

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…RESPONDENT

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(BY SRI. CHANNAPPA ERAPPA, HCGP)

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THIS CRL.A IS FILED U/S 374(2) OF CR.P.C PRAYING TO SET ASIDE THE ORDER OF CONVICTION AND SENTENCE OF THE APPELLANTS DATED 12.3.2012 IN SPL. CASE NO.79/2009 PASSED BY THE PRINCIPAL SESSIONS JUDGE (SPECIAL

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NC: 2025:KHC:3443 CRL.A No. 450 of 2012

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JUDGE), TUMKUR – CONVICTING THE APPELLANTS/ACCUSED NOS.1 AND 2 FOR THE OFFENCE P/U/S 20(b)(i) OF NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 AND ETC THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE V SRISHANANDA

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ORAL JUDGMENT

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Heard Sri Karthik Yadav, learned counsel for the appellants and Sri Channappa Erappa, learned High Court Government Pleader for the respondent.

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Appellants who have been convicted for the offence punishable under Section 20 (b) (i) of Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’ for short) were ordered to undergo rigorous imprisonment for a period of two years and six months and to pay fine of Rs.5,000/- each, with benefit under Section 428 of Cr.P.C., are the appellants, challenging the validity of the judgment passed in Special Case in 79/2009, on the file of Principal Sessions Judge, Tumakuru, dated 12.03.2012.

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Facts in brief which are utmost necessary for disposal of the present appeal are as under:

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On credible information, a raid party was formed by Tumakuru Rural Police and a decoy was sent to the house of the appellants with a Rs.100/- note for purchase of Ganja. Decoy went inside the house and on confirmation about the sale of ganja in the house of the appellants, gave predesignated signal to the raid party. Based on such signal, raid party comprising of head of the raid party, sub staff and the independent panchas entered into the house of the appellants.

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On enquiry, the appellants initially denied the sale

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of ganja in their place. On further enquiry, a plastic bag containing dried ganja weighing 3 kilograms, worth about Rs.50,000/- which was kept in a trolley suit case was taken out from its hidden place and kept on the chair in the house of the appellants. Raid party seized the same in the presence of pancha witnesses, as admittedly, appellants did not possess proper license to possess the said Ganja. Seizure proceedings had been photographed wherein pancha witnesses, members of the raid party, accused and seized ganja is very much visible in the room and the hall of the said house.

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Later on appellants were apprehended by the head

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of the raid party and after drawing mahazar, produced before the Station House Officer.

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Based on the report and the mahazar, Tumakuru Rural Police registered the case under Section 20 and 25 of NDPS Act, 1985.

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Accused/appellants were arrested and produced before the learned Special Judge and they were sent to Judicial Custody. Seized Ganja was retained by the Investigating Agency for the purpose of investigation and then sent to the Forensic Science Laboratory (‘FSL’ for short) for chemical examination.

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Thereafter on completion of the investigation in detail, charge sheet came to be filed for the aforesaid offences.

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On receipt of the charge sheet, learned Sessions Judge took cognizance of the aforesaid offences and secured the presence of the appellants and framed the charge. Appellants pleaded not guilty and therefore, trial was held.

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In order to bring home the guilt of the appellants, thirteen witnesses were examined as P.Ws.1 to 13 and as many

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as 17 documents were placed on record which were exhibited and marked as Exs.P.1 to 17. The prosecution placed on record nine material objects which were marked as M.Os.1 to 9 comprising of Rs.100/- currency note (one in number), ganja packets which were taken as sample, ganja packet containing 2 kg 850 grms, 3 ganja packets weighing 50 grms each, 12 packets of ganja, Rs.150 cash and Rs.100/- cash recovered from the appellants.

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On conclusion of recording of prosecution evidence, accused statement as is contemplated under Section 313 of the Code of Criminal Procedure was recorded. Accused denied all the incriminatory circumstances, but chose to examine three witnesses on their behalf as D.Ws.1 to 3 and marked copy of the panchanama dated 31.10.2007 as Ex.D.1.

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Thereafter, learned Special Judge heard the parties

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in detail and on cumulative consideration of the oral and documentary evidence placed on record, convicted the appellants for the offence punishable under Section 20 (b) (i) of Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced as referred to supra.

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Being aggrieved by the same, appellants are before

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this Court.

