Syed Pasha Vs State of Karnataka

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NC: 2025:KHC:10414 CRL.A No. 82 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12^TH DAY OF MARCH, 2025

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BEFORE

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THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR

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CRIMINAL APPEAL NO. 82 OF 2013 (C)

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BETWEEN:

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SYED PASHA S/O SYED GAFOOR AGED ABOUT 58 YEARS RESIDENT OF MUTHUR COLONY MUTHUR VILLAGE & POST PIRIA PATNA TQ MYSORE DISTRICT (NOW IN JUDICIAL CUSTODY)

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…APPELLANT

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(BY SRI. K. RAVISHANKAR, ADVOCATE)

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AND:

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Digitally signed by SHAKAMBARI Location: HIGH COURT OF KARNATAKA

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STATE OF KARNATAKA REPRESENTED BY P.S.I SIDDAPUR POLICE STATION KODAGU DISTRICT …RESPONDENT

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(BY SRI. RAJATH SUBRAMANYAM, HCGP)

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THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 16.01.2013 PASSED BY THE S.J., KODAGU, MADIKERI IN SPL. CASE (NDPS) NO.9/2007 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE UNDEER SECTION 8 (C) P/U/S 20(b) OF THE N.D.P.S. ACT.

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

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NC: 2025:KHC:10414 CRL.A No. 82 of 2013

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CORAM: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR

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ORAL JUDGMENT

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This appeal is directed against the judgment of conviction and order of sentence dated 16^th January 2013 passed in Spl.Case (NDPS) No.9/2007 by the Sessions Judge, Kodagu at Madikeri.

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Before the trial Court, there were two accused. Both were convicted and sentenced. But, it is only accused no.1 who has preferred this appeal.

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Parties to this appeal are referred to as per their rank before the trial Court for convenience.

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The accused were charge-sheeted by the SubInspector of Police, Siddapura Police Station for the offences punishable under Section 8-C read with Section

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20-B of NDPS Act and Section 120-B of IPC.

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The factual matrix as per the case of the prosecution are as under:

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That on 31.05.2007, at about 10.00 a.m., the complainant PW.1 P.P.Santhosh, the then PSI of Siddapura Police Station received an anonymous information through his telephone, stating that, in a shop adjoining the lodge by name _Karavali(Kaveri) Lodge_ ' on the way to Karadigoodu from Siddapura, there are activities of selling theganja' illegally. Therefore, along with his staff and Gazetted Officer, Dr.A.B.Thammaiah with two panchas by name Aknooru Prabhakara and P.Thiruma alias Raja went to the said place at about 12.30 p.m. He checked the shop

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and noticed, that in the drawer of the table, there were 58 packets of ganja weighing 5 grams each. Accused no.2 was present in the shop and he informed that the said packets are kept for sale. A notice was served on him and a search was conducted on his person. It is noticed that, in his right pant pocket, there were four ganja packets each weighing 5 grams. The accused no.2 was not having permit to possess or sell the said ganja packets. On enquiry, it was revealed by him that, it was accused no.1 used to supply the said ganja packets for the purpose of

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sale. It is further stated that, within a short time, accused no.1 also came there and accused no.2 showed accused no.1 stating that, it is accused no.1 who supplied the said ganja packets.

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On search of accused no.1, it is noticed that, there were dry leaves of ganja, sticks and seeds. On weighing the same, a packet was containing 1 kg. 200 grams of ganja. Accused no.1 was not having any permit to possess and sell the same. Therefore, PSI Siddapura Police Station prepared the panchanama, apprehended the accused and brought them to the police station along with the panchanama. Based upon that, he registered the crime in crime No.64/2007 of his police station. On completion of investigation, he filed the charge sheet against the accused for the aforesaid offences.

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During the crime stage itself, the present accused/appellant was enlarged on bail. Copies of police papers were furnished to him as contemplated under Section 207 of Cr.PC. Charges were framed against the

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accused persons for the aforesaid offences, for which, they pleaded not guilty and claimed to be tried.

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To prove the case of the prosecution, eight

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witnesses were examined in the shape of PWs.1 to 8, got marked Exs.P1 to P11 and MOs nos.1 to 8. Thereafter, accused were questioned under Section 313 of Cr.PC so as to enable them to answer the incriminating circumstances appearing in the evidence of prosecution. They denied their complicity in the crime and did not choose to lead any defence evidence. However, through PW.6 Ex.D1 to D5 were marked on behalf of the defence.

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The learned trial Court on hearing the

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arguments and on evaluation of the evidence found both the accused guilty of committing offence under Section 8-C read with Section 20-B of NDPS Act and sentenced them as under:

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"A-1 is sentenced to undergo rigorous imprisonment for five years and pay a fine of Rs.50,000-00 (Rupees Fifty thousand only) and in default of

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payment of fine to undergo rigorous imprisonment for one year.

