Muniyandi Vs State of Karnataka

THIS CRL.A. IS FILED U/S.374(2) CR.P.C BY THE ADV. FOR THE APPELLANT PRAYING TO SET ASIDE THE ORDER DATED:5.4.12 PASSED BY THE PRINCIPAL SJ AND SPECIAL JUDGE, MYSORE IN SPL.CASE NO.30/11-CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCES P/U/S.20 OF NARCOTIC DRUGS PSYCHOTROPIC SUBSTANCES ACT 1985 AND ETC.

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

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NC: 2025:KHC:7681 CRL.A No. 536 of 2012

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CORAM: HON'BLE MR JUSTICE V SRISHANANDA

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ORAL JUDGMENT

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Heard the learned counsel Sri. Ajay Prabhu appearing

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for the appellant and learned High Court Government Pleader for respondent -State.

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Appellant is the accused who has suffered an order of conviction under Section 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter

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referred to as ‘NDPS Act’ for short) and ordered to undergo imprisonment for a period of three years and to pay fine of Rs.10,000/- with default sentence of six months.

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

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A report came to be lodged stating that on

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28.08.2010 at about 8.30 a.m. head of the ride party who

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is Station House Officer, H.D. Kote Police Station received a credible information that within the jurisdiction of

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H.D.Kote Police Station, at Paduvakote village,

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Gandhinagar in the backyard, some persons have grown the ganja plants. Immediately, he formed a raid team comprising of himself, sub-staff and two independent panch witnesses and intimated the information to the Deputy Superintendent of Police.

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Based on the information raided the place, which is near the house of accused No.1. On visiting the place, accused No.1 was found in removing the Ganja plants by cutting the same. Immediately, he was taken to custody.

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Based on his information raid team proceeded

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towards the house of accused No.2. There also they found Ganja plants grown in the open space. They counted the number of ganja plants which were 37 in number. Those plants are uprooted in the presence of panch witnesses and thereafter the uprooted ganja plants from both the places were weighed. Total weight of the Ganja plants was

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45 kgs including the root, stem, leaves and flower tops. A panchanama was drafted on the spot.

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Thereafter, accused Nos.1 and 2 were taken to custody and the head of the raid party visited the H.D.Kote Police Station and handed over the seized ganja plants, custody of the accused persons along with the report and panchanama. Station House Officer thereafter registered the case under Section 20(b) of NDPS Act and arrested the accused persons and sent them to the judicial custody.

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Detailed investigation was conducted and charge sheet came to be filed against the accused persons. Learned Special judge at Mysore took cognizance of the offences alleged against the appellant and second accused and charges were framed. Accused persons pleaded not guilty therefore trial was held.

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In order to bring home the guilt of the accused persons, 11 witnesses were examined on behalf of prosecution as PW-1 to PW-11.

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Ten documentary evidences were placed on record by the prosecution which were exhibited and

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marked as Exs.P.1 to P.10, spot cum seizure mahazar, statement, report letter, FSL report, FIR, permission letter and report pertaining to investigation.

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The sample packets containing the Ganja that

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were seized on the spot were marked as M.O.1 to M.O.6. Sickle with which accused No.1 was tried to cut the ganja, the same was seized and marked as M.O.7. Pipe pieces and rope were marked as M.Os.8 and 9.

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On conclusion of recording the evidence, learned trial judge recorded the statement of accused persons as is contemplated under Section 313 of Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C.’ for short). Accused persons denied all the entire

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incriminating circumstances found in the case of the prosecution; but failed to offer any explanation in wiring as is contemplated under Section 313 (4) Cr.P.C. Never placed in defence evidence to rebut the prosecution available to the prosecution.

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Thereafter, learned trial Judge heard the arguments of the parties and by impugned judgment acquitted accused No.1-Chinnathambi and convicted the present appellant Muniyandi for the offence under Section 20(b) of the NDPS act and sentenced as under:

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“For having taken note of the age of A2 and he is having wife and children, A2 is sentenced to undergo rigorous Imprisonment for Three years and shall pay fine of ``` 10,000/- for the offence punishable U/Sec.20 of the Narcotic Drugs and Psychotropic Act and in default of making the payment of fine amount, A2 shall further undergo Six Months of Rigorous Imprisonment for the said offence.”

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Being aggrieved by the same, appellant is before this Court.

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Learned counsel for the appellant Sri. Ajay Prabhu contends that the very fact that the accused No.1

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has been acquitted by the learned trial Judge, same logic should also apply to the case of the appellant as well and therefore convicting the appellant alone in the very same transaction, based on the very same seizure mahazar and report of the head of the raid party has resulted in the miscarriage of the justice and sought for allowing the appeal.

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He would further contend that except that the place belong to the present appellant where the alleged ganja plants were grown, no other material evidence is placed on record by the prosecution to establish that it is the appellant, who knowing fully well that it is ganja plant has grown the same so as to attract the ingredients of offence under Section 8 and Section 20 of the NDPS Act and sought for allowing the appeal.

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Alternatively Sri. Ajay Prabhu would contend that the seized ganja consisted of cutting and uprooting the plants in two places, appellant could not have been convicted for the offence punishable under Section

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20(b)(ii)C of the NDPS Act and sought for allowing the appeal.