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Sri Karthik Yadav, learned counsel for the

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appellants reiterating the grounds urged in the appeal memorandum, vehemently contended that the learned Special Judge failed to properly appreciate the material evidence on record and wrongly convicted the appellants resulting in miscarriage of justice and sought for allowing the appeal.

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He also emphasized that the prosecution witnesses who supported the case of the prosecution are P.W.1 to 3, 5, 9 and 10 who have deposed that entire quanity of ganja seized under panchanama marked at M.Os.2 to 7 did not get examined by FSL and sample report received from the FSL did not tally with the remaining ganja and therefore, conviction of appellants is incorrect.

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Sri Yadav also contended that D.Ws.1 to 3 have been examined on behalf of the accused who have specifically stated that in order to foist a false case, M.Os 2 to 8/ ganja has been implanted in the house of the appellants by the

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prosecuting agency. Therefore, accused/appellants are to be held innocent.

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He also pointed out that the evidentiary value of Ex.D.1 is not properly discussed by the learned Special Judge in paragraph-33 of the impugned judgment resulting in miscarriage of justice and sought for allowing the appeal.

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Alternatively, Sri Karthik Yadav contended that in the event this Court upholding the order of conviction, Court may consider the fact that appellants are innocent and advanced in their age and they are the first time offenders and thus sought for showing leniency by directing the custody period already undergone by them as period of imprisonment as the conviction is under Section 20(b)(i) of NDPS Act, 1985 by allowing the appeal in part by enhancing the fine amount reasonably.

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Per contra, Sri Channappa Erappa, learned High Court Government Pleader supports the impugned judgment by contending that there is no previous enmity established by the

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evidence of D.Ws.1 to 3 on behalf of the appellants that a false case has been foisted against the appellants.

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No doubt, certified copy of the judgment passed in Spl. Case (NDPS No.5/2008) on the file of the Prl. District and Sessions Judge, Chitradurga, wherein similar case has been foisted against the appellants which ended in acquittal. But fact of seizure of ganja from the house of the appellants having been established in a proper manner, the conviction is to be upheld.

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He further pointed out that the defence taken that it is one Lokanath is the culprit and is left out by the Investigating Agency cannot be countenanced in law inasmuch as the possession of seized ganja by the appellants stands established by placing cogent evidence on record and thus sought for dismissal of the appeal.

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He also contended that no leniency can be shown as the offence under the provisions of NDPS Act, 1985, are grave unlike IPC offences and is a designed crime. Therefore, if any leniency shown to appellants, same would encourage the

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similarly placed perpetrators of crime and thus sought for dismissal of the appeal in toto.

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Having heard the parties in detail, this Court perused the material on record meticulously.

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On such perusal of the material on record, following

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points would arise for consideration.

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(i) Whether the material evidence placed on record by the prosecution is sufficient enough to maintain the Order of conviction of the appellants for the offence punishable under Section 20 (b) (i) of Narcotic Drugs and Psychotropic Substances Act, 1985?

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(ii) Whether the impugned judgment is suffering from legal infirmity, perversity and thus calls for interference by this Court?

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(iii) Whether the sentence is excessive?

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(iv) What Order?

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REGARDING POINT NOs.1 AND 2: In the case on

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hand, admittedly, place of incident is the house of the appellants. On credible information, Tumakuru Rural Police formed a raid team. To ascertain as to the sale of ganja from

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the house belonging to the appellants’ daughter, head of the raid party sent a decoy with a Rs.100/- currency note. Decoy went inside the home and purchased the ganja by tendering Rs.100/- sent by head of the raid party after noting the serial number of the currency note. Thereafter, decoy gave a predesignated signal to the raid party. It is at that juncture, all the raid party members entered the house of the appellants.

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On enquiry, initially appellants did not properly answer the queries put by the head of the raid party. On further enquiry, appellants went inside the room and took out a hidden trolley suit case and from that, they took out a plastic bag containing the some dried leaves. On opening the plastic bag, head of the raid party got confirmed that it is ganja as it had a strong odour.

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On further enquiry about possessing of the licence, appellants answered that they do not have licence to possess huge quantity of ganja. Smaller packets no doubt denoted the personal quantity, but, the plastic bag containing 3 kg ganja was of intermediary quantity.

