Porangada K Kariappa Vs the State of Karnataka

THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 23.08.2013 PASSED BY THE S.J., KODAGU, MADIKERI IN SPL. CASE (NDPS) NO.7/2006 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 8(c) P/U/S 20(b)(ii)(B) OF THE N.D.P.S.ACT.

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THIS APPEAL, COMING ON FOR 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.M.T.Nanaiah, learned Senior counsel for

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the appellant and Sri.Channappa Erappa, learned HCGP for the respondent. The accused/appellant has suffered an order of conviction and sentenced as under in Special Case (NDPS) No.7/2006.

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The facts in brief which are utmost necessary for the disposal of the appeal are as under:-

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The prosecution case reveals that B.R.Lingappa was working as an Inspector of Police in the District Crime Investigation Branch, Kodagu, on receipt of credible information over telephone on 12.06.2006 formed a raid team comprising of himself and sub-staff, a Gazetted Officer and independent panch witnesses and proceeded to the spot as per the information and they spotted a person with a kit bag at about 4.00 p.m. in Kaikeri. On enquiry with the said suspect, he disclosed his name as Porangada Kariappa @ Katti and he was hailing from Aigunda village.

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On further enquiry, he revealed that Srimangala police had registered a case against him based on the complaint given by the Forest Department that he had grown ganja. He had hidden ganja in his house and he brought the same for sale. When the kit bag was opened, the raid team noticed that there were two polythene bags wherein, ganja leaves were kept. Both the bags were weighed. One bag weighed 3.25 kgs of ganja and other bag weighed 3.00 kgs of ganja. Samples were drawn from each of the bags separately and accused was taken to custody and mahazar was drawn.

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Thereafter, report came to be filed with regard to the incident and Gonikoppa police registered a case in Crime No.40/2006 for the offence punishable under Section 20(B) of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'NDPS Act' for short).

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After through investigation, charge sheet came to be filed. Learned Special Judge on receipt of charge

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sheet, took cognizance of the offence alleged against the accused and framed the charge. Accused pleaded not guilty. Therefore, trial was held.

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In order to bring on the guilt of the appellant, prosecution proceeded to examine 6 witnesses and placed on record 6 documentary evidence which are exhibited and marked as Exs.P.1 to P.6 and got marked five material objects as M.O.1 to M.O.5.

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After conclusion of recording the evidence, learned Special Judge recorded accused statement as is contemplated under Section 313 of Cr.P.C. wherein, the accused has denied the incriminating materials and did not choose to place any defence evidence nor his version about the incident.

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Thereafter, learned Trial Judge heard the arguments of parties in detail and on cumulative consideration of oral and documentary evidence on record, convicted the accused for the offence punishable under Section 8(c) punishable under Section 20(b) (ii) (B) of the

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NDPS Act and sentenced him to undergo rigorous imprisonment for 5 years and pay a fine of Rs.50,000/and in default, sentence of rigorous imprisonment for one year. Being aggrieved by the same, appellant is before this Court.

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Sri.M.T.Nanaiah, learned Senior counsel representing the appellant vehemently contended that in the case on hand, Gazetted Officers and Panch witnesses have turned hostile to the case of the prosecution and therefore, very seizure of the ganja from the custody of the appellant is not established by the prosecution by placing cogent evidence on record.

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He further contended that material evidence on record would not warrant the conviction of the accused for the aforesaid offence and the learned Trial Judge has recorded an order of conviction based on conjectures with the aid of presumption available to the prosecution and in the absence of any basic facts being established before the

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Court by the prosecution, resulting to the presumption and connecting the appellant would not arise.

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Alternatively, he contended that accused was in custody from the date of arrest till he was released on bail by exercising the power under Section 167 of Cr.P.C. on 17.08.2006. As such, the custody period may be treated as period of imprisonment as the appellant has already paid the fine amount. Thus, sought for allowing the appeal.

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Per contra, Sri.Channappa Erappa, learned HCGP opposes the appeal grounds in toto. He would further contend that the seized ganja is an intermediary quantity in as much as in one bag there was ganja leaves to the extent of 3.25 kgs and in the other bag, there was

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3.00 kgs of ganja and samples were sent to the FSL. On chemical examination, it was found to be the ganja as per the FSL report, which has supported the case of the prosecution and therefore, all ingredients required to attract the offence punishable under Section 20(b) (ii) (B)

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of NDPS Act. Hence, the case has been established by the prosecution by placing cogent and convincing evidence on record.

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He would further contend that mere pancha witnesses and Gazetted Officers turning hostile to the case of the prosecution would not ipso facto result in doubt in the case of the prosecution in as much as the head of the raid party did not nurture any previous enmity or animosity so as to incline 6.25 kgs of ganja only to hoist a false case against the appellant and thus, sought for dismissal of the appeal.

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Insofar as alternate submission is concerned, Sri.Channappa Erappa, learned HCGP would contend that people like appellant if shown leniency, same would result in encouraging the similarly placed perpetrators of the crime in committing such offence in future and also, who send a wrong message to the Society and thus, sought for dismissal of the appeal in toto.

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Having heard the parties in detail, this Court

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perused the material on record meticulously. On such perusal of material on record, following points would arise for consideration:-

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Whether the material evidence placed on record would be sufficient to maintain the conviction of accused for the aforesaid offences?

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Whether the appellant makes out a case of legal infirmity or perversity in the impugned judgment?

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Whether the sentence needs modification?

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What order?

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Regarding Point Nos.1 to 3:-

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In the case on hand, the panch witnesses,

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seizure mahazar and the Gazetted Officer in whose presence the body search of the accused and kit bag search has taken place as per the prosecution have turned hostile to the case of the prosecution. As such, what remains before the Court is oral testimony of the head of

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the raid party, sub-staff and the expert, who has examined the seized ganja and given the report.

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Therefore, there is sufficient force in the argument put forth on behalf of the appellant that the very raid itself is doubtful. At the same time, there is also equal force in the submission made on behalf of the prosecution that why would the head of the raid party would implant 6.25 kgs of ganja only with an intention to falsely implicate the present appellant in the case especially when there is no previous enmity or animosity existing between the head of the raid party and the appellant.

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Taking note of the incident, which is an isolated incident insofar as appellant is concerned and taking note of the deficiencies in the case of the prosecution and the seizure of ganja from the custody of the appellant, if the conviction is maintained by modifying the sentence, ends of justice would be met in the peculiar attendant facts and circumstances of the case.

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Thus, even though the material contradictions and case of the prosecution is not established as required by the law, if the conviction is maintained by directing that custody period already undergone by the accused to be treated as period of imprisonment by maintaining the fine amount, ends of justice would be met. Accordingly, point Nos.1 to 3 are answered partly in the Affirmative.

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Regarding point No.4:-

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In view of finding of this Court on point Nos.1 to

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3 as above, I proceed to pass the following:-

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ORDER

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Criminal Appeal is allowed in-part.

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While maintaining the conviction of the appellant for the offence punishable under Section 20(b) (ii) (B) of the NDPS Act, the custody period already undergone by the appellant is treated as period of imprisonment.

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