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Sri. Ajay Prabhu also contended that in the event this Court upholding the order of conviction, it could only be conviction for a intermediary quantity and not for commercial quantity wherein no minimum punishment is prescribed. As such, custody period already undergone by the appellant for a period of 17 days may be treated as period of imprisonment by enhancing the fine payment reasonably taking note of the fact that appellant is now aged 66 years and incident is an isolated incident.

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Per contra , Sri. Chennappa Erappa, learned High Court Government Pleader supports the impugned judgment. He would further contend that the very fact that the head of the raid party receiving the credible information and proceeding to the spot and noticed growing of ganja plants in the vacant space adjacent to the houses of accused Nos. 1 and 2 completes the offence in as much as growing up ganja itself is an offence.

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He would further contend that head of the raid party and panch witnesses have supported the case of the prosecution and such a huge number of ganja plants would not have been implanted by the raid party only to foist a false case against the appellant and thus sought for dismissal of the appeal.

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Learned High Court Government Pleader Sri. Chennappa Erappa would also contend that all the quantity of the ganja seized from the place of accused No.1 and place of accused No.2 are specifically mentioned in the panchanama and mere acquittal of accused No.1 could not ipso facto make out a case for the appellant No.2 to walk out with an order of acquittal and thus sought for dismissal of the appeal.

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Insofar as alternate submission is concerned, Sri.Chennappa Erappa would contend that if people like appellant are shown mercy and lenience, then similarly placed perpetrators of crime would get encouraged by

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such leniency and may indulge in repeating such offences

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and therefore sought for dismissal of the appeal in toto .

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Having heard the parties in detail, this Court perused the materials on record meticulously. On such

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perusal following points would arise for consideration.

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1) Whether the material on record would be sufficient enough to sustain the conviction of the appellant for the offence punishable under Section 20 of NDPS Act?

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2) Whether the appellant is successful in establishing that the impugned judgment is suffering from legal infirmity, perversity thus calls for interference?

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3) Whether the sentence is excessive?

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4) What order?

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Regarding Points No. 1 and 2: In case on

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hand, seizure of 37 ganja plants from the vacant space adjacent to the house of the appellant stands established by placing cogent and convincing evidence on record.

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Admittedly, ganja seized from the custody of accused No.2

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is the wet Ganja. With regard to the weighment of wet

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ganja to consider the wet ganja into the commercial

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quantity, there is no material evidence placed on record.

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There was no impediment for the Investigating Officer to proportionately mention the weight of the seized ganja plants estimating the dry value thereof after cutting the roots of those uprooted ganja plants. No such attempt is made by the investigating agency.

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Therefore, in the case on hand, even though all ingredients to attract the offence under Section 8 and Section 20 of the NDPS Act has been established by the prosecution through seizure mahazar and oral evidence of the head of the raid party and other prosecution witnesses with regard to the commercial quantity there is no clinching evidence.

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Therefore, the impugned judgment needs to be modified to the extent, by holding that the seized ganja is to be termed as intermediary quantity punishable under section 20(a)(ii)B of the NDPS Act.

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More over, head of the raid party did not nurture any previous enmity or animosity as far as accused No.2-appellant is concerned so as to falsely implicate appellant in the matter. Growing of 37 ganja plants in the vacant space could not be treated as without knowledge attributable to the appellant. All these factors are viewed cumulatively the trial Judge has rightly convicted the appellant who is accused No.2 in the instant case. Acquittal of accused No.1 ended in finality inasmuch as State did not choose to file any appeal.

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In view of foregoing discussion, even after

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reappreciation of material evidence on record this Court is of the considered opinion that the appellant is guilty of under the provisions of NDPS Act, but not for the commercial quantity and conviction of appellant is to be scaled down to the offence for the intermediary quantity.

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In view of the foregoing reasons points No.1 and 2

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answered partly in the affirmative .

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28. Regarding Point No.3: This Court having

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scaled down the offence from commercial quantity to intermediary quantity, wherein no minimum punishment is prescribed, taking note of the fact that it is an isolated incident and appellant is now aged 66 years and spent 17 days in the judicial custody during the course of investigation, enhancing the fine amount to a sum of Rs.75,000/- and setting aside the balance imprisonment period would meet the ends of justice in the peculiar facts and circumstances of the present case.

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

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29. Regarding Point No.4: In view of finding of

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this Court on points No.1 to 3, following order is passed:-

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ORDER

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(i) Criminal Appeal is allowed in-part .

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(ii) Accused is convicted of the offence punishable under Section 20(a)(ii)(i)B.

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(iii) Consequently, the sentence ordered by the learned Trial Judge is modified as under:-

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(iv) Custody period already undergone by appellant is treated as period of imprisonment for the aforesaid offence and ordered to pay enhanced fine amount of Rs.75,000/- on or before 20.03.2025 failing which, he shall undergo imprisonment as ordered by the trial Court Judge.

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(v) Office is directed to return the trial Court records with copy of this order forthwith.

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Sd/(V SRISHANANDA) JUDGE

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BVK List No.: 1 Sl No.: 29

Muniyandi v. State of Karnataka

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Muniyandi v. State of Karnataka

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