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A-2 is sentenced to undergo rigorous imprisonment for three months and pay a fine of Rs.5,000-00 (Rupees Five thousand only) and in default of payment of fine to undergo rigorous imprisonment for one month.

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The period spent by the accused as under trial prisoners shall be given set off against the sentence now imposed".

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Being aggrieved by the said judgment of conviction and order of sentence, now accused no.1 is before this Court challenging the judgment of his conviction and order of sentence.

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Heard the arguments of learned counsel for accused no.1 and learned Additional HCGP for State and perused the records.

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It is submitted by the counsel for the accused that, the pancha witnesses examined in the shape of PW.13 and 14 have given a clear go bye to the case of the prosecution and thus, the very seizure is not proved. The present accused is falsely implicated based upon the

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statement of accused no.2. There is no incriminating evidence against present accused no.1 and only the allegation was accused no.1 used to supply the ganja, a narcotic drug, but, this fact is not proved in accordance with law.

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PW.1 has acted as complainant as well as IO in this case which is fatal to the case of the prosecution. When seizure of the narcotic drug is not proved and when search procedures are not followed by the IO as per the provisions of NDPS Act, 1985 and Cr.PC, then, there is a room for suspecting the case of the prosecution. He would further submit that, evidence of PW.1 never inspire any confidence in the mind of the court. The seized so called ganja packets were retained by the IO for a period of 12 days and then, thereafter were sent to FSL for chemical examination. For this delay, there is no explanation offered by the IO. Further, he submits that, no notice is served upon accused no.1 & 2 before conducting any raid.

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He submits that, when there is no search as per

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the provisions of Section 50 of NDPS Act which is mandatory, then it is fatal to the case of the prosecution. He would further submit that, prosecution has utterly failed to prove the guilty of the accused beyond all reasonable doubt. In support of his submission, he relied upon the following decisions of Hon'ble Apex Court.

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i. "Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609,

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ii. Karnail Singh v. State of Haryana, (2009) 8 SCC 539

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iii. Mina Pun v. State of Uttar Pradesh, 2023 LiveLaw (SC) 724,

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iv. The State of Karnataka v. Sri.M.K. Mahesha and others Crl.A.no.1741/2019 decided on 27.11.2023".

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He submits that, in view of the law laid down by the Hon'ble Apex Court, impugned judgment is not at all sustainable in the eyes of law.

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Per contra, the learned HCGP with all

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vehemence submits that, the trial Court by assessing the evidence in proper perspective has passed the impugned

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judgment which does not call for any interference by this Court. He would submit that, PW.1 being the complainant and IO has clearly supported the case of the prosecution and his evidence has rightly been believed by the trial Court. The other witnesses have supported the case of the prosecution. Therefore, he prays to dismiss the appeal.

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Both the counsel relied upon the evidence placed on record by the prosecution both oral and documentary.

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In view of these rival submissions, the point that would arise for my consideration is:

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"Whether the trial Court has committed any

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factual or legal error by passing the impugned judgment of conviction and order of sentence against the accused?"

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PW.1 being the complainant reiterates the

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contents of the panchanama in his evidence on oath. According to him, on 31.5.2007, at 10.00 a.m., when he was in the police station, he received a anonymous

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telephone call informing about selling of ganja illegally from a shop situated abutting 'Karavali Lodge' by keeping the same in a small box. Immediately, he noted the said fact in his station house diary and along with two panchas and police staff as well as Gazetted Officer Dr.Thammaiah went to the said shop in a departmental jeep. There he noticed the presence of accused no.2 in the shop. On enquiry he told his name and address. It was revealed by him that, he is selling ganja in his shop supplied by accused no.1. Therefore, a search was conducted and it is noticed that, accused no.2 was found possessing 58 ganja packets. It is his evidence that, as the matter was urgent, he obtained search warrant from Dy.SP as per Ex.P1. A letter was given to accused no.2 as per Ex.P2 and his signature was taken.

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On personal search of accused no.2, they

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noticed 'four small packets' containing ganja of 5 gram each and in the cash box, they noticed 58 such packets containing ganja. By that time, accused no.1 came there

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for supplying the said ganja packets. The said accused no.1 came along with a plastic bag and on search they noticed 1 kg. 200 grams of ganja in the said plastic bag containing ganja leaves, sticks and seeds. From accused no.2, 62 ganja packets were seized and 10 were taken as sample which is marked at MO No.4. He identifies other packets also. Thereafter, all of them came to the police station along with panchas and submitted report as per Ex.P5 to the Court. There is no evidence placed on record through PW. 1 that, he had really followed the provisions of Section 50 of NDPS Act which speaks of conditions under which the search of persons to be conducted. This

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Section 50 reads thus:

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"50. Conditions under which search of persons shall be conducted.—

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(1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazette Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.