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Taking note of the same, head of the raid party termed it as illegal possession of contraband article and seized the same in the presence of panch witnesses and drew the mahazar. Entire seizure proceedings were photographed and members of the raid party including panch witnesses and accused persons are clearly visible with the seized ganja in the photographs.

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Absolutely no explanation is forthcoming with regard to seized ganja is concerned from appellants.

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A feeble attempt is no doubt made that one Lokanath is the real culprit who implanted the ganja in the house of the appellants and later on intimated the police. Pertinent to note that said Lokanath is not cited as a witness on behalf of appellants though three witnesses viz.,Bhaskar, Lepakshachar and Prasannappa are examined on behalf of the accused as D.Ws.1 to 3.

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It is the contention of the appellants that it is Lokanath who is the real culprit and he is left out by the police without taking any action.

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In this regard what is required to be appreciated by the Court is the possession of seized ganja in the house of the appellants. On careful reading of the provisions of Section 20 of the NDPS Act, it is crystal clear that possession of illegal ganja completes the offence.

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No doubt, Sri Karthik Yadav contended that mere possession is not sufficient to complete the offence and conscious possession is to be established. Admittedly, place of incident is a house. The house belongs to the daughter of the appellants.

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After decoy gave pre-designated signal head of raid party entered inside house and enquired about possession of ganja. It is at that juncture, appellants took out hidden trolley suit case and opened it and from there plastic cover containing 3 kg ganja was shown to the raid party which was then seized. Therefore, contentions urged on behalf of the appellants that all ingredients to attract the offence under Section 20(b)(i) is not attracted cannot be countenanced in law.

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The fact of hiding the trolley suit case in the house and taken out by the appellants when the raid party entered

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the house sufficiently establishes the conscious possession of M.O.3-ganja by the appellants.

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Under such circumstances, even after re-

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appreciation of the material on record, this Court is of the considered opinion that material evidence placed on record by the prosecution is sufficient enough to maintain the conviction of the appellants for the offence punishable under Section 20(b)(i) of the NDPS Act.

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In view of the foregoing discussion, point No.1 is answered in the affirmative and point No.2 is answered in the negative .

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REGARDING POINT No.3: For the aforesaid established offence, learned Special Judge using his discretion has granted 2 ½ years rigorous imprisonment along with fine of Rs.5,000/- each. Admittedly, appellants are first time offenders. Age of the appellants as on today is 88 and 61, respectively.

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Sri Karthik Yadav, contended that, appellants are suffering from usual old age ailments and are not in a position

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to serve rigorous imprisonment as ordered by the learned Special Judge.

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He also contended that taking note of the fact that the appellants are first time offenders and are in the evening of their life, suitable orders be passed by reducing the sentence of imprisonment by enhancing the fine amount reasonably.

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Taking note of these aspects of the matter, custody period already undergone by them if treated as period of imprisonment by enhancing the fine in a sum of Rs.25,000/(Rs.5,000/-imposed by learned Special Judge plus Rs.25,000/=Rs.30,000/-) each would meet the ends of justice.

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Accordingly, point No.3 is answered partly in the affirmative .

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43. REGARDING POINT No.4: In view of the finding of

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this Court on point Nos.1 to 3 as above, the following:

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ORDER

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(i) Appeal is allowed in part .

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(ii) While maintaining the conviction of the appellants for the offence punishable under Section 20(b)(i) of the NDPS Act, sentence of rigorous imprisonment for 2½ years is setaside by directing that the custody period already undergone by the appellants is to be treated as period of imprisonment in the peculiar facts and circumstances of the case by enhancing fine amount in a sum of Rs.25,000/- payable by each of the appellants (Rs.5,000/- +25,000/-=Rs.30,000/- in all) on or before 28.02.2025 failing which appellants shall undergo rigorous imprisonment as ordered by the learned Special Judge.

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(iii) Office is directed to return the Trial Court Records with copy of this judgment forthwith for issuance of modified conviction warrant.

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Sd/(V SRISHANANDA) JUDGE

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MR-paragraphs 1 to 6, kcm-paragraphs 7 to end. List No.: 1 Sl No.: 41

Shri Krishnappa S/O Late Eswarappa v. the State of Karnataka

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Shri Krishnappa S/O Late Eswarappa v. the State of Karnataka

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