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(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).

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(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.

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(4) No female shall be searched by anyone excepting a female.

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(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).

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(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".

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Further, Section 41 of Cr.PC also speaks with

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regard to search. Though, it is stated in the panchanama

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that, the accused no.1 is found possessing 1 kg. 200 grams of ganja, leaves, sticks and seeds, whether they were seized or not and sent for chemical examination, the evidence of PW.1 is very much silent.

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This PW.1 is cross-examined by the defence counsel. Though intensive cross-examination is directed to PW.1, his evidence is silent about the fact that, when he went to the shop of accused no.2, he did not enquiry about possessing licence by accused no.2. He has not enquired about, in whose name the said licence is standing. The weighing machine which was used for weighing the ganja packets is not seized by him. According to him, it was a small scale. He admits that, in a notice issued to Gazetted Officer, there is no mention with regard to place of conducting the raid. He is not having any expertise in conducting raid with regard to the narcotic drugs i.e. ganja. As per his evidence, he reached the shop of accused no.2 and when he was enquiring accused no.1 came there by walk. Further, he states that,

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as accused no.1 was found with ganja bag, therefore a case was registered. The said shop of accused no.2 is belonging to owner of the Karalavai Lodge.

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If evidence of PW.1 is scrupulously perused categorically it shows that, he has not followed the mandatory provisions of Section 50 of NDPS Act with regard to conducting of search.

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PW.2 H.K.Mahadeva was HC at the relevant

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time, stated in line with evidence of PW.1. He has stated that, on weighing the said ganja, it was weighing 1 kg. 200 grams, it was sealed. But, in the cross-examination he states that, he came to know about the selling of the ganja through PSI in the police station. Panchas are the residents of Karadi village. He admits that, in front of police station only, the office of veterinary doctor is situated who is a gazetted officer. He further states that, when he went to the shop, accused no.2 was only there and it was a petty shop. There is no corroborative

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evidence spoken to by this PW.2 with that of evidence of PW.1.

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PW.3 A.P.Prabhakar, PW.4 Thirumalal Raja are stated to be panchas and both have turned hostile. They never say that, they accompanied the police at the time conducting search of illegal possession of ganja, as well selling of the same. PW.3 states that, he has put his signature in Siddapura police station and denied all the suggestions so directed to him by public prosecutor after declaring him as hostile witness. So also PW.4 his signature was taken in the police station itself.

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In all criminal cases, Panchas are the authors of pancahnama. When they turn hostile, no evidentiary value can be attached to such evidence. Therefore, evidence of PW.3 and 4 become inconsequential to the case of the prosecution.

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PW.5 is the constable who carried seized ganja

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packets to the FSL on 13.6.2007 for the purpose of chemical examination. Though the raid was conducted on

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31.5.2007, but, after more than 12 days, the said seized ganja packets were sent to chemical examination. For this all 12 to 13 days, where these ganja packets were preserved and what was the reason for sending the same after 12 days for chemical examination is not explained by PW.1 who was the custodian of said seized articles. It is argued that, during these 13 days, there is possibility of tampering the articles by IO. The accused no.1 has been falsely implicated. Possibility of replacement/tampering cannot be ruled out in view of dearth of evidence placed on record by the prosecution.

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PW.6 Vimal Nanaiah is the owner of the said Karavali Lodging and it was accused no.2 who took the shop premises on lease. To that extent, the evidence of PW.6 is to be accepted.

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PW.7 K.C.Apanna, was the PDO of Siddapura Grama Panchayath and issued Ex.P11 which is not in dispute.

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PW.8 Dr.A.B.Thammaiah, the Gazetted Officer

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who accompanied the IO states in his evidence that, he along with the Police went to the shop of accused no.2 and on enquiry, it was revealed that, he was selling the ganja. He states that, 58 ganja packets were seized from the possession of accused no.2 and even from his packets, four such packets were seized. By that time, one person came i.e., accused no.1 and he was possessing ganja weighing 1 kg. 200 grams which was also seized. He put his signature. He states, in his presence, as per the statement of accused no.1 and 2, a search was conducted on the person of accused nos.1 and 2.

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In the cross-examination, this PW.8 deposed from where the police brought the scale for the purpose of weighing the ganja packets. He states that, there were so many persons moving near the Karavali Lodge at that time.

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If the evidence of PW.6 is perused, he never says with regard to following the mandatory provisions of

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NIDPS Act in conducting search as contemplated under section 50 of the said Act by the IO. In para.15, 18 to 23 of the first decisions stated above, the Hon'ble Apex Court have categorically held that, in case of search, the officer shall record the reasons for such belief which necessitated such search and within 72 hours, send a copy thereof to his immediate superior official. This procedure is not followed by IO. As per the provisions of NDPS Act, the provisions of Sec.50 of the said Act are mandatory, the investigation officer is bound to follow such a procedure. But, in this case, it is not so.

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Further, in the Karnail Singh's decision, supra, the Hon'ble Apex Court, it is held that, in special circumstances and emergent situations, the noncompliance of Section 42 is mandatory, but, it will not vitiate the raid. But, however, the prosecution is under obligation to comply the provisions of NDPS Act in a proper manner. In para.17 of the said decision, it is observed by the Hon'ble Apex Court as under:

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"17. It is clear from Sajan Abraham [(2001) 6 SCC 692 : 2001 SCC (Cri) 1217] that to enforce the law under the NDPS Act stringently against the persons involved in illicit drug trafficking and drug abuse, the legislature has made some of its provisions obligatory for the prosecution to comply with, which the courts have interpreted to be mandatory. It is further clear that this is in order to balance the stringency for an accused by casting an obligation on the prosecution for its strict compliance. The Court however while construing such provisions strictly should not interpret them literally so as to render their compliance impossible. It concluded that if in a case, the strict following of a mandate results in delay in trapping an accused, which may lead the accused to escape, then the prosecution case should not be thrown out. It is also clear that when substantial compliance has been made it would not vitiate the prosecution case".

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In the Mina Pun's decision, supra, in

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paragraphs 6,7 and 8, the Hon'ble Apex Court has observed as under:

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"6. Thus, it is an admitted position that in the consent letter, it is not mentioned that the appellants were informed about their right to insist that either a Magistrate or a Gazetted Officer

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remains present when their body search is conducted.

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7. Learned counsel appearing for the appellants read over the consent letter at Exhibit Ka-1 which only records that the appellants had voluntarily agreed to a body search. Thus, the appellants were not informed about their right to be searched before a Magistrate or a Gazetted officer.

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8. In view of the law laid down by a Constitution bench of this Court in Vijaysinh Jadeja v. State of Gujarat1, it is crystal clear that there was a violation of the safeguard provided by Section 50 of the NDPS Act. In paragraphs 24 and 29 of its decision, the Constitution Bench held thus:

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“24. Although the Constitution Bench in Baldev Singh case [(1999) 6 SCC 172 : 1999 SCC (Cri) 1080] did not decide in absolute terms the question whether or not Section 50 of the NDPS Act was directory or mandatory yet it was held that provisions of sub-section (1) of Section 50 make it imperative for the empowered officer to “inform” the person concerned (suspect) about the existence of his right that if he so requires, he shall be searched before a gazetted officer or a Magistrate; failure to “inform” the suspect about the existence of his said right would cause prejudice to him, and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the

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conviction has been recorded only on the basis of the possession of the illicit article, recovered from the person during a search conducted in violation of the provisions of Section 50 of the NDPS Act. The Court also noted that it was not necessary that the information required to be given under Section 50 should be in a prescribed form or in writing but it was mandatory that the suspect was made aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him. We respectfully concur with these conclusions. Any other interpretation of the provision would make the valuable right conferred on the suspect illusory and a farce".

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Likewise, a judgment of co-ordinate bench of

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this Court supra , relying upon the facts of the case has

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also observed that, if mandatory provisions are not followed and if there is no fair investigation i.e. complainant as well as judicial officer, then, the investigation is said to be vitiated. For this, the co-ordinate bench of this Court in Sri.M.K. Mahesha supra

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relied upon a decision in Mohan lal vs. Punjab reported in AIR 2018 SC 3853 which reads as under:

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"(B) Constitution of India, Art.21 - Fair trial - fair investigation is foundation of fair trial - And requires informant and investigating Officer not to be same persons especially in laws carrying reverse burden of proof - When informant and Investigation Officer is same person, investigation is said to be vitiated".

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Thus, if all these factual features coupled with infirmity noticed above, the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt. The learned trial Court, without properly appreciating the evidence placed on record and the law with regard to search has wrongly come to the conclusion that, accused no.1 is guilty of aforesaid offence, which, in my opinion is incorrect and requires interference by this Court. Therefore, this appeal deserves to be allowed and the impugned judgment is liable to be set aside.

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Resultantly, I pass the following:

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ORDER

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i) The Criminal Appeal is allowed .

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ii) The judgment of conviction and order of sentence dated 16.01.2013 passed in Special Case (NDPS)No.9/2007 by the Sessions Judge, Kodagu at Madikeri is hereby set-aside.

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iii) Consequentially, the accused is acquitted of the charges punishable under Sections 8(c) and 20(B) of the NDPS Act